Demps, James Jackson and Harry Mungin were convicted of the September 7,
1976 stabbing death of Alfred Sturgis at Florida State Prison.
Sturgis, serving a life term for murder and allegedly a "snitch," was
found in his cell, bleeding from multiple stab wounds. While transported
to the hospital, Sturgis told two guards in a "dying declaration" that
fellow inmates Demps, Jackson and Mungin attacked him.
Another inmate, Larry Hathaway, testified that Mungin was standing in
the door of Sturgis' cell while Demps was holding Sturgis down and
Jackson was stabbing him with a homemade knife.
Demps, Jackson and Mungin were part of a group of inmates that named
themselves "Perjury Incorporated," a prison gang that rooted out inmate
At the time, Demps was serving a double life sentence
for murdering two people in a Lake County orange grove in 1971. He was
originally sentenced to death for the double homicide.
Demps and Jackie Hardie reportedly had stolen a safe and taken it to the
grove to try to open it. It was then that a local real estate agent
showing land to a Connecticut couple seeking a retirement home stumbled
upon the duo.
The two robbers ordered all three of the victims into the
trunk of a car and, when they tried to get out, Demps and Hardie opened
fire, killing two of the victims (Celia and Nicholas Puhlick) and
wounding the other, prosecutors said. The third victim, R.N. Brinkworth,
survived and identified Demps and Hardie.
Following the trial, the U.S. Supreme Court handed
down Furman v. Georgia(1972), and the death sentences were
commuted to life terms.
The Sturgis murder, however, occurred just two
months after Florida had reinstated the death penalty, giving
prosecutors a chance to send Demps to death row again. Mungin and
Jackson received life sentences. "He had poor timing," said Greg McMahon,
chief of special prosecutions for the 8th Circuit District Attorney's
Hardie died in prison on January 26, 1999. Demps was one of 95
men and one woman who had their death sentences commuted to life in
Bennie Demps, 49, is set to die on May 31 for the
September 1976 murder of fellow inmate Alfred Sturgis at Florida State
Prison near Starke. Before his death, Sturgis told an officer that Demps
and another inmate held him down while a third inmate stabbed him.
Demps' defense argued Friday that a letter from
prison officials, who investigated Sturgis' death, did not implicate
Demps in the attack. A defense motion requested Cates to grant a hearing
on the information that would have postponed Demps' execution.
had argued the information was not newly discovered or admissible. After
Cates' denial, the case now heads to the Florida Supreme Court for
review. Earlier this year, some prosecutors had projected that Demps'
execution wouldn't be scheduled for years.
Demps was originally sentenced to death in 1978.
Before Bush signed the recent warrant, Demps had survived 3 death
warrants by getting last-minute appeals.
Although set to die for Sturgis'
death, Demps was originally condemned for the 1971 murders of R.N.
Brinkworth and Celia Puhlick. They were fatally shot in a Lake County
citrus grove. Celia Puhlick's husband, Nicholas, was wounded in the
attack. The victims were inspecting some land for sale when they came
across Demps. He had fled into the grove with a stolen safe.
after being sent to death row, Demps was taken off after the U.S.
Supreme Court ruled against capital punishment. In 1976, Florida's new
capital punishment law was upheld. Two months later Sturgis was stabbed.
Demps was denied by the Florida Supreme Court 7-0 on June 5.
Twice-Convicted Killer Fighting Execution
By Robert Anthony Phillips -
June 5, 2000
STARKE, Fla. (APBnews.com) -- Claims
to Be Victim of Prison Frame-Up -- A convicted killer who dodged the
electric chair when the Supreme Court overturned death penalty statutes
in 1972 now has a new date with the executioner -- this time for taking
part in the murder of an alleged prison snitch. But Bennie Demps, back
on death row again since 1978 and scheduled to die by lethal injection
June 7, isn't going quietly to the death chamber.
He claims he is the victim of a prison frame-up and
an unscrupulous prosecutor who withheld evidence. Demps also said a
report from the Department of Corrections named another man as the
inmate's only killer. Prosecutors are scoffing at his claims, noting
that the courts have rejected all of his appeals and that all evidence
points to him as one of the killers.
Demps was scheduled to die Wednesday, but the Florida
Supreme Court gave him a temporary stay of execution, until June 7 at 5
p.m. A hearing will be held Monday that will likely decide whether Demps
lives or dies.
His lawyers are asking the high court to order an
evidentiary hearing on the basis of newly discovered evidence that they
believe could help prove the condemned man's innocence.
Fingered by 'dying declaration'
Demps, James Jackson and Harry Mungin were convicted
of the Sept. 7, 1976, stabbing death of Alfred Sturgis at Florida State
Prison. Sturgis, serving a life term for murder, was found in his cell,
bleeding from multiple stab wounds.
Prosecutors and prison officials say
that while he was being taken to the hospital, Sturgis told two guards
in a "dying declaration" that fellow inmates Demps, Jackson and Mungin
attacked him. Authorities believe that Demps and Mungin held Sturgis
while Jackson repeatedly plunged a homemade prison knife into his chest.
At the time, Demps was serving a double life sentence for murdering two
people in Lake County. He was originally sentenced to death in the
electric chair but had his sentence commuted to life when the U.S.
Supreme Court found death penalty statutes unconstitutional.
murder, however, occurred just two months after Florida had reinstated
the death penalty, giving prosecutors a chance to send Demps to death
row again. Mungin and Jackson received life sentences. "He had poor
timing," said Greg McMahon, chief of special prosecutions for the 8th
Circuit District Attorney's Office.
'Phase Two Death Watch'
In 1987, he had come within 13 hours of being
executed -- his head and right leg had been shaved so that the
electrodes for the electric chair could be taped to him. But a last-minute
stay kept him alive. Gov. Jeb Bush signed the latest death warrant for
Demps on April 24.
It was the fourth time an order of execution had been
signed ordering Demps' execution. Demps is now on so-called Phase Two
Death Watch, confined to an isolation cell in Q Wing at Florida State
Prison with the eyes of a correctional officer fixed on him, watching
his every move, prison officials said.
Prison officials said that Demps
has been stripped of his personal property as he waits just a few steps
from the execution chamber. Everything he owned while imprisoned during
the last 30 years has been taken away, even a radio. When he wants a
book, he must ask and one is handed through the bars to him. When he is
done reading, he must pass it back to the guard.
