WALLACE M. FUGATE, III, Petitioner-Appellant, versus FREDERICK J. HEAD, Warden, Georgia Diagnostic & Classification Prison, Respondent-Appellee.
No. 98-8930
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
August 16, 2001
D.C. Docket No. 97-00712-5-CV-WDO
Appeal from the United States District Court for the Middle District of Georgia
(August 16, 2001)
Before BIRCH, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
I. BACKGROUND
The facts concerning the murder are not in dispute. The following description is taken from the opinion of the Georgia Supreme Court:
Fugate and the victim were divorced after almost 20 years of marriage. The victim lived with their son in the former marital residence, while Fugate moved to another town to minimize the likelihood that he would find himself in violation of a restraining order prohibiting him from having contact with his former wife. However, on Saturday, May 4, 1991, Fugate went to the victim‘s residence while she and the son were at work. (The son worked part-time at the same business as the victim.) According to Fugate, the victim had left him a note stating she would be in South Carolina that weekend, and he thought he would repair his son‘s automobile while they were gone. Fugate broke into the house soon after his wife and son left for work and stayed there from 9:00 a.m. until they returned home at 5:30 that afternoon.
When the victim and the son returned home, they noticed that the son‘s car had been moved. She called her sister. The son testified that when he heard a noise in the basement, he got his rifle and ordered Fugate to come out. When Fugate appeared with a revolver in his hand, the son tried to shoot him because Fugate had threatened to kill the victim “if he ever caught her alone.”
However, the son‘s rifle had been unloaded and disabled and would not fire. Fugate brushed past his son and went to the victim.
According to Fugate, he was surprised by the victim‘s return, and went to the basement thinking he would sneak out a back door and avoid a confrontation. However, there were too many locks on the back door, so he hid, hoping they would soon leave. When he was discovered, he went upstairs to his wife, who was calling the police, “mashed down” the receiver and told her to take him to the sheriff, thinking this would defuse the situation. However, she was scared-partly because he had a gun in his hand-and attacked him before he could put it in his pocket. As they fought their way out to her van, she knocked him down several times and tried to take away his gun. During the scuffle, the gun went off once inside the house, and a second time as he was trying to put her in her van. Both shots were accidents, according to Fugate. After the second shot mortally wounded her, he took the van and drove off.
According to the son, Fugate dragged the victim out to the van, pistol-whipping her when she resisted. He shot once in the house trying to scare her into obeying, and then, when he was unable to force her into her van, Fugate grabbed her hair, jerked her head back and shot her in the forehead. He dropped her body to the ground and drove off.
Besides the bullet wound in the forehead, the victim‘s body was bruised on the face, shoulders and arms and there was a blunt-force laceration on the back of her head. The son testified that Fugate had struck the victim at least 50 times before shooting her. A photograph of Fugate taken shortly after his arrest does not show that he suffered any visible cuts or bruises.
Fugate v. State, 431 S.E.2d 104, 106-07 (Ga. 1993).
Attorneys Reginald Bellury and Leo Browne represented Fugate at trial. Bellury was the lead counsel in Fugate‘s case. At the time of Fugate‘s trial in
Leo Browne was Bellury‘s co-counsel for the trial. When the original co-counsel removed himself from the case, Bellury chose Browne, with whom he shared a secretary, to assist him following the court‘s instruction to select a new co-counsel. Browne had been practicing law for thirty-six years as of the time of the trial. Prior to representing Fugate, Browne had been involved in cases in which the prosecution sought the death penalty but the death penalty was not imposed. Browne did not recall reading any books or attending any seminars about the death penalty.
At trial, Fugate‘s son Mark Fugate testified that, when Fugate saw Pattie on the telephone, “he grabbed her and started beating her . . . [with] [t]he butt of his gun,” and Mark “hit him with the back of [Mark‘s] gun.” Mark said that Fugate then “grabbed her by the hair and started dragging her out of the house.” As they reached the back porch steps, Pattie “grabbed a hold of the steps to hang on.” “When [Mark] ran around the corner, [Fugate] pointed the gun at [him], and
Fugate testified that, once he was in Pattie‘s house, he called the hotel room number that Pattie had given him to confirm that she was out of state but did not reach her. He said that he called the hotel a few times, but hung up after hearing Pattie‘s boyfriend‘s voice because he believed that “she was up there with [him].” Pattie‘s telephone record exhibits confirmed that, during the afternoon of the murder, a number of calls were made from her residence to the hotel where she planned to stay.
Fugate testified that, after Pattie was seated in the van:
I leaned in the van. I had the pistol in the right hand, it was up on the top of the back of the van seat. And, I had my other hand on the seat of the van. And, I leaned inside the van, she just laid back and she grabbed the steering wheel and the arm rest to the van seat, and she drawed her legs up and kicked me right square in the chest with both feet as hard as she could, which caught me off guard.
I throwed my hands up, you know, trying to keep myself from falling. And, when I did, this hand here that the pistol was in, it hit the top of the door frame on the van and it discharged.
He said that he knew that he hit his hand “pretty hard because [it] was black and blue the next day” and “felt like it was broke[n].” He clarified that the pain was not in his entire hand, but in his fingers. He explained that
the reaction of my fingers being smashed . . . was to draw my hand back. And, when I did, evidently, I hit the trigger. Which I didn‘t have my hand on the trigger, I was holding [the] gun – you know, I palmed the gun, it wasn‘t like I was holding it like I was going to shoot it or anything.
Fugate asked for permission to hold the gun during the trial, and squeezed the trigger commenting that “[i]t‘s very easy to do.”
During Fugate‘s cross-examination, the prosecutor compared Fugate‘s testimony to that of other witnesses and asked Fugate whether he had “told the jury up here you were lying to them, that you lied this morning, didn‘t you?” When the prosecutor asked what had happened to the note from Pattie that had the telephone number on it, Fugate responded that he did not have it because it was in the clothes that he had on the day of his arrest which had not been returned. Fugate explained that the note “was in [his] wallet to start with. . . . When I made the phone call, I stuck it in my shirt pocket.” The prosecutor asked whether Fugate had “really made the phone call based on a little note with two telephone numbers laying there
Roach testified that the jail personnel had given her some of the clothes that Fugate was wearing at the time of his arrest, but that neither the flannel shirt nor the note from Pattie were in the returned clothes. She said that she had not found the note despite Fugate‘s request that she look for it but confirmed that she was with Fugate when he got the note from Pattie and that it contained the hotel name.
After Fugate explained how the gun “went off the second time,” the prosecutor commented: “You could sell the Golden Gate Bridge.” The prosecutor stated “[o]h, that‘s the fourth lie now you‘ve admitted to,” after Fugate explained the differences in his statement to the police and in his testimony. The prosecutor also commented “Mr. Fugate, you made a statement . . . that . . . the minute you told them that you didn‘t want to talk to them any more, that you wanted an attorney, they shut up, and left you alone.”
David Hallman, Pattie‘s employer, testified that Pattie and Mark usually worked on Saturdays, and both worked until shortly after 4:00 P.M. on the day of the murder. Hallman said that, if Pattie had wanted to schedule Saturday off, he was flexible and she could have “even . . . asked me on Friday, as long as she had
During the guilt phase closing arguments, Bellury presented the first argument and Browne presented the concluding argument. Bellury maintained that the shooting was a “[p]ure, pure accident. Extremely tragic accident. . . . It was a regrettable accident. . . . A tragic accident.” Browne asserted that the shooting was “an accidental death [,] an unfortunate situation, a terrible situation.” He argued that Fugate had no intention of kidnaping Pattie, noting that he “deliberately tried to get to that house when she was not going to be within hundreds of miles of the place. She was going to be gone. He wasn‘t kidnapping [sic] Patty Fugate.” Browne also analogized Pattie to a “Bengal tiger,” referring to the fact that she did not fear Fugate. Browne maintained that, after Fugate suggested that they go to the sheriff‘s office, Pattie “fought him like a tiger. He was trying to protect himself.” The prosecutor argued that there was no note, and commented that Fugate was supposed to have had on a tee-shirt, flannel shirt, and jacket on May 4. He maintained that Fugate had gotten the hotel telephone number from the table near the telephone in Pattie‘s home.
