John Earl Bush, 38, executed
Oct. 21, 1996 for the 1982 slaying of Frances Julia Slater, an heir to the
Envinrude outboard motor fortune. Ms. Slater was working in a Stuart
convenience store when she was kidnapped and murdered. Third warrant.
John Earl BUSH, Appellant,
STATE of Florida, Appellee.
Supreme Court of Florida.
Nov. 29, 1984.
Rehearing Denied Jan. 31, 1985.
John Earl Bush was convicted of the first-degree
murder of Frances Slater. The trial judge imposed the death penalty
in accordance with the jury's advisory sentence recommendation. Bush
appeals from the conviction and the sentence of death. We have
jurisdiction. Art. V, § 3(b)(1), Fla.Const. Having reviewed the
record and considered the issues presented on appeal, we find no
reversible error and affirm Bush's conviction and sentence.
The evidence at trial demonstrated the following
At 3:00 a.m. on April 27, 1982, Frances Slater was abducted
from the convenience store where she worked. Incident to the
kidnapping, the store's cash register and floor safe were robbed of
approximately $134. Later that day, the victim's body was discovered
thirteen miles from the store. She had a stab wound in her abdomen
and had been shot once in the back of her head at close range.
At trial, a delivery person for the local
newspaper testified that she was passing by the store between 2:30
and 3:00 a.m., and saw a car in the parking lot occupied by one
Inside the store were two black
men with another person. In a photo lineup, she identified Bush's
car and identified Bush as being one of the men in the store.
Four taped statements given by Bush were played
during the trial. These constitute the only known version of the
events and are presented by Bush in the light most favorable to him.
His statements are to the effect that he did not realize that his
accomplices, Alfonso Cave, "Pig" Parker and Terry Johnson, were
planning to rob the convenience store, and that during and after the
robbery he was under their domination.
Bush states that after the robbery, they drove
toward Indiantown, when his accomplices ordered him to stop. The
victim was pushed out of the car and Bush avers that he intended to
set her free. However, the accomplices decided that Slater might be
able to identify them and they told Bush to dispose of her. Bush,
not desiring to kill the victim, faked a blow at her with his knife
and stabbed her superficially. Slater fell to the ground and an
accomplice, Parker, shot her.
The jury returned a verdict of guilty on the
charges of first-degree murder, robbery with a firearm, and
kidnapping. Subsequent to the sentencing hearing, the jury
recommended, in a 7-5 advisory sentence, that the death penalty be
imposed. The trial judge, citing three aggravating factors and no
mitigating factors, sentenced Bush to death.
On appeal Bush raises ten points
which will be addressed in order of their presentation. In the first
point on appeal, Bush contends that the trial judge should have
conducted an inquiry, as in Richardson v. State, 246 So.2d
771 (Fla.1971), or granted a mistrial because a state investigator's
testimony contradicted his earlier deposition. This argument is
A Richardson inquiry is necessary only
when there is a discovery violation and an objection based on the
alleged violation. Richardson, 246 So.2d at 774; Lucas v.
State, 376 So.2d 1149, 1151 (Fla.1979). In the instant case,
investigator Forte stated in his deposition that Charlotte Grey, a
clerk from a nearby convenience store which had been visited by Bush
had not identified any photographs. At trial, Forte testified that
witness Grey did identify Bush's photograph during the photo lineup.
He explained that the inconsistency arose from defense counsel
having asked two different questions. The prosecutor's failure to
inform the defense of this change of testimony is not a discovery
violation and does not constitute the absolute legal necessity
required for a mistrial. See Dunn v. State, 341 So.2d
806, 807 (Fla. 3d DCA 1977).
When testimonial discrepancies appear, the
witness' trial and deposition testimony can be laid side-by-side for
the jury to consider. This would serve to discredit the witness and
should be favorable to the defense. Therefore, unlike failure to
name a witness, changed testimony does not rise to the level of a
discovery violation and will not support a motion for a
In his second point on appeal Bush argues that
his confessions were inadmissible because they were procured through
improper influence and without full benefit of the warnings required
by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). On the morning of May 4, 1982, Bush went to the Martin
County Sheriff's Department to inquire about his car, which had been
confiscated pursuant to a search warrant. He was fully advised of
his rights, executed a waiver, then attempted to establish an alibi
for the night of the murder.
The deputy sheriffs requested him
to accompany them to West Palm Beach to substantiate the alibi. He
was not under arrest and was free to refuse the request. Instead,
Bush accompanied two officers to West Palm Beach to the house where
Bush said they could meet a witness who would support his alibi.
When it became clear that the alibi witness would
not appear, Bush told the officers that they did not have to wait
any longer because the witness would not be able to help him. Bush
then proceeded, in this second statement, to admit complicity in the
crime. At the beginning of questioning, the officer asked Bush if he
was giving the statement voluntarily, if he had been read his rights
previously, if he understood those rights and was willing to
voluntarily deliver the information. He responded affirmatively to
Bush claims that this second statement was made
without benefit of a Miranda warning. We do not agree.
Although it had been eleven hours since the full recitation of his
rights, Bush stated that he was aware of his rights and desired to
waive those rights. There is no requirement that an accused be
continually reminded of his rights once he has intelligently waived
them. Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir.1975),
cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 194
(1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976).
Bush also contends that the voluntariness of his
statements was vitiated by the implied suggestion by the
investigating officers that he would benefit if he confessed. This
Court has stated that although a police interrogator must neither
abuse a suspect nor seek to obtain a statement by coercion or
inducement, the interrogator's job is to gain as much information
about the alleged crime as possible without violating the suspect's
constitutional rights. Stevens v. State, 419 So.2d 1058, 1063
(Fla.1982). The confession must be the product of a rational
intellect and free will. Townshend v. Sain, 372 U.S. 293,
307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). In addition, we have
previously held that a confession is not rendered inadmissible
because the police tell the accused that it would be easier on him
if he told the truth. Paramore v. State, 229 So.2d 855, 858 (Fla.1969).
On this point, the instant case is
essentially similar to La Rocca v. State, 401 So.2d 866, 868
(Fla. 3d DCA 1981), where police statements that minimized the
defendant's action were held not to be coercive. Under the totality
of the circumstances, the statements made to Bush did not overcome
his will and produce the confession. More likely, it was Bush's
realization that he had failed to substantiate an alibi which caused
him to confess and thereby admit a more favorable participation in
Bush's third point on appeal contests the
admission of certain photographs which he states were inflammatory
and prejudicial. Exhibit fifteen, a blowup of the victim's bloody
face, was taken at the morgue and admitted solely to identify
Frances Slater. Exhibit twenty-one was a close-up of the gunshot
wound to the victim's head.
The test of admissibility of photographs in
situations such as this is relevancy and not necessity. Photographs
are admissible where they assist the medical examiner in explaining
to the jury the nature and manner in which the wounds were inflicted.
Welty v. State, 402 So.2d 1159, 1163 (Fla.1981); Bauldree
v. State, 284 So.2d 196, 197 (Fla.1973). In the instant case,
exhibit twenty-one was used in order to assist the medical examiner
in explaining the external examination of the victim. This exhibit
was clearly admissible as an aid in illustrating to the jury what
the examiner observed during his examination. Exhibit fifteen,
though taken away from the scene, is treated no differently than
exhibit twenty-one. We have repeatedly stated that:
[T]he current position of this
Court is that allegedly gruesome and inflammatory photographs
are admissible into evidence if relevant to any issue required
to be proven in a case. Relevancy is to be determined in the
normal manner, that is, without regard to any special
characterization of the proffered evidence. Under this
conception, the issues of "whether cumulative", or "whether
photographed away from the scene," are routine issues basic
to a determination of relevancy, and not issues arising from any
"exceptional nature" of the proffered evidence.
State v. Wright, 265 So.2d 361, 362 (Fla.1972)
(emphasis supplied). See Henninger v. State, 251 So.2d
862, 864 (Fla.1971); and Meeks v. State, 339 So.2d 186 (Fla.1976).