Determined to avoid death house
While prosecutors have portrayed Demps as a violent
triple killer who deserves a death sentence because he murdered before,
Demps and his wife, Tracy, have gone on a campaign in recent months
claiming he is the victim of a massive frame-up from a criminal justice
system angry that he beat the electric chair once and now determined to
make sure he doesn't avoid the death house again.
Tracy Demps, a
Canadian woman who said she married Demps in a 1999 death row ceremony,
said she has sent out hundreds of letters across the United States
looking for public attention to save her husband. She said only two
people have responded. "I try not to think of time running out," she
Condemned man cites report Demps is basing most of
his claims of innocence on a Sept. 7, 1976, report from Cecil L. Sewell,
then the chief prison inspector and investigator. In the report, Sewell
wrote that "before Sturgis died, he named James Jackson ... as his
Sewell did not say in the report where he got the
information or whether he spoke to the dying man. Demps and his wife say
that the report was not given to his defense lawyer before his trial and
was only discovered in 1998, forming the basis for his appeal. But the
courts have refused to overturn Demps' conviction.
Demps also said in a
letter to the news media that another prison inmate, Larry Hathaway,
testified against him at trial and has since "recanted." Demps claims
that corrections officials and prosecutors promised Hathaway favors in
return for fingering him.
He also charges that Hathaway is mentally
deranged and the Department of Corrections has withheld medical records
that could cast doubt on his testimony. Demps also claims to have
witnesses who say they saw Hathaway in a television room during Sturgis'
attack, and that there is no physical evidence linking him to the murder.
"For the last 20 years, we've turned up document after document that his
case was manufactured," Tracy Demps said. "They had a case of a death
row inmate whose case was overturned. He's a bit of a noisemaker and
they wanted to eliminate him. To do that, they obviously had the murder
of Alfred Sturgis and incorporate him into something he had nothing to
Prosecutor suspended from bar
Tracy Demps also questions the character of the man
who put her husband on death row, Thomas Elwell, a former Bradford
County assistant district attorney. Elwell is currently suspended from
practicing law for 18 months on charges that include filing non-meritorious
claims, failure to exercise independent judgment and failure to provide
competent representation, according to the Florida Bar Association (FBA).
Elwell also was placed on emergency suspension in January 1997 for
failure to properly safe-keep trust funds and maintain minimum trust
accounting records, the FBA stated. The exact nature of the charges
could not be immediately determined. Elwell, contacted by telephone in
Gainesville, refused to comment on his prosecution of the Demps case or
his suspensions from the Florida bar.
McMahon, who has handled post-conviction appeals for
the state in the Demps case, believes that Demps, Jackson and Mungin
were part of a group of inmates that named themselves "Perjury
Incorporated," a prison gang that rooted out inmate informants.
was long viewed as a troublemaker by prison staffers, who once called
him a leader among death row inmates. Internal corrections documents
state that he had 14 disciplinary reports written against him between
1973 and 1977, including three for fighting and one for "scalding
another inmate with hot water."
But Tracy Demps said that her husband
was labeled as a rabble-rouser and a troublemaker because he was
sticking up for the rights of black inmates in a "racist" prison system,
which, at the time, was plagued by violence. "My husband was in one of
the worst prisons in the United States," she said. "Racism in America,
particularly in the state of Florida, is rampant.
At that time, he was
construed as an instigator. All he had to do was gather black prisoners
to be united in a front to be called an instigator. He was just someone
who tried to get equal treatment and equal opportunities for black
State: Report means nothing
Carolyn Snurkowski, an assistant deputy attorney
general in charge of criminal appeals for the state, said the report
indicating that Jackson was the lone assailant was a "preliminary"
document and never meant to be the final report on Sturgis' murder. She
said Sewell had no "personal knowledge" of Sturgis making the claim that
it was only Jackson who attacked him and that the information was
Sturgis' claims that it was Demps, Jackson and Mungin who
attacked and fatally wounded him was included in a follow-up report.
Jackson and Mungin were serving prison terms for robbery at the time of
the slaying. Doing most of the fingering was Hathaway, who told
investigators that just before the stabbing, Mungin told him "we're
fixing to kill a snitch."
He told investigators that minutes later he
saw the three men accost Sturgis. Snurkowski said that it was the jury
who convicted the three men and ultimately decided to give Demps a death
sentence and allow Jackson and Mungin to live out their lives in prison.
Snurkowski, the state's top appeals prosecutor, said Sturgis' "dying
declaration," along with Hathaway's testimony, was the key evidence that
convinced a jury Demps was guilty of capital murder.
She said one of the
factors the jury considered in sentencing Demps to death was that he had
Previous murders bring death sentence Demps and
Jackie Hardie were convicted in 1971 of murdering two people in an
orange grove in Lake County.
Demps and Hardie reportedly had stolen a
safe and taken it to the grove to try to open it. It was then that a
local real estate agent showing land to a Connecticut couple seeking a
retirement home stumbled upon the duo.
The two robbers ordered all three
of the victims into the trunk of a car and, when they tried to get out,
Demps and Hardie opened fire, killing two of the victims and wounding
the other, prosecutors said. The third victim survived and identified
Demps and Hardie.
Hardie died in prison on Jan. 26, 1999. Demps was one
of 95 men and one woman who had their death sentences commuted to life
Florida Court Rejects Execution Appeal
Anthony Phillips - APBNews Online
June 6, 2000
TALLAHASSEE, Fla. (APBnews.com) --
Killer Set to Die After 2nd Stay on Death Row -- The Florida Supreme
Court today refused to stay the execution of convicted killer Bennie
Demps, setting the stage for his death by lethal injection at 6 p.m.
In a one-page order without comment, the state's highest
court denied Demps a chance at an evidentiary hearing. Demps, sentenced
to death for the 1976 murder of a fellow inmate, had asked the court to
order a new evidentiary hearing so he could present new documents that
he says prove his innocence.
Demps, who had previously been sentenced to
death for the murder of two people, had dodged the electric chair in
1972 when the Supreme Court overturned death penalty statutes across the
United States. He was given a life term.
