Tompkins v. Moore , 193 F.3d 1327 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
10/29/99
THOMAS K. KAHN
No. 98-3367 CLERK
________________________
D. C. Docket No. 89-CV-1638
WAYNE TOMPKINS,
Petitioner-Appellant,
versus
MICHAEL W. MOORE, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 29, 1999)
Before COX, CARNES and HULL, Circuit Judges.
CARNES, Circuit Judge:
Wayne Tompkins was convicted and sentenced to death for the sexual
battery and murder of Lisa DeCarr, age fifteen, who was the daughter of
Tompkins’ girlfriend. The facts concerning the crime and the evidence against
Tompkins are set out in the Florida Supreme Court’s decision affirming on direct
appeal his conviction and death sentence. See Tompkins v. State, 502 So.2d 415(Fla. 1986). After conducting an evidentiary hearing, the Florida trial court denied
Tompkins’ motion for post-conviction relief under Florida Rule of Criminal
Procedure 3.850. The Florida Supreme Court affirmed that denial, and it also
denied Tompkins’ state habeas petition in the same opinion. See Tompkins v.
Dugger, 549 So.2d 1370 (Fla. 1989).
After exhausting his state remedies, Tompkins filed a petition for federal
habeas corpus relief pursuant to 28 U.S.C. § 2254. The United States District
Court for the Middle District of Florida denied that petition in a thorough,
unpublished opinion. See Tompkins v. Singletary, No. 89-1638-CIV-T-21B (M.D.
Fla. April 17, 1998). This is Tompkins’ appeal from that denial.
THE CERTIFICATE OF PROBABLE CAUSE
After the district court denied his habeas petition, Tompkins filed an
application for a certificate permitting him to appeal. Because the federal habeas
petition had been filed before the April 24, 1996 effective date of the Anti-
2
terrorism and Effective Death Penalty Act (“AEDPA”), a certificate of probable
cause under pre-AEDPA law, instead of a certificate of appealability under post-
AEDPA law, see 28 U.S.C. § 2253(c), was the proper procedural route for
permission to appeal. See Hardwick v. Singletary, 122 F.3d 935 (11th Cir.),
modified on rehearing, 126 F.3d 1312 (11th Cir. 1997). The district court
recognized as much, and it also recognized that in issuing a certificate of probable
cause – unlike a certificate of appealability – it need not specify the issues for
which the necessary showing to permit the appeal had been made. Nonetheless,
the court decided “in view of Petitioner’s numerous claims, [to] specify the issues
so certified.” The court issued a certificate of probable cause only as to two claims
in their entirety and parts of two other claims. The remaining 25 or so other claims
Tompkins had raised in the district court were left out of the certificate of probable
cause.
Tompkins wants us to review the district court’s denial of relief as to far
more claims than the certificate of probable cause specifies; indeed, he wants
review of most of the many claims he raised in his habeas petition. The problem is
that Tompkins did not even attempt to broaden the certificate of probable cause to
cover all those other claims. He could have filed an application in this Court to do
3
that, but he did not. The reason, Tompkins explains, is that he did not think it was
necessary to do so in view of this Court’s Hardwick decision.
In the Hardwick case, the district court had mistakenly believed the habeas
case before it was governed by AEDPA, including the requirement that a
certificate of appealability specify the issues as to which an appeal is being
permitted. So, the district court issued a certificate of appealability specifying some
but not all of the issues the petitioner wanted to appeal. This Court determined that
the case was actually governed by pre-AEDPA law, see Hardwick, 122 F.3d at
936, which included provision for issuance of a certificate of probable cause to
appeal that need not – and almost never did – specify the issues as to which an
appeal was permitted; certificates of probable cause to appeal were almost always
issued as to cases considered as a whole. What we decided to do in that particular
instance was to construe the order granting a certificate of appealability as to some
but not all issues as a certificate of probable cause as to all the issues and let the
whole appeal go forward on that basis. See Hardwick 126 F.3d at 1313. Tompkins
says Hardwick controls the present situation.
We do not think so. This is not a case, like Hardwick, where the district
court judge was laboring under the mistaken belief that he was required to grant a
certificate specifying issues worthy of appeal and was unaware he could grant a
4
general certificate covering the whole case without making an issue-by-issue
determination. Judge Nimmons, who presided over this case in the district court,
made it clear in his order granting a certificate of probable cause to appeal that he
knew exactly what was going on. He said in that order that this was a pre-AEDPA
case governed by the certificate of probable cause to appeal rules, and that under
those rules he was not required to specify which issues were worthy of being
reviewed on appeal. Fully aware that he was not required to specify issues in the
certificate of probable cause to appeal, Judge Nimmons nonetheless chose to do so
in order to assist this Court and the parties in shaping up the appeal.
It is certainly unusual for a certificate of probable cause to appeal to specify
and limit the issues as to which the appeal is being permitted. Indeed, that is one
of the differences between the old certificate of probable cause to appeal and the
new certificate of appealability provision in AEDPA: the new provision requires
specification of issues, see 28 U.S.C. § 2255(c)(3). But unusual does not equate
with impermissible. On at least two occasions, we have permitted district courts to
specify issues covered by certificates of probable cause to appeal, and we have
honored the resulting limitation on the scope of the appeal. See Clisby v. Alabama,
52 F.3d 905, 906 (11th Cir. 1995); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.
1990). Tompkins points out that both of those decisions involved appeals from the
5
denial of relief in second petition cases, but nothing in either the Clisby or the
Clark opinion hints at such a distinction, nor is there any persuasive reason for
distinguishing first from second petition cases insofar as certificates of probable
cause to appeal are concerned.
