Appeal from the United States District Court for the Middle District of Florida.
Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge:
Johnny Paul Witt appeals from the district court's denial of his petition for a writ of habeas corpus. Petitioner was convicted of first degree murder in Florida and sentenced to death. In this appeal, he challenges the district court's determination of his claims regarding: (1) the admission into evidence of inculpatory statements rendered after he requested an attorney; (2) the Florida Supreme Court's alleged use of non-record material in reviewing his sentence; (3) the admission into evidence during the penalty phase of petitioner's trial of testimony by psychiatrists to whom petitioner had made inculpatory statements during a competency and sanity examination; (4) the trial court's reliance upon non-statutory aggravating circumstances in the sentencing order; and (5) the excusal of three prospective jurors for cause based upon their opposition to the death penalty.
We find, after a thorough review of the entire record, that the district court properly disposed of the first three of petitioner's claims listed above. We are unable to agree with the district court, however, that the trial court did not commit error of constitutional dimension when it dismissed for cause a prospective juror who expressed her opposition to the death penalty, but who failed to indicate her unequivocal inability to apply the law as charged. This error mandates our reversal of the district court's decision denying petitioner's request for resentencing.
Petitioner was convicted of first degree murder for the October 28, 1973, killing of 11 year old Jonathan Kushner. Witt, then 30 years old, was bow and arrow hunting with his younger friend, Gary Tillman. The two apparently had spoken about killing a human on other occasions and even had stalked persons like animal prey.
On the day of the murder, Witt and Tillman were hunting in a wooded area near a trail often used by children. Tillman apparently struck the victim, who was riding his bicycle along a path through the area, on the head with a star bit from a drill. At that point, Will assisted Tillman in gagging Kushner and placing him in the trunk of Witt's car. Petitioner and Tillman then drove to a deserted grove and opened the car trunk. The victim was dead, as a result of suffocating from the gag. The two dug a grave for the Kushner boy and then slit his stomach so it would not bloat. Before burying the victim, Witt and Tillman performed various acts of sexual perversion and violence to Kushner's body.
Defendant was found guilty of first degree murder, Fla.Stat.Ann. 782.04(1) (West Supp.1982), after a jury trial. On February 21, 1974, Witt was sentenced to death, in accordance with the jury's recommendation, by the Circuit Court for the Seventh Judicial District for Volusia County, Florida. The Florida Supreme Court affirmed that decision on direct review. Witt v. State, 342 So.2d 497 (Fla.), cert. denied 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294, reh. denied 434 U.S. 1026, 98 S. Ct. 755, 54 L. Ed. 2d 774 (1977). Petitioner then moved to vacate, set aside, or correct the sentence under Fla.R.Crim.P. 3.850. His motion was denied. The Florida Supreme Court affirmed this decision. Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 612 (1980).
Petitioner sought federal habeas relief from the United States District Court for the Middle District of Florida. That court denied Witt's petition initially and, after an evidentiary hearing on the Witherspoon issue, affirmed its prior memorandum decision. Petitioner filed a notice of appeal on June 24, 1981. After hearing oral argument in this case, we deferred consideration pending the decision in this Court's en banc case, Ford v. Strickland, 676 F.2d 434 (11th Cir.1983), which addresses several issues we face here. We now proceed to a consideration of Witt's claims.
II. THE MIRANDA ISSUE -- ADMISSIBILITY OF PETITIONERS CONFESSION
Petitioner was arrested during the afternoon of November 5, 1973. The district court found the following sequence of events transpired. Witt was given the standard Miranda warning and brought to the county jail where he was interrogated simultaneously by sheriff's deputies, an FBI agent, and an assistant state prosecutor. Petitioner requested an attorney soon after the questioning began. The interrogation at that point properly ceased.