Then, several months after
Florida had written a new death penalty statute, prosecutors say that
Demps was one of three men who took part in the stabbing murder of
alleged prison snitch Alfred Sturgis at Florida State Prison. Demps was
again sentenced to death for that crime.
A preliminary report?
Demps is basing most of his claims of innocence on a
one-page report by a chief prison inspector who wrote, following the
stabbing, that Sturgis had named James Jackson as the man who assaulted
him. Jackson, Demps and Harry Mungin were convicted of murdering Sturgis.
Mungin and Jackson, however, were given life prison terms. Prosecutors
say that the original report naming Jackson as the sole assailant was
preliminary. A full investigation revealed that Sturgis had made a "dying
declaration" naming Demps, Jackson and Mungin as his attackers,
prosecutors said. The fact that Demps had previously been convicted of
two murders prompted the jury to hand him a death sentence, authorities
Demps execution troubled
Inmate complains of
bleeding while prepped
By Rich Tucker - Jacksonville Sun
June 8, 2000
STARKE -- Florida's third lethal
injection procedure had complications yesterday that resulted in a
33-minute delay as the execution team at Florida State Prison struggled
to insert intravenous needles into convicted murderer Bennie Demps.
the beginning of his final statement, just before he was executed, Demps
said the prison team injured him several times. He asked his lawyer,
George Schaefer, who was one of the witnesses at the execution, to
demand an investigation of the proceeding. "Mr. Schaefer, they butchered
me back there," Demps said as his voice trembled. "I was in a lot of
An inmate scheduled to be executed by lethal
injection typically has two intravenous needles inserted while he lies
on a gurney. Witnesses are not permitted to view that portion of the
Demps said the officials preparing him for execution first
cut him in the groin and then cut his leg. He said he bled "profusely"
as a result of the injuries, which he said were sutured closed. "They
gave up putting the second IV in," he added.
After the execution,
Florida State Prison Warden James Crosby said the process had first been
delayed because prison officials were awaiting confirmation that the U.S.
Supreme Court had denied Demps' final request for a stay of execution.
Crosby also said a "surgical procedure" was necessary to find a suitable
vein to perform the lethal injection. He would not comment on Demps'
accusation that he was injured repeatedly and treated improperly.
Schaefer said he would call for an investigation of the execution.
Despite the delay, Demps, 49, was given a lethal dose
of chemicals at 6:40 p.m. as the execution team carried out the death
sentence for the 1976 murder of fellow inmate Alfred Sturgis.
He has been incarcerated since his conviction in a 1971 double murder. Outside
the Florida State Prison, Hannah Floyd (center) and Janice Figueroa weep
at the anticipated moment of Bennie Demps' execution.
Floyd has a
husband on Death Row and Figueroa has a son facing execution. -- Stuart
Tannehill/Staff Demps' eyes closed shortly after the chemicals were
injected, and he appeared to stop breathing at 6:42 p.m. He was
pronounced dead at 6:53.
Before the execution, Demps made a seven-minute
statement in which he thanked his family, lawyers and religious adviser
for their support while continuing to staunchly defend his innocence. "This
is not an execution," he said. "This is murder." The 22-year Death Row
veteran made a number of accusations during his statement. "I am an
innocent man. They have knowingly fabricated evidence against me," he
His speech also included a condemnation of Gov. Jeb Bush. "Gov.
Bush, you have done what you said you would never do and that is kill an
innocent man," he said. Lying on his back covered up to his chin with a
white sheet, Demps appeared to become calm as he continued his statement.
"I leave this world hating no man, with no malice toward anyone. I leave
A practicing Muslim for his final 10 years, Demps
wore to his execution a white kufi on his head as a symbol of his faith.
At the conclusion of his final statement, he spoke a short Muslim
According to Department of Corrections spokeswoman Debra
Buchanan, Demps spent part of yesterday morning with his wife Tracy whom
he met by placing an advertisement on the Internet three years ago. The
two were married in November.
During one of the visiting periods, he was
allowed to hug and kiss his wife. He was served a last meal of barbecue
chicken and beef, french fries, salad, Spanish rice, rolls, cherry
vanilla and butter pecan ice cream, a mango, banana pudding and Pepsi.
He only ate half of the meal.
For Tracy Demps, yesterday was a day of waiting in
prayer. In an interview hours before the execution, she said she had
still not given up hope that a stay would be granted, though she
admitted that the odds of such a reprieve appeared to be stacked high
against her and her husband. Among those seeking a reprieve for her
husband was Pope John Paul II, who sent a letter to Bush seeking
Demps' wife said she has done extensive research on his case
and has written letters on his behalf for his clemency petition and his
appeals. "I've searched down almost every single judge and juror [connected
to Demps' case]," she said. "I probably know more about this case than
Bennie does." Tracy Demps said she felt fortunate for the times she has
shared with her husband. "He was my greatest joy. And he remains my
greatest strength short of my faith in my God," she said.
State’s Lethal Injection of Killer Turns Chaotic
By Phil Long and Steve Bousquet
South Florida Committee Against the
June 8, 2000
STARKE, Fla.—Florida’s third death by lethal
injection went awry Wednesday evening and was delayed for 33 minutes as
technicians struggled to insert a lethal IV into the veins of a 49-year-old
When curtains between the death chamber and witnesses finally
opened, the condemned man, Bennie Demps, who was strapped to a gurney,
launched a seven-minute tirade: "They butchered me back there. I was in
a lot of pain. They cut me in the groin, they cut me in the leg... This is not an execution, it is murder.’’ Eyes bulging and voice
quavering, he said the medical examiner would find "a wound on my leg
that they sutured back up. I was bleeding profusely.’’
After Demps died, Florida State Prison Warden James
Crosby said the delay was caused in part by the wait for final word from
the U.S. Supreme Court and in part by the medical procedure.
attorney, George Schaefer, disputed that, saying the court had notified
the warden by 5:30 p.m. Crosby refused to answer questions.
office spokesman later said that technicians had inserted one IV
properly in Demps’ left arm, but had trouble finding a vein for a
required "alternate’’ IV. The state switched to lethal injection in
February after a series of botched electrocutions and amid concern that
the Florida Supreme Court or the U.S. Supreme Court might forbid use of
the electric chair. On three occasions in the past 10 years,
electrocutions had resulted in smoke, flames or bleeding.