Bush argues that exhibit fifteen was unduly prejudicial because it
was gruesome and may have made a crucial difference in the jury's
recommendation in this case. In Williams v. State, 228 So.2d
377 (Fla.1969), this Court noted that similarly gruesome photographs
depicted a view which was "neither gory nor inflammatory beyond the
simple fact that no photograph of a dead body is pleasant." Id.
at 379. The same rationale applies here, notwithstanding the
potential for swaying the jury during the sentencing phase. We
require only that the photograph not be so shocking in nature that
it defeats the value of its relevancy. Id. These pictures
In point four, Bush argues that the trial court
erred in excluding a potential juror on a challenge for cause. He
cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770,
20 L.Ed.2d 776 (1968), and Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978), for the proposition that jury
veniremen may be excluded only if they demonstrate an "unmistakeably
clear" attitude toward the death penalty which would prevent them
from making an impartial decision as to the defendant's guilt.
See also Adams v. Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980).
The following constitutes the pertinent portion
of the statements of the juror excluded in this case:
Prosecutor: "Do you know of
any reason why anything outside might come into it, other than
what you hear here?"
Juror: "I don't know if I could take the
responsibility of committing one to death. I just don't know if
I could handle that."
Prosecutor: "Let me point out two things to
you. First, your sentence is only advisory. The final decision,
responsibility and burden lies with His Honor, the Judge ...
Would that in any way cause you to change your opinion as to
whether or not you could?"
Juror: "I just don't think I could handle the
responsibility of condemning somebody. I think it's up to God."
Prosecutor: "And you feel like that would
affect you even in the first stage, in determining the guilt or
the innocence, knowing if you rendered a verdict of guilty of
murder in the first degree that the man could be put to death,
you feel that it could affect you?"
Juror: "I feel it would be a problem for me,
myself, in my heart."
Defense Counsel: "I understand, of course,
sympathy will enter into practically any case .... It's not
anything that is unique to this case or any particular type of
case. Do you understand that? How would you feel about it with
that in mind?"
Juror: "I don't know. It would just be a very
difficult thing to do."
Defense counsel: "Do you think you could do
it, put sympathy out of your mind and base your verdict on the
law and the evidence?"
Juror: "No, I don't think so."
- We do not think that it was error to excuse the juror.
This juror's attitude toward the death penalty is firmly
grounded and would clearly prevent her from rendering an
In point five, Bush argues that our decision in
Knight v. State, 338 So.2d 201 (Fla.1976), should be narrowed
or distinguished because of the facts of this case. Knight held that
an indictment charging premeditated murder would permit the state to
proceed on either the theory of premeditated murder or felony murder.
Bush claims that since he did not, in fact, commit the actual murder,
Knight is inapplicable. We disagree. Whether or not Bush
committed the actual murder is for the jury to determine. The jury
could have decided that Bush was guilty of premeditated murder, or
the jury could have convicted based upon the felony murder. In
either case, Knight is applicable and Bush was not prejudiced
by not knowing the specific theory upon which the state would
proceed. See O'Callaghan v. State, 429 So.2d 691, 695
(Fla.1983); State v. Pinder, 375 So.2d 836, 839 (Fla.1979).
Bush argues in point six that the trial court's
rejection of a third-degree murder instruction was prejudicial
error. We disagree. Third-degree murder is defined as "the unlawful
killing of a human being, when perpetrated without any design to
affect death, by a person engaged in the perpetration of, or in the
attempt to perpetrate, any felony other than, ... robbery ...
[or] kidnapping ...." Section 782.04(4), Florida Statutes (1981) (emphasis
supplied). Since the jury found Bush guilty of both kidnapping and
robbery, failure to instruct on third-degree murder is at most
harmless. See also State v. Abreau, 363 So.2d
1063, 1064 (Fla.1978).
In point seven Bush raises a
variety of objections relative to the constitutionality of the
Florida capital sentencing statute. Each of his contentions has been
previously addressed and we do not deem it necessary to revisit them.
See e.g., Proffitt v. Florida, 428 U.S. 242,
252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976).
In Bush's eighth point on appeal he challenges
the trial judge's "repeated" instructions to the jury that a
sentencing decision requires a majority. We have held that such an
instruction is erroneous. Harich v. State, 437 So.2d 1082,
1086 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329,
79 L.Ed.2d 724 (1984).
Here, although the jury charge contained some
objectionable statements, the trial judge explicitly corrected
himself by explaining: "if by six or more votes the jury
determines that [Bush] should not be sentenced to death, your
advisory sentence will be [imposition of a life sentence.]" (Emphasis
supplied.) As in Harich, it affirmatively appears that the
jury was not confused by the partial inconsistency of the
instruction. Since the body of the instruction was correct and there
was no objection or modification suggested, we find no prejudicial
Bush argues in his ninth point on appeal that the
trial judge should have instructed the jury during the sentencing
phase that a sentence of death may not be imposed absent intent to
kill or contemplation that life would be taken. In support, Bush
cites Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), which held that proof of intent to kill or
contemplation of death is a necessary prerequisite to imposition of
the death penalty. 458 U.S. at 794, 102 S.Ct. at 3375. Bush claims
that failure to give this specific instruction to the jury may have
resulted in a death sentence simply because the jurors believed Bush
to be a "bad fellow."
We disagree with this contention on the facts of
this case. Here, we do not have a mere passive aider and abettor as
in Enmund, where the only participation by Enmund was as
driver of the getaway car from what he supposed was only a robbery
and not a murder. The facts of this case show that Bush was a major,
active participant in the convenience store robbery and his direct
actions contributed to the death of the victim. The degree of Bush's
participation is sufficient to support a finding that his
involvement constituted the intent or contemplation required by
Bush raises numerous issues in point ten, only
one of which merits our discussion. He argues that during the
sentencing phase the prosecutor made an appeal for sympathy and
revenge for the family of the victim in the following statement to
"I ask you, don't consider the sympathy that
Mr. and Mrs. Campbell have. Don't consider that when Mr. and Mrs.
Campbell sit down to Thanksgiving dinner just three days from
now that they are going to look across the table and they are
going to look at Cathy and they are going to see Frances Julia
Slater, the identical twin sister. If sympathy had any part of
it, think of what they go through. And every time they sit down
and look at her, this whole incident is going to come back ..."
Bush contends that this appeal for retribution
was devastating inasmuch as the jury vote was 7-5 in favor of
imposing the death penalty. We disagree. We have previously held
that although "the rule against inflammatory and abusive argument by
a state's attorney is clear, each case must be considered upon its
own merits and within the circumstances pertaining when the
questionable statements are made ...." Darden v. State, 329
So.2d 287, 291 (Fla.1976), cert. dismissed, 430 U.S. 704, 97
S.Ct. 1671, 51 L.Ed.2d 751 (1977).
In Darden, for example, the state
continuously referred to the defendant as an animal and played upon
the necessity of restraining him permanently. We held that within
the context of the argument, that reference to the defendant did not
constitute prejudice requiring a new sentencing hearing. The instant
case is not unlike Darden. We find that the above appeal to
the jury's sympathies was of minor impact and does not merit re-sentencing.
The statements are not a clear abuse, nor do they rise to the
magnitude of a denial of fundamental fairness.
Teffeteller v. State, 439 So.2d 840
(Fla.1983), is not inapposite. There, we stated:
Comments of counsel during the course of a
trial are controllable in the discretion of the trial court, and
an appellate court will not overturn the exercise of such
discretion unless a clear abuse has been made to appear.
Paramore v. State, 229 So.2d 855 (Fla.1969), vacated,
408 U.S. 935 [92 S.Ct. 2857, 33 L.Ed.2d 751] (1972).
Id. at 845. Only where clear prosecutorial
abuse exists will we automatically reverse for resentencing.
Teffeteller, 439 So.2d at 845. Here, we cannot say that the
"line was clearly drawn too far" as in Teffeteller. Id.
Bush's convictions and sentences are
It is so ordered.