But what about the more recent Hardwick case and that panel’s decision to
treat a mistaken certificate of appealability on fewer than all of the issues as a
certificate of probable cause to appeal all the issues? There are two possibilities.
One is that Hardwick is distinguishable from Clisby and Clark, and in turn from
the present case, on the basis that Hardwick involved mistaken district court action,
not action taken with eyes wide open. The second possibility is that Hardwick is
not distinguishable from Clisby and Clark on that basis (or any other we can think
of), which means that we are duty bound to follow the decisions in the earlier two
cases instead of the more recent one in Hardwick. See United States v. Steele, 147
F.3d 1316, 1318 (11th Cir. 1998)(en banc)(“[I]t is the firmly established rule of this
Circuit that each succeeding panel is bound by the holding of the first panel to
address an issue of law, unless and until that holding is overruled en banc, or by
the Supreme Court.”) (quoting United States v. Hogan, 986 F.2d 1364, 1369 (11th
Cir. 1993)); United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994)(“When
there is no method for reconciling an intracircuit conflict of authority, the earliest
6
panel opinion resolving the issue in question binds this circuit until the court
resolves the issue en banc.”)(internal quotation marks and citation omitted). Either
way, the Hardwick decision cannot rescue Tompkins from his predicament. The
district court issued him a limited certificate of probable cause to appeal, and he
failed to apply to this Court to have it broadened.
We would be fully justified in limiting our review to those issues specified
in the certificate issued by the district court. The only reason we are not limiting
our review in that manner is the Hardwick decision did engender some confusion,
and we cannot say Tompkins’ reliance upon it was entirely unjustified. So, we will
review the issues argued in Tompkins’ brief in the same fashion and to the same
extent as if the district court had not limited the certificate of probable cause to
appeal. We will review all of them.1
1
To say that we will review all of the issues Tompkins has raised in his brief is not to say that
we will write to each one. All of them were discussed at some length by the district court, except
Tompkins’ contention that the district court should have ordered the grand jury proceedings
transcribed, and we find no abuse of discretion in its declining to do so. The issues we do not write
more about merit no further discussion here beyond the statement that we agree with the district
court that the claims to which those issues are connected do not provide a basis for federal habeas
relief in this case.
The issues on which we affirm the district court without further elaboration are those
involving the following claims: denial of right to present defense and confront witnesses; Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), violation; ineffective assistance of appellate counsel;
Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964), violation; unreliable in-court
identification; misinformed jury and judge; improper influences on the jury; improper argument and
instruction error at the sentencing stage; and failure of the district court to order the grand jury
proceedings transcribed.
7
But let this opinion serve as clear notice to any other habeas petitioners who
have been granted limited certificates of probable cause to appeal. The limitations
contained in those certificates will be honored to the same extent that the
limitations in certificates of appealability issued in AEDPA-covered cases are. It is
not enough simply to file a brief addressing all of the issues for which review is
sought. See Murray v. United States, 145 F.3d 1249, 1250 - 51(11th Cir. 1998).
Issues not covered in the certificate will not be considered. See id. The only way a
habeas petitioner may raise on appeal issues outside those specified by the district
court in the certificate is by having the court of appeals expand the certificate to
include those issues. See generally Hunter v. United States, 101 F.3d 1565, 1575
(11th Cir. 1996)(en banc)(“Under the plain language of the rule, an applicant for the
writ gets two bites at the appeal certificate apple: one before the district judge, and
if that one is unsuccessful, he gets a second one before a circuit judge.”). An
application to expand the certificate must be filed promptly, well before the
opening brief is due. Arguments in a brief addressing issues not covered in the
certificate, including any expansion granted by the court of appeals, will not be
considered as a timely application for expansion of the certificate; those issues
simply will not be reviewed. In other words, the same rules that apply to
8
certificates of appealability will henceforth be applied to certificates of probable
cause to appeal that are limited to specified issues.2
THE DENIAL OF AN EVIDENTIARY HEARING
Tompkins received an evidentiary hearing in state court on his Rule 3.850
petition, which raised much the same issues as he raised in his later federal habeas
petition. The district court denied Tompkins an evidentiary hearing so he could
present additional evidence in federal court, because he failed to show cause and
prejudice for not presenting that evidence in the state court proceeding, a showing
required under Keeney v. Tomayo-Reyes, 504 U.S. 1 (1992), 112 S.Ct. 1715(1992). Such a showing should not have been required of him, Tompkins argues,
because in his view Keeney’s cause and prejudice test is not applicable where the
state court held an evidentiary hearing. That view is incorrect.
Keeney itself involved a case in which an evidentiary hearing was denied in
federal court after one had been held in state court. See id. at 4, 112 S.Ct. at 1716(“After a hearing, the state court dismissed respondent’s petition ...”) Thus, the
very decision announcing that the cause and prejudice test is applicable where the
2
We realize that as time goes on issues concerning certificates of probable cause to appeal
will fade away, because there will be fewer and fewer appeals in which the habeas petition was filed
before AEDPA’s April 24, 1996 effective date. But there are now, and there will be arising on
appeal in the near future, some more certificate of probable cause cases. We speak on the subject
today for the benefit of the attorneys in those remaining cases, whatever their diminishing numbers
may be.