Gov. Jeb Bush had turned aside last-minute pleas from
death-penalty opponents, including one Wednesday from Pope John Paul II.
Demps had dodged the electric chair for two 1971 killings but died for
the stabbing death of a fellow inmate five years later.
died at 6:53 p.m. He was the 47th prisoner to be executed since the
state resumed executions in 1979, and the fourth since Bush became
governor 18 months ago.
Demps was the first inmate to die in a scheduled
evening execution, after prison officials changed the time from 7 a.m.
to make it easier on corrections department personnel. Opponents of the
death penalty, and Demps himself, claimed that a report on the death of
inmate Alfred Sturgis, missing for 22 years, raised serious questions
about Demps’ guilt.
Anti-death penalty protesters held rallies in six
cities across the state as Demps died. Members of the newly formed South
Florida Committee Against the Death Penalty met on the steps of the
Miami-Dade Courthouse in downtown Miami.
Late Wednesday, the pope called
on Bush to stop the execution. Through his representative in the United
States, Archbishop Gabriel Montalvo, the pope appealed to the Catholic
governor’s "compassion and magnanimity.’’ But Bush, a convert to
Catholicism in 1995, is a vocal supporter of the death penalty and has
chided judges who he says are too protective of criminals’ rights.
week, through his lawyers, Bush faulted the Florida Supreme Court for
encouraging "legal gamesmanship’’ that allows convicted killers to
extend appeals, and their lives, for 15 years in some cases. Opponents
say the 21 death sentences that have been overturned on appeal in
Florida should be enough to make the state reconsider its death penalty
Demps spent more than half his 49 years on Death Row.
He was originally sentenced to die for a 1971 double homicide, north of
Orlando. Then 20, he and two accomplices accosted a Connecticut couple
and an Orlando real estate agent who had seen them cracking open a
stolen safe in an orange grove.
All three—Celia and Nicholas Puhlick and
salesman R.N. Brinkworth—were shot. Only Nicholas Puhlick survived. But
a year after Demps got to Death Row, the U.S. Supreme Court ruled the
death penalty unconstitutional. Demps and 96 other condemned inmates had
their sentences commuted to life.
Then in September 1976, just two months after the
high court upheld Florida’s new death-penalty statute, Demps was accused
of holding down Alfred Sturgis, a prison snitch, while another inmate,
James Jackson, stabbed him to death. Said to be implicated by Sturgis’
dying words, Demps was again convicted of murder and sentenced to die.
Demps’ lawyers said a memo by a prison inspector, found 22 years after
the original trial, contradicted a guard’s testimony that Sturgis had
named Demps. The Florida Supreme Court ruled Monday that the memo didn’t
warrant a new trial.
(Source: Miami Herald)
"Bennie Demps - At Risk on Death Row," written by
Supporters of Bennie Demps, with a letter by Demps.
Bennie Demps, on Florida's death row, is at risk of
being executed for a crime he didn't commit. The urgency is that the
execution is scheduled for May 31, 2000 unless something happens to stop
At the time of this death warrant, Mr. Demps was
waiting for a ruling that would allow for an evidentiary hearing based
on previously concealed documents proving his innocence that surfaced.
Governor Jeb Bush signed Mr. Demps' fourth death warrant knowing of his
still pending appeal, and fully aware of the new evidence that
exonerates him of the murder conviction. Now that such intense focus is
on the failures of the death penalty in the United States, this is an
opportunity to speak out not only for the moratorium, but to halt any
execution of someone who claims to be innocent.
If the two Bush
Governors, Jeb and George, are not challenged for sending probably
innocent people to death, we also have failed to protect the innocent.
Benny Demps has written a statement: FOR IMMEDIATE
RELEASE -- MAY 2000.
My name is Bennie E. Demps, I am 49 years old, a
deathrow prisoner, and am currently under deathwatch at the Florida
State Prison, having had my 4th death warrant signed by Governor Bush on
Monday April 24, 2000. I was convicted and sentenced to death for the
1976 of killing a fellow prisoner.
Quite simply I am innocent of this
crime and have spent the last 22 years accumulating the necessary
evidence to prove that various Department of Correction prison officials
-- in conjunction with an unscrupulous former Prosecutor named Thomas
Elwell, indeed manufactured this case.
The reason is that they perceived
me as having "escaped" the death penalty when in June 1972, the US
Supreme Court struck down the death penalty commuting my sentence to
life. It is a fact that, in denying my appeals in this case, the Courts
have often pointed this case as justification to execute me, blending
the prior conviction with the current one to carry out what the Court
By basically telling me that the State did not get a
chance to execute me then, it's "okay" for them to do it now, regardless
of my innocence in this case. I would not have been sentenced to death
without the prior conviction. The proof of this is in the disparity in
sentencing between me and my two codefendants who both received life.
I use the word manufactured because I was not
involved in this murder but when prison officials saw the opportunity,
they manipulated and rewrote this case to include me. They bought and
paid for everything, concealed exculpatory evidence, "lost or misplaced"
critical files that I had discovered would have proved my innocence at
the time of trial.
They made and delivered promises and rewards to
prisoners and guards who aided in this conviction. The proof of this has
come in the form of many prisoners coming forward, issuing affidavits
admitting their part in getting me convicted.
But because this evidence
was discovered so many years after my trial the Courts have consistently
ruled on one issue -- the evidence is procedurally and time barred,
claiming you are just too late to present proof of your innocence! We
discovered reams of documents about the "so-called star inmate witness"
Larry Hathaway that proves beyond all doubt that he was then and
continues to be today crazy! This is not opinion -- we have the DOC
medical records to prove it and how they knew he was on psycothropic
medication and they used him anyway, but withheld that fact from us.
1998 while going through a Clemency investigation my attorney, Bill
Salmon, received 2000-3000 pages of documents from the State. Among them
was a one-page document that had been concealed for the last 21 years
and withheld from all my attorneys from the time of trial throughout the
22 years of this case.
It is an official Department of Corrections memo
written by the Chief Prison Inspector Cecil L. Sewell to the then
Secretary of the Department of Corrections Louie Wainwright. It was
written Sept. 7, 1976, the day after the murder of this prisoner and
clearly states that the victim in his dying declaration named a single
person and *not* Bennie Demps!
