741 F.

2d 1248

Dennis Wayne SMITH, Petitioner-Appellant,

v.
Louie L. WAINWRIGHT, Secretary of Florida Department of
Offender Rehabilitation, et al., Respondents-Appellees.
No. 83-3690.

United States Court of Appeals,

Eleventh Circuit.
Aug. 23, 1984.
Rehearing and Rehearing En Banc Denied Oct. 31, 1981.

Sondra Goldenfarb, Patrick D. Doherty, Clearwater, Fla., for petitionerappellant.

Theda James Davis, Asst. Atty. Gen., Tampa, Fla., for respondentsappellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before RONEY and HILL, Circuit Judges, and TUTTLE, Senior Circuit
Judge.
JAMES C. HILL, Circuit Judge:

Dennis Wayne Smith appeals to this court from the order of the district court
denying his petition for a writ of habeas corpus. We affirm the district court's
judgment in part; however, concluding that Smith should have received a
hearing on some of his claims of constitutional error, we vacate in part and
remand.

Smith was tried and convicted in a Florida court on one count of first degree
murder in late March, 1976. After a sentencing hearing, the trial judge
sentenced Smith to death. Smith appealed to the Florida Supreme Court, which
affirmed his conviction in Smith v. State, 365 So.2d 704 (Fla.1978), cert.
denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). In 1981, Smith

filed a motion to vacate his conviction and sentence pursuant to Florida Rule of
Criminal Procedure 3.850. The trial court denied this motion without a hearing,
and Smith appealed. The Florida Supreme Court affirmed the trial court's order
in part, but remanded for an evidentiary hearing concerning an alleged violation
of the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). See Smith v. State, 400 So.2d 956 (Fla.1982). After holding a hearing,
the trial court again denied Smith's motion, and the Florida Supreme Court
affirmed in Smith v. State, 421 So.2d 146 (Fla.1982). On February 9, 1983,
Smith filed his petition for a writ of habeas corpus in the district court pursuant
to 28 U.S.C. Sec. 2254.
3

The factual background of this case is relevant to several of the issues raised by
Smith. The primary evidence at trial against Smith was the testimony of
Wesley Johnson, which the Florida Supreme Court summarized as follows:

After taking part in the murder of John Mitchell Arnsdorff, Wesley Johnson
turned himself into the police. Eventually he was charged with two other
murders, as well. In the meantime he implicated Smith in the Arnsdorff murder
and, accordingly, Smith was indicated for first degree murder. Smith pleaded
not guilty and the cause was set for trial. Before its start, Johnson pleaded nolo
contendere to the three murders and was to be given concurrent life sentences in
return for testimony against Smith, the sentences to be imposed after the
testimony.

Johnson testified to the following: He, Smith and a man named Wagner met at
a bar and decided to rob a homosexual in order to obtain money for beer. The
three then went to another bar where they met Arnsdorff. On the pretext of
giving a party, they invited him to a shack Johnson was staying in. Arnsdorff
and Johnson drove in Arnsdorff's car, Smith and Wagner in Smith's car.
Johnson and Arnsdorff reached the shack first. Smith and Wagner had taken a
wrong turn and were late, but Johnson kept Arnsdorff from leaving by showing
him some silver casting equipment. When the former two arrived the men
drank beer for a short while and then Johnson grabbed Arnsdorff while Wagner
threatened him with an ice pick. While Arnsdorff was restrained Smith took
Arnsdorff's wallet, in which there was $6.00, from his car and one of the three
removed his wrist watch. They then forced Arnsdorff into the trunk of his own
car. Their intention was to abandon him in a remote spot. Wagner and Johnson,
in Arnsdorff's car, were following Smith in his car when they ran into a bridge
abutment, flattening a tire. (Throughout the night the three had been drinking
heavily.) After an unsuccessful attempt to fix it, the two cars proceeded until
the wheel with the flat tire came loose. One of the three opened the trunk and
Smith hit Arnsdorff with a tire tool. Wagner then began to stab him with the ice

pick. Believing Arnsdorff to be dead they shut the trunk with him in it and went
to a gas station. Smith told Wagner to get some gas, which he did. They
returned to Arnsdorff's car and at Smith's direction, Johnson doused it with gas
and set it afire. (Expert opinion that Arnsdorff died from incineration or
asphyxiation from smoke caused by the fire had been introduced into evidence
earlier.)
6

At this point in Johnson's narration the court excused the jury to allow the
defense to renew a pre-trial motion that testimony by Johnson as to a second
murder by him and Smith be suppressed. The court denied the motion, as it had
previously done, on the ground that the second murder, though separate from
the first, was part, just as Arnsdorff's, of a single transaction, the robbery, and,
therefore, relevant to the Arnsdorff murder.

Johnson then testified that after burning the car he, Smith and Wagner
immediately went to a swimming hole. An argument over division of the $6.00
and watch ensued between Smith and Wagner. Smith yelled to Johnson to grab
Wagner, and while Johnson held him Smith stabbed him with the ice pick. At
Smith's direction Johnson pulled Wagner into the swimming hole and held him
under water to ensure his death. They transported his body elsewhere and
buried it.

Smith took the stand in his own defense. He admitted that he was in the
company of Wagner and Johnson on the night of the murder, but claimed that
the robbery was their idea. Although he accompanied them to the second bar
and left it with them and the victim, he testified that they drove him straight
from the bar to his apartment, because he was too intoxicated by beer and drugs
to do anything but sleep. That was the last, according to Smith, he saw of them
that night. No evidence was introduced by the defense to corroborate the alibi.