9
federal petitioner had failed to develop material facts in a state court proceeding is
itself authority for the proposition that the test applies when there has been an
evidentiary hearing in state court. The Keeney rule has been applied many times in
this context. See, e.g., Williams v. Turpin, 87 F.3d 1204, 1208 (11th Cir. 1996);
Mills v. Singletary, 63 F.3d 999, 1022 (11th Cir. 1995); Mathis v. Zant, 975 F.2d
1493, 1497 (11th Cir. 1992). The district court properly applied the Keeney rule
with its cause and prejudice test, and the court did not err in concluding that
Tompkins had failed to proffer adequate evidence of cause and prejudice ( or
actual innocence, which is an exception to the cause and prejudice requirement).
THE GUILT STAGE INEFFECTIVE ASSISTANCE CLAIM
Tompkins contends that the performance of his trial counsel, Daniel
Hernandez, was ineffective at the guilt stage. To prevail on that contention
Tompkins must persuade us both that counsel’s performance at the guilt stage was
“outside the wide range of professionally competent assistance,” Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066 (1984), and also that there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2052. A
“reasonable probability” is one “sufficient to undermine confidence in the
10
outcome,” id., which here is the jury’s verdict convicting Tompkins of the capital
offense. We are not persuaded that either requirement has been met.
Tompkins’ guilt stage ineffective assistance arguments are best viewed
against a background of the evidence the state presented against him. That
evidence is well summarized in the Florida Supreme Court’s opinion affirming his
conviction and sentence on direct appeal, and for the convenience of the reader we
set forth that summary here:
The victim, Lisa DeCarr, aged 15, disappeared from her home in
Tampa on March 24, 1983. In June 1984, the victim's skeletal remains
were found in a shallow grave under the house along with her pink
bathrobe and jewelry. Based upon a ligature (apparently the sash of
her bathrobe) that was found tied tightly around her neck bones, the
medical examiner determined that Lisa had been strangled to death. In
September 1984, Wayne Tompkins, the victim's mother's boyfriend,
was charged with the murder.
At trial, the state's three key witnesses testified as follows.
Barbara DeCarr, the victim's mother, testified that she left the house
on the morning of March 24, 1983, at approximately 9 a.m., leaving
Lisa alone in the house. Lisa was dressed in her pink bathrobe.
Barbara met Wayne Tompkins at his mother's house a few blocks
away. Some time that morning, she sent Tompkins back to her house
to get some newspapers for packing. When Tompkins returned, he
told Barbara that Lisa was watching television in her robe. Tompkins
then left his mother's house again, and Barbara did not see or speak to
him again until approximately 3 o'clock that afternoon. At that time,
Tompkins told Barbara that Lisa had run away. He said the last time
he saw Lisa, she was going to the store and was wearing jeans and a
blouse. Barbara returned to the Osborne Street house where she found
Lisa's pocketbook and robe missing but not the clothes described by
Tompkins. Barbara then called the police.
11
The state's next witness, Kathy Stevens, a close friend of the
victim, testified that she had gone to Lisa DeCarr's house at
approximately 9 a.m. on the morning of March 24, 1983. After
hearing a loud crash, Stevens opened the front door and saw Lisa on
the couch struggling and hitting Tompkins who was on top of her
attempting to remove her clothing. Lisa asked her to call the police. At
that point, Stevens left the house but did not call the police. When
Stevens returned later to retrieve her purse, Tompkins answered the
door and told her that Lisa had left with her mother. Stevens also
testified that Tompkins had made sexual advances towards Lisa on
two prior occasions.
Kenneth Turco, the final key state's witness, testified that
Tompkins confided details of the murder to him while they were
cellmates in June 1985. Turco testified that Tompkins told him that
Lisa was on the sofa when he returned to the house to get some
newspapers for packing. When Tompkins tried to force himself on
her, Lisa kicked him in the groin. Tompkins then strangled her and
buried her under the house along with her pocketbook and some
clothing (jeans and a top) to make it appear as if she had run away.
Tompkins v. State, 502 So.2d at 417 - 18.
The thrust of Tompkins’ guilt stage ineffective assistance attack centers
around his argument that trial counsel did not do enough to show that Lisa DeCarr
was alive after the morning of March 24, 1983, the morning Tompkins was seen
struggling with her on the couch in the house they shared with Lisa’s mother, who
was Tompkins’ girlfriend. If she was alive after that morning, Tompkins argues,
someone else must have killed her, and besides, the State would have failed to
prove he had killed her before 5:00 p.m. that day, a requirement it undertook in the
bill of particulars.
12
The main thing trial counsel could and should have done to show that Lisa
DeCarr was alive after the morning in question, Tompkins says, is present
evidence that a young woman named Wendy Chancey had seen her alive later in
the day, had seen her getting into a vehicle, and had seen her wearing clothes
similar in appearance to those Tompkins told the police Lisa had been wearing
when she left the house unharmed that morning. Before trial, counsel learned from
a police report that Chancey had told the police those things during an interview,
and he considered using her as a witness. He decided not to do so because he
believed she would not have made a good witness.
At the state court evidentiary hearing, Tompkins tried unsuccessfully to
show that Wendy Chancey would have been a useful witness for the defense. The
evidence at that hearing showed that when Chancey was located and interviewed
twice by collateral counsel’s investigator, that she had no recollection at all of
having seen Lisa on the day in question, and that she could not even identify a
photograph of Lisa. The investigator who interviewed her included in his report
this observation and recommendation:
This writer believes that Wendy Chancey is a troubled child
who has been through many traumatic experiences, some of which
may involve narcotics. It could well be that Wendy Chancey’s past
and possibly some unknown medical condition affects her ability of
recall. Further attempts to interview this female are not recommended
by this investigator.