The fact that this document was previously concealed
and withheld from us during trial and throughout the appellate process
and the fact that it does not name me as the killer became the basis for
my 4th motion for post conviction relief filed in the Bradford County
Circuit Court in July 1999.
My attorney then filed a Supplement to the
motion highlighting three affidavits by the representing attorneys
involved at trial affirming that they had never seen the document and
all stated they repeatedly sought exculpatory evidence and were
repeatedly told nothing existed.
This fact is in the trial record. In
October 1999, the Judge felt there was merit to my motion and ordered
the State to respond by January 15, 2000 and to explain why I was not
entitled to the relief I am seeking.
Their response was empty, they
provided no explanation for anything, simply a rehash of old responses
put forth by the State in past appeals. My attorney then filed one more
Supplement on April 13, 2000, and with it his own affidavit of how and
when he came by the document.
We were waiting for the Judge to rule,
hoping he would order an evidentiary hearing so that the truth could
finally be told. The Governor of the State of Florida, in spite of this
pending appeal based on factual innocence, in spite of his promises of
Clemency being the catch net for innocence," in spite of the fact that
the former Governor Lawton Chiles felt the this case needed more
investigation, simply rushed to judgment and prematurely signed my 4th
death warrant while I still had an appeal pending. I have since learned
that the Bradford County Circuit Court Judge found merit in my claims
and has ordered an evidentiary hearing, set for Friday May 12, 2000.
In 1981 the Florida Supreme Court said in its denial
of my initial appeal that I had no proof that the State withheld any
critical documents, yet suddenly here we are 22 years after the fact
while going through the Clemency proceedings, my attorney unearths
"proof" from the State files!
This document should have been provided to
my attorneys at the time of trial and the jury should have been allowed
to see it. Had the jury been allowed to see the document it would surely
have been a great influence to them considering that the first time they
had a hung decision.
The State should not be able to obtain a conviction
where it can be clearly demonstrated that it was obtained by withholding
exculpatory evidence and covered up deals made for testimony. The Court
seems to want to excuse the State's behavior in my case by saying over
and over to me that the issues are procedurally barred. It was incumbent
upon the State to provide my attorneys with any and all information that
was exculpatory and yet all these years they have benefited from having
it procedurally barred.
There was NO physical evidence of any kind
implicating me in this crime. I have proven that the Prosecutor withheld
critical exculpatory evidence at the time of trial and if presented in a
Court of law today in its entirety, would result in a different verdict.
I have proven that the Prosecutor concealed the fact that deals were
made by prison officials with many prisoners in exchange for their help
in manipulating the facts of this case to obtain a conviction.
offered as evidence the affidavits depositions or both of those same
prisoners who came forward to admit to their complicity and involvement
with the named Department of Correction officials. I have proven that
the "dying declaration" to officer Rhoden was untrue and that the victim
did NOT name me as his assailant. By their own hand and document -- this
Chief Prison Inspectors Report -- they provide the proof that the
Florida Supreme Court said I did not have. The fact that this newly
discovered document is in our hands now for the first time in 22 years
demonstrates how easily capable the State is of withholding and
concealing evidence, and of manipulating the facts of this case.
The Chicago Tribune recently did an investigative
series of articles on Prosecutors withholding and hiding evidence. It is
not improbable nor impossible that former Prosecutor Thomas Elwell had
done the same to me in this case. In fact there is more than ample
evidence that the State has indeed done that. What I seek is publicity
and investigation of my case and I am asking the Court to not to turn a
blind eye to the allegations I raised in my appeal. I am entitled to a
full and fair hearing, as I have raised strong claims and evidence of
I am asking for nothing more than any man who is innocent and
can prove it. Our system of justice is predicated on certain fundamental
guarantees that are designed to protect us all and to prevent the abuse
of legal procedures in any judicial proceeding. In a case where a person
is faced with the sentence of death, these fundamental rights must be in
place. I leave you with the question: if there is no statute of
limitations put on charging someone with murder, why then should there
be time limit put on someone seeking to prove innocence, when it can so
clearly be documented?
If you want to discuss this case with me please
contact the Florida State Prison 904-368-2500 for an appointment to
interview me as they must provide me media access under deathwatch.
Thank you for your time and please help before it's to late.
Bennie E. Demps 030970-Q2101
PO Box 181
Starke Florida 32091
Lawyer Bill Salmon, Gainesville
Update on Bennie Demps
Bennie Demps scheduled for execution on May 31st has
received a one week stay. On May 27, 2000, the Florida Supreme Court
announced that it will delay the execution of Bennie Demps to give his
attorneys time to complete a final appeal. Bennie's attorney, Bill
Salmon asked for an extension on Thursday, saying that due to a family
illness (his wife just had lung surgery) he would not been able to
complete his brief by the May 27 deadline.
The day of the deadline, the
justices agreed to give Mr. Salmon and co-counsel George F. Schaefer
until June 1, 2000 to submit the paperwork. Unless the court issues
another delay or overturns Bennie's sentence, Bennie could now be
executed as early as 5 p.m. June 7.
(Source: Associated Press)
Citizens United for Alternatives to
the Death Penalty
Prisoner Profile - Bennie Demps, #030970-Q2101, P. O.
Box 181, Starke, Florida 32091.
Mr. Demps was convicted and sentenced to death in
1976 for a murder of another prison inmate by the name of Alfred Sturgis.
One single document which has been lying around for over 21 years
CLEARLY states that in inmate Sturgis dying statement that ONE person
was named as his attacker. It was NOT Bennie Demps. Mr. Demps says this.
"various Department of Correction prison officials - in conjunction with
an unscrupulous former Prosecutor named Thomas Elwell, did indeed
manufacture this case." "They made and delivered promises and rewards to
all who aided in this conviction, be they prisoners or a guard. The
proof of such has come in the form of many prisoners coming forward,
issuing affidavits admitting their part in getting that conviction." Mr.
Demps has an execution date of May 31st 2,000...Please help him NOW......
Lawyer - Bill Salmon; Tracy Demps; The Innocence
Watch Group, Sissel England.
Murderer Proclaims Innocence
By Tim Lockette - Gainesville Sun
June 7, 2000
Bennie Demps once wagered $1 on whether he would live
or die. When he was convicted of capital murder in the 1976 death of
prison inmate Alfred Sturgis, Demps told his lawyer he was sure he'd get
the death penalty. So sure, he'd bet a dollar on it.