365 So.2d at 705-06 (footnote omitted). We will develop other facts as they
become relevant to our opinion.

I. NEED FOR AN EVIDENTIARY HEARING

10

Smith contends that the district court erred in refusing to grant him an
evidentiary hearing concerning three of his claims for relief--that his counsel
rendered ineffective assistance, that the state Rule 3.850 hearing concerning the
alleged Brady violation was not full and fair, and that his execution in light of
recantations by Wesley Johnson would violate due process.1 Although the legal
analysis of Smith's right to a hearing differs greatly for each claim, we discuss

them together because each claim has a common factual basis--the numerous
statements of Wesley Johnson. We conclude that, under Thomas v. Zant, 697
F.2d 977 (11th Cir.1983), the district court should have granted Smith an
evidentiary hearing on his claim of ineffective assistance of counsel. Given the
interrelationship of this issue with the Brady issue, the hearing that must be
held will necessarily concern both issues. The district court did not err in
refusing a hearing concerning Johnson's recantations.
11

As the quoted excerpt from the opinion of the Florida Supreme Court indicates,
Wesley Johnson was the primary witness against Smith. The record2 shows that
in early September, 1975, Johnson presented himself to the Polk County
Sheriff's Department and confessed to three murders. He claimed to have killed
Caleb McDowell, John Mitchell Arnsdorff (whom Smith is convicted of
murdering), and James Wagner. The transcript of Johnson's statement and the
report of the Polk County Sheriff's Office, dated September 6, 1975, indicate
that Johnson told the following story concerning the second and third victims.

12

Johnson met Wagner in a bar in Lakeland, Florida. Johnson and Wagner went to
another bar, the Green Parrot, where they met Arnsdorff. The three journeyed
first to Johnson's apartment and then to Arnsdorff's, where Johnson and Wagner
robbed Arnsdorff of eleven dollars, tied him hand and foot, and put him into the
trunk of his car. Johnson and Wagner promised Arnsdorff that they would drive
him into the woods and leave him so that, "if he [had] enough energy," he
could kick out the back seat of the car.

13

Johnson and Wagner drove away, but, after leaving Lakeland, they wrecked and
the car became stuck in a ditch. Johnson stated that he then opened the trunk
and hit Arnsdorff with a jack handle as Arnsdorff begged for mercy. Johnson
stated that he stabbed Arnsdorff with the sharp end of the jack and with a knife,
while forcing Wagner to watch. Johnson and Wagner then climbed into a
second car and drove away. Johnson refused to explain why a second car was
with them, although the police asked him to do so. The two drove to a gas
station and bought some gas. They then returned to the wrecked vehicle, doused
it with gasoline, and set it afire with Arnsdorff in the trunk. This was the extent
of what Johnson related concerning Arnsdorff's murder; he did not mention
Smith.3

14

On September 8, an officer interviewed Wesley Johnson's wife, Patricia

Johnson. In this interview, she stated that Wesley had told her that both he and
Smith had murdered Arnsdorff. Although Smith submitted this statement to us
after argument, it is not in our record. Our record indicates that Patricia Johnson
had, however, made a previous statement that omitted any reference to Smith.

15

On September 10, Patricia Johnson notified the officers that Wesley "wanted to
tell the whole story about the three murders." Polk County Sheriff's Report at 6.
She asked to meet with Wesley. After talking with his wife, Johnson informed
the police that he would prefer not to give a statement until his attorney could
discuss a plea bargain. He indicated, however, that Smith had been with him on
the night Arnsdorff was murdered and "did take part in the same." Id.
Sometime subsequent to this, Johnson apparently came to the agreement he
desired4 with the prosecutor and gave a statement implicating Smith. He stated
that Smith had been with Wagner and himself on the night of Arnsdorff's
murder and that Smith had actually struck Arnsdorff with the tire jack. Johnson
stated that Wagner stabbed Arnsdorff with an ice pick while Smith used the
jack handle. Johnson then stated that he could not remember "exactly what
happened right at the moment .... we all looked around [and] I stepped up and
slammed the [trunk]." Johnson also testified that, after returning with the gas, "
[we] got out of the car and Slick's [Smith] got the gas can. So I poured the gas
all over it. And Slick gets back in the car, and what's his name throwed a match
on it." In response to a clarifying question, Johnson indicated Wagner to be the
person referred to as "what's-his-name." He also indicated in detail how he
(Johnson) doused the car with gasoline.

16

As far as we can determine, Johnson made one other pretrial statement relevant
to our decision. The trial transcript shows that Johnson sent a note to Smith
while both were incarcerated before trial. The note read as follows:

17 Slick, how are you doing? Okay? Well, the next time they say court, it's for
Hey,
real. Just keep cool. You can have Parks called because I made sure he heard me
talking about how I done it by myself and it's like that. Just heard on the news that
they, they are going to bring back the chair. Hope I miss it. Well, just stay cool.
Jake.
18

Apparently, this note indicates that Johnson confessed to another inmate named
Parks so that Smith could call Parks at trial to impeach Johnson.

19

At trial, Johnson testified that Smith murdered Arnsdorff. Smith's counsel

impeached Johnson with only the note written concerning Parks. The state then
called Patricia Johnson in rebuttal to testify that Wesley had made prior
statements consistent with his story implicating Smith. Since the trial, Johnson
has made numerous sworn recantations of his trial testimony, stating that he
lied at trial when implicating Smith and that he committed the crime himself.

A. Effective Assistance Claim.

20

21

In his brief, Smith argues that his trial counsel was ineffective. He lists the
following "errors and omissions" at the guilt/innocence phase of the trial:

22Failure to seek a Richardson hearing and challenge the admissibility of the

1.
testimony of Patricia Johnson under the rule of sequestration;
2. Failure to use Patricia or Wesley Johnson's pretrial statements for impeachment;
23
3. Failure to interview Smith adequately; and
24
4. Failure to depose Wesley Johnson before trial.
25
26

Smith also contends that his attorney, during the penalty phase:1. Failed to
adduce appropriate mitigating evidence or properly use that evidence in closing
argument;

2. Failed to seek jury instructions on reasonable doubt or object to other instructions;

27
3. Failed to understand the bifurcated proceeding; and
28
29Failed to challenge the use of the heinous, atrocious, and cruel aggravating
4.
circumstance.
30

In Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Supreme Court set forth the test under which we review claims of
ineffective assistance. See also Jarrell v. Balkcom, 735 F.2d 1242, 1261 (11th
Cir.1984). The petitioner must show both that his attorney failed to render
"reasonably effective assistance," id. at 2064, and that there is "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different," id. at 2068. With some exceptions not
applicable here, see id. at 2067; see also United States v. Cronic, --- U.S. ----,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the inquiry is two-pronged. The
petitioner must show both ineffective assistance and resulting prejudice.