Witt was left in the interrogation room under the custody of Lt. Arnie Myers of the Hillsborough County Sheriff's Department. Lt. Myers testified that petitioner began to complain about the interrogation. Myers claims he cut off Witt's discussion by informing Witt that he was not authorized to discuss the Kushner case. Witt apparently then asked Myers if all of the sheriff's murder cases were solved, and Myers responded by asking which case Witt had in mind. Witt told Myers that Tillman, his co-defendant, possibly had information on the murder of a young girl named Gail Joyner. Myers' interest was piqued because he was working on the Joyner investigation at the time. Soon after the statement, officers arrived to take Witt to his prison cell for the night. Myers testified that Witt said he would like to continue their discussion the next day, presumably referring to the Joyner case.
On the next day, November 6, Witt had his first appearance before a county judge. Witt was represented by an attorney from the public defenders' office. It is unclear, however, whether petitioner actually consulted with the attorney, even though he requested such an opportunity. On November 7, Myers went to Witt's cell in the early morning to continue their discussion from two days previously. On the way to the interrogation room, Myers read petitioner his rights in accordance with routine police procedures.
Upon arriving at the interrogation room, Witt asked Myers if he had spoken to Tillman yet. Myers responded that he had not, but that someone else had. Witt then asked what Tillman said, to which Myers answered he did not know. Petitioner then was silent for awhile, according to Myers, until he stated that he co-defendant would probably attempt to pin the blame upon him, apparently referring to the Kushner, and not the Joyner, case.
Witt asked Myers for paper and pen, which Myers provided, along with a waiver of rights form. Myers read this waiver form and asked Witt if he understood its contents; Witt responded affirmatively. Myers testified that reading the waiver form was routine police procedure when giving a prisoner writing materials during a questioning session. Witt then wrote out a 13 page confession over the course of several hours. Agent Fred Barnesdale, also of the Hillsborough County Sheriff's Department, joined Myers at some point while Witt was writing his confession. Barnesdale asked Witt several questions that secured Witt's cooperation in revealing the locations of various aspects of the crime. Witt also tendered an oral confession during the course of November 7. Petitioner's motion to suppress his confession was denied by the trial court on February 12, 1974.
Petitioner contends that his confession was extracted in violation of the constitutional principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Petitioner argues that the waiver of his right to counsel, while perhaps voluntary, was not intelligent and knowing. He urges that the initiation by te police of further custodial interrogation after he had unambiguously expressed his desire to consult with an attorney constituted improper coercion. Petitioner concludes that his confession and all evidence stemming from it was inadmissible as violative of his Fifth Amendment right against self-discrimination and his Sixth Amendment right to counsel.
In Miranda, the United States Supreme Court made it clear that the government must show by a "heavy burden" that a waiver of these constitutional rights was voluntary, knowing, and intelligent. 384 U.S. at 475, 86 S. Ct. at 1628. The Miranda doctrine requires that:
An uncounseled confession may not be introduced into evidence against a criminal defendant unless the government can sustain its "heavy burden" of proving that the defendant has waived his right against self-incrimination and his concomitant right to the presence of counsel and that his waiver was "voluntary, knowing and intelligent."
Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc), quoting Miranda, 384 U.S. at 475, 865 S. Ct. at 1628. In Edwards, the Court clarified the rights of an accused person held in custody who has expressed his or her desire to speak with an attorney. The Court stated:
[A]n accused . . ., having expressed his desire to deal with the police only through counsel, is not subject to further investigation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
451 U.S. at 484-85, 101 S. Ct. at 1885.
The district court originally relied upon the state court's finding that Witt expressed his desire to confess during a "casual conversation" in his cell on the morning of November 7. Soon after the district court entered its initial memorandum decision, the Supreme Court issued Edwards v. Arizona. The district court commendably decided to hold an evidentiary hearing on the Miranda issue, in light of Edwards, and reconsidered its initial decision. The court frankly admitted that there was scant record support for the state court's conclusion, upon which the district court had relied. The district court concluded, however, that Witt initiated further contacts with the police after his request for an attorney and that his Fifth and Sixth Amendment rights were therefore not violated.