When Circuit Judge
Wayne Carlisle handed down his death sentence, Demps turned to his
lawyer with a wink and a smile. A photographer caught the expression,
and from then on, he was known as the "Smiling Killer."
Demps gambled again Tuesday, ignoring the advice of
his lawyers and holding a news conference on the eve of his scheduled
execution. Demps is scheduled to die by lethal injection for Sturgis'
death at 6 p.m. today -- 22 years after his sentence was handed down --
unless the U.S. Supreme Court grants him a stay of execution. "This is
my last chance," Demps told a crowd of newspaper and TV reporters
Tuesday at Florida State Prison in Bradford County.
Demps was already in
prison for double murder in 1976 when Sturgis, a 23-year-old serving a
life sentence, was discovered wounded and bleeding in his cell. Sturgis
died, and a correctional officer testified that Sturgis said Demps and
another inmate held him down while a third inmate stabbed him.
tried for the Sturgis killing in 1978. With his previous two murder
convictions as aggravating factors, he was sentenced to death in the
case. The other two inmates received life sentences.
Demps says that a prison memo written the day after
Sturgis' death should be enough evidence to overturn his conviction. The
memo, written by a prison official after a preliminary investigation,
states that Sturgis named one of his attackers before he died. Demps
isn't named in the memo. "They had all the information right there,"
Demps said. "They had every reason to include me, if he had mentioned
me. But they didn't." Demps claims prison officials named him in the
case because of his political beliefs. "I had been identified as a black
militant who wanted to change the prison system," he said.
The state Supreme Court ruled unanimously Monday to
reject an appeal based on the memo. Attorneys for Demps filed an appeal
for a stay of execution with the U.S. Supreme Court on Monday, but they
acknowledge that stays from the Supreme Court are uncommon. "Looking at
it from a statistical standpoint, it's very rare for the Supreme Court
to offer a stay in this type of case," said George Schaefer, one of
The history of Demps' Death Row convictions is as
long and full of reversals as the plot of a Victorian novel. Demps was
sentenced to death in 1971 after his convictions for the murders of R.N.
Brinkworth and Celia Puhlick, fatally shot in a Lake County citrus grove
as they inspected some land for sale.
Demps, who had fled to the grove
with a stolen safe, locked Brinkworth, Puhlick and another person in the
trunk of a car and fired a rifle into the trunk. His sentence was
commuted to life in prison when the U.S. Supreme Court ruled the death
penalty unconstitutional. By the time he was convicted in the murder of
Sturgis, Florida once again had an electric chair.
He was scheduled to
be executed in 1982, 1987 and 1990, but each time he was granted a stay.
He scheduled a press conference the day before his scheduled 1987
execution date, but canceled it at the last minute, saying that his
lawyers had advised that speaking to the press would interfere with his
Demps said he held Tuesday's news conference against
the advice of his attorneys. "Only a miracle from God can save me now,"
Demps said. Asked whether he felt remorse for the 1971 double murder
that brought him his first death sentence, Demps said he would make no
comment on the case.
But later, Demps accused the state of using the
Sturgis case to make up for the loss of Demps' earlier death sentence. "They
can't get a free execution," he said. "This isn't Monopoly. In Monopoly,
you get a 'Get out of jail free' card, and the state wants a 'free
execution card.' "
Demps, a Vietnam veteran, converted to Islam 10 years
ago. Six months ago, he said, he married a woman who corresponded with
him by mail for three years. He declined to give her name, citing
privacy concerns. He said he is no longer interested in reform of the
prison system. "I don't want to talk about conditions on Death Row," he
said. Asked if he was ready to face execution, Demps dismissed the
question as absurd. "What is this, 'Am I ready to die?' " he said. "I
think no man is ready to die."
Demps\Hardie v. State,
272 So.2d 803. (Fla. 1973) (Direct Appeal).
PER CURIAM. - We are here reviewing the consolidated
cases in which each of the two appellants was convicted of two counts of
first degree murder. Each received two sentences of death by
electrocution. Subsequent to their convictions, the Supreme Court of the
United States decided the case of Furman v. Georgia, and upon authority
of the Furman case, this Court, in Case No. 42,789, reported as Anderson
et al. v. State, reduced the penalties imposed against these appellants
to life imprisonment, this being currently the maximum penalty for these
particular criminal acts.
A careful examination of the record shows
conclusively that the appellants herein are fully deserving of the most
severe punishment permitted by law. The appellants at gunpoint entered
and seized an automobile from an elderly man whom they robbed.
entered a private home, removing a safe, camera and weapons. While
appellants were opening the safe in an orange grove, two men and a woman
appeared who happened to be in the area inspecting real estate. These
people were accosted by the appellants at gunpoint.
The victims were
robbed of several hundred dollars. The woman was shot wholly without
reason or provocation and the dying woman, along with the two men, were
compelled to climb into the trunk of an automobile. They were shot
several times by the appellants with the full intention of killing them
and with full premeditation. The victims offered no defense and the
record reflects absolutely no justification for these crimes.
The appellants left Florida in the stolen automobile,
and were apprehended in the State of New Jersey by a highway patrolman
for speeding. When the patrolman requested proof of ownership of the car,
appellant Demps first pretended to search inside the vehicle and then at
the suggestion of the officer, opened the trunk searching for a
certificate or other paper showing their right to possession and control
of the vehicle.
At that time the officer observed an automatic weapon in
the trunk of the automobile and simultaneously a third passenger in the
car dropped a pistol to the ground. Whereupon the appellants were
arrested for possession of the automatic weapon prohibited by New Jersey
law. The Court properly found that there was no violation of the
constitutional protection against unreasonable search and seizure.
Appellants also complain that they did not receive a
proper psychiatric examination. The record is abundantly clear that the
parties were afforded psychiatric examinations pursuant to order of the
Court. We find said objection without foundation. Accordingly, the
convictions and two sentences imposed upon each appellant, as modified
to terms of life imprisonment, are affirmed. It is so ordered. - END OF
Demps v. State,
395 So.2d 501 (Fla. 1981) (Direct Appeal).
PER CURIAM. - This case is properly before us on
direct appeal from the Circuit Court for the Eighth Judicial Circuit.