31

In this case, only one of Smith's claims--that counsel should have more
effectively impeached the Johnsons--merits discussion and possible relief. The
claimed failure of his attorney to understand the bifurcated proceeding and act
as an advocate is related to the failure to impeach issue. The other claims are
either unsupported by the record or simply do not merit relief.5

32

Counsel's failure to depose Johnson does not warrant relief or a hearing; given
the numerous inconsistent statements made by Johnson and his wife, counsel

probably had no need to conduct such a deposition. Had a deposition produced

testimony detrimental to Smith, it would have been available to the state as
evidence to disprove recent fabrication. (The state Rule 3.850 court held that
Smith's counsel had available all the statements we have set forth above.) We
are unable, without an evidentiary hearing, to reach a conclusion concerning
ineffectiveness in light of counsel's failure to cross-examine Wesley or Patricia
Johnson by using their pretrial statements, however.6 The district court
concluded that the attorney failed to use the statements for a valid strategic
reason: he preferred to emphasize Johnson's plea bargain for impeachment
purposes. Without a hearing,7 we cannot hold this to be a valid reason for
counsel's failure to use the Johnsons' statements not implicating Smith. Use of
these statements would have been totally consistent with counsel's assumed
strategy of showing that Johnson implicated Smith only to save himself from
the electric chair.
33

We also hold that counsel's failure to use the statements may well have resulted
in prejudice under the test in Strickland v. Washington. The entire case of the
state, with the exception of plaster casts of a tire track and a shoe print,8 was
based on the testimony of Wesley Johnson as buttressed by Patricia Johnson's
testimony during the state's rebuttal case. When first questioned, however,
neither witness implicated Smith: the September 6 statements9 of both
witnesses omit any reference to Smith. Only after Patricia Johnson conferred
with Wesley on September 10 did Wesley implicate Smith--stating that Smith
was involved, but that a plea bargain discussion must occur before he would
provide any further information.

34

Two conclusions may be drawn from these facts. The first is that Wesley and
Patricia Johnson "framed" Smith, as Wesley's recantations would indicate. This
conclusion is supported by the timing and order of the statements, and, to some
extent, by Johnson's admission on September 6 that he locked his first victim in
the car trunk and set the car on fire. Smith's attorney might well have argued
that Johnson--who had a history of similar murders--implicated Smith to avoid
"the chair," as Johnson stated in his note. The second, contradictory conclusion
is that Wesley simply omitted any reference to Smith for some unknown
reason--and later told the truth. This interpretation is supported by Johnson's
suspicious reference to a second car in his September 6 statement without
elaborating concerning its source or its driver. Nevertheless, the choice between
the two interpretations would have been one the jury could have made either
way had they heard the facts. The jury's choice could well have affected the
outcome of the trial.

35

The failure of counsel to use the statements to impeach the Johnsons may not

only have affected the outcome of the guilt/innocence phase, it may have
changed the outcome of the penalty trial. As we have previously noted, jurors
may well vote against the imposition of the death penalty due to the existence
of "whimsical doubt." In rejecting the contention that the Constitution requires
different juries at the penalty and guilt phases of capital trial, we stated:
36

The fact that jurors have determined guilt beyond a reasonable doubt does not
necessarily mean that no juror entertained any doubt whatsoever. There may be
no reasonable doubt--doubt based upon reason--and yet some genuine doubt
exists. It may reflect a mere possibility; it may be but the whimsy of one juror
or several. Yet this whimsical doubt--this absence of absolute certainty--can be
real.

37

The capital defendant whose guilt seems abundantly demonstrated may be

neither obstructing justice nor engaged in an exercise in futility when his
counsel mounts a vigorous defense on the merits. It may be proffered in the
slight hope of unanticipated success; it might seek to persuade one or more to
prevent unanimity for conviction; it is more likely to produce only whimsical
doubt. Even the latter serves the defendant, for the juror entertaining doubt
which does not rise to reasonable doubt can be expected to resist those who
would impose the irremedial penalty of death.

38

Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir. Unit B 1981), modified, 677
F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). In
this case, use of Wesley and Patricia Johnson's prior inconsistent statements
might have created a whimsical doubt that would discourage the court and
advisory jury from recommending the death penalty.

39

Of course, counsel may have elected to choose another strategy at the penalty
portion of Smith's trial. If he did so, however, the record does not reveal the
content of the strategy. For example, in counsel's closing statement at the
penalty phase,10 he evidenced no reasonable strategy. Counsel stated (in full):

40

MR. HADDOCK: May it please the Court? Ladies and gentlemen, this is the
last time we will be before you. The most trying circumstances, the fact that
will be sent back to you will be cumulative of what you have already decided,
that the defendant is guilty. Now, with little help except from you--and you are
not here to help me, you are here to do the right thing--I have to ask that you
take into consideration all of the things that have been said, all of the things that
have been admitted into evidence. In particular, consideration to the statements
of Dr. Kaplan pertaining to Mr. Smith.