At the penalty phase, the prosecutor did not make an opening statement and did not present any witnesses. Fugate‘s attorneys made no opening statement but called four witnesses: Mary Fugate, Fugate‘s mother; Wayne Hatcher, Fugate‘s niece‘s boyfriend; Elmos Hendrix, Roach‘s neighbor; and Deborah Shepherd, Roach‘s sister. As outlined in detail below, these four witnesses testified generally about Fugate‘s work history, character, and non-violent nature. Mary Fugate testified that Fugate was “an obedient child” who had never been in trouble, and she stated that he was a good father who was not violent and had always worked. She also testified that his marriage to Pattie had been stormy. Hatcher testified that he had known Fugate for about four or five years and thought that he had a “rather well character.” Hatcher conceded that he had heard from his girlfriend that Fugate “harassed” his ex-wife, but he also stated that he had never known Fugate to be physically violent or seen Fugate commit any violent acts. Hendrix testified that he knew Fugate because he lived in the neighborhood and had performed some
Mary Fugate, Hatcher, Hendrix, and Shepherd each indicated that they believed that Fugate should be sentenced to life. Hendrix said that Fugate should be sentenced to life because “he‘d be worth something to the State,” noting that “[t]he State needs carpenters and electricians and brick masons and things.” When asked on cross-examination whether he really thought that the prosecution “ought to do nothing but just let him sit around the penitentiary and carpenter [sic],” Hendrix replied, “Well, I think he deserves a chance. . . . I think he needs a chance because he‘s done a good job there for me, and I think – believe he‘d be some help to the State.”
The prosecution cross-examined three of these witnesses (Hendrix, Hatcher, and Shepherd). Fugate‘s counsel conducted a brief re-direct examination of Hatcher. The witnesses’ testimony was completed by 4:12 p.m., and the jury was
Fugate‘s conviction and sentence were affirmed on appeal, Fugate v. State, 431 S.E.2d 104 (Ga. 1993), and reconsideration was denied. Fugate filed a petition for writ of habeas corpus in the Superior Court of Butts County and alleged ineffective assistance of counsel. At an evidentiary hearing, Bellury said that he was never able to find or corroborate the existence of the note from Pattie with the name and phone number of the hotel. He said that he did not consider the note or the flannel shirt significant pieces of evidence because he felt that “the evidence pretty much showed that he believed she would not be there.” Bellury had interviewed Pattie‘s employer, David Hallman, who said that he “believed until that Friday . . . that Patti would be off that weekend . . . but . . . that he told her that she would have to work” because another employee would not work for her. When asked, he agreed that “Mr. Hallman‘s testimony that she was expected to be
Following the filing of post-hearing briefs, the state habeas court, in a ninety-two page order, denied Fugate‘s state habeas petition. The state habeas court noted that Fugate had raised several grounds which were procedurally defaulted, and that Fugate‘s claim of ineffective assistance of counsel was “not . . . established so as to constitute cause for the procedural defaults.”6 The state habeas
there were no extraordinary circumstances present in this case, such that would establish a complete denial of counsel or a breakdown in the adversary process eliminating an examination of prejudice as a requirement by this Court in considering Petitioner‘s claim. Throughout the trial counsels’ habeas corpus direct and cross-examination testimony, lead counsel was able to articulate his reasoning behind specific tactical decisions for his defense.
In assessing “the benchmark for judging any claim of ineffectiveness,” the state habeas court stated that “the performance inquiry must be whether counsel‘s assistance was reasonable considering all of the circumstances.” The state habeas court then evaluated Fugate‘s ineffectiveness claims “viewed from a perspective of counsel at that time.” The state habeas court noted that Bellury and Browne “prepared for trial and investigated evidence to support [Fugate‘s] accident defense,” and that “Mr. Bellury testified that he and Mr. Browne were very clear ‘from beginning to end’ as to what their defense would be.” On the issue of
Fugate filed an appeal and applied for a certificate of probable cause (“CPC“), but the Georgia Supreme Court denied CPC and reconsideration.7 On December 10, 1997, Fugate filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Georgia.8 Fugate raised three primary issues: (1) ineffective assistance of counsel in both the guilt and penalty
In appeals involving claims of ineffective assistance of counsel, we traditionally review the district court‘s findings of fact for clear error and its legal conclusions and mixed questions of law and fact de novo. See Williams v. Head, 185 F.3d 1223, 1226-27 (11th Cir. 1999), cert. denied, 530 U.S. 1246 (2000). In this case, however, both this court and the district court are reviewing, pursuant to
First,
Second,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.
The “contrary to” clause in
III. LEGAL PRINCIPLES GOVERNING COUNSEL‘S PERFORMANCE
Counsel‘s performance is entitled to “highly deferential” judicial scrutiny, and “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). This presumption is even stronger when the reviewing court is examining the performance of an experienced trial counsel. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc), cert. denied, U.S. ___, 121 S. Ct. 1217 (2001).
“Given the strong presumption in favor of competence, the petitioner‘s burden of persuasion – though the presumption is not insurmountable – is a heavy one.” Chandler, 218 F.3d at 1314 (footnote and citations omitted). In order to show that counsel‘s performance was unreasonable, the petitioner “must establish that no competent counsel would have taken the action that his counsel did take.” Id. at 1315 (footnote and citation omitted).
“No absolute rules dictate what is reasonable performance for lawyers.” Id. at 1317 (citing Strickland, 466 U.S. at 688-89). Thus, courts refrain from establishing rigid requirements for trial counsel‘s performance. For example, there is no absolute duty to investigate particular facts or a certain line of defense, although a complete failure to investigate may constitute deficient performance of counsel in certain circumstances. See id.; Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001) (“A failure to investigate can be deficient performance in a capital case when counsel totally fails to inquire into the defendant‘s past or present behavior or life history.“).
Likewise, “[n]o absolute duty exists to introduce mitigating or character evidence.” Chandler, 218 F.3d at 1319. This court and the Supreme Court have held repeatedly that the performance of counsel who fails to present any mitigating evidence whatsoever – even when such evidence was available – may nonetheless pass constitutional muster. See id. (citing Burger v. Kemp, 483 U.S. 776, 794-96 (1987); Darden v. Wainwright, 477 U.S. 168, 182-84 (1986); Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)). Indeed, “[c]onsidering the realities of the courtroom, more is not always better. Stacking defenses can hurt a case. Good advocacy requires ‘winnowing out’ some arguments, witnesses, evidence, and so on, to stress others.” Id. (citations omitted).
With these governing principles in mind, we turn to an evaluation of the performance of Fugate‘s attorneys during both the guilt and sentencing portions of this trial.
IV. INEFFECTIVE ASSISTANCE AT THE GUILT PHASE
Fugate argues that his attorneys’ performance was deficient and that he suffered prejudice as a result because the jury was deprived of critical evidence and
Upon review, we conclude that the efforts of Fugate‘s counsel with regard to these issues did not constitute ineffective assistance.