BOYD, C.J., and ALDERMAN and SHAW, JJ.,
EHRLICH, J., concurs in conviction and
specially concurs with an opinion of the sentence, in which
ALDERMAN and SHAW, JJ., concur.
OVERTON and McDONALD, JJ., concur in the
conviction, but concur in result only of the sentence.
EHRLICH, Justice, specially concurring.
I am in complete agreement with the majority, but
I write separately to address a problem arising with increasing
frequency in criminal cases, namely, prosecutorial misconduct in
unfairly enflaming the jury's emotions in closing argument. On the
facts of this case, it is clear that the prosecutor's description of
the ongoing suffering of the victim's family did not fundamentally
prejudice the defendant so as to require a new sentencing procedure.
It is equally clear that the argument was irrelevant and improper.
Section 921.141, Florida Statutes, sets forth
those factors which may be presented to a jury in support of the
prosecution's request for a recommendation of death. The suffering
of the survivors is not relevant to any of the factors listed. The
purpose of the death penalty statute as now drafted is to insulate
its application from emotionalism and caprice. This Court has long
condemned prosecutorial arguments which appeal to emotion rather
than to reason. See, e.g., Teffeteller v. State,
439 So.2d 840 (Fla.1983), Singer v. State, 109 So.2d 7 (Fla.1959);
Clinton v. State, 53 Fla. 98, 43 So. 312 (1907). I can think
of few arguments which are more calculated to arouse an intense
emotional response in a jury than the graphic portrayal of the
survivors' bereavement. I can imagine no set of facts on which this
would be proper argument.
Unfortunately, in spite of the clear teaching of
this and other courts that such argument is improper, prosecutors
continue to indulge in it. This is contrary to the ethics of the
profession generally and in violation of the duty, as state
attorneys, to seek justice, not merely convictions. Zealous
representation of society's interest does not require society's
advocate to overstep the bounds of professional restraint. Our
holding that, in this case, the improper argument does not require a
new sentencing trial must not be seen as our condoning such
impropriety. Continued flouting of ethical limitations of
prosecutorial conduct can be corrected through professional
discipline without burdening society at large or the criminal
justice system with the cost of retrying the case.
ALDERMAN and SHAW, JJ., concur.
988 F.2d 1082
Harry K. Singletary, Secretary, Florida Department
United States Court of Appeals,
March 30, 1993
the United States District Court for the Middle
District of Florida.
Before KRAVITCH, EDMONDSON,
and COX, Circuit Judges.
John Earl Bush, a Florida
inmate, was convicted of first-degree murder
and sentenced to death. He filed a 28 U.S.C.
§ 2254 petition challenging both his
conviction and his sentence. The district
court denied relief, and Bush appeals. We
27, 1982, John Earl Bush and three other men
abducted Frances Slater from the convenience
store where she worked. Her body was found
later that day, thirteen miles away. She had
been stabbed in the abdomen and shot once in
the back of her head at close range. The
convenience store's cash register and floor
safe had been robbed of approximately
$134.00. Bush was tried for the crimes in
1982 and convicted, following a jury trial,
of first degree murder, armed robbery and
pretrial taped statements made by Bush to
law enforcement authorities were introduced
at trial. The Supreme Court of Florida
described these statements as "the only
known version of the events [which] are
presented by Bush in the light most
favorable to him." Bush v. State, 461 So.2d
936, 937 (Fla.1984). In the first statement,
Bush denied any involvement with the Slater
abduction but said that on the night in
question he had given a ride to three men
whom he did not know. He also claimed he had
an alibi. When officers took Bush to West
Palm Beach to verify his alibi, Bush
recanted his first statement and made a
statement he said that he, Pig Parker,
Alfonso Cave, and Terry Johnson had gone to
Fort Pierce with the intention of committing
a robbery and that the four had abducted,
robbed, and murdered Miss Slater. He denied
stabbing or shooting the victim, denied
knowing whose idea it was to kill her, and
denied seeing anyone with a knife. After
Bush and the officers returned from West
Palm Beach, he made a third statement. In
this statement he admitted driving the
getaway vehicle. He also admitted owning the
gun used to shoot the victim, and he
admitted disposing of it the day after the
a fourth statement, against the advice of
his attorney, in which he said that he is
the one who stabbed Frances Slater but that
he had "faked" it in an effort to get his
cohorts to leave her alone. He said that an
accomplice, Parker, shot her. The medical
examiner testified that the stab wound was
superficial and did not involve Ms. Slater's
vital organs. The examiner's opinion was
that a gunshot wound to the head was the
cause of death.
a separate sentencing hearing, the jury
recommended the death penalty by a vote of
seven to five. The trial judge, citing three
aggravating factors and no mitigating
factors, sentenced Bush to death.
appealed his conviction and sentence to the
Supreme Court of Florida. In November 1984,
the Supreme Court of Florida affirmed his
conviction and his sentence. Bush, 461 So.2d
at 942. His petition for a writ of
certiorari was denied. Bush v. Florida, 475
U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345
first death warrant was signed in March
1986, after which he filed a motion to
vacate his conviction and sentence pursuant
to Florida Rule of Criminal Procedure 3.850.
Following the denial of his motion, he filed
a petition for writ of habeas corpus in the
Supreme Court of Florida. That court stayed
his execution to consider both his petition
and his appeal of the denial of his 3.850
motion. In February 1987, the Supreme Court
of Florida denied the requested relief. Bush
v. Wainwright, 505 So.2d 409 (Fla.1987). The
Florida Supreme Court denied rehearing in
May 1987. Id. In October 1987, the Supreme
Court of the United States denied certiorari.
Bush v. Florida, 484 U.S. 873, 108 S.Ct.
209, 98 L.Ed.2d 160 (1987).
8, 1988, Bush's second death warrant was
signed. In February 1988, two days before
his scheduled execution, Bush filed this 28
U.S.C. § 2254 petition in the district court.
His petition asserts seventeen claims.1
After an evidentiary hearing on the adequacy
of counsel issues, the district court denied
relief on all claims.
district court issued a certificate of
probable cause to appeal, and we
subsequently held proceedings in this court
in abeyance to allow Bush to pursue state
habeas proceedings in the Florida Supreme
Court. The Supreme Court of Florida, however,
denied relief. Bush v. Dugger, 579 So.2d 725
argues on this appeal that the district
court erred in denying relief on four claims.
His brief articulates the issues as
Whether Mr. Bush's sentence of death
constitutes cruel and unusual punishment
because the state courts did not make a
finding on his individual culpability
sufficient to satisfy the Eighth Amendment.
Whether the prosecutor's inaccurate,
inconsistent, and misleading presentation
violated the Eighth and Fourteenth
Whether the state's comments and the trial
court's instructions that a verdict [recommending]
life imprisonment had to be rendered by a
majority of the jury misled the jury as to
its role at sentencing and created the risk
that death may have been imposed because of
inappropriate factors, in violation of the
Eighth and Fourteenth Amendments.
Whether Mr. Bush received ineffective
assistance of counsel at the sentencing
phase of his capital trial.
Appellant at 1.
address each issue in turn.
Whether Bush's sentence of death constitutes
cruel and unusual punishment because the
state courts did not make a finding of his
individual culpability sufficient to satisfy
the Eighth Amendment.
argues that the death sentence is
unwarranted in this case because the state
courts did not make a finding that he was
responsible for the murder of Ms. Slater.
Principles of proportionality embodied in
the Eighth Amendment prohibit the imposition
of the death penalty upon persons who,
though guilty of capital murder under state
law, did not themselves kill, attempt to
kill, or intend to kill. Enmund v. Florida,
458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982). In Tison v. Arizona, 481 U.S.
137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d
127 (1987), the Court held that major
participation in the felony committed,
combined with a reckless indifference to
human life, was sufficient to satisfy Enmund
's culpability requirement.
appropriate tribunal may make the finding of
culpability required by Enmund. Cabana v.