41

42

Weigh those, because they weigh heavily upon everybody in this room. Add
them up. If they indicate to you that this man, who has made a statement that
you can take or leave--because you have taken and left some of his statements-that he would spend the rest of his life in a penitentiary. Whether this man
should die or be given the right to live until, God willing, someday this state
will provide a place for him.
If the state desires to do so, on remand it is free to introduce evidence before
the district court showing that trial counsel's failure to utilize the Johnsons'
statements at either the guilt/innocence or penalty phases of the trial was
prompted by reasonable trial strategy.

B. The Brady Issue.

43
44

Smith contended before the state Rule 3.850 court that he did not receive
material evidence from the state before trial pursuant to his request under Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state
court held a hearing and concluded that the requested material was available to
Smith's counsel. Smith now contends that this finding of fact by the state court
is incorrect and not entitled to a presumption of correctness under 28 U.S.C.
Sec. 2254(d) because his trial counsel never testified at the hearing. He notes
that the testimony at the hearing indicated that the prosecutor, although he
maintained an "open file" policy, could not recall whether the various
statements were in the file at any particular time. Smith himself testified that he
could not recall seeing or hearing about the statements, except for the statement
made after September 10 by Wesley Johnson.

45

We do not hold that these circumstances support a finding that the hearing was
not full and fair;11 indeed, we see no need to pass on this question. When the
district court conducts its hearing on the effectiveness of Smith's counsel, the
inquiry will by necessity involve the availability of the statements. For
example, the state might produce Smith's counsel and introduce his testimony
that he did not use the statements because he did not have them. If he did not
have them because he did not check the prosecutor's file, this would constitute
ineffective assistance given the content of the statements. But, if the statements
were not available, counsel could not use them.

46

If the district court should conclude after an evidentiary hearing that the
statements were not available to trial counsel, Smith will be confronted with a
variation of Catch-22 created in part by 28 U.S.C. Sec. 2254(d). The state could
presumably argue that state court's finding that the statements were available is
a historical fact entitled to a presumption of correctness, but that counsel

rendered effective assistance under the circumstances because the statements

were, in fact, unavailable. Such a situation no doubt results from the difficulties
inherent in the administration of justice by means of the writ of habeas corpus.
Nevertheless, if this situation arises, the district court should conclude that,
under 28 U.S.C. Sec. 2254(d)(3), "the material facts were not adequately
developed at the state court hearing," see Thomas v. Zant, 697 F.2d 977, 980
(11th Cir.1983), and issue the writ under Brady v. Maryland.12 We have no
doubt that statements were "material either to guilt or to punishment" under
Brady. 373 U.S. at 87, 83 S.Ct. at 1196.
C. Recantations of Wesley Johnson.
47
48

Finally, Smith contends that the district court should also receive evidence
concerning the post-trial recantations of Wesley Johnson. A panel of this court
recently addressed a similar claim in Drake v. Francis, 727 F.2d 990 (11th
Cir.1984). This court vacated the opinion in Drake for en banc consideration,
and we recently received briefs and heard oral argument on several issues raised
in Drake. We see no need to hold this case pending the decision in Drake,
however. We perceive that the panel in Drake accurately stated the law in this
circuit concerning claims of newly discovered evidence in habeas corpus
proceedings.

49

As long ago as 1958, the former Fifth Circuit Court of Appeals summarized the
law in this area: "Newly discovered evidence in the form of a confession by
another does not render the conviction void and subject to collateral attack by
habeas corpus because it goes to the merits of the conviction, not its legality."
Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958), cert. denied, 355 U.S. 864,
78 S.Ct. 98, 2 L.Ed.2d 70 (1957). To be distinguished are situations in which
the new evidence bears directly on the constitutionality of the conviction. For
example, in Schneider v. Estelle, 552 F.2d 593 (5th Cir.1977), the petitioner
claimed new evidence would show that the state had suborned perjury in
obtaining a conviction against the petitioner. The court remanded for an
evidentiary hearing, holding that the writ should issue if the petitioner proved
the allegations of his complaint. Id. at 596; see also Smith v. Florida, 410 F.2d
1349 (5th Cir.1969).

50

In this case, we seriously doubt that Smith has alleged subornation of perjury
by the state. To prove such a claim, Smith would have to show that the
prosecutor or the police officers knew that the testimony of one of the Johnsons
was false. Schneider, 552 F.2d at 595; Smith, 410 F.2d at 1350-51. Smith has
made no proffer of any evidence supporting such a contention. Absent such
evidence, this claim does not warrant habeas corpus relief.

II. COERCION OF TESTIMONY

51

Smith next contends that Johnson confessed and agreed to testify for the state
only because of Johnson's fear of the death penalty. Smith notes that one of the
terms of Johnson's plea bargain required him to testify before he received his
sentence. Smith argues that he should have received an evidentiary hearing on
this issue in the district court.

52

We have little difficulty accepting the validity of the argument that Johnson
entered into his plea bargain agreement with the state and testified against
Smith because of the possible imposition of the death penalty. Nevertheless, the
district court properly held that this claim affords Smith no basis for relief.

53

We have substantial doubt that this claim is one that warrants relief. Cf. United
States v. Ballard, 586 F.2d 1060 (5th Cir.1978); Chaney v. Wainwright, 561
F.2d 1129 (5th Cir.1977), 443 U.S. 904, 99 S.Ct. 3095, 61 L.Ed.2d 871 (1979).
It is clear that Smith's attorney cross-examined Johnson and revealed the facts
underlying Johnson's testimony to the jury, which decided whether or not to
believe Johnson. We need not consider this issue on its merits, however,
because Smith failed properly to raise it under Florida procedure. The Florida
courts have refused to address the issue, see Smith v. State, 400 So.2d 956, 959
(Fla.1981); and, absent a showing of cause for failure properly to preserve the
issue and resulting prejudice, the issue is barred from review in the federal
courts, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1976). Smith has shown neither cause nor prejudice.