A. Corroboration of Fugate‘s Intent
Fugate maintains that his attorneys were ineffective in failing to offer evidence to support his assertion that he thought Pattie would be out of town over the weekend and that this information was critical to his defense. During the trial, Fugate testified that he had received a note from Pattie indicating that she would be out of town on May 4, and it provided him with the telephone number of the motel where she would be staying. He claimed that he had placed the note into the pocket of a flannel shirt that he was wearing that day. Fugate‘s girlfriend corroborated the existence of the note and the fact that Fugate was wearing a flannel shirt on the day of the murder. Fugate‘s awareness of the telephone
Because the issue of whether a killing was impulsive or premeditated can be “an important factor when the jurors consider whether to recommend the death penalty,” an attorney can be ineffective for failing to raise a reasonable doubt as to the impulsiveness or premeditation of the act during opening and closing arguments. Magill v. Dugger, 824 F.2d 879, 889 (11th Cir. 1987). Ineffectiveness, however, is not established by the fact that other testimony might have been elicited. See Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995).
Although other evidence might have been presented,12 Fugate‘s attorneys elicited testimony from his girlfriend and from Pattie‘s employer which supported Fugate‘s testimony that he believed that Pattie would be out of town. Fugate‘s attorneys were aware of the note and made an informed, strategic decision not to
B. Failure to Impeach Critical Prosecution Witnesses
Fugate argues that his attorneys performed below professional standards by failing to impeach Mark Fugate with the inconsistencies in his written statement to the police and in his testimony at trial. Fugate also contends that his attorneys performed deficiently by failing to impeach the medical examiner with the inconsistencies in his autopsy report and in his testimony at trial.
In his statement to the police, Mark said that he
ran to the back of the van. I peeked around, I heard a shot. I saw my mother‘s head hit the ground. I could not tell if he held her head back or not. He had his back to me. He was holding her by the head of the hair.
At trial, Mark testified that he saw Fugate “grab [Pattie] – holding her by her hair, tilt[] her head back, put the gun in her face, and pull[] the trigger.” On cross-examination, Mark admitted, “I did not see the bullet hit her face, because I blinked my eyes at that moment when he pulled the trigger.”
At the state habeas hearing, Bellury acknowledged that, prior to the trial, he had received Mark‘s statement to the police but said that he was unable to interview Mark. Bellury said that after conducting their pretrial discovery, he and Browne “finally concluded that [Mark] could not see, certainly couldn‘t have seen everything that went on” and believed that he argued that to the jury. Bellury recollected that Mark testified at trial that Fugate “grabbed [Pattie‘s] hair but some way had held her head back and shot her.”13
[Y]ou‘re going to see the photographs . . . of the blood that was upon – about the face or the head of Patty Fugate on that day. I ask you, would it be possible to have struck her that many times, that hard, severe enough to cause the bruises and he lacerations that you have – will see in the photographs . . . . Would it be possible for there not to have been at least a little smidgen of blood on this gun? Your common sense tells you that there would have had to have been. Your observation will tell you that there isn‘t.
Mark‘s testimony that Fugate beat Pattie “[o]ver 50” times was not inconsistent with his statement regarding the beatings or with the autopsy report. Further, Bellury argued the inconsistencies of Mark‘s testimony with the condition of the pistol as found by the officer. Therefore, Fugate cannot show ineffective assistance or prejudice on this issue.
Fugate also argues that his attorneys were ineffective for failing to impeach the medical examiner when he testified that the lack of powder burns on Pattie‘s forehead did not necessarily indicate that the barrel of the gun had been distant at the time of the shooting. In his autopsy report, Dr. Randy Hanzlick, the medical examiner, noted that “[t]here is no gunshot residue on the forehead, there is no charring of the wound, and there is no gunshot residue in the depths of the wound track. . . . This is a distant gunshot wound.”14 At the trial, the prosecutor asked Dr. Hanzlick whether he found “anything that would indicate or give [him] any idea of distance.” Dr. Hanzlick responded:
No, I didn‘t find any gun powder or gunshot residue in the wound itself or on the skin surface. So I can say that I – that I‘m pretty sure that the gun was not directly on the skin. You know, it would‘ve blown gun powder down into the wound, and that was not present here.15
Referencing a photograph, Dr. Hanzlick explained that “the hair is kind of pulled down over the forehead area and covering that area actually where the gunshot wound was.” The prosecutor then asked “if the bullet passed through that hair, would that have affected the amount of stippling or powder residue and all on the skin?” Dr. Hanzlick answered that “[i]t could block it. Any object that was between the gun and the skin surface could block that powder from getting on the skin.” Dr. Hanzlick responded “[y]es” when asked whether such a block would interfere with his estimation of the exact distance of the gun.
On cross-examination, Fugate‘s counsel asked Dr. Hanzlick what was “the maximum distance away before you don‘t have the [gunshot] residue?” Dr. Hanzlik responded that
with a .38 caliber handgun, once you‘re beyond about 18 inches to two feet or so, the pattern gets sparse enough that you might not see anything on the skin. . . . If that particular gun had discharged normally and was one foot away and it had a normal load in it that fired normally and there was nothing between the front of the gun and
the skin, it probably would‘ve left some sort of tattooing or stippling on the skin‘s surface.
When Fugate‘s counsel asked whether there would be much blood spattering as a result of the gunshot wound, Dr. Hanzlik answered that there would not be a lot and that the gun “was not in direct contact with the skin.” At the habeas hearing, Bellury commented that he was “very surprised” by Dr. Hanzlick‘s “adversarial demeanor” at trial when he “did not want to admit that the distance had to be as great” as Bellury and Browne had heard him say during a pretrial interview.
Although Bellury did not use the autopsy report to impeach Dr. Hanzlick, he was able to get Dr. Hanzlick to state that the gun was not against Pattie‘s skin and was more than one foot away. Therefore, Fugate is unable to show prejudice as a result of the failure to impeach.
C. Failure to Demonstrate the Susceptibility of the Gun to Accidental Firing
Fugate contends that his attorneys performed deficiently by failing to contact an independent weapons expert or the manufacturer of the gun regarding the possibility of an accidental firing. At trial, the prosecution presented testimony that the gun involved in the murder would fire in two modes: a single-action mode, which required that the gun be cocked, and a double-action mode, which did not require that the gun be cocked. In the single-action mode, it took 4.2 pounds of
Ineffective assistance of counsel does not implicate the Sixth Amendment unless the attorney‘s conduct affected the reliability of the trial process. United States v. Cronic, 466 U.S. 648, 658 (1984). A Sixth Amendment violation will be found “if counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing,” making “the adversary process itself presumptively unreliable.” Id. at 659. In order to prove ineffective assistance, a petitioner must show that his attorney‘s acts or omissions were not “the result of reasonable professional judgment.” Strickland, 466 U.S. at 690. Counsel is ineffective when he failed to investigate adequately the sole strategy for defense and to prepare evidence to support the defense which might have affected the jury‘s comparison of conflicting testimony. See Code v. Montgomery, 799 F.2d 1481, 1483-84 (11th Cir. 1986).
- that it was professionally unreasonable for counsel not to investigate;
- what kind of, and how much, investigation an ordinary, reasonable lawyer would have undertaken;
- that it is reasonably probable that a reasonable investigation would have turned up an expert who would have presented testimony similar to that which was eventually adduced; and
- that it is reasonably probable that this testimony would have affected the sentence eventually imposed. Failure to meet any of these steps defeats the ineffectiveness claim.
Elledge v. Dugger, 823 F.2d 1439, 1446 n.15 (11th Cir.) (per curiam), withdrawn in part on other grounds, 853 F.2d 250 (11th Cir. 1987). Where counsel investigated the possibility of presenting expert testimony, but decided, based on that investigation, not to present this form of mitigating evidence, the Elledge test does not need to be applied. Mincey, 206 F.3d at 1146 n.83.