Bullock, 474 U.S. 376, 392, 106 S.Ct. 689,
700, 88 L.Ed.2d 704 (1986). Thus a finding
by the jury, trial judge, or appellate court
may satisfy Enmund. Id. The state court
findings of fact, both trial and appellate,
are entitled to a presumption of correctness,
under 28 U.S.C. § 2254(d). Sumner v. Mata,
449 U.S. 539, 546, 101 S.Ct. 764, 769, 66
L.Ed.2d 722 (1981), Lusk v. Dugger, 890 F.2d
332, 336 (11th Cir.1989), cert. denied, 497
U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805
argues that the state court findings in his
case do not satisfy the requirements of
Enmund and its progeny. More specifically,
Bush argues that there is no finding of fact
on Bush's mental state at the time in
question. He also contends that any such
finding would contradict the facts that the
Florida Supreme Court found to be disclosed
by the "only known version of the events."
Brief for Appellant at 29-30 (quoting Bush,
461 So.2d at 937 (the Supreme Court of
Florida's affirmance of Bush's conviction)).
The State argues that both the trial court
and the appellate court made a sufficient
was submitted to the jury on theories that
included felony murder. The jury's guilty
verdict, therefore, does not answer the
culpability question in this case. The trial
judge's sentencing findings include the
Of course, the only
version of the actions that took place that
night that we have come from your statements
both out of court and in court. I guess we
don't have to believe your statement, but
since there is no other evidence we can't
act upon anything that wasn't in evidence.
So we must assume that you were an
accomplice in the offense and we must assume,
that from the evidence of Dr. Wright, that
the actual death occurred as a result of the
bullet wound and the only evidence, direct
evidence that we have is that another person
imposed that. But the third part here is,
and the Defendant's participation was
relatively minor. The evidence that was
presented in this case is that you were
together with these other people during this
entire evening, that it was your car, that
you were doing all the driving and that it
was your weapon. The evidence then shows
that when you stopped down in that road you
and Parker got out of the car and took the
girl back and between the two of you you did
the first step by stabbing her. You said you
did not intend to kill her. Apparently the
jury disbelieved that and I am privileged to
disbelieve it as well. In any event, what
you did, stabbing her, making her fall to
the ground, facilitated and cooperated with
Parker in what he did next, and therefore in
my opinion there is no way to say what you
did was relatively minor.
1304-1305, Sentencing Transcript (emphasis
appeal Bush argued that under Enmund, the
trial judge should have instructed the jury
during the sentencing phase that a sentence
of death may not be imposed in the absence
of intent to kill or contemplation that life
would be taken. The Florida Supreme Court
rejected this argument, saying:
disagree with this contention on the facts
of this case. Here, we do not have a mere
passive aider and abettor as in Enmund,
where the only participation by Enmund was
as driver of the getaway car from what he
supposed was only a robbery and not a murder.
The facts of this case show that Bush was a
major, active participant in the convenience
store robbery and his direct actions
contributed to the death of the victim. The
degree of Bush's participation is sufficient
to support a finding that his involvement
constituted the intent or contemplation
required by Enmund.
that the trial judge's finding satisfies the
requirement imposed by Enmund and its
argument that the Florida Supreme Court's
statement that Bush's statements "constitute
the only known version of the events" would
contradict a finding that Bush intended to
kill the victim is meritless. The Supreme
Court simply summarized Bush's fourth
statement as presented by Bush "in the light
most favorable to him." Id. at 937. The
suggestion that the Florida Supreme Court
was finding as a fact that Bush's fourth
statement represented the truth about the
events in question and that the court's
description of Bush's statements, therefore,
constituted a finding by that court that
Bush did not have the requisite intent is
Whether the prosecutor's inaccurate,
inconsistent, and misleading presentation
violated the petitioner's rights under the
Eighth and Fourteenth Amendments.
contends that the prosecutor asserted that
Bush was the triggerman and ringleader; that
the same prosecutor asserted in Parker's
trial that Parker was the triggerman and
ringleader; and that the same prosecutor
asserted in Cave's trial that Cave was the
triggerman and ringleader. Moreover, Bush
contends the prosecutor presented misleading
evidence during Bush's trial to support the
theory that Bush was the triggerman, even
though the prosecutor knew that theory was
false. This inaccurate, misleading, and
inconsistent presentation, Bush contends,
was fundamentally unfair, violated due
process, and rendered unreliable the death
responds that Bush focuses on an isolated
comment by the prosecutor; that the State
did not present any evidence or argument to
suggest that Bush was the triggerman but, on
the contrary, relied on the felony-murder
theory to convict Bush. The State denies
presenting any misleading evidence.
Supreme Court has said that improper
argument by a state prosecutor can make a
trial so fundamentally unfair as to deny a
defendant due process. Donnelly v. De
Christoforo, 416 U.S. 637, 646, 94 S.Ct.
1868, 1873, 40 L.Ed.2d 431 (1974). In this
instance, however, the arguments made by the
prosecution did not deprive Bush of his due
State's evidence at trial and the
prosecutor's arguments were predicated on
two theories of first degree murder: felony
murder and aiding and abetting premeditated
murder. One statement by the prosecutor
suggested that Bush was the triggerman, but
this isolated suggestion was inconsistent
with the prosecutor's overall presentation
and argument. The prosecutor correctly told
the jury that the State did not have to
prove that Bush touched or stabbed the
victim to sustain a first degree murder
conviction. R.6 at 988-89, Trial Transcript.
It is absolutely clear, therefore, as the
district court found, that this single
comment by the prosecutor could not have
affected the judgment of the jury.
evidence presented by the State that Bush
argues was misleading relates to the caliber
of the murder weapon. Bush argues that the
evidence regarding the bullet found in the
victim's body is not consistent with the
evidence regarding the caliber of Bush's gun.
He contends that an unfired, .38 caliber
round was found in his car, but that the
fragment found in the victim's body was part
of a .32 caliber bullet. Bush argues that
the State presented the theory connecting
the unfired round found in Bush's car to the
bullet found in the victim's body while
knowing it to be inaccurate.
petitioner must prove that misleading
evidence was presented and that it was
material in obtaining his conviction.
Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873;
Tejada v. Dugger, 941 F.2d 1551, 1556 (11th
Cir.1991), cert. denied, --- U.S. ----, 112
S.Ct. 1199, 117 L.Ed.2d 439 (1992).
ballistics expert at trial testified that
the bullet that killed the victim could have
been fired from either a .32 or .38 caliber
weapon. R.3 at 472, Trial Transcript. Thus,
it is not clear how the State's presentation
of evidence connecting Bush's gun to the
bullet that killed Ms. Slater could be
misleading. Further, Bush admitted owning
the murder weapon--whatever its caliber--and
therefore evidence relative to its caliber
was not material to his conviction.
not demonstrated that the prosecutor's
presentation violated Bush's rights under
the Eighth and Fourteenth Amendments.
Whether the jury was misled by the State's
comments and the trial court's instructions
that a majority of the jury would have to
recommend the sentence of life imprisonment
to impose a sentence of life imprisonment.
Florida's capital sentencing scheme, a
jury's recommendation that the death penalty
be imposed need not be unanimous, but may be
by a simple majority. Fla.Stat. § 921.141(3)
(West 1985). If a majority does not vote for
death, the jury's recommendation is life;
therefore, if the jury's vote is six to six,
the recommendation is one for life.
argues that the prosecutor's comments and
the trial court's instructions misled the
jury by suggesting that a majority vote was
required to recommend a life sentence. These
statements, Bush argues, violated the Eighth
and Fourteenth Amendments by creating the
risk that death may have been imposed
because of inappropriate factors. The State
argues that the judge properly instructed
the jury and that nothing in the record
demonstrates that the jury was confused.
of both the prosecutor's comments during
voir dire and the trial court's instructions
suggest that a vote of seven was required
for any recommendation. On one occasion,
however, the trial court explained with
Now, if the majority of
the jury determines that John Earl Bush
should be sentenced to death, your advisory
sentence will be 'a majority of the jury by
a vote of blank advises and recommends to
the court that it impose the death penalty
upon John Earl Bush.' One [sic] the other
hand, if by six or more votes the jury
determines that John Earl Bush should not be
sentenced to death, your advisory sentence
will be 'the jury advises and recommends to
the court that it impose a [life sentence].'