We find, at the outset of our analysis, that there is no merit to the State's argument that petitioner's right to an attorney had not yet attached at the stage of custodial interrogation being challenged. Petitioner indisputably was entitled to the assistance of counsel after his first appearance before the county judge on November 6. See Brewer v. Williams, 430 U.S. 387, 388-89, 97 S. Ct. 1232, 1234-1235, 51 L. Ed. 2d 424 (1977).*fn1
The district court's finding that petitioner made a voluntary, knowing, and intelligent waiver of his right to counsel before his confession depended on credibility choices. Witt's testimony conflicted dramatically with that of Myers. The court explicitly credited Myers' testimony. This decision is binding upon our Court absent clear error. Based upon a consideration of the totality of the circumstances surrounding petitioner's confesion, we conclude that there is sufficient evidence on the record to support the district court's determination of the confession's admissibility.
Testimony at the federal habeas evidentiary hearing indicates that Witt initiated the November 5 dicussion with Myers about the Joyner case. The testimony also supports the conclusion that Myers initiated the discussion on the morning of November 7 to follow-up their discussion of two days earlier, at Witt's invitation, and with the genuine belief that Witt intended to discuss the Joyner investigation and not the murder involved in this action.*fn2 Therefore, Myers' questioning of Witt on November 7 was not impermissible.
The record also fairly supports the conclusion that it was petitioner who initiated discussion of the Kushner case on November 7. Myers read Witt his rights in accordance with routine police procedure. Witt decided to confess on his own, with no apparent prompting or coercion by the police, and only after he had been informed of his rights two times, the second with every indication of careful regad for Witt's genuine understanding. The introduction of quetions by Agent Barnesdale about the location of certain acts of the crime did not result in any qualitative difference in petitioner's custodial interrogation. We do not find that Barnesdale extended the subject matter of inquiry beyong those categories already broached by petitioner's voluntary acts.
We are unable to conclude, as petitioner suggests, that the Hillsborough police ignored Witt's repeated requests for an attorney. The record clearly indicates otherwise. Nor do we find that the police so wore petitioner down, through various pressure tactcs and lack of sleep, that his confession was for all practical purposes coerced. The only support for these allegations comes from the testimony of petitioner himself, which the district court found as undeserving of credence. There is no reliable evidence of bad faith in Witt's treatment by the police.*fn3
In sum, we conclude that the district court did not err in concluding that petitioner knowingly, intelligently, and voluntarily waived his right to an attorney and his privilege against self-incrimination. Lt. Myers merely followed up on a line of inquiry opened up by Witt himself. Witt later chose, albeit unwisely from his perspective, to extend his discussions with Myers beyond the initial subject matter to encompass the murder of the Kushner child. No constitutional principles are violated by the admission into evidence of petitioner's confession.
III. THE BROWN ISSUE -- NON-RECORD MATERIAL BEFORE THE REVIEWING COURT
Petitioner argues that the Florida Supreme Court relied on non-record information, such as psychiatric and pre-sentence investigation reports, in the direct review of his conviction and sentencing. Petitioner claims that this practice infringed on his constitutional guarantees including the right to due process of law, the effective assistance of counsel, confrontation, freedom from cruel and unusual punishment, and the protection against compelled self-incrimination.*fn4 He argues that the use of this material runs afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (petitioner was denied due process when death sentence was imposed, at least in part, on the basis of information that he had no opportunity to deny or explain).
The en banc court in Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc), denied an identical claim in that action. The Ford court relied upon the Florida Supreme Court's opinion in Brown v. Wainwright, 392 So.2d 1327 cert. denied, 454 U.S. 1000, 102 S. Ct. 542, 70 L. Ed. 2d 407 (1981),*fn5 to conclude that:
Even if members of the [Florida Supreme C]court solicited the material with the thought that it should, would or might be used in the review of capital sentences, the decision of the Florida court that it should not be so used, the statement that it was not used, and the rejection of the notion that it affected the judgment of the court ends the matter when addressed at the constitutional level.
Ford v. Strickland, 696 F.2d 811. Due to the absence of any indication contrary to the above statement in the instant action, we ...