We cannot say that, under the circumstances in this case, the decision by Bellury not to hire an expert witness to testify regarding the propensity of the gun to accidental firing was unreasonable. Fugate‘s defense was based on his claim
D. Alleged Failure of Counsel to Protect Legal Rights
Fugate claims that his attorneys failed to object to the prosecutor‘s reference to Fugate‘s invocation of his right to counsel during interrogation, failed to object to the prosecutor‘s argumentative behavior during cross-examination, and argued inconsistent theories of defense in closing argument. During the trial, the prosecutor introduced a waiver signed by Fugate at the time of his interrogation. On cross-examination, Bellury asked Georgia Bureau of Investigation agent Marc Mansfield about the contents of Fugate‘s statement, and Mansfield reported that Fugate “said that it was an accident.” Mansfield noted that, after Fugate “made the statement to us, ‘You know, she is dead, and I think I need an attorney[,]’ . . . the
At the habeas corpus hearing, Bellury conceded that the testimony that Fugate terminated the questioning by asserting his right to counsel did not help his case. He explained that he did not move to exclude the statement and “regarded [the statement] as neutral,” because it “[b]asically” was consistent with Fugate‘s testimony at trial. He testified that he did not want to further address Fugate‘s termination of the questioning because it was “inconsistent” and did not “blend in” with the defense theory that Fugate was forthcoming.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that the use of a defendant‘s silence at the time of his arrest for impeachment purposes violates due process. Id. at 619. The Court later extended this protection to post-Miranda invocations of the right to counsel. Wainwright v. Greenfield, 474 U.S. 284, 295 (1986). If the prosecution violated the Greenfield standard, then we must determine whether that “error ‘had substantial and injurious effect or influence in
In this case, the Greenfield violations were harmless. There were two technical Greenfield violations when the jury heard that Fugate asked for an attorney at the end of his voluntary police interview. Fugate‘s counsel failed to object to this admission, and the trial judge failed to give a curative instruction to the jury. Both improper references, however, were brief and one occurred in
Fugate contends that his attorneys were ineffective by failing to object to the prosecutor‘s argumentative, bullying, and prejudicial cross-examination. At the habeas hearing, Bellury said that, although he was “definitely taken back” when Fugate “ask[ed] the prosecutor if he could hold the gun,” he should have objected when the prosecutor “said to Mr. Fugate, ‘You could sell the Golden Gate Bridge,‘” and accused him of being a liar. When asked whether he agreed that it was important to object to improper questions, Bellury responded, “Well, sometimes and sometimes not. It‘s a decision that has to be made. It‘s an important decision. I would say that certainly it‘s that, yes.” Bellury conceded that, in hindsight, he “probably . . . would object.” He explained:
I deliberately did not make those objections then. I – It wasn‘t that I was sitting there asleep or something. Those were deliberate decisions. Right or wrong, they were deliberate decisions at the time.
. . .
I wasn‘t thinking of it in terms of who was getting the best of the argument. . . . I was mainly thinking that this was the most dreadful sort of – sort of testimony I had ever – ever had a client give at any time and I was hoping it would be over with just as quickly as it could possibly be over with. The shorter that went on the – the better off I figured we were.
. . .
I am saying that at the time my lack of objections were deliberate . . . at the time it made sense to me to do what I did and to not do what I didn‘t do.
Fugate contends that his attorneys rendered ineffective assistance by arguing inconsistent theories of the case during closing argument. He maintains that, while Bellury focused on the accident defense, Browne advanced a self-defense theory by characterizing Pattie as a “Bengal tiger.” In Georgia, the presentation of inconsistent defenses by two defense attorneys is ineffective assistance. See Ross v. Kemp, 393 S.E.2d 244, 245 (Ga. 1990) (per curiam).
During closing arguments, both Bellury and Browne argued that the shooting was an accident. They had discussed their closing arguments in a “very general fashion” before the trial, and Bellury was familiar with Browne‘s style.
Alternatively, even assuming arguendo that Fugate has shown sufficient errors by his counsel to rise to the level of constitutionally deficient performance at the guilt phase, we conclude that the substantial evidence of Fugate‘s guilt would defeat any showing of prejudice. The state habeas court found, and we agree, that the trial evidence would support the jury‘s findings that: 1) Fugate broke into the victim‘s house through the basement window and waited all day for her return, intending to take her away with him against her will; 2) Fugate was there at least eight hours; 3) the son‘s rifle had been disabled; 4) Fugate forced Pattie out to the van with a gun in his hand; 5) Pattie was beaten by a blunt object on the head and had bruises around her face, shoulders, and body that were consistent with defensive wounds; 6) Fugate first shot inside the house; 7) Fugate intentionally shot Pattie; 8) Fugate lied about his excuse for even having a gun or having taken
V. INEFFECTIVE ASSISTANCE DURING THE PENALTY PHASE
Fugate contends that his attorneys failed to obtain and present adequate mitigating evidence during the penalty phase of the trial. This failure, he claims, was a product of neglect rather than of strategy and thus rendered his counsels’ assistance ineffective. He asserts that had his attorneys conducted a sufficient investigation they would have discovered important mitigation evidence concerning his military experience, work history, lack of a criminal record, and good reputation in the community. Fugate argues that this additional mitigating evidence was especially necessary in light of the “distorted and unreliable” picture of the crime that resulted from his counsel‘s allegedly insufficient performance during the guilt phase of the trial.
Again, after reviewing the record in this case and in light of the applicable rules, we conclude that Fugate‘s claim that his counsel provided ineffective assistance during the penalty phase fails as a matter of law.
A. Evidence Presented During the Penalty Phase
Hendrix testified that Fugate was “a mighty hard worker.” Hendrix stated that he first met Fugate when Fugate was working on the house of Hendrix‘s neighbor. Hatcher and Shepherd both testified that they did not know Fugate to be violent.16 Although on cross-examination Hatcher conceded that he had heard from his girlfriend that Fugate “harassed” his ex-wife, on re-direct Fugate‘s counsel elicited additional testimony from Hatcher that he had never seen Fugate commit any violent acts.17 In addition, Shepherd testified that Fugate was “always
very polite” and that he was “very good” with her children as well as Connie Roach‘s, stating that the kids “really liked” Fugate.Of the four witnesses called during the penalty phase, Fugate‘s mother, Mary Fugate, provided the most extensive testimony concerning Fugate‘s character. She testified about Fugate‘s childhood, stating that he was “a real good boy” and “an obedient child” who was never in trouble.18 She stated that he had “always worked, ever since he was small.”19 When asked about whether Fugate
Following the testimony of the four witnesses and the charge conference, both the prosecution and Fugate‘s counsel made closing statements. During his
If this man had committed a violent act previous to this of any kind, if he had committed another murder or another aggravated assault, or another kidnaping, anything like it, anything involving violence, anything. You can be sure you would have that before you. Already. You would know that. You‘d have evidence of it. You‘d have somebody come up here and testify to it. But, you don‘t have that. You don‘t have that.
There is no record – no written record, nothing shown to you of a conviction of any kind, no witnesses come in here and say, “Hey, it happened to me, but I never did bring the charge.” You don‘t have that. You don‘t have that. What that means is that this man is simply not a danger to his community or anybody who lives in this community or anywhere else. This happened to one that was close to him. This is not a man that goes out and robs and wants to kill folks, anybody who‘s going to be any danger any place.
B. Efforts of Fugate‘s Counsel in Preparation for the Penalty Phase
1. Fugate‘s List of Potential Mitigation Witnesses
At a pretrial hearing in January 1992, the trial judge instructed Bellury and Browne “to locate and interview all persons whose testimony might be helpful in discovering or supporting available theories of defense or in mitigation of punishment.” Accordingly, Bellury requested a list from Fugate of individuals who he thought would provide testimony favorable to him if he was convicted.22
The list submitted by Fugate to his counsel, which was a focal point of the state habeas proceedings, was numbered one through twenty-seven, but it actually contained the names of thirty-four individuals and one business, including names of family members, neighbors, and former co-workers.23 There is no indication as to when Fugate actually submitted this list of potential mitigation witnesses to his counsel. One of the four witnesses who testified on Fugate‘s behalf at the penalty phase – Elmos Hendrix – was on that list.