13
There is no evidence in the record that at the time of the trial Wendy Chancey
remembered anything about the events on the day in question, or that she even
remembered Lisa DeCarr.
Tompkins faults trial counsel for not calling Wendy Chancey, anyway. He
says she could have identified the statements referred to in the police reports as
ones she had made, and she could have said that those statements were accurate
when made even though she has no recollection of the events they describe. The
argument is that testimony from Chancey – if she gave it – would have been
enough to get those statements into evidence as prior recollections recorded. No, it
would not have been enough, even assuming Chancey could have testified to the
accuracy of the statements she could no longer recall. As the district court
explained, under Florida law a prior recollection recorded is admissible only if the
recorded statement is one that was recorded by the witness herself. See Fla. Stat.
§90.893(5) (“A memorandum or record ... shown to have been made by the
witness...”); Heindreth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986)(police
report’s synopsis of a witness’ statements to an officer not admissible as prior
recollection recorded).
Tompkins has not shown that there is any basis for the admission of that part
of the police report containing the statements Wendy Chancey supposedly made
14
but can no longer recall. Of course, we will not hold an attorney ineffective for
failing to offer inadmissible evidence.3 We also note, as did the district court, that
if trial counsel had called Wendy Chancey or any other witness to testify at the
guilt stage, under Florida law he would have forfeited his right to both open and
close the arguments before the jury.
THE PENALTY STAGE INEFFECTIVENESS CLAIM
At the penalty stage, in addition to relying upon the evidence that had been
presented during the guilt stage, the State also proved that Tompkins had been
convicted of two separate, knife-point abductions and rapes of convenience store
clerks. Both of those other crimes occurred after Tompkins sexually assaulted and
murdered Lisa DeCarr on March 24, 1983, but before her body was found in June
of 1984. The first of those two rapes occurred on April 7, 1984, and the second on
May 30, 1984. Tompkins pled guilty to armed robbery, kidnaping, and sexual
battery in connection with the first rape, and he pled no contest to kidnaping and
sexual battery in connection with the second rape. The prosecutor accurately
argued to the jury that Tompkins had been convicted of five violent felonies prior
to his conviction for the capital offense in the present case, saying, “That is his
3
Tompkins makes essentially the same argument about several other pieces of evidence he
contends trial counsel should have gotten in at the guilt stage. As to each and all of that evidence,
it was either not admissible under any valid theory, or there is no reasonable probability of a
different result had it been admitted, or both.
15
violent past right there: two rapes, two kidnapings, and an armed robbery, five
previous violent felony convictions.” The prosecutor also argued that “these
crimes he committed in Pasco County when he was raping these two other women
on April 7, 1984, and May 30, 1984, Lisa DeCarr still had not been found. She
was still buried under that house when this man unleashed his violence on these
two other women in Pasco County.” The crime was especially heinous, atrocious
and cruel, the prosecutor urged, because as the fifteen-year-old victim resisted
Tompkins’ sexual advances and struggled against him, Tompkins strangled her to
death with the sash of her bathrobe. He emphasized to the jury that Lisa DeCarr
did not die instantly but instead had her life strangled out of her and must have
realized before losing consciousness that she was going to die.
At the beginning of the penalty phase, trial counsel had informed the court
that Tompkins had just decided that no mitigating circumstance evidence should be
presented, because he did not want to spend the rest of his life in prison. Counsel
did not want to forego presenting mitigating circumstances and asked the court for
a recess so he would have an opportunity to talk his client into changing his mind.
The trial court directed counsel to ignore his client’s instructions and to present
mitigating circumstance evidence.
16
Counsel called as mitigation witnesses Tompkins’ two older sisters, and also
a brother-in-law who had known him for fifteen years. The sisters testified that
Tompkins was shy, had never displayed any violent behavior, had never hurt
anyone, did not use obscene language, and had always worked and supported
himself up until the time of his arrest. The brother-in-law testified he had known
Tompkins for fifteen years, and that Tompkins had worked for him for four years
in a roofing and construction business. He described Tompkins as a good
employee who was always on time, good to follow orders, and eager to learn. He
had not had any complaints from any customers about Tompkins, who never got
into any arguments or fights with anyone.
In his closing argument, defense counsel pointed out that Tompkins had
admitted his guilt for the two other crimes for which he had been convicted, and
that no one had been seriously injured or killed in them. He also argued
Tompkins’ age as a statutory mitigating circumstance, and he discussed the non-
statutory mitigating circumstances about which the defense witnesses had testified.
He urged the jury to spare Tompkins’ life.
The jury returned an advisory verdict unanimously recommending the death
sentence. The trial court found three statutory aggravating circumstances: 1)
previous convictions for felonies involving the use or threat of violence to the
17
person; 2) the murder was committed while the defendant was engaged in an
attempt to commit sexual battery; and, 3) the murder was especially heinous,
atrocious, or cruel. The court found one statutory mitigating circumstance: the
defendant’s age (twenty-six years old) at the time of the crime.4 The trial court
sentenced Tompkins to death.