1290, Sentencing Transcript (emphasis added).
Absent some evidence to suggest that
petitioner's jury was confused or divided
six to six, petitioner cannot prevail on his
claim that the instructions improperly
misled the jury to believe a majority vote
was required to impose a life sentence.
Adams v. Wainwright, 764 F.2d 1356, 1369
(11th Cir.1985), cert. denied, 474 U.S.
1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986);
Henry v. Wainwright, 743 F.2d 761, 763 (11th
Cir.1984). The district court properly
denied relief on this claim.
Whether petitioner received ineffective
assistance of counsel at the sentencing
phase of his capital trial.
determination concerning the adequacy of
counsel is a mixed question of law and fact;
thus, the district court's conclusion
regarding adequacy is subject to plenary
review. Strickland v. Washington, 466 U.S.
668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d
674 (1984); Cunningham v. Zant, 928 F.2d
1006, 1016 (11th Cir.1991). The district
court held an evidentiary hearing on this
issue; therefore, this court will accept the
district court's findings of fact as correct
unless they are shown to be clearly
erroneous. Fed.R.Civ.P. 52(a); R. Governing
§ 2254 Cases in the United States Dist.Cts.
11; see Strickland, 466 U.S. at 698, 104
S.Ct. at 2070.
contends that the performance of Muschott,
his counsel, was deficient. Particularly,
Bush alleges that Muschott's performance in
the sentencing phase was deficient in the
counsel failed to investigate and present
evidence detailing Bush's sympathetic
background, including his disadvantaged
childhood and his traumatic prison
experience,(b) counsel failed to investigate
and present evidence of Bush's intellectual
and psychological impairments,
counsel failed to investigate and present
evidence to show that Bush did not kill or
intend to kill,
counsel failed to investigate and present
evidence to show that Bush's participation
in the crime was the result of physical and
psychological coercion, and
counsel failed to investigate and present
evidence to show that Bush was intoxicated
at the time of the offense.
Court Opinion at 32.
that counsel was constitutionally
ineffective, the petitioner must demonstrate
that counsel's performance was deficient and
that the deficiency prejudiced his defense.
Strickland, 466 U.S. at 687, 104 S.Ct. at
2064. In evaluating petitioner's claims on
the deficiency issue, we will consider
whether counsel acted outside the wide range
of reasonable professional judgment. Id. at
690, 104 S.Ct. at 2066.
prejudice issue, the petitioner must show
that, but for counsel's unprofessional
errors, 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. Id. at 694,
104 S.Ct. at 2068. First, we address the
allegations of counsel's deficiency. We then
address the prejudice issue by considering
the evidence Bush claims should have been
introduced and the likely impact of that
evidence on the sentencers' determinations.
district court held an evidentiary hearing
on the issue of effectiveness of counsel and
made extensive findings of fact regarding
Muschott's strategy. The district court
described Muschott's dilemmas and his
strategy to overcome them as follows:
Bush's prior admissions, and with Muschott's
own conclusions [that Bush was very
aggressive and cold and appeared
unremorseful and] that Bush was competent
and that he had assumed a leadership role in
the Slater murder as well as in the 1974
rape of the nineteen year old, Muschott
decided that his best defense (and his best
chance of avoiding the death penalty for his
client) was to argue that Mr. Bush never had
any intention of killing Frances Slater,
that he wanted no part in her death and that,
in fact, he had schemed against his
codefendants to spare her life.
Court Opinion at 14 (citations omitted).
There was evidence supporting this theory.
In Bush's fourth taped statement, he
confessed to stabbing Slater but stated that
he sought to feign her death so that the
others would leave her alone. The theory was
also supported by Bush's claims that Pig
Parker had attempted to force Bush to take
the gun and to shoot Slater, but that Bush
refused. In addition, the examining
physician testified that the stab wound was
superficial and not fatal. Muschott
emphasized these aspects of the evidence
during the guilt/innocence phase of the
trial, along with the voluntariness of
Bush's confessions and assistance to the
investigating officers. After considering
the evidence, however, the jury convicted
The district court described
Muschott's reasons for not presenting
evidence in mitigation during the sentencing
phase of the trial as follows:
Muschott chose [not to present] what he had
regarding Bush's family background, prison
experience, and possible intoxication or
mental disability. He made his decision for
three reasons: (1) there was no mental
disability to exploit and any attempt to
create one would only have damaged his
credibility with the jury; (2) Bush had
confessed that he knew what he was doing on
the night of the murder and any post-trial
attempt to show intoxication would, likewise,
have damaged his credibility; and (3) any
evidence offered in an attempt to paint Bush
as a docile, sympathetic and "sheeplike"
follower would have been false, as well as
unsuccessful, and would have invited the
prosecutors to offer details of the prior
robbery and kidnapping in rebuttal.
decided, instead, to ask the jurors, at
sentencing, to take with them to the jury
room the recording of Bush's third statement.
This statement was the only one, in
Muschott's opinion, in which Bush appeared
remorseful. He hoped that by leaving the
jury with a sympathetic presentation of Bush
and by not inciting the prosecution to
present the details of the 1974 rape, he
could avoid the death penalty for his client.
He was concerned that Bush might appear cold
or unremorseful and might be led by the
prosecutor to testify to his own detriment,
so Muschott discussed the situation with
Bush, Bush's father, and Bush's brother.
Bush decided not to testify at sentencing.
Muschott's advice, however, during the
sentencing hearing, Bush decided to take the
stand. After a brief direct examination by
Muschott, Bush argued with the prosecution
on cross-examination, repeatedly challenged
the prosecutor to prove the case against him,
and could not remember what, if anything,
the victim had said before she died. R.7 at
1187-1267, Sentencing Transcript (cross-examination
contends that his counsel was ineffective
because he failed to investigate and present
mitigating evidence at sentencing. Counsel
must investigate defendant's background
before sentencing. Thompson v. Wainwright,
787 F.2d 1447, 1450 (11th Cir.1986), cert.
denied, 481 U.S. 1042, 107 S.Ct. 1986, 95
L.Ed.2d 825 (1987). The adequacy of the
scope of an attorney's investigation is to
be judged by the standard of reasonableness.
Mitchell v. Kemp, 762 F.2d 886, 888 (11th
Cir.1985), cert. denied, 483 U.S. 1026, 107
S.Ct. 3248, 97 L.Ed.2d 774 (1987). After an
adequate investigation, counsel may
reasonably decide not to present mitigating
character evidence at sentencing. Stanley v.
Zant, 697 F.2d 955, 961-62 (11th Cir.1983),
cert. denied, 467 U.S. 1219, 104 S.Ct. 2667,
81 L.Ed.2d 372 (1984).
contends that Muschott should have presented
evidence detailing Bush's sympathetic
background, including his disadvantaged
childhood and his prison experience. The
district court found that Muschott
investigated Bush's personal background and
evaluated the usefulness of the character
and background information. Muschott decided
that this evidence was not significantly
beneficial to his client's case and chose
not to use it because of his belief that the
State would have introduced, in rebuttal,
evidence of Bush's violent past and the
facts regarding his prior rape conviction.
These findings have support in the district
discussed possible mitigating evidence with
Bush, his brother, his father, his
girlfriend, and his brother-in-law. Muschott
was well aware of Bush's poor family
background and the fact that he had been
abused while in prison. The district court
found that both Bush's father and brother
indicated they did not want to testify, and
no other family member came forward despite
Muschott's willingness to talk with them. We
find no error in the district court's
conclusion that Muschott's evaluation of
this potential evidence as not "significantly
beneficial" was a professionally reasonable
contention that Muschott failed to
investigate and present evidence of Bush's
intellectual and psychological impairments
is similarly without merit. After Muschott
investigated the possibility of
psychological mitigation, he concluded that
this avenue was one he could not develop.