III. ADMISSION OF EVIDENCE OF SECOND MURDER

54

At Smith's trial, the judge allowed Wesley Johnson to testify concerning the
facts of a second murder for which Smith was not on trial. (The circumstances
and content of this testimony are set forth in the portion of the Florida Supreme
Court's opinion quoted in the introductory portion of this opinion.) The Florida
court apparently admitted this testimony on the theory that it constituted part of
the res gestae. See Smith v. State, 365 So.2d 704, 706 n. 2 (Fla.1978). Smith
contends that the evidence was irrelevant, inflammatory, prejudicial, and
inadmissible as a matter of constitutional law.

55

In reviewing the disposition of this claim by the district court, we note that "
[i]n order for an evidentiary ruling to be cognizable in habeas corpus, it must
deprive the state court defendant of fundamental fairness." Jameson v.
Wainwright, 719 F.2d 1125, 1126 (11th Cir.1983), cert. denied, --- U.S. ----,

104 S.Ct. 2355, 80 L.Ed.2d 827 (1984); see also Hills v. Henderson, 529 F.2d
397 (1976). A denial of fundamental fairness occurs when the evidence is
"material in the sense of a crucial, critical, highly significant factor." Id. at
1127. Under this test, the admission of the evidence did not violate the
Constitution, although its admissibility under state law presents a close and
difficult question. See 365 So.2d at 708 (three Justices dissenting).
IV. TESTIMONY OF PATRICIA JOHNSON
56

At Smith's trial, the state introduced the testimony of Patricia Johnson, Wesley
Johnson's wife. (Wesley Johnson was the prosecutor's essential witness. See
supra Sec. I.) The prosecutor called Patricia Johnson to testify concerning prior
consistent statements made by her husband in response to Smith's impeachment.
The witness list submitted to Smith before trial by the prosecutor did not
include Patricia Johnson's name, as Florida law requires. In addition, the record
shows that Patricia Johnson was present during a portion of the trial that
preceded her testimony and was thus in violation of the sequestration rule.
Smith argues that the omission of Patricia Johnson's name from the witness list
and the sequestration rule violation compels the issuance of the writ. Smith,
however, cites no authority to the effect that these violations are of
constitutional dimension. See, e.g., Bronstein v. Wainwright, 646 F.2d 1048
(5th Cir.1981) (state law violations do not usually warrant habeas relief).
Assuming that the claim is simply one rooted in the concept of "fundamental
fairness," see Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40
L.Ed.2d 431 (1974), we conclude that these violations (if they were
violations)13 did not render Smith's trial fundamentally unfair.

V. TESTIMONY OF DR. NISWONGER

57

Dr. Joseph K. Niswonger, a psychiatrist, examined Smith before trial.

Niswonger testified that, during the examination, Smith claimed amnesia
concerning the events of the murder. The state argued to the jury that this
testimony contradicted Smith's alibi that he did not commit the murder, but was
at home "sleeping off a drunk." Smith now contends that, under the rule of
Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981),
Niswonger's testimony was inadmissible because Niswonger did not read Smith
Miranda warnings before conducting the psychiatric examination. See also
Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). The state contends that this claim
is barred from consideration by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1976), and that the claim also fails on the merits. The
state's argument concerning the merits of this claim is correct; we therefore
chose not to address the Wainwright issue, which presents a question of law not

yet squarely addressed by this court.

58

The record in this case shows that the trial court did not appoint Niswonger to
examine Smith, as was the case in Estelle v. Smith. On the contrary, Smith
retained Niswonger (through his trial counsel) to conduct an examination
regarding a possible claim of insanity. In such a case, Estelle v. Smith does not
require that the psychiatrist give Miranda warnings.14 The protections of Estelle
do not apply unless the psychiatrist is "essentially ... an agent of the State ...."
451 U.S. at 467, 101 S.Ct. at 1875. 15 Thus, the district court properly denied
the writ on this issue.

VI. DISPARITY IN SENTENCING

59

After the penalty hearing, the trial judge sentenced Smith to death. Wesley
Johnson, in accordance with his plea bargain, received a sentence of only
twenty-five years in prison. Smith contends that this disproportionate
punishment violates the Constitution given his "lesser culpability" than
Johnson. He requests this court to conduct an independent review of the record
and grant relief on this issue, citing as support Barclay v. Florida, 463 U.S. 939,
103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). This contention lacks merit. See
generally Pulley v. Harris, --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984);
Collins v. Francis, 728 F.2d 1322 (11th Cir.1984); Moore v. Balkcom, 716 F.2d
1511 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1456, 79 L.Ed.2d 773
(1984); Henry v. Wainwright, 721 F.2d 990 (5th Cir. Unit B 1983), cert.
denied, --- U.S. ----, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

VII. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

60
61

Smith next contends that the district court should have granted him an
evidentiary hearing on his claim that his appellate counsel rendered
constitutionally ineffective assistance. We recently described the legal basis for
this type of claim in Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.1984), as
follows:

62
Although
we address claims of ineffective assistance of counsel on appeal much less
frequently than claims of ineffective assistance at trial, it is well established that a
defendant has the right to effective counsel on appeal. See Anders v. California, 386
U.S. 738, 741-42, 744, 87 S.Ct. 1396, 1398-99, 1400, 18 L.Ed.2d 493 (1966)
(counsel must function as advocate on behalf of client). In order to prevail, Alvord
must prove that he did not receive " 'reasonably effective representation,' " Mylar v.
Alabama, 671 F.2d 1299, 1300 (11th Cir.1982) (citing previous cases), cert. denied,
[--- U.S. ----] 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); however, counsel need not

provide perfect assistance, id. From the reported cases, it appears that counsel's
failure to file a brief is in most cases ineffective, see Anders; Mylar; however,
counsel's failure to advance errors on appeal later gaining "judicial recognition" does
not constitute unconstitutional aid. Sullivan v. Wainwright, 695 F.2d 1306, 1309
(11th Cir.), cert. denied, [--- U.S. ----] 104 S.Ct. 290, 78 L.Ed.2d 266 (1983), and
counsel need not brief issues reasonably considered to be without merit, Mendiola v.
Estelle, 635 F.2d 487, 491 (5th Cir. Unit A. 1981); Hooks v. Roberts, 480 F.2d
1196, 1197-98 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d
116 (1974). Alvord contends that the issues not raised by his counsel were of
substantial merit. As we stated in Hooks, the best way to evaluate "this question ... is
to examine the alleged trial errors to see if they contain sufficient merit ... that his
appellate counsel can be faulted for not having raised them." 480 F.2d at 1197.
63

Id. at 1291. Under the applicable standards, we conclude that Smith's counsel
rendered constitutionally effective assistance and that no evidentiary hearing is
required.