Tompkins contends that trial counsel was ineffective at the penalty phase
because he failed to present additional mitigating circumstance evidence. The state
trial court conducted an evidentiary hearing on this claim, and although concluding
that counsel’s performance had been deficient, the court nonetheless rejected the
claim because Tompkins had failed to establish prejudice, as required under the
Strickland decision. On appeal, the Florida Supreme Court agreed with both
aspects of the trial court’s ruling. It found that counsel had been deficient because
he failed to present some available mitigating circumstance evidence, but it also
concluded that “this evidence would not have affected the penalty in light of the
crime and the nature of the aggravating circumstances.” See 549 So.2d at 1373.
After conducting a de novo review, the district court agreed that Tompkins had
failed to establish prejudice but found it unnecessary to determine whether or not
4
The district court observed that “the finding of mitigation because of his age would seem
extraordinarily generous.”
18
trial counsel’s performance had been outside the wide range of reasonable
professional assistance. We follow the same path as the district court.
Under the prejudice prong of Strickland, “[i]t is not enough for the defendant
to show that the error had some conceivable effect on the outcome of the
proceeding.” 466 U.S. at 693, 104 S.Ct. at 2067. Instead, “the question is whether
there is a reasonable probability that, absent the errors, the sentencer ... would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695, 104 S.Ct. at 2069. A “reasonable probability” of a
different result here, as in regard to the guilt stage, is one sufficient to undermine
our confidence in the outcome. See id. at 694, 104 S.Ct. at 2052. That means
Tompkins must convince us that if the additional mitigating circumstance evidence
in question had been presented, “there is a reasonable probability that the balance
of aggravating and mitigating circumstances would have been different.” Horsley
v. Alabama, 45 F.3d 1486, 1493 (11th Cir. 1995); accord Weeks v. Jones, 26 F.3d
1030, 1042 (11th Cir. 1994) (“[T]he petitioner must show ... there is a reasonable
probability that the sentencer would have weighed the balance of aggravating and
mitigating factors to find that the circumstances did not warrant the death
penalty.”) (quoting Bush v. Singletary, 988 F.2d 1082, 1090 (11th Cir. 1993) (per
curiam)). In order to decide this issue we look at the mitigating circumstance
19
evidence that was not presented, along with that which was, and consider the
totality of it against the aggravating circumstances that were found.
We have already set out the mitigating circumstance evidence that trial
counsel did present at the penalty stage, so we turn now to the additional evidence
which Tompkins contends should have been presented. It is primarily of three
categories. The first category concerns physical abuse Tompkins suffered as a
child. He was not abused by his parents, but by a man in the foster family with
which Tompkins lived for several years until he was sixteen years old.5 Tompkins
told a number of family members and friends that he was treated unfairly by his
foster father and was whipped and beaten by him.6
Evidence of physical abuse while a youth is admissible at sentencing, but
Tompkins was twenty-six years old when he committed this capital offense. We
have previously held that at least where there are significant aggravating
circumstances and the petitioner was not young at the time of the capital offense,
5
According to an affidavit from Tompkins’ brother-in-law, Tompkins lived in the foster
home from age 9 to age 16. Dr. Fleming’s report said he lived there from age 7 to 16.
Although Tompkins’ mother was far from an ideal parent, there is no suggestion she or his
father ever physically abused him. Tompkins had good feelings towards both of them, and the only
physical abuse he reportedly suffered was at the hands of Mr. Calhoun, the foster father.
6
There is no evidence in the record that Tompkins ever said that Mr. Calhoun, the foster
father, or anyone else, had actually sexually abused him. Two people did say Tompkins told them
that Calhoun had unsuccessfully attempted to do so, and another person said that Tompkins had told
her his foster brother had attempted to do so, also. See also n.10, infra.
20
“evidence of a deprived and abusive childhood is entitled to little, if any,
mitigating weight.” Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990)
(petitioner was thirty-one years old at the time of the capital offense); accord, Mills
v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995) (“We note that evidence of Mills’
childhood environment likely would have carried little weight in light of the fact
that Mills was twenty-six when he committed the crime.”). Bolender v. Singletary,
16 F.3d 1547, 1561 (11th Cir. 1994) (same holding where petitioner was twenty-
seven years old at the time of the capital offense).
The second category of mitigating circumstance evidence Tompkins
contends his counsel should have presented is evidence of substance abuse. The
evidence that Tompkins had a substance abuse problem is thin, consisting almost
entirely of his own statements to Dr. Patricia Fleming, the psychologist who
testified as his expert witness on mental state issues in the Rule 3.850 proceeding.
Despite a professed awareness that, in her words, “anybody that is facing
execution has every motivation to lie,” Dr. Fleming believed Tompkins when he
told her that he had taken drugs in the past and had ended up drinking beer and
hard liquor in large quantities. Indeed, she wrote in her report that Tompkins
began drinking at age seventeen and his alcohol consumption had increased until at
the time of his arrest he was drinking one-half gallon of whiskey and one-half case
21
of beer every day, which resulted in black outs, memory loss, and related
problems.