The district court evaluated the evidence on
this issue and found that Muschott did not
believe, nor did he have reason to believe,
that Bush was mentally deficient.
addition to the information revealed through
Muschott's conversations with Bush, Bush's
lawyer for the earlier criminal case and
Bush's family, Muschott was aware of a
number of facts also known by the
prosecution that would rebut an allegation
of mental deficiency. Muschott testified
that Bush had no problems communicating and
gave no indication that he was ever out of
touch with reality. Bush displayed
intelligence during the events at issue,
during his interrogations by law enforcement,
and during trial. He demonstrated the
ability to formulate options and to make his
own decisions. For example, although his
accomplices suggested shooting the police
officer who stopped them after the murder
for a defective taillight, Bush persuaded
them to "wait and see what happens." R.6 at
383, Transcript of Evidentiary Hearing (Muschott's
recollection of the events).
officer who had stopped the men in the car
described Bush, who was driving and who
owned the vehicle, as "calm, cool, and
collected." Id. Bush instituted measures to
regain possession of his car after the
police confiscated it. Bush's actions also
revealed his appreciation of the criminality
of his conduct. He hid the murder weapon. He
gave four statements to the police,
initially claiming an alibi and later
explaining his involvement in the crimes.
discussed what he knew about petitioner with
a psychiatrist, Dr. Tingle, who determined
that he could not assist in the defense of
the petitioner in the guilt or sentencing
phases of the trial. The district court
Muschott weighed the very
questionable beneficial value of a defense
based on psychology against the very real
threat that such a defense would open the
door for the state to introduce in rebuttal,
the details of the 1974 rape and damaging
statements of Bush's codefendants. He
decided that the real threat outweighed the
Court Opinion at 34.
chose not to investigate Bush's
psychological history more thoroughly, not
to have Bush examined by a psychiatrist or
psychologist, and not to present mitigating
psychological evidence at the sentencing
hearing. Given what Muschott could readily
observe about Bush, what Muschott knew of
Bush's background and the advice of Dr.
Tingle, Muschott acted within the wide range
of reasonable professional judgment.
argues that Muschott failed to investigate
and present evidence to show that Bush did
not kill or intend to kill. The record does
not support this argument. Bush alleges that
Muschott should have introduced the
statement of Georgiana Williams, Bush's
girlfriend, that one of the codefendants had
confessed to her that he, not Bush, shot the
victim. With the exception of an isolated
comment by the prosecution, there was no
indication throughout the trial that Bush
was the shooter. All of the evidence
presented indicated that Bush stabbed the
victim and a codefendant shot her. Counsel
could quite reasonably believe that the
introduction of this statement from Bush's
girlfriend would contribute nothing to the
sentencing phase of the trial and the jury
might have perceived it as self-serving.
no reasonable argument to be made under the
facts to support Bush's argument that his
lawyer should have presented evidence that
Bush was physically or psychologically
coerced into participating in the underlying
felony or in the murder of Ms. Slater. The
record clearly indicates Bush's own
statements to the contrary. Bush admitted
that he agreed with the others to rob
someone. R.4 at 755, Trial Transcript. He
was an active participant in the robbery and
kidnapping. A witness identified Bush as one
of the men seen in the store where Slater
worked, not the one waiting in the car; Bush
admitted to owning both the getaway car and
the murder weapon; and he did all the
driving on the night of the crime. Bush had
already stated that he knew what he was
doing throughout the commission of the
robbery, kidnapping, and murder.
approach to the evidence concerning the
extent of petitioner's involvement was
reasonable. We agree with the district court
that "Strickland does not compel an attorney
to urge an argument which he reasonably
finds to be futile, let alone one he finds
to be false." District Court Opinion at 29.
Bush argues that Muschott should have
investigated and presented evidence of
petitioner's intoxication at the time of the
offense. This argument is completely without
merit. Bush admitted that he drank less than
the other participants in the crime. As
other portions of this opinion describe,
Bush's other admissions were that he drove
the car used during the commission of the
crimes; that he knew what he was doing
throughout the crime; and that he schemed
against his codefendants to preserve Ms.
addition, as we also discussed earlier, the
officer who stopped petitioner and his
codefendants on the night of the murder
testified that Bush was calm and collected.
Bush produced his driver's license and
registration without arousing suspicion; he
even remained calm when the police stopped
him a second time for car registration
problems. Clearly, it was an exercise of
reasonable professional judgment not to
argue intoxication as a mitigating factor.
evaluated each of Bush's contentions of his
counsel's inadequacy. Bush has not proved
that his sentencing counsel provided
constitutionally deficient legal
representation. For Muschott to alter his
strategy after trial and to argue at
sentencing that Bush was coerced, mentally
incompetent, or significantly intoxicated
would have been damaging to Muschott's
credibility. Muschott's decisions were well
within the scope of reasonable professional
trouble with Muschott's strategy, as the
district court found, is that "Bush refused
to follow it." District Court Opinion at 35.
Bush and Muschott had agreed well before
trial that Bush would not testify. He
insisted on testifying at the last minute.
"He waited for his counsel to construct the
defense ... and then he pulled the linchpin."
Id. The effect was devastating.
carefully evaluated all of the evidence
proffered by Bush and conclude that he has
not proved that had Muschott presented this
evidence, a reasonable probability exists
that the sentencers would have rejected
death as the appropriate penalty. As we have
previously noted, petitioner's own
statements and actions contradict much of
the evidence he contends should have been
introduced in mitigation.
judgment of the district court denying
relief is AFFIRMED.
Circuit Judge, concurring in part and
dissenting in part:
I join the
majority's opinion as it relates to Bush's
first three claims. I disagree, however,
with the majority's conclusion that Bush
received effective assistance of counsel as
required by the Sixth and Fourteenth
Amendments. In my view, Muschott's total
failure to investigate Bush's mental health,
family, and penal background, as well as his
decision not to introduce certain mitigating
evidence of which he was aware, rendered his
performance constitutionally deficient. A
reasonable probability exists that but for
this constitutionally inadequate performance
Bush would not have been sentenced to death.
I thus respectfully dissent from the
majority's affirmance of the denial of
Bush's petition for habeas corpus relief as
investigate and develop available mitigating
evidence is a basic and unshakable
obligation of defense counsel in all capital
cases. See, e.g., Strickland v. Washington,
466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80
L.Ed.2d 674 (1984) (holding that counsel
must "make reasonable investigations or ...
make a reasonable decision that makes
particular investigations unnecessary");
Blanco v. Singletary, 943 F.2d 1477, 1500
(11th Cir.1991), cert. denied, --- U.S.
----, 112 S.Ct. 2282, 119 L.Ed.2d 207
(1992), and cert. denied, --- U.S. ----, 112
S.Ct. 2290, 119 L.Ed.2d 213 (1992); Horton
v. Zant, 941 F.2d 1449, 1462 (11th
Cir.1991), cert. denied, --- U.S. ----, 112
S.Ct. 1516, 117 L.Ed.2d 652 (1992);
Middleton v. Dugger, 849 F.2d 491, 493 (11th
since Lockett v. Ohio, 438 U.S. 586, 605, 98
S.Ct. 2954, 2605, 57 L.Ed.2d 973 (1978), the
importance of presenting mitigating evidence
has been a prominent feature of the Supreme
Court's Eighth Amendment jurisprudence. See,
e.g., McKoy v. North Carolina, 494 U.S. 433,
444, 110 S.Ct. 1227, 1234, 108 L.Ed.2d 369
(1990) (quoting Penry v. Lynaugh, 492 U.S.