64

Smith first contends that his counsel should have challenged on appeal the
admissibility of photographs of the victim's body during the penalty phase of
the trial. We cannot fault Smith's attorney for omitting this claim. The
photographs were clearly relevant to the case because the state relied on the
"heinous, atrocious, or cruel" aggravating circumstance enumerated in the
Florida statute. See Fla.Stat. Sec. 921.141(5)(h). The circumstances of the
crime as evidenced by the condition of the victim's body are material to
consideration of this aggravating circumstance. In addition, under Florida law, it
appears to be settled that such photographs are admissible. See Calloway v.
State, 189 So.2d 617 (Fla.1966); Mardorff v. State, 143 Fla. 64, 196 So. 625
(1940).

65

Smith next contends that his counsel should have argued that the Florida
procedure providing for a bifurcated sentencing hearing is unconstitutional.
This contention lacks merit. The Supreme Court specifically upheld this statute
in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and
we recently rejected this claim in Smith v. Balkcom, 660 F.2d 573, 580-81 (5th
Cir. Unit B 1981), modified, 677 F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct.
181, 74 L.Ed.2d 148 (1982).

66

Smith argues that his counsel should have challenged the trial court's decision
to admit Dr. Niswonger's testimony at the penalty phase of his trial. Counsel
need not have raised this claim on the basis of the fifth amendment; we have
decided above that such a challenge lacks merit. See supra Sec. V. In addition,
counsel could reasonably have concluded that Smith had waived the

psychiatrist-patient privilege by introducing Dr. Niswonger's report as to

Smith's sanity into evidence at the competency hearing. See Fla.Stat. Sec.
90.242(b) (providing for waiver of privilege).
67

Smith also argues that his appellate attorney wrongly failed to challenge the
trial court's finding of the "heinous, atrocious, or cruel" aggravating
circumstance. See Fla.Stat. Sec. 921.141(5)(h). Smith contends that Johnson's
testimony at trial demonstrated that the "participants" thought the victim to be
dead after they kidnapped him, transported him a considerable distance in a car
trunk, struck him with a tire tool (while he pleaded for mercy), stabbed him
with an ice pick, and locked him back in the car trunk. Thus, although the
medical reports later showed that the victim died when the participants poured
gasoline on the car and burned it, the murderer(s) could not have known they
had done anything except destroy evidence. Under Godfrey v. Georgia, 446
U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Smith contends that this was
not a proper case for application for the subsection (5)(h) circumstance. We
believe Smith's counsel could reasonably decide not to raise this issue on
appeal.

68

Smith next contends that his appellate counsel should have challenged the trial
court's jury instructions, which did not explain that the state must prove the
existence of aggravating circumstances beyond a reasonable doubt. See
Williams v. State, 386 So.2d 538 (Fla.1980). The district court noted: (1) that
trial counsel never requested such a charge, and (2) that the jury never was
charged concerning any burden of proof except that of beyond a reasonable
doubt. We hold that, under the circumstances, counsel need not have raised this
issue on appeal. See Alvord, 725 F.2d at 1292 (instruction never requested);
Henry v. Wainwright, 721 F.2d 990, 995 (5th Cir. Unit B 1983) (jury never
heard instruction on any other burden of proof), cert. denied, --- U.S. ----, 104
S.Ct. 2374, 80 L.Ed.2d 846 (1984).

69

Finally, Smith contends that his attorney should have requested the court
reporter to transcribe the entire voir dire proceedings to determine whether a
violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), occurred. This contention is purely speculative; Smith has not
shown that, in fact, a violation occurred. Thus, Smith has neither alleged nor
proven that the failure of his attorney to raise this issue made any difference
whatsoever.

VIII. MISCELLANEOUS ISSUES

70

Smith contends that the death penalty in Florida has been discriminatorily

applied on the basis of the race of the victim; he argues that the district court
erred in refusing to grant an evidentiary hearing on this issue. The district court
acted properly; as the state notes, this issue has been conclusively resolved
adversely to Smith. See Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983),
application for stay denied, Sullivan v. Wainwright, --- U.S. ----, 104 S.Ct. 450,
78 L.Ed.2d 210 (1983); Wainwright v. Ford, --- U.S. ----, 104 S.Ct. 3498, 82
L.Ed.2d 911 (1984); Adams v. Wainwright, 709 F.2d 1443, 1449 (11th
Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984);
Washington v. Wainwright, 737 F.2d 922, 923 (11th Cir.1984).
71

In this section of his brief, Smith also challenges the use of non-record material
by the Florida Supreme Court in reviewing his case. This issue has also been
resolved adversely to Smith. See Ford v. Strickland, 696 F.2d 804 (11th
Cir.1983) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176
(1983).

72

Smith also argues that his sentence is unconstitutional because of the trial
judge's faulty instructions to the jury concerning aggravating and mitigating
circumstances and because the trial judge misapplied the law concerning the
use of the circumstances by relying on an unconstitutional circumstance.
Without belaboring this point, we hold that the district judge correctly decided
that this claim is barred by a procedural default under Wainwright v. Sykes.
Smith contends that he has proffered facts entitling him to an evidentiary
hearing on the issue of cause and prejudice, but we disagree. As to the claims
concerning restrictions of mitigating evidence, Smith has failed to show
prejudice for exactly the reasons enumerated in Ford v. Strickland, 696 F.2d at
812-13. And, as to the claim of reliance on an unconstitutional aggravating
circumstance, Smith has failed to proffer any evidence or explanation
constituting cause for his failure timely to raise this issue in the state court.