Referring to Fugate‘s list, the state habeas court found, “Each of the twenty-seven persons was contacted and decisions were made as to whether they were able to cooperate or willing to cooperate and whether they would testify and, if so, would their testimony be favorable.”
2. Bellury‘s Testimony at the State Habeas Proceeding
Bellury testified that he and Browne “shared the work” on Fugate‘s case, “particularly on mitigation.” Bellury and Browne divided the task of contacting the witnesses identified on Fugate‘s list between them, and together they “made an attempt, one way or another either by letter, by telephone or in person to – to contact everybody on that – on that list.” R1-12-Exh. 24 at 88; see also id. (“In other words, I did not take all of those witnesses myself and attempt to contact them. [Browne] had attempted to contact some of them.“); id. at 55 (“[W]e both worked on the mitigation witnesses. I did, he did. You know, even though he took some, I took some. I mean nonetheless we‘re both working in that same area.“); id. at 170-71 (“We attempted to contact everyone on [the list].“); id. at 171 (“We did make an effort, I‘m satisfied, on both – on all of ‘em.“). Most of Bellury‘s contacts
While Bellury stated that he and Browne attempted to contact every witness identified by Fugate, he could not remember how many witnesses they were actually able to contact. He also could not recall specifically which witnesses on Fugate‘s list he contacted, nor could he ascertain from his notes which witnesses he did or did not actually contact. See R1-12-Exh. 24 at 170-71 (“I don‘t know exactly which ones I contacted and which ones Mr. Browne. That was a task that we split between us. I mean, in other words he did some, I did some.“); R1-12-Exh. 25 at 265 (“I cannot say positively who I did and did not contact or – and not who – which ones I did and which ones Mr. Browne did.“). Bellury did state that they “definitely contacted more people than we subpoenaed.” Bellury noted that Browne would “mostly just simply tell him” about his own efforts to contact someone on the list, although he did not know which witnesses Browne may have contacted. He also stated that there were “a multiple number of people” who did not want to discuss Fugate‘s case, but he could not recall exactly how many.
However, Bellury later qualified this testimony, stating that he considered favorable testimony that Fugate was a good carpenter to be of little value. See R 1-12-Exh. 25 at 271-72; R1-12-Exh. 24 at 91 (“I did not really think that the fact that he was a good carpenter, which he clearly was, was gonna make any real difference in the outcome of the sentencing phase.“). Bellury specifically stated,
Elsewhere in his testimony at the state habeas hearing, Bellury stated that if he had a witness who could provide favorable testimony concerning Fugate‘s employment history, such as his tenure at the Macon Machine Shop, he “would have put ‘em on.” Bellury testified that the fact that no such witnesses were called at trial was due to the fact that he did not know of anyone who could provide such evidence of Fugate‘s employment history.
Bellury and Browne deliberately decided not to present certain evidence at sentencing. First, they decided not to call certain witnesses. Bellury stated that it was decided not to call Connie Roach, Fugate‘s girlfriend, to testify at trial, because “there was perhaps a little bit too much involvement, or at least it would be perceived to have been too much – well, she was – she was the girlfriend and this was a recent, fairly recent divorce and, as I say, still appeared to me to be emotional involvement between Patti Fugate and Wallace Fugate. You know that – that just didn‘t strike me as the best thing to have at that stage of things.” Also, Fugate‘s counsel decided not to call Jennifer Fugate, Fugate‘s cousin, to testify at
Second, in addition to excluding certain witnesses, Fugate‘s counsel decided not to address certain issues. Bellury stated that he made “a deliberate decision” not to present school records or testimony from employers because he did not think such evidence would have “anything to do with what the decision was as far as – as life or death,” a decision that he characterized as a “judgment call” based on his experience.27 Therefore, he decided not to visit any of Fugate‘s former places of
Bellury stated that he did not remember whether he considered calling witnesses to testify about Fugate‘s relationship with his son, although, as discussed above, such testimony was actually presented. He also did not recall whether he and Browne considered presenting evidence of Fugate‘s relationship with the children of Connie Roach, although he stated that he could not “rule out” the possibility that he did so.
3. Browne‘s Testimony at the State Habeas Hearing
Some of Browne‘s testimony, however, is consistent with Bellury‘s account. Browne stated that he and Bellury had discussed the facts that Fugate was known to be a good carpenter and that he did not have a prior criminal history. Also, Browne‘s testimony that he did not participate in the process of contacting potential witnesses is somewhat inconsistent with other testimony in which he stated that generally he and Bellury prepared together for the penalty phase of the trial.30 Browne also stated that one “could more or less say it was really we cooperated in everything.” Browne stated that he and Bellury “were together practically all the time,” and that they “kept close touch with each other all the time.”
Other testimony from Browne suggests that he generally occupied a subordinate role in the pretrial preparation. Indeed, Bellury was appointed to be
Also, despite Browne‘s testimony that he did not contact any witnesses, Bellury testified that some of the handwriting on one of the copies of Fugate‘s list was Browne‘s. According to Bellury‘s testimony, he and Browne had their own copies of Fugate‘s list.32 Furthermore, Browne testified that a document containing
4. Documentary Evidence of Preparation for the Penalty Phase
Despite Browne‘s statements, much of Bellury‘s testimony is corroborated by documentary evidence presented at the state habeas proceeding. The first express reference to “mitigation” on Bellury‘s timesheets occurs on April 4, 1992. That timesheet entry indicates that Bellury‘s activities on that date included making telephone calls and writing letters to mitigation witnesses and making a trip to the library to research witnesses’ addresses and phone numbers. See also R1-12-Exh. 24 at 85 (Bellury‘s testimony regarding the April 4 entry on his timesheets, confirming that he went to the library on that day to obtain some
On April 6, 1992, Bellury sent a form letter to four individuals on Fugate‘s list of witnesses (Elmos Hendrix, Grover Lavender, Larry Evans, and James White).34 The letter stated that Fugate was on trial for murder, that the prosecution was seeking the death penalty, and that therefore he intended to call as witnesses people who knew Fugate. The letter also stated, “Please contact me as soon as possible so that I may discuss this with you. Time is of the essence.”
Bellury‘s notes indicate that he visited with Mary Fugate and Jennifer Fugate at their home on April 5. On April 7, Bellury received telephone calls from two potential mitigation witnesses.35 Bellury also called or attempted to call mitigation witnesses on April 23, April 24, April 25, and April 27. On April 24 and 26, Bellury spoke to Roach specifically about the topic of mitigation witnesses.
In addition, although Bellury‘s notes do not reflect any specific discussions with Deborah Shepherd, the fact that she testified during the penalty phase must mean that she was actually contacted at some point prior to trial. Also, Bellury testified that he spoke with Connie Roach but ultimately decided not to use her as a witness. This evidence indicates that Fugate‘s counsel were successful in contacting at least ten people in preparing for the penalty phase.
C. Affidavits Submitted By Potential Mitigation Witnesses
In support of his claim that his counsel could have obtained additional mitigation evidence that they should have presented during the penalty phase, Fugate introduced at the state habeas proceeding affidavits from fifteen potential character witnesses who had specific knowledge and examples of Fugate‘s good character traits. Thirteen of these individuals indicated that they were available to testify at trial and would have done so if asked.40
All of the affiants stated that, if contacted, they would have testified about Fugate‘s good character traits, which included being a hard worker,42 even-
would help out anybody who needed help. He was just that kind of person. I once bought an old motorcycle and he fixed it up for me. [Fugate] also helped me work put motors into a couple cars I had owned. He did not charge me anything. If there was any way he could help you, he would.