Tompkins’ self-serving statements to Dr. Fleming regarding the enormous
quantity of alcohol he consumed each day, and the results of it, were contradicted
by the affidavits and evidentiary hearing testimony on his behalf by nine family
members and close friends, people who had observed him closely at work and at
home over the years.7 Their sworn accounts provide a detailed description of
Tompkins’ personality and behavior, and although there is some reference in those
accounts Tompkins’ drinking, none of them indicate that he had a serious
substance abuse or alcohol problem, or that he acted as though he did. Instead,
with almost monotonous consistency those who knew Tompkins best described
him as an industrious, dependable man, a good worker and provider who earned
enough money as a roofer to buy presents for others and to regularly send his
mother money. They tell how Tompkins was responsible about all of his
obligations, kind, considerate, and caring, and how he was a stable influence on
the children he was around. In short, the affidavit and evidentiary hearing
testimony of nine people close to Tompkins indicate that he was anything but a
7
Nine family members and friends signed affidavits on Tompkins’ behalf, and five of those
affiants also testified as witnesses for him at the Rule 3.850 hearing.
22
hopeless alcoholic or drug abuser, and foreclose any realistic possibility that he
suffered from a serious substance abuse problem.
The opinion of a medical expert that a defendant was intoxicated with
alcohol or drugs at the time of the capital offense is unreliable and of little use as
mitigating circumstances evidence when it is predicated solely upon the
defendant’s own self-serving statements,8 especially when other evidence is
inconsistent with those statements. See Duren v. Hopper, 161 F.3d 655, 662 (11th
Cir. 1998). A psychological defense strategy at sentencing is unlikely to succeed
where it is inconsistent with the defendant’s own behavior and conduct. See
Weeks v. Jones, 26 F.3d at 1042; Bush v. Singletary, 988 F.2d at 1093. Moreover,
even when there is a factual basis for it, a showing of alcohol and drug abuse is a
two-edged sword which can harm a capital defendant as easily as it can help him at
sentencing. See Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996).
The third category of mitigating circumstance evidence Tompkins says that
counsel should have presented at sentencing is the testimony of Dr. Fleming. She
submitted a report in connection with the Rule 3.850 proceeding and testified at the
8
Tompkins did not tell Dr. Fleming, or anyone else, that he was under the influence of drugs
or alcohol at the time he murdered Lisa DeCarr. Instead, he adamantly insisted that he was
completely innocent. Tompkins did tell Dr. Fleming, however, that he had a long standing problem
with alcohol and that “prior to his arrest” – which was eighteen months after the crime – he was
drinking a huge quantity of alcohol each day.
23
evidentiary hearing held during that proceeding. We have already discussed her
factually unsupported conclusion that Tompkins had a serious alcohol or other
substance abuse problem.
Dr. Fleming also found that Tompkins was “in the borderline of mental
functioning,” which is the terminology psychologists apply to a person who is
below average intelligence but not mentally retarded.9 According to the tests Dr.
Fleming gave Tompkins, he had a verbal IQ of 86, a performance IQ of 75, and a
full scale IQ of 79. The range for even mild mental retardation is an IQ of from
50-55 to approximately 70. See American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 40 (4th ed. 1994). Tompkins’ scores were
well above that range, but Dr. Fleming says the tests she gave him revealed signs
of brain damage which “suggests that he’s significantly and seriously impaired in
higher levels of brain functioning,” and “[h]e becomes confused easily.” Dr.
Fleming admitted under cross-examination that a CAT scan is a better method for
detecting brain damage than the tests she used, but no CAT scan was given
Tompkins. She also said Tompkins had suffered emotional deprivations because
9
Dr. Fleming used the term “borderline of mental functioning,” which she did not
differentiate from “borderline intellectual functioning.” The latter term is generally defined as
describing someone with an IQ from 71 - 84. See American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 45 (4th ed. 1994).
24
he was separated while growing up from his natural parents, both of whom he
loved very much.
Dr. Fleming insisted that Tompkins was not violent, but was himself a
victim. She clung to that opinion even though Tompkins admitted to her that he
had raped the two women in Pasco County at knife point. Dr. Fleming refused to
acknowledge that those two crimes were actually violent, even though Tompkins
told her he had held the knife to one victim’s neck. When asked on cross-
examination if she would not agree that a man who had stuck a knife to a woman’s
neck and raped her is a violent individual, Dr. Fleming paused for five seconds,
and then would only say: “that was a violent act, depending on how you define
violence.” Throughout her testimony she adamantly refused to say that a man who
would commit two rapes at knife point was a violent man. Nor would she concede
that Tompkins would be especially dangerous if he was out on the street again.
Asked if Tompkins, who had admitted two rapes and had also been convicted of
sexual battery and murder or a fifteen-year old girl, could be dangerous in the
future, Dr. Fleming said: “He has that capacity, as does everybody in this room.”
Dr. Fleming mischaracterized some of the statements in the affidavits that had been
25
presented on Tompkins’ behalf in a way that made them more supportive of her
opinions about him.10
Dr. Fleming also indicated in her report that she believed Tompkins was
innocent, stating: “Mr. Tompkins’ emphatic denial of involvement in the death is
convincing.” She claimed to have read the trial record and even stated that the
circumstances of Lisa DeCarr’s disappearance were sufficiently vague that there
was some doubt about whether she was even dead. Dr. Fleming’s opinion that Lisa
DeCarr might not even be dead discredits her, because there was overwhelming
evidence that the skeletal remains found in the shallow grave beneath Lisa’ s house
were those of Lisa. See pages 29 - 36, infra.
There is no real possibility that a jury would have been swayed toward a life
sentence by anything she said. Dr. Fleming is palpably biased. She accepted
everything Tompkins told her as the gospel, including the fact that the jury had
wrongfully convicted him -- a belief the jury itself was unlikely to embrace. Her
unwillingness to concede that the kidnapings and rapes Tompkins admitted
10
For example, Dr. Fleming’s report categorically states: “Jerry Behringer, Wayne’s brother-
in-law, also reported in an affidavit that Wayne had told him of sexual molestation by Mr. Calhoun.”