73

The judgment of the district court is AFFIRMED IN PART, VACATED IN

PART, and REMANDED for proceedings not inconsistent with this opinion.

APPENDIX A
CROSS-EXAMINATION OF WESLEY JOHNSON
EXAMINATION BY MR. HADDOCK:
74Mr. Johnson, you are putting me in the unique position of asking you a direct
Q
question, which I doubt I will get a straight answer from you about it.
MR. CAMPBELL: Now, Your Honor,-75

Q When are you lying, then or now?

76
THE COURT: Mr. Haddock, I don't want any dialogue of that sort.
77
MR. HADDOCK: That was a proper question, Your Honor.
78
THE COURT: Ask a question, but I don't want dialogue. I don't want editoralizing.
79
80 HADDOCK: Prior to asking any questions, Your Honor, I would like at this
MR.
time to move for a mistrial in this case because of the unnecessary presentation of
evidence over my prior objection out of the absence of the jury pertaining to a
separate crime for which this defendant has been individually indicted and upon
which there is a separate case before the Court, and upon which the defendant stands
the possibility of subsequent trial.
THE COURT: Motion denied.
81
MR. HADDOCK: This is so horrendous, it's so prejudicial-82
83 CAMPBELL: How many times do we have to go through the same thing, Your
MR.
Honor?
84 COURT: Just a moment, Mr. Campbell. Go ahead.MR. HADDOCK: May I
THE
finish, Your Honor? This is so horrendous and prejudicial to the defendant's cause
before the jury that I see virtually no way of ever getting it straightened out.
THE COURT: Motion denied.
85
Q Answer my question, Mr. Johnson.
86
MR. CAMPBELL: I thought that question was objected to.
87
THE COURT: You will have to reask the question.
88
Q Are you telling the truth now or when you testified to the police officers?
89
A I am telling the truth now.
90
Q Let me ask you something. Have you ever seen this before [indicating]?
91
A Yes.
92
Q What is it?
93
A That is a confession, I suppose, it's a note I sent [indicating].
94

Q Was it written by you?

95
A Yeah.
96
Q Signed by you as Jake?
97
A Yeah.
98
Q Is that a name you are known by from time to time?
99
A Yeah.
100
101
Q
How was it, what was disposed--what was the disposition of this note, if you
know?
A It was at a time when I was thinking about cutting him loose.
102
Q Speak up.
103
A At a time when I was thinking about cutting him loose.
104
Q Was it addressed to--did you have it sent to Smitty?
105
A Yes.
106
MR. HADDOCK: Your Honor, I would like to introduce this into evidence.
107
MR. CAMPBELL: No sir, not-108
THE COURT: It would be proper to identify it now and introduce it later.
109
MR. HADDOCK: I think I can introduce it since he is the State's witness.
110
MR. CAMPBELL: No sir, you can't introduce it in the State's portion of the case.
111
THE COURT: That's right. You mean the Court's witness?
112
MR. HADDOCK: The Court's witness.
113
114 COURT: It will be identified as Defendant's Exhibit 1. [The purported
THE
confession was marked as Defense Exhibit 1 for identification.]
Q Does this note say, can you read that note?
115
A Do you want me to read it out loud?
116

Q Read it to the jury, yes.

117
118
A
"Hey, Slick, how are you doing? Okay? Well, the next time they say court, it's for
real. Just keep cool. You can have Parks called because I made sure he heard me
talking about how I done it by myself and it's like that. Just heard on the news that
they, they are going to bring back the chair, I hope I miss it. Well, just stay cool,
Jake."
Q And Jake is you?
119
A Part-time.
120
Q That's right? You are Jake?
121
A Sometimes.
122
Q What is your deal with the state?
123
A 25 to life.
124
Q How many crimes did you confess to?
125
MR. CAMPBELL: Judge, that-126
A Three.
127
128 CAMPBELL: --Your Honor, I don't have any objection to those related to--no.
MR.
I withdraw the objection. I believe the answer was three.
THE COURT: That's correct.
129
Q And you say what, 25 to life?
130
A [Nods head.]
131
Q Were there any stipulations pertaining to that?
132
A What do you mean, to the sentence?
133
Q Yes.
134
A That I testify.
135
Q Testify to what?
136
A To the murders.
137

Q Did it have anything to do with the implication of the defendant here, Mr. Smith?
138
A Yes.
139
Q And that was part of the deal?
140
141
A
That I testify to the murders for the state, yeah.Q And have you been sentenced
yet?
A No, not that I know of.
142
143
Q
Is it your understanding that you will not be sentenced until after you give your
testimony?
A Right.
144
145
Q
Therefore your testimony is based upon your not going to the electric chair, is that
right?
A Well, I'm talking, uh, yeah, I suppose so.
146
Q You are frightened of going to the electric chair, aren't you?
147
A Scared to death.
148
Q Jake, how long had you been drinking before you got involved in this thing?
149
A Um, off and on during the day.
150
Q Had you had any narcotics?
151
A No.
152
Q Any sort of marijuana or anything other than alcoholic beverages?
153
A No.
154
Q How much alcoholic beverages had you drunk?
155
A That's hard to say.
156
157
Q
Well, kind of work on it a little bit, see what you can come up with. It hasn't been
too hard for you to say a lot of other things.
MR. CAMPBELL: Your Honor-158