Wynndale Woodall testified that
4. Mr. Fugate was the type of person who would always help you out if he could. He would do anything for you. I built a shop in the back of my house once. . . . Mr. Fugate saw that I was mixing the concrete by hand, and came over to offer help. He lent me the machinery to do the job. I didn‘t give Mr. Fugate any money for the equipment. He was just being neighborly. Once when I was building a well, Mr. Fugate showed me how to do the electrical work on it, so I wouldn‘t be hurt.
5. Mr. Fugate looked out for me even when he wasn‘t at home. I broke down once on my motorcycle. . . . Mr. Fugate saw me on the road and came to pick me up. . . . loaded the motorcycle onto his truck, and Mr. Fugate took me home. . . .
45 David Aldridge testified that, in 1987-1988, Fugate and Pattie “seemed to get along fine.” Milton Al Brown testified that Fugate brought Pattie and Mark to Brown‘s house so that Pattie could ride Brown‘s horses and that Fugate cared for Mark while Pattie rode. Brown said that Fugate “really loved that boy. He was affectionate with him and was always looking after him while his mama rode horses. He loved his wife too. He would stop work just to bring her up to my house to ride.” Jack Deason testified that he had known Pattie for many years and that “[s]o far as I knew, Mr. Fugate treated Pattie very well during their marriage. I always thought of them as being very close. . . . [t]hey worked closely together in raising money for the volunteer fire department.” See also R1-12-Ex. 29, Pet. Exh. 31 at 2 (“During the time I knew Wallace and Patty Fugate as a neighbors, they got along fine.“) Christine Mimbs testified that, while she and Fugate were neighbors, “Fugate loved his son Mark very much. He used to do all kinds of things for him,” including teaching him to swim, buying him a pool, building him a dune buggy, and showing him how to “use the tools to pitch the [camping] tent and set up the campsite.” Mimbs said that “Fugate and Mark used to work on projects together in their yard,” such as a pontoon boat. She noted that “Fugate loved his wife Patti” and “did [things] for her that made her happy.” Mimbs testified that Fugate “spent a lot of time with his family” and that “Fugate and Patti worked . . . and play[ed] together.” Connie Roach testified that
11. [Fugate] was very interested in and cared a lot about his son, Mark. Their relationship appeared good and close to me, although it was later strained by the tensions between [Fugate] and Pat[tie] that came from the divorce. But [Fugate] still cared about Mark and worried about Mark‘s behavior and how he was doing in school.
John Willis testified that, during his visits with Fugate, he would
see [Fugate] interacting with his wife and little boy. It seemed like [Fugate] really cared about both of them a lot. Whenever I saw [Fugate] and his wife together they seemed to get along well. They were always talking, laughing and having fun. She had some horses and I remember [Fugate] helping her take care of them.
6. [Fugate] used to sometimes bring his little boy to work with him. I remember he would sometimes leave work to pick the boy up from day care or something like that. He seemed to really love the boy. Seemed to me that the boy really liked his daddy too.
Kevin Woodall testified that he met Fugate
two or three years before he was arrested. I began to see Mr. Fugate and his son Mark when they spent time at Mr. Fugate‘s father‘s house, which was next door to mine. . . .
3. . . . Mark always talked about his dad when he came over to our house. Mark was extremely proud of his father. Mark always bragged about his father. He talked about all the things that he did with his dad. Mark used to talk about how he and his father woodworked together, and went camping together. I used to always see Mr. Fugate and Mark tinkering in the yard together. . . .
4. Mr. Fugate loved his wife and his son very much. He was very family-oriented. . . . [He] was building a house for his wife. . . . [and] bought a four-wheeler for his son.
Wynndale Woodall testified that
6. Mr. Fugate cared a lot about his family. I used to see Mr. Fugate and his wife Patti together . . ., [and they] were very affectionate and playful with each other. I thought that they were in love. I used to see Mr. Fugate in his father‘s yard with his father and his son Mark, working on all kinds of projects. Mr. Fugate loved his father and he tried to take care of him.
5. Mr. Fugate was very generous to me and my family. He would help me fix my automobiles and other things whenever I asked him to. He never charged me anything for his help. He also would give me vegetables from his
garden. . . . 7. Mr. Fugate would fix things or do things for us without asking us for anything. For example, he once noticed . . . that we were having problems with flat tires. He just showed up one day with a pressure tank that he had made for us and . . . left it with me. He would not let me pay him anything for it.
Wynndale Woodall testified that
3. Wallace Fugate was the type of person who would give you the shirt off his back. He used to always come by to say hello and to see how I was doing. He would always come over and greet me. When I was going through a bad time, Mr. Fugate was concerned about me. . . . Mr. Fugate asked me if I needed anything or needed any help. He said that if I did need him, he would be there for me.
changes in Fugate‘s disposition following his separation from Pattie.49
In light of the above, we conclude that the result reached by the state habeas court constituted neither “a decision that was contrary to, or involved an unreasonable application of, clearly established federal law” nor “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
In its ninety-two page order, the state habeas court made a series of factual findings on which it based its ultimate conclusion that Fugate‘s attorneys had rendered effective assistance during the penalty phase. In sum, the state habeas court found that Bellury and Browne
were aware of the available evidence and made a strategic decision as to whether such testimony would be viable mitigating evidence. Each of the twenty-seven persons was contacted and decisions were made
as to whether they were able to cooperate or willing to cooperate and whether they would testify and, if so, would their testimony be favorable.50
More specifically, regarding Bellury and Browne‘s contacts of potential mitigation witnesses, the state habeas court determined: that Bellury and Browne attempted to contact all of the witnesses on Fugate‘s list, that Bellury and Browne divided the task of contacting potential mitigation witnesses between them, that Browne‘s “memory did not allow him to recall whom he had contacted, when he contacted them, or the substance of his contact,” that Bellury was unable to recall which individuals he was actually successful in contacting, that Bellury and Browne contacted more people than they subpoenaed, that Bellury contacted witnesses by letter and by telephone, that Bellury did not think it necessary to take notes concerning all of his contacts with potential witnesses, and that some potential witnesses to whom Bellury spoke did not want to testify.
The state habeas court also made numerous findings concerning Bellury and Browne‘s strategic decisions of what evidence to present at the penalty phase, including determinations: that Bellury made a “judgment call” not to present evidence concerning Fugate‘s employment, carpentry skills, school records, or
Our review of the record in this case warrants the conclusion that Fugate has not rebutted any of these factual findings by clear and convincing evidence. See
Even if we credit Browne‘s testimony in full, however, Bellury‘s testimony and the documentary evidence that corroborates it still support the conclusion that the efforts of Fugate‘s counsel in preparing for the penalty phase did not constitute ineffective assistance.51 As discussed in detail above, that evidence indicates that Fugate‘s counsel began preparing for the penalty phase of trial as early as two months before the trial began and no later than three weeks prior to trial. That evidence also indicates that prior to the commencement of trial Fugate‘s counsel attempted to contact at least eighteen potential mitigation witnesses. These eighteen individuals were identified as potential witnesses through a combination of Fugate‘s list and independent investigation by Fugate‘s counsel, investigation
It must be noted that these numbers represent conservative estimates. Bellury testified that his notes are not conclusive concerning the extent to which he and Browne attempted to contact potential witnesses.52 In light of even these conservative assessments, the fact that there is no explicit proof of Bellury‘s and Browne‘s attempts to contact some additional number of potential witnesses
The affidavit testimony submitted by Fugate does not rebut the presumption of reasonableness from which our case law requires us to begin our analysis. As a preliminary matter, we note our previous observation that reliance on such affidavits “usually proves little of significance.” Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995).54 At any rate, even when such affidavits are considered, we
We agree with the state habeas court that the affidavit testimony on which Fugate relies primarily repeats the evidence that actually was presented at the penalty phase. As discussed in detail above, the trial testimony described Fugate as a hard worker and a good father who was generous, non-violent, and kind to children. This is precisely the same portrait that emerges from the affidavit testimony. Thus, nothing in the affidavit testimony suggests that Fugate‘s counsel violated the “major requirement of the penalty phase of a trial” that “the sentence be individualized by focusing on the particularized characteristics of the individual.” Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987) (citing
Perhaps the only issues addressed in the affidavit testimony that were not presented at trial concern Fugate‘s carpentry skills and his disposition following his divorce from Pattie. Browne and Bellury deliberately decided, however, not to present evidence on either of these issues. As noted above, Bellury testified that he “did not really think that the fact that he was a good carpenter, which he clearly was, was gonna make any real difference in the outcome of the sentencing phase.” Similarly, Bellury testified that he did not consider evidence concerning Fugate‘s marriage to Pattie to be “viable for the sentencing phase,” since he understood that the marriage “was a pretty stormy relationship for some period of time.” We are prohibited from second guessing such tactical decisions through the prism of hindsight. See, e.g., White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). Indeed, “[a]n attorney is not obligated to present mitigation evidence if, after reasonable investigation, he or she determines that such evidence may do more harm than good.” Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989).