Appellant Demps was convicted and sentenced to death for the slaying of
Alfred Sturgis. Appellant's codefendants, Harry Mungin and James Jackson,
were convicted of first-degree murder but sentenced to life imprisonment
for the same offense. For the following reasons we affirm the conviction
On September 6, 1976, personnel at the Florida State
Prison discovered inmate Alfred Sturgis in a cell, bleeding profusely
from stab wounds. He was rushed first to the hospital at Union
Correctional Institute, then to the state prison at Lake Butler. Due to
inadequate facilities at both institutions, Sturgis was taken to Shands
Teaching Hospital in Gainesville, where he died soon after arrival.
A grand jury indicted inmates Bennie Demps, James
Jackson and Harry Mungin for the murder of Alfred Sturgis. In the course
of preliminary depositions, defense counsel learned that while en route
to the hospital, Sturgis told correctional officer A. V. Rhoden that
appellant, Jackson and Mungin had committed the knifing.
reduced the statement to writing and included it in a report filed with
R. K. Griffis, a Department of Corrections investigator. After defense
requests to produce the written document, the state informed the court
that Mr. Griffis had misplaced Rhoden's statement. In a pretrial hearing
the court refused to dismiss the indictment based on the state's failure
to produce Rhoden's report.
At trial Mr. Rhoden explained to the jury what
Sturgis had told him in the ambulance:
Q (Mr. Elwell) All right. What happened after that?
A He (Sturgis) reached up and took my hand and ...
Q Were you standing up, Mr. Rhoden?
A Yes, sir. Q And would you indicate how he reached up and took your
A He just reached his hand up, picked his arm up, it was laying down on
the stretcher, and he just picked it up and taken my hand.
Q And did you note anything about his appearance in addition to what you
just testified to?
A He was chalky looking.
Q All right.
A His eyes was rolling back and forth in his head.
Q And other than grabbing your hand, did he do anything else?
A Yes, sir. He told me, he said: "Mr. Rhoden, you got to help me. I
don't believe I'm going to make it." And I said: "You got to, Sturgis."
He said: "I don't think I will." I said, "You got to, you got to help me
get the ones that done it." And he said: "Well, you have to get them for
Q Did he say anything else?
A Yes, sir, he said: "You have to get Mungin and Demps, they held me and
Jackson stabbed me." I asked him, "Which Jackson?" And he said:
Q How long did this statement take, from the time that he grabbed your
hand and said: "Mr. Rhoden, I don't believe I'm going to make it." until
he finished; how long did that statement take?
A Just a very short time.
Q Were there any interruptions by any person during the giving of that
statement to you?
A No, sir.
Another witness for the prosecution, fellow inmate
Larry Hathaway, testified that while walking past Harry Mungin's cell on
the afternoon of the murder, Mungin told him to go downstairs and stay
there, because Mungin "was fixing to get rid of a snitch."
Mungin's suggestion but returned a short while later, at which time he
noticed a struggle going on in the cell in which Sturgis was later
found. Mungin was standing in the door of the cell; inside, Hathaway
could see appellant holding Sturgis down on the bed while Jackson struck
him with downward thrusts. Upon seeing this, Hathaway quickly left the
Defense counsel sought to impeach Hathaway's testimony by showing
that Hathaway was a homosexual, on the premise that Hathaway implicated
the codefendants in exchange for a transfer to the prison where his
lover, Robert Ziegler, resided.
The trial court held that Hathaway's
homosexuality was inflammatory and irrelevant and limited questioning to
whether Ziegler and Hathaway were "real good friends."
At the sentencing phase the jury recommended
sentences of life imprisonment for Mungin and death for Jackson and
appellant. The trial judge sentenced Mungin and Jackson to life, but
sentenced appellant to death.
805 F.2d 1426
Bennie E. Demps, Petitioner-Appellant,
Louie L. Wainwright, Secretary, Florida Department of Corrections, and
Jim Smith, Attorney General, State of Florida, Respondents-Appellees.
Federal Circuits, 11th Cir.
December 2, 1986
Appeal from the United States District Court for the
Middle District of Florida.
Before FAY, JOHNSON and CLARK, Circuit Judges.
Bennie E. Demps, (hereinafter petitioner), appeals
from a denial of his petition for habeas corpus on the following grounds:
(1) that the district court erred in dismissing petitioner's claim that
the state failed to reveal a deal with its key witness, (2) that the
district court erred in dismissing petitioner's claim that the trial
court unconstitutionally limited the cross examination of the state's
key witness, and (3) that the district court erred in refusing to grant
an evidentiary hearing on petitioner's claim that the state
substantially interfered with a defense witness. We affirm the denial of
petitioner's claim that the state failed to reveal a deal with its key
witness, but for reasons other than those advanced by the district court.
We also affirm the district court with respect to the cross examination
and witness interference claims.
On September 6, 1976, personnel at the Florida State
Prison (hereinafter FSP) found Alfred Sturgis, a prisoner, in his cell
bleeding from stab wounds. En route to the hospital where he would later
die, Sturgis gave a dying declaration naming his three assailants: Harry
Mungin, James Jackson and petitioner, all fellow inmates.
At the time of the crime, petitioner was at FSP serving sentences for
two prior first degree murder convictions and for convictions from
various other crimes. Petitioner had in fact been sentenced to death in
connection with his two previous murder convictions, however, this
sentence was later reduced pursuant to Furman v. Georgia, 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
In addition to the dying declaration of Sturgis, the
state's case against the three defendants included the testimony of the
sole eyewitness to the crime, inmate Larry Hathaway. Hathaway
corroborated Sturgis' dying declaration by testifying at trial that, as
he passed along a corridor at FSP, he witnessed Mungin standing in a
cell doorway, apparently acting as a lookout. As Hathaway walked past
Mungin, he noticed petitioner was holding Sturgis as Jackson stabbed him.
Fearing that other inmates would retaliate (Sturgis
was apparently killed for being a "snitch"), Hathaway first informed
investigators he knew nothing of the Sturgis killing. Prior to trial,
another inmate, Michael Squires, informed petitioner's co-defendant,
Mungin, that he had evidence impeaching Hathaway's testimony. According
to Squires, Hathaway had confided he was not a witness to the killing
and knew nothing about the incident. Subsequently, Squires was listed as
a defense witness for petitioner and his co-defendants. The record
reveals, however, that neither petitioner or his co-defendants made any
attempt to have Squires testify at trial.