A I'm thinking.
159
THE COURT: Mr. Haddock, don't do that.
160
A Maybe a case before I met up with him.
161
Q A case of what?
162
A Maybe three or four six-packs.
163
Q Four would be twenty, twenty-four beers, is that correct?
164
A I suppose.
165
Q Were you drinking short beers or long ones?
166
A Short.
167
Q Were you drunk?
168
A I was feeling all right.
169
170
Q
How come you said in your deposition you were trying to decide whether you
were going to get out and puke if you were feeling all right?
A Well, you know, pretty gross scene is going on.
171
Q The alcohol didn't have anything to do with it?
172
A Not very much.
173
174
Q
Did you drink, you said something about you may have had some whiskey during
this time, I believe, whatever kind of testimony it was you gave to the state?
A Right.
175
Q So you mixed whiskey with possibly 24 beers in the course of the day?
176
A Yes.
177
Q You are just clear-headed as you can be, you remember everything that went on?
178
A Pretty much so.
179
Q Are you an alcoholic?
180

A I don't know.
181
Q You drink 24 beers everyday?
182
A Sometimes more.
183
Q Sometimes more?
184
A Yeah.
185
Q How much do you weigh?
186
A How much do I weigh?
187
Q Yes sir.
188
A About 150.
189
Q 150?
190
A I guess about.
191
Q You don't know?
192
A Not really, sir.
193
194
Q
So you are in a position now--let me see if I have got this straight--of having
given testimony against Mr. Smith with the promise from the state that if you did so
you, who admit that you were involved in crimes, will get a sentence of from 25
years to life?
195 CAMPBELL: Your Honor, I don't think that is the correct statement of the
MR.
situation. I don't think the state promised him a thing.
THE COURT: You will have the opportunity to ask questions on redirect.
196
MR. HADDOCK: Thank you, Your Honor.
197
MR. CAMPBELL: All right.
198
199 HADDOCK: Will you reread him the question to make sure he got it?[The
MR.
reporter read back the previous question.]
200
A
It's not 25 to life. It's a life sentence, whereas on first degree murder I have to do at
least 25 years before I am eligible for parole is the type of life sentence I will be
receiving. And if I don't get off then, between now and then, the next 25 years I plan

on making parole.
201
Q
Was there additional promises that these sentences would be together instead of
one after the other?
A Concurrently, yes.
202
Q In other words, you would get a concurrent sentence, only one life sentence?
203
A Yes sir.
204
Q Any other witnesses other than you and Birdman and Smith?
205
A Not that I know of, no.
206
Q So there is just you now and Smith?
207
A Right.
208
Q That's the way it is, isn't it?
209
A Right.
210
211
Q
And you got 25 years if you behaved yourself, and we don't know what Smith has
got, is that right?
A Right.
212
MR. HADDOCK: That's all, Your Honor. No further inquiry.
213
EXAMINATION BY MR. CAMPBELL:
214
Q
Mr. Johnson, you have, have pled no defense to--Mr. Haddock asked you how
many crimes you have confessed to and you said three. You have pled no defense to
each of those three crimes?
215 COURT: Mr. Campbell, may I see you and Mr. Haddock? [The following
THE
conference was held at the bench outside the hearing of the jury:]

Smith also asked for an evidentiary hearing on other issues. We will address
those claims separately

Our record is somewhat unclear concerning some events. For example, it is

doubtful that we now have before us all the statements of Wesley Johnson and

Patricia Johnson, his wife. See Smith v. State, 400 So.2d 956, 953 n. 1
(Fla.1981) (listing statements). Although we believe our construction of the
events to be substantially accurate, on remand the district court may expand the
record and correct any misconceptions in our opinion
3

The September 6 statement is relevant to this case for one reason in addition to
Johnson's omission of Smith. In describing his murder of McDowell, which
occurred two years before the other murders, Johnson indicated that he also
locked the victim in the trunk of a car and set the car on fire after dousing it
with gasoline

Johnson testified at Smith's trial that he agreed to plead no contest to the three
murders and testify against Smith in exchange for concurrent life sentences.
Johnson was sentenced after Smith's trial

For a discussion of the claims regarding erroneous jury instructions and the
application of the heinous, atrocious and cruel aggravating factor, see infra
section VII (discussing claims in context of ineffective assistance of appellate
counsel). Our conclusion concerning these issues does not change in light of the
different test for appraising the effectiveness of trial counsel

The entire transcript of the cross examination is attached to this opinion as

Appendix A

A hearing will also be helpful to clarify the record. See supra note 2

The tire track matched Smith's car's tires; the shoe print matched a pair of shoes
Smith owned. Smith explained that he had loaned his car, with the shoes in the
back seat, to Johnson

Other, more minor, inconsistencies appear among Johnson's statements. For

example, Johnson's trial testimony cast Smith more as the ringleader than did
his statement made after September 10

10

We note that counsel was somewhat confused by the bifurcated proceeding in

any event. He repeatedly requested that the judge abandon the bifurcated
procedure and use the procedure declared unconstitutional in Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)

11

For example, Smith does not explain why he could not have deposed his
attorney, even if he was unable to subpoena him. Cf. Birt v. Montgomery, 725
F.2d 587, 590 n. 5 (11th Cir.1984) (en banc) (noting possibility that petitioner
could depose witness without passing on sufficiency of state hearing)

12

Smith correctly notes that the state court's finding was supported by somewhat
weak evidence. In addition, the state court did not hold an evidentiary hearing
on Smith's effective assistance of counsel contention, although he requested a
hearing

13

The prosecutor explained the omission of Patricia Johnson's name from the list
and her presence in the courtroom by contending that he had not forseen that he
would call her as a witness

14

Smith apparently does not contend that all psychiatrists examining all
defendants must give Miranda warnings to remind the defendant not to make a
statement he later may regret

15

Smith contends that the trial judge's post-trial order adding Niswonger to the
list of state psychiatrists made Niswonger an agent of the state. This contention
is without merit. The judge's revision of the list did not change Niswonger's de
facto status during the examination or at trial