The affidavit testimony, then, proves only that some individuals identified by Fugate as potential mitigating witnesses and other individuals who were never identified as such were not contacted before the penalty phase of Fugate‘s trial.
Simply put, the sum total of the efforts of Fugate‘s counsel does not fall to that level of assistance that the Supreme Court has identified as being ineffective by constitutional standards. For example, although Fugate‘s argument that Fugate‘s attorneys were ineffective is based in part on the Supreme Court‘s decision in Williams v. Taylor, 529 U.S. 362 (2000), the circumstances of that case do not even resemble those presented here. In Williams, the defendant had confessed to four crimes – including the murder for which he was tried – while incarcerated for another offense. See id. at 367-68. In the sentencing phase of the trial, the defendant‘s counsel presented testimony from the defendant‘s mother and
The Supreme Court held that the performance of Williams‘s counsel during the penalty phase constituted ineffective assistance, stating:
The record establishes that counsel did not begin to prepare for [the sentencing] phase of the proceeding until a week before the trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams’ parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abuse foster home), and then, after his parents were released from prison, had been returned to his parents’ custody.
Id. at 395.
Similarly, the testimony given during the penalty phase of Fugate‘s trial is more than the “hollow shell” presented in Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir. 1999). In that case, defense counsel elicited testimony that the defendant “had a ‘good’ reputation, that he was generally known as a hard worker who took care of his family, and that he had a good reputation for truth and veracity.” Id. This court stated, however, that counsel “presented almost none of the readily available evidence of Collier‘s background and character that would have led the jury to eschew the death penalty.” Id. at 1202. We stated:
Instead of developing an image of Collier as a human being who was generally a good family man and a good public citizen, who had a background of poverty but who had worked hard as a child and as an adult to support his family and close relatives, counsels’ presentation tended to give the impression that the witnesses knew little or nothing about Collier. In failing to present any of the available evidence of Collier‘s upbringing, his gentle disposition, his record of helping family in times of need, specific instances of his heroism and compassion, and evidence of his circumstances at the time of the crimes – including his recent loss of his job, his poverty, and his diabetic condition – counsels’ performance brought into question the reliability of the jury‘s determination that death was the appropriate sentence.
Id. (citing Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). In light of this unused mitigation evidence, we concluded that the assistance provided by the defendant‘s counsel was ineffective. See id.
The factual circumstances on which the conclusions of ineffective assistance of counsel were based in Williams and Collier are simply not present here. In those cases, defense counsel failed to present available compelling evidence that
In light of the foregoing, we hold that the performance of Fugate‘s attorneys during the penalty phase satisfied constitutional standards and constituted effective
VI. CONCLUSION
For the reasons stated explained herein, we AFFIRM the district court‘s rulings on Fugate‘s claims of ineffective assistance of counsel at both the guilt phase and the penalty phase of his trial.
AFFIRMED.
BIRCH, Circuit Judge, concurring specially:
I concur without reservation in Parts I-IV of the court‘s opinion. Although I remain convinced that our court set the acceptable level of attorney assistance for preparation for the penalty phase of a capital case too low in Chandler v. United States, 218 F.3d 1305, 1343-44 (11th Cir. 2000) (en banc) (dissent), cert. denied, ___ U.S. ___, 121 S. Ct. 1217 (2001), the panel majority has correctly applied that decision to the case at hand. Accordingly, I join Parts V and VI of the court‘s opinion.
Notes
At trial, Mark testified that Fugate “started beating her” with “[t]he butt of his gun,” and “kept beating her and beating her” while “trying to get her into the van.” On recross, Bellury asked Mark “[h]ow many times do you recall him striking your mother with the gun . . . ?” Mark responded “Over 50” and explained that the blows were primarily to her “head and chest area.”
The autopsy report indicated “evidence of blunt force injury to the forehead, back of the head, and the upper extremities with abrasion and contusion in the shoulder region,” and noted findings of “2. Blunt force injuries to forehead and occipital region. 3. Bruises to upper extremities.” The medical examiner, Dr. Randy Hanzlick, testified that there were “multiple bruises about the face,” “a large split on the back of the head,” “little bruises . . . on the collarbone area,” “scrapes on both knees,” and “some bruises on both forearms,” and he concluded that “there was evidence of some sort of a struggle with multiple injuries.”
During closing arguments, Bellury asked the jurors to
think about what you have been asked to believe by Mark. Now, the first thing you‘ve been asked to believe is that in the course of scuffling from inside the house out to the door of the van, [Fugate] took the pistol – he took this very pistol right here and struck Patty fifty times – at least fifty times with this pistol, this very pistol....
Sergeant Jay Jarvis had testified. You heard him testify that this was the condition that [the gun] was in when he came to it. There is not . . . a drop, not a smattering of blood, there‘s no indentations on here, there‘s no scratches. . . .
In addition, Shepherd testified:Q. Okay. Have you ever known him to be a violent person of any sort?
A. Not to the point where he‘d strike somebody.
Q. You‘ve never known him to do any physical violence to anybody?
A. No, sir.
Q. Have you ever known Wallace, to your knowledge, to commit any violent acts?
A. No.
Q. But, you never saw – never saw him commit any violent acts toward her or anybody else, did you?
A. No, sir, I‘ve been there in one case where they were arguing the whereabouts of their horses. And, it was just arguing, it did not come to the point of no striking or physical violence.
Q. [W]hat kind of boy was Wallace?
A. He was a real good boy. He‘s never been in no trouble.
Q. Was he an obedient child?
A. Yes.
Q. Did he attend school like he should?
A. Yes, he did.
Q. Did he have problems with fighting or things like that?
A. No, never.
Q. As a matter of fact, did you ever know him to ever have a fight?
A. No, only with his brothers and sisters. Fussing, and going on.
Q. What is your occupation?
A. I‘m self-employed. I‘m a contractor.
Q. Okay. You build houses . . .
A. Yes.
Q. . . . or renovate houses, that sort of thing?
A. Anything to do with any type of building.
At any rate, evidence of the fact that Fugate was a hard worker was admitted into evidence during the penalty phase through Hendrix‘s and Mary Fugate‘s testimony. Furthermore, as discussed infra, Bellury testified at the state habeas proceeding that he and Browne decided that evidence of Fugate‘s work history was not useful for their purposes at sentencing. Therefore, any omission of evidence of work history at the guilt phase is of little relevance to our analysis.