Mr. Calhoun was the father in the foster family with whom Tompkins had lived for a number of
years. Although Behringer’s affidavit says Tompkins had told him that Mr. Calhoun had beaten
him, it does not say Tompkins told Behringer that Calhoun had sexually assaulted him, only that
Behringer had gotten that impression. None of the affidavits says Tompkins reported that Calhoun
or anyone else had sexually assaulted him, and Tompkins apparently never told Dr. Fleming that,
either.
26
committing at knife point are violent crimes shows the depth of her bias. Dr.
Fleming saw Tompkins, a man who had been convicted of a total of six violent
felonies involving sexual assaults on three different women as a non-violent victim
himself. She described him as a “perpetual victim.” We are confident the jury
would have either totally rejected her testimony and opinions or given them very
little weight.
We have considered all of the mitigating circumstance evidence Tompkins
says should have been presented at the sentence stage, along with that which
actually was presented.11 But weighing against it are multiple, strong aggravating
circumstances. The weight of those aggravating circumstances overwhelms the
mitigating circumstance evidence that was and could have been presented. We
conclude in this case, as the Supreme Court concluded in the Strickland case, that:
“Given the overwhelming aggravating factors, there is no reasonable probability
that the omitted evidence would have changed the conclusion that the aggravating
circumstances outweighed the mitigating circumstances and, hence, the sentence
imposed.” 466 U.S. at 700, 104 S.Ct. at 2071.
11
Among the other mitigating circumstance evidence Tompkins says should have been
offered is the following: while a child he had to have his stomach pumped after he accidentally
drank bleach and gasoline, respectively, on two separate occasions; he choked on a marble once and
turned blue before it was dislodged; when seventeen-years old he was struck by lightening while
using the telephone; and, he fell off of roofs four time during his career as a roofer. Dr. Fleming
considered those events as corroborating her diagnosis of brain damage.
27
THE GIGLIO CLAIM
Tompkins contends that at his trial the State “allowed the presentation of
outright false testimony through the medical examiner about identifying Lisa with
dental records,” in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763(1972). In order to prevail with a Giglio claim, a petitioner must establish that the
prosecutor “knowingly used perjured testimony, or failed to correct what he
subsequently learned was false testimony,” and that the falsehood was material.
United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995). For Giglio purposes,
“the falsehood is deemed to be material ‘if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury.’” Id., (quoting
United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397 (1976)(emphasis
added)).
Tompkins has failed to establish his Giglio claim concerning the medical
examiner’s testimony about whether dental records were used to identify the
skeleton as that of the victim. Putting aside the absence of proof that the
prosecution knew any more than defense counsel about whether dental records
were used to identify the remains, Tompkins has failed to meet the threshold
requirement that he show false testimony was used. The context of the claim is
that after Tompkins was seen on March 24, 1983 struggling with Lisa DeCarr on
28
the sofa in her mother’s house, where Tompkins stayed, no body was found until
June 5, 1984. On that date, after Lisa had been missing for fourteen-and-a-half
months, skeletal remains were found under that same house. Notwithstanding
overwhelming evidence that the skeletal remains were those of Lisa DeCarr, the
premise of Tompkins’ Giglio claim concerning the medical examiner’s testimony
is that but for the false testimony about dental records there could have been a
reasonable doubt that the skeletal remains were those of Lisa DeCarr.
The dental records testimony that Tompkins characterizes as false was given
by Dr. Diggs, the Associate Medical Examiner for Hillsborough County. Dr.
Diggs, a medical doctor and qualified pathologist, went to the site of the shallow
grave when it was discovered on June 5, 1984, assisted in the removal of the
skeletal remains, and performed the autopsy. He was able to identify the remains
as those of a female in her midteens and Lisa DeCarr had been a fifteen-year old
female.
Dr. Diggs testified that the top front teeth in the skull had an unusual
formation: one tooth was recessed behind the other front teeth, an anomaly which
is called an occluded or impacted tooth. He described for the jury the clothing
found on the skeleton and the jewelry found with it. Lisa DeCarr’s mother
testified that Lisa had just such an unusual occluded tooth behind her front teeth,
29
and she identified the jewelry found with the skeleton as Lisa’s. The skeleton was
clothed in a pink robe, which a witness testified Lisa had been wearing on the
morning of March 24, 1983, when she was struggling with Tompkins on the couch
of the house underneath which the skeletal remains were later found. Dr. Diggs
testified that the skeletal remains were of someone who had been dead for not less
than six or seven months and not more than two years. Lisa DeCarr had been
missing for between fourteen and fifteen months. Dr. Diggs filled out and signed
a death certificate indicating that the skeletal remains were those of Lisa DeCarr.12
During cross-examination, the following exchange occurred between
defense counsel and Dr. Diggs:
Q. Doctor Diggs, you mentioned that you
observed the teeth of the deceased.
A. Yes.
Q. Were you ever provided with any dental
records to compare, such as the dental records of Lisa
DeCarr to compare with the teeth that you were actually
observing?
A. We received – we received dental x-rays, yes,
and this was – these x-rays were – these x-rays were used
in order to make an identification.
12
Dr. Diggs also testified that he found a ligature which had been tightly tied around the neck,
and that in his opinion death had been caused by strangulation and had not been instantaneous.