302, 327, 109 S.Ct. 2934, 2951, 106 L.Ed.2d
256 (1989)); Skipper v. South Carolina, 476
U.S. 1, 4-5, 106 S.Ct. 1669, 1670-71, 90
L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455
U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71
L.Ed.2d 1 (1982). Making the sentencer aware
of all relevant mitigating circumstances is
necessary to give practical meaning to the
bedrock Eighth Amendment principle that " 'respect
for humanity ... requires consideration of
the character and record of the individual
offender' " in capital cases. Lockett, 438
U.S. at 604, 98 S.Ct. at 2964 (quoting
Woodson v. North Carolina, 428 U.S. 280,
304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944
investigation, therefore, (which includes
making reasonable decisions not to pursue
certain inquiries) is an absolute
prerequisite for constitutional assistance
of counsel. When counsel breaches the duty
of reasonable investigation, even strategic
or tactical decisions regarding the
sentencing phase, which normally are
entitled to great deference, must be held
constitutionally deficient. See, e.g.,
Horton, 941 F.2d at 1462.
opinion, Muschott failed to conduct even a
minimally adequate search into Bush's
background. At the evidentiary hearing in
the district court, Muschott conceded that
he prepared no mitigating evidence
whatsoever to present at sentencing.
Dist.Ct.Tr. at 402. He never looked into
Bush's psychological history. He never
sought Bush's school or prison records. Id.
at 319. He never developed evidence of the
hardships of Bush's abusive and tragic life
growing up in a family of seasonal
farmworkers. Id. at 321. He never developed
any evidence that might have explained or
softened the effect on the jury of Bush's
Id. at 344.
items were not hidden facts, discoverable
only through substantial effort. They were
basic background facts and records which the
most cursory investigation and preparation
would have revealed. And, significantly,
Muschott admitted that he did not have a
reasonable, tactical reason for not seeking
or developing much of this evidence. See,
e.g., id. at 319. He simply did not do it.
Muschott conducted a competent investigation
he would have discovered information that
certainly would have informed, and might
very well have altered, his decision not to
present any evidence in mitigation. A 1974
report that was included in Bush's
incarceration records, for example, stated
that Bush had an obsessive-compulsive
personality with an incipient pathology,
uncertain control of his impulses, and
sometimes loosened ties to reality. The
reporting doctor worried that Bush was
primed for a "possible future psychosis"
which might be hastened by "any stress
warning is consistent with the testimony in
the district court of Dr. Carbonell, who
reported that Bush possesses borderline
intellectual functioning and possibly
suffers from brain damage and other mental
health problems. It suggests that Bush may
have suffered from a severe emotional
disturbance at the time of the homicide in
this case, a statutory mitigating
circumstance under Florida law. Fla.Stat.Ann.
§ 921.141(6)(b). Even if Bush's mental
health problems did not rise to the level of
a severe emotional disturbance, the 1974
report identifies some mental health
problems which could have been introduced at
the penalty phase as a nonstatutory
mitigating circumstance. At the very least,
the report would have placed Muschott on
notice that further investigation into
Bush's psychological state was necessary.
had every chance to develop mental health
mitigation but neglected to do so. At
Muschott's request, the state trial court
appointed a psychiatrist, Dr. Tingle, and a
psychologist, Dr. Sobel, to assist the
defense. Yet Muschott met with Dr. Tingle
only once, for approximately thirty minutes,
no more than ten minutes of which were spent
talking about potential mitigating evidence.3
He did not meet with Dr. Sobel at all. He
did not have either doctor examine or
evaluate Bush. Nor did he provide either
doctor with Bush's previous psychological
reports. Indeed, he could not provide the
doctors with Bush's records because his
failure to conduct a basic documentary
investigation left him ignorant of their
existence. Based solely on his own
relatively cursory and wholly untrained
observations that Bush had no problems
communicating, had demonstrated the ability
to weigh options and make his own decisions,
and was "calm, cool, and collected,"
Muschott abandoned a potentially life-saving
majority holds that "[g]iven what Muschott
could readily observe about Bush, what
Muschott knew of Bush's background and the
advice of Dr. Tingle, Muschott acted within
the wide range of reasonable professional
judgment." Ante at 1092. "[W]hat Muschott
knew," however, was crucially limited by his
failure to conduct a reasonable documentary
investigation. Had Muschott obtained Bush's
easily obtainable incarceration records, as
he should have, he would have been aware of
Bush's earlier psychological reports and
surely would have realized the importance of
Bush's court-appointed doctors examining him
and reviewing his records.
Furthermore, Muschott must have known that
nothing could be determined reliably about
Bush's mental health status without
psychological testing and that a mental
health strategy should not be abandoned
until Dr. Sobel performed those tests. See
Dist.Ct.Exh. 8, attach. 5 (Dr. Tingle's
notes); Exh. 14(d) (Muschott's notes). Dr.
Sobel was available to test Bush. Muschott
simply declined to have her do the tests.
likewise was inexcusably unaware of
information that would have explained or
softened the impact on the jury of Bush's
1974 conviction and thirty-year sentence for
rape and robbery. This failure tainted two
important defense strategy decisions. First,
Muschott decided not to attempt to mitigate
the effect on the jury of evidence presented
by the State that Bush had been convicted of
rape and robbery and sentenced to thirty
significant, Muschott chose not to present
any evidence of Bush's difficult family
background or positive character traits.5
He made these decisions because he feared
that the State, in rebuttal, would reveal
the details of the 1974 crime. Because of
his complete failure to investigate, however,
Muschott did not know that Florida officials,
whose opinion likely would have carried
great weight with the jury, were on record
as stating that Bush's conduct had been far
from the cold act of a heinous criminal.
Bush's 1974 presentence investigation report
found that he "does not impress one as being
a hard nosed street kid.
impresses one as being a youth who has
inadvertently involved himself in a very
serious adult crime." The report concluded
that Bush should suffer the minimum amount
of retribution allowable by the court.
Bush's sentencing judge went further. He
stated that he did not believe that Bush's
conduct warranted even the minimum sentence
imposed by Florida law, though of course he
could not sentence Bush to less than the
statutory minimum. If Muschott had been
aware of this information, he might very
well have chosen to introduce humanizing
evidence of Bush's family background and
character traits, knowing that if the State
attempted to countermand that evidence with
the 1974 crime, he could surrebut with the
statements of the Florida officials.
Muschott's investigative effort in preparing
for the penalty phase of Bush's trial
amounted to one short conversation with Dr.
Tingle based solely on Muschott's own
inconsiderable and untrained observations
and a few conversations with Bush's father,
brother, and girlfriend, most of which were
initiated by them. In my view, Muschott
failed to discharge his duty of reasonable
investigation. Consequently, his strategy at
sentencing--doing nothing more than asking
the jury to listen to the one of Bush's four
statements in which he sounded most
remorseful--was constitutionally tainted.
also failed to render constitutionally
adequate assistance of counsel when he chose
not to introduce mitigating evidence that
could not reasonably have opened the door to
damaging evidence in rebuttal. Muschott
feared that if he introduced mitigating
evidence, including Bush's sympathetic
background and intellectual and mental
health deficiencies, the State would
introduce statements by Bush's codefendants
that his involvement in the murder had been
extensive, as well as details of the 1974
the mitigating evidence that might have
persuaded the jury to vote for life, however,
was completely distinct from this potential
rebuttal evidence. That Bush is the loving
father of a daughter with Down's Syndrome or
once saved a drowning child, for example,
has nothing to do with the details of the
1974 crime or the extent to which Bush
participated in the murder, and cannot
reasonably have given rise to the fear of
rebuttal. The same goes for Bush's mental
health problems and for the hardships Bush
endured as an abused child in a family of
seasonal workers, with a disabled and
alcoholic father and a mother who died when
he was just a boy.6
with the majority that Muschott acted
reasonably when he asked the jury to listen
to the statement in which Bush sounded most
remorseful. The Sixth Amendment problem in
this case is not with what Muschott did but
what he did not do. He did not conduct a
constitutionally adequate investigation into
Bush's background and he did not introduce
significant evidence that could not
reasonably have given rise to damaging
rebuttal. That counsel made many competent
decisions does not preclude a finding of
ineffective assistance of counsel. The right
to effective assistance of counsel may be
violated "by even an isolated error of
counsel if that error is sufficiently
egregious and prejudicial."7
Murray v. Carrier, 477 U.S. 478, 496, 106
S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986);
accord Strickland, 466 U.S. at 693-96, 104
S.Ct. at 2067-69; United States v. Cronic,
466 U.S. 648, 657 n. 20, 104 S.Ct. 2039,
2046 n. 20, 80 L.Ed.2d 657 (1984).