Q. Have you ever, yourself, known him to be violent and do anything?
A. No, sir.
Q. Have you ever seen him commit any violent acts or anything?
A. No, sir.
Q. And, you didn‘t know of him doing anything violent, did you?
A. No, sir.
Q. Was he the kind of a man, in your opinion, that would commit violent acts?
A. I know he wouldn‘t. He‘d never do it.
Mary Fugate also stated that Fugate, to her knowledge, had never “whipped” his son.
Q. Let me ask you this, your son‘s marriage, were you in a situation where that you could feel like you knew a good bit about what was going on in the marriage?
A. I was up there quite a bit, yes.
Q. And, they had some stormy times, didn‘t they?
A. Yes.
Q. Was all that Wallace‘s fault? Was he kicking up a lot of trouble around there?
A. Well, a lot of it was Patty‘s, and some of it was his, too, probably[.]
[I] talked to the person, whoever he was, one time on the telephone. Said he had to think about it. I called back on at least two occasions, both times talked to his wife; and on the final occasion he was there, present in the room, according to his wife, who I was talking to, and she said he would not testify. Or at least I mean he – he didn‘t say that he wouldn‘t show up if we had a subpoena, but he – he – it was made clear to me that it was – he – he didn‘t want to do it, was not happy about it and did not want to talk to me about it anymore. That was what she was relaying to me.
Later in his testimony Bellury stated that he remembered speaking to someone in Jones County who he thought might have been Henry or Bea Brewer, both of whom were identified on Fugate‘s list of witnesses. It is unclear, however, whether these two recollections of discussions with a married couple in Jones County were the same.
Q. On direct examination Mr. Bright asked you about whether you considered calling employers or persons of school records and that kind of stuff. Did you give any consideration to presenting that type of mitigating evidence?
A. Well, I – I did not really. Briefly, in other words, I didn‘t think that would be of much value to – to establish that he was a good carpenter, a good builder or made quality stuff. That was a deliberate decision there. Yes.
Q. Based on your experience as a prosecutor and defense attorney, what is your view of the persuasive nature of those types of evidence, in your experience?
A. Well, that‘s – that was my – my judgment call was that that – based on my experience, that wasn‘t gonna have anything to do with what the decision was as far as – as life or death.
Q. Was there – With regard for preparing for the penalty phase of the trial, the sentencing phase, did you speak in person to anybody, any possible witness in mitigation – outside of members of his family and so forth – but did you ever talk to any friends, neighbors, employers, in person?
A. Reg talked to whatever had to be talked to.
Q. Did you try to contact any?
A. No. Reg – Reg made the contacts.
Q. Did you even try to reach anybody by telephone?
A. I didn‘t – I didn‘t participate in that part at all.
Q. You didn‘t participate at all?
A. He told me what he was gonna do and I was supposed to do.
Q. And would it be fair to say, then, that with regard to preparation for the penalty phase that he pretty much, Mr. Bellury that is, took care of that?
A. That‘s right. He – He – But he would keep me advised of what he was doing.
Q. He‘d tell you what he was doing, but he was pretty much in charge of doing that?
A. Right. Yeah.
Q. What, if any, responsibility did you have, Mr. Browne, with regard to investigation for the penalty part of the trial, the sentencing part of the trial?
A. Well, again, it was just the same as it had been at the guilt phase of the trial. We just kind of . . .
Q. Did it together?
A. Yeah.
Q. Let me show you what‘s been marked as Exhibit No. 4 and introduced as Exhibit No. 4. Now, is at least part of that also a part of Petitioner‘s No. 10?
A. Part of it is, yes.
Q. And can you tell what the difference is? Some more writing on one than the other?
A. That‘s correct. And I believe that the writing on the page that‘s in Exhibit No. 10, the handwriting that is in blue, is Mr. Browne‘s. So this – this was undoubtedly the copy that he was working from at the same time I was working from the copy that is marked State‘s Exhibit No. 4.
Q. All right. So that‘s what I was just gonna ask you. So the copy of that exhibit that appears as State‘s Exhibit No. 4 and the writing on that, other than Mr. Fugate‘s writing, is yours; and the copy of that same exhibit that appears in Petitioner‘s Exhibit No. 10 is the copy that Mr. Browne worked from?
A. That appears to be the case. Right.
The only time I ever saw [Fugate] get angry or frustrated with my children was one time when he was helping my daughter . . . with her homework. [The daughter] could not understand what [Fugate] was trying to teach her and wasn‘t making a real effort to understand it. [Fugate] got frustrated and a little impatient, but he finally just walked away until he cooled off.
Fugate did things for us sometimes that he would refuse to take money for. He put down a rug in our old office. . . . At our old log house, Mr. Fugate put in a new kitchen floor for me. He sanded the floor and did the job right. I called Mr. Fugate to ask for help on Sunday, and he did the floor the next day. When I tried to pay him for these jobs, he would not take any money.
Grady Smith testified that “Fugate was the type of person who would do anything for someone. . . Fugate once borrowed my tiller once to dig up his garden” and replaced the worn blades.
[t]he main thing that stands out in my memories of Wallace Fugate as how good he was to my two daughters. He visited our house often and lived with for a period of time before his arrest. The four of us . . . often did things together.
7. . . . On many evenings at our home, [Fugate] would visit and we would play cards together until it was time for [the girls] to go to bed. He would help the girls with their homework. He would insist that they get it done before allowing them to watch TV.
8. [Fugate] also used to spend a lot of time playing with [the girls] in the yard. We were always very active when we were together. . . . Many times the four of us went either to Pat[tie] and Steve McBee‘s house or to [Fugate‘s] parents’ house to visit and to play. We would play in the creek or pick strawberries together.
9. [Fugate] was a father to my children. They loved him very much, and they still love him now. My ex-husband . . . never had a problem with my seeing [Fugate] because [he] was so good to [the girls], much better than [my ex-husband] was with the children.
5. When Mr. Fugate separated from his wife, he seemed to be a different person. When I saw Mr. Fugate at his father‘s house after the separation, he was always depressed. Mr. Fugate didn‘t talk about his family anymore. Mr. Fugate didn‘t come and speak to me like he used to. I worried that he was suicidal. Mr. Fugate behaved the same way that I did when I lost my wife. He stopped caring about himself. Every time I saw Mr. Fugate after he and his wife separated, he was out of it.
Wynndale Woodall testified that
7. Mr. Fugate was a different person after he separated from his wife. He shut himself off from everyone and he didn‘t want to talk anymore. All of a sudden, Mr. Fugate acted like he didn‘t know anyone. He was extremely depressed. For the last two or three weeks before Mrs. Fugate was killed, Mr. Fugate was especially out of it. He wouldn‘t speak to anyone. I worried that Mr. Fugate might hurt himself.
Furthermore, the notations contained on those documents do not necessarily reflect all of Bellury‘s efforts to contact those witnesses. For example, Bellury stated that his notation “disconnected” near James White‘s name did not “necessarily mean that we didn‘t get him some other way.” Also, Bellury noted that he had written “left message” near Charles Boyd‘s name, but he could not testify about what the message he left was or whether he eventually did speak with Boyd.
It is common practice for petitioners attacking their death sentences to submit affidavits from witnesses who say they could have supplied additional mitigating circumstance evidence, had they been called, or, if they were called, had they been asked the right questions. This case is no exception. But the existence of such affidavits, artfully drafted though they may be, usually proves little of significance. This case is no exception in that respect, either. That other witnesses could have been called or other testimony elicited usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of prior counsel. As we have noted before, “[i]n retrospect, one may always identify shortcomings,” but perfection is not the standard of effective assistance. Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir. 1995) (quoting Cape v. Francis, 741 F.2d 1287, 1302 (11th Cir. 1984)).