30
Now, the identification generally is made by
the dentist who is hired by the office as a consultant, but
the x-rays are taken to compare the actual dental makeup
of the mouth, and these comparisons are made to identify
the individual, yes.
Q. Do you have those x-rays with you?
A. [Displaying.]
Q. How did you observe or how did you obtain,
excuse me, these records?
A. Well, Doctor Powell is the individual who
made these records and, of course, I would have to defer
to him as to how these were – as to how these were made.
All of this was done by him.
Q. Who is Doctor Powell?
A. Doctor Powell is the forensic odontologist for
Hillsborough County. He is basically responsible for
making identifications of teeth of individuals whom we –
we would want a positive identification on.
Q. Am I correct in saying that Doctor Powell was
hired by your office to take these x-rays?
A. No. He is actually hired by Hillsborough
County. I don’t know the terms of the contract or
anything to that extent, but he is the individual who
normally makes the determination of death and the
identification of an individual who is skeletalized or an
individual who is burned badly and is nonidentifiable.
There is a particular profession, a subspecialty
of the dental profession in itself in which I have no
expertise.
31
Q. Doctor Diggs, were you ever provided with
dental records of Lisa DeCarr prior to your [sic]
disappearing?
A. I was not, no.
The part of that testimony which Tompkins labels false is the answer to the second
question quoted above, the question about whether Dr. Diggs had been provided
with dental records of Lisa DeCarr to compare to the teeth of the skeleton.
As the district court pointed out, the answer in question is at most
ambiguous, and any ambiguity was cleared up a few questions later. Dr. Diggs
displayed the dental x-rays he was talking about and said they had been made by
Dr. Powell, whom he identified as the county’s forensic odontologist, one whose
job it is to help identify bodies through dental evidence. The last question and
answer quoted above shows that defense counsel understood that Dr. Diggs was
not saying that he had been provided with “any dental records of Lisa DeCarr prior
to your [sic] disappearing.” The reference to “your” is obviously a typographical
error in the manuscript or a slip of the tongue that everyone understood to be a
reference to Lisa DeCarr’s disappearance, not to any disappearance of Dr. Diggs.
Whatever confusion may have been caused by his earlier answer, Dr. Diggs
cleared things up when he conceded that he had not been provided any dental
records of Lisa that had been made before she disappeared.
32
Furthermore, after Dr. Diggs testified, Barbara DeCarr took the stand and
testified, among other things, that she had tried unsuccessfully to locate pre-
mortem dental records of her daughter, Lisa DeCarr. Neither defense counsel nor
the jury was or could have been misled by Dr. Diggs’ ambiguous testimony about
the dental records. There was no false testimony about the existence of pre-
mortem dental x-rays or records.
Even if there had been false testimony on the subject, and even if the State
had known it was false, Tompkins’ Giglio claim would still fail on the materiality
element, because he has not shown that the testimony in question could have had
an effect on the verdict. The district court cogently summarized the overwhelming
evidence that the skeletal remains were those of Lisa DeCarr:
The State introduced Exhibit 10, a photograph of the
skull that was taken from the grave (R 149), for the
purpose of showing a dental anomaly of a tooth which
had grown behind the subject’s two front teeth in the
same manner as Lisa’s. Using Exhibit 10, Dr. Diggs
described this unusual dental structure. (R 178)
Subsequently, Barbara DeCarr testified that her daughter
had the identical dental anomaly as that described by Dr.
Diggs. (R 208) In addition, Stevens saw Petitioner,
immediately prior to the time of the disappearance,
assaulting Lisa. The body was found in a shallow grave
beneath the house where she was assaulted and where she
resided with her mother, her siblings, and Petitioner. Her
remains were identified in several ways: the unusual
dental feature; the remains being wrapped in Lisa’s robe;
and Lisa’s earrings and ring given to her by her boyfriend
33
being found adjacent to the skeletal remains in a position
indicating that they had been worn by the victim.
Coupled with the unsolicited confession Petitioner gave
to Kenneth Turco, even if the medical examiner had
given misleading testimony regarding identification of
Lisa’s body, there is no reasonable likelihood that such
testimony could have affected the judgment of the jury.
In a footnote to that summary, the district court pointed out that the death
certificate identifying the skeletal remains as Lisa DeCarr came into evidence
without objection.
We add to the district court’s summary the additional facts that the skeletal
remains were those of a female in her midteens, and there is no other evidence that
any other female in her midteens was missing in the area. Nor has Tompkins
offered any explanation for how anyone else came to be buried – with Lisa’s
jewelry – under the house he shared with her, the same house in which he had
been seen struggling with her as she wore a pink robe, the very same pink robe
found on the skeleton.13 There is simply no doubt that it was Lisa DeCarr whose
skeletal remains were found in that shallow grave. With all due respect to the
13
Lisa’s mother was able to identify the pink robe found on the skeleton as Lisa’s, because
of the rose design or imprint it had on the collar.
34
advocacy obligations of Tompkins’ present counsel, their argument in brief that
“there was very little evidence of the identity of the deceased” is preposterous. 14
CONCLUSION
The district court’s denial of Tompkins’ amended petition for a writ of
habeas corpus is AFFIRMED.
14
Tompkins also contends that Giglio errors were committed in connection with witnesses
Stevens and Turco. We agree with the district court that those contentions are palpably without
merit, and we do not believe they need any more discussion than that given them by the district
court.
35