abdication of his responsibility to
investigate and present mitigating evidence
was a significant error, in my view, more
than sufficiently egregious to implicate
Bush's right to constitutionally effective
counsel. The range of professional judgment
acceptable under the Sixth Amendment is wide,
but not boundless.
majority also errs in holding that Bush does
not satisfy the prejudice prong of
Strickland. Contrary to the majority's
summary conclusion, a reasonable likelihood
does exist that but for Muschott's
constitutionally deficient performance
Bush's jury would have rejected the death
penalty. All that is necessary to satisfy
the prejudice prong in this case is a
reasonable probability that one additional
juror would have voted for life. A
reasonable probability is simply a
likelihood sufficient to undermine
confidence in the jury's death
recommendation, not even proof by a
preponderance of the evidence. Strickland,
466 U.S. at 693, 104 S.Ct. at 2068.
Notwithstanding Muschott's constitutionally
inadequate performance, the State could
muster only seven votes for death. Under
Florida law a six-six split constitutes a
recommendation against the death penalty.
See Harich v. State, 437 So.2d 1082, 1086 (Fla.1983),
cert. denied, 465 U.S. 1051, 104 S.Ct. 1329,
79 L.Ed.2d 724 (1984). The sentencing judge
can override such a recommendation only if
the facts suggesting a death sentence are so
clear and convincing that virtually no
reasonable person can conclude that life
imprisonment is an appropriate sentence. See
Tedder v. State, 322 So.2d 908, 910 (Fla.1975).
That standard could not have been met in
mitigating evidence was available to
humanize Bush in the eyes of the jury,
including his loving devotion to his child
suffering from Down's Syndrome and his
borderline intellectual functioning (if not
more serious mental health problems). If
only some of that evidence had been
introduced, the State would not have been
able to emphasize to the jury, as it did,
that "[t]here has been no testimony
concerning the character of the defendant
other than the fact that he was previously
convicted of a serious crime." Sentencing
Hearing Tr. at 155. Because no mitigating
evidence whatsoever was introduced, the jury
was left with only the prosecution's view:
that John Earl Bush possessed no positive
human qualities worth sparing.
v. Singletary, supra, we wrote:
Given that some members
of Blanco's jury were inclined to mercy even
without having been presented with any
mitigating evidence and that a great deal of
mitigating evidence was available to
Blanco's attorneys had they more thoroughly
investigated, we find that there was a
reasonable probability that Blanco's jury
might have recommended a life sentence
absent the errors.
at 1505. Likewise, in this case, nearly half
of Bush's jurors were inclined to mercy
notwithstanding Muschott's defective
performance. Substantial mitigation was
available if Muschott had only conducted a
basic investigation. There is far more than
a mere reasonable probability that John Earl
Bush today faces execution because of
constitutionally ineffective assistance of
Accordingly, I respectfully dissent from the
denial of habeas relief as to sentencing.
99 F.3d 373
Harry K. Singletary, Respondent
United States Court of Appeals,
Oct. 18, 1996
for Leave to File Second Habeas Corpus Petition.
Before KRAVITCH, EDMONDSON
and COX, Circuit Judges.
Bush, a Florida inmate under sentence of
death, applies for permission to file a
second habeas corpus petition challenging
his 1982 death sentence for murder in the
first degree. A detailed history of the case
appears in Bush v. Singletary, 988 F.2d
1082, 1084-86 (11th Cir.1993). Bush's
application is subject to 28 U.S.C. §
2244(b)(2) as amended by the Antiterrorism
and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132, tit. I (1996). The
amended statute states:
claim presented in a second or successive
habeas corpus application under section 2254
that was not presented in a prior
application shall be dismissed unless--
applicant shows that the claim relies on a
new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
factual predicate for the claim could not
have been discovered previously through the
exercise of due diligence; and
facts underlying the claim, if proven and
viewed in light of the evidence as a whole,
would be sufficient to establish by clear
and convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
permission to file a second federal habeas
petition asserting three claims.
first claim (claim 1) is that the finding of
the "cold, calculated, and premeditated"
aggravating circumstance was
constitutionally invalid in this case. (Petition
second claim (claim 2) is that his death
sentence is based upon the invalid
aggravating circumstance of a "prior violent
felony." His prior rape conviction is
invalid, he alleges, because his counsel in
the rape case was burdened by a conflict of
interest, and therefore ineffective. (Petition
third claim (claim 3) is that the Florida
Supreme Court has not determined that his
death sentence is proportional. This is so,
Bush argues, because one of his co-defendants,
Alphonso Cave, had his death sentence
vacated in 1995, and is awaiting
resentencing. Bush argues that the Florida
Supreme Court cannot conduct a
proportionality review without the record of
Cave's resentencing. (Petition at 45-62.)
contends that we should address the merits
of his claims because he is not "eligible"
for the death penalty within the meaning of
Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct.
2514, 120 L.Ed.2d 269 (1992). Removal of the
invalid aggravators (claims 1 and 2) or the
absence of proportionality review (claim 3),
Bush argues, render him ineligible under
Florida law for the death penalty. He
contends that the 1996 amendments do not
abrogate the miscarriage of justice
exception to the abuse of the writ doctrine
articulated in Sawyer because the exception
is grounded not in the statutes and rules,
but in the Constitution.
not allege that any of the claims in
question "rel[y] on a new rule of
constitutional law" as required by §
2244(b)(2)(A). That section, therefore, does
not apply to any of Bush's claims.
for § 2244(b)(2)(B) to apply, Bush must
establish both that the factual predicate
for the claim could not have been previously
discovered and that "but for constitutional
error, no reasonable factfinder would have
found [him] guilty of the underlying offense."
28 U.S.C. § 2244(b)(2)(B).
not allege that the factual predicate for
claims 1 and 2 could not have been
previously discovered. Claim 3, however,--the
claim based upon the absence of
proportionality review--is based upon
vacation of Cave's sentence in 1995,
subsequent to Bush's prior petition. But
Claim 3 does not implicate the federal
constitution. Proportionality review of the
kind at issue is not required by the federal
constitution, Pulley v. Harris, 465 U.S. 37,
104 S.Ct. 871, 79 L.Ed.2d 29 (1984), but
only by Florida law. "A federal court may
not issue the writ on the basis of a
perceived error of state law." Id. at 41,
104 S.Ct. at 875.
court, Bush contended that if Cave were
sentenced to life, Bush's death sentence
would be disproportionate. Both the trial
court and the Florida Supreme Court rejected
the claim, finding that Bush failed to
establish that his culpability had in any
way been diminished. Bush v. State, 682
So.2d 85, 87 (Fla.1996). "Even if Cave were
to receive a life sentence, it could not be
said that Bush's death sentence would be
disproportional." Id. at 87-88. Florida has
conducted the proportionality review its law
requires. No federal constitutional claim
meeting the requirements of § 2244(b)(2)(B)
case we find it unnecessary to address
Bush's argument that the 1996 amendments did
not abrogate the miscarriage of justice
exception to the abuse of the writ doctrine
articulated in Sawyer. Assuming, arguendo,
that the Act has not eliminated the
miscarriage of justice exception articulated
in Sawyer, we hold that no miscarriage of
justice occurred here. Bush has fallen short
of demonstrating that his counsel was
ineffective regarding his 1974 conviction
for rape and robbery. Further, he has not
presented clear and convincing evidence that,
in light of the alleged ineffective
assistance of counsel, his 1974 conviction
should be set aside, thereby invalidating
the "prior violent felony" aggravating
factor used in the instant case.
application is denied because it does not
meet the requirements of § 2244(b)(2). The
application for a stay of execution is also
APPLICATION FOR PERMISSION TO FILE A SECOND
HABEAS CORPUS PETITION DENIED. REQUEST FOR
STAY OF EXECUTION DENIED.