During the trial, Hathaway was called as a witness by
the state to give his eyewitness testimony. Prior to Hathaway's
testimony, the trial court conducted an in-chambers hearing to determine
the scope of permissible cross-examination of Hathaway by defense
counsel. Counsel for petitioner argued the state had promised Hathaway a
transfer with his homosexual lover, Robert Zeigler,
to another correctional institution in exchange for Hathaway's
testifying on behalf of the state.
The trial court allowed cross-examination of Hathaway
with respect to petitioner's claim that Hathaway was to be transferred
with Zeigler in exchange for Hathaway's testimony. The trial court
denied the petitioner's request to raise the homosexuality issue finding
it inflammatory and irrelevant, but allowed petitioner to establish that
Hathaway and Zeigler were "very close friends."
On March 16, 1978, petitioner and his co-defendants
were convicted of the first-degree murder of Sturgis. The jury
recommended the death penalty for petitioner, and on April 17, 1978, the
trial court sentenced petitioner to death by electrocution. The Florida
Supreme Court affirmed on appeal. Demps v. State, 395 So.2d 501 (Fla.1981).
The United States Supreme Court denied certiorari on October 13, 1981.
Demps v. Florida,
454 U.S. 933 , 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).
Petitioner initiated post-conviction proceedings
pursuant to Fla.R.Crim.P. 3.850,
arguing, inter alia, that there was improper inducement of Hathaway's
testimony by state officials and that the state through the Department
of Corrections interfered with a defense witness, Michael Squires. This
was the first time petitioner raised the claim of state interference
with Squires' decision to testify. The trial court denied petitioner's
motion without a hearing. The Florida Supreme Court reviewed the trial
court's summary rejection and affirmed the trial court on all of
petitioner's claims except the claim of state interference with defense
witness, Squires. Demps v. State, 416 So.2d 808, 809 (Fla.1982).
The case was remanded for an evidentiary hearing on
petitioner's claim of state interference with Squires. Id. at 810. After
the evidentiary hearing, the trial court found petitioner had failed to
prove his claim of state interference with Squire's testimony "by any
believable evidence." This decision was affirmed on appeal. Demps v.
State, 462 So.2d 1074 (Fla.1984). Petitioner then filed for a writ of
habeas corpus in the United States District Court for the Middle
District of Florida alleging: (1) that the state failed to reveal a deal
with Hathaway, (2) the trial court erred in limiting the cross-examination
of Hathaway and, (3) that the state interfered with defense witness
Squires. After oral argument, the district court denied relief.
Subsequently, petitioner appealed to this court.
I. EXCLUSION OF HATHAWAY'S HOMOSEXUAL RELATIONSHIP
In the district court, petitioner again argued the
trial court erred in disallowing any reference to Hathaway's homosexual
relationship with Zeigler. Petitioner's position is that the state
transferred Hathaway and Zeigler in exchange for Hathaway's testimony.
This claim was first raised during the state trial in an in-chambers
conference prior to petitioner's cross-examination of Hathaway. During
this conference, the following colloquy occurred between the court and
counsel.Mr. Carroll (counsel for petitioner): .. what we're saying is
that they have bought their testimony by getting a transfer and that the
testimony that they are giving ...
The Court: Well you can talk about getting
transferred, I'm not going to prohibit you from asking about that.
Mr. Carroll: The reason we need to get into their
relationship is because that is the bottom line of their transfer, that
is why they wanted a transfer.
Mr. Elwell (counsel for the state): Where is that
supported other than your statement?
The Court: ... I'm not going to permit the testimony
regarding the homosexual relationship between Zeigler and Hathaway. I
will permit your examining these individuals, as any others, regarding a
transfer for their testimony. You can argue that, but I can't concede
and I can't conceive that the homosexual relationship would be relevant
to this case.
The trial judge disallowed any reference to
Hathaway's homosexuality by ruling it was both inflammatory and
irrelevant. Petitioner appealed the trial court's disallowance of any
reference to Hathaway's homosexual relationship directly to the Florida
Supreme Court. Demps, 395 So.2d 501 (Fla.1981). In affirming the trial
court's ruling, the Court held,
We are ... unpersuaded that the [trial] court erred
in forbidding reference to Larry Hathaway's homosexuality on cross-examination.
A trial judge enjoys broad discretion in determining the permissible
scope of cross-examination. Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d
DCA 1978); Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967). The
trial court here quite properly concluded that the inflammatory and
prejudicial effect of evidence relating to Hathaway's homosexuality far
outweighed its dubious relevance. See Proffitt v. State, 315 So.2d 461 (Fla.1975).
Id. at 505. Petitioner then moved for post conviction
relief pursuant to Fla.R.Crim.P. 3.850 alleging improper inducement, on
behalf of the state, regarding Hathaway's testimony. The trial court
summarily rejected petitioner's claim. The Supreme Court of Florida
affirmed the trial court with respect to petitioner's claim of improper
state inducement regarding Hathaway's testimony, Demps, 416 So.2d 808,
809 (Fla.1982), stating:
The fourth claim is that the state illegally
solicited the testimony of its central witness, Larry Hathaway, through
inducements. This claim was effectively raised on direct appeal when
appellant attacked the trial court's disallowance of evidence showing
Hathaway was homosexual and that his testimony was given in exchange for
a transfer to a prison with his lover. See Demps v. State, 395 So.2d at
Id. at 809.
Petitioner next brought this claim before the
district court in his petition for writ of habeas corpus. Petitioner
argued the state court trial was rendered fundamentally unfair due to
the exclusion of evidence regarding Hathaway's homosexual relationship
with Zeigler. We note at the outset federal courts are properly
reluctant to second-guess state court evidentiary rulings on habeas
review and rarely grant relief on the basis of such rulings. Boykins v.
Wainwright, 737 F.2d 1539, 1543-44 (11th Cir.1984), cert. denied,
470 U.S. 1059 , 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985) (citations
Petitioner observes that this circuit has "consistently
stated that where a trial court's evidence ruling renders a state
criminal proceeding fundamentally unfair the petitioner is entitled to
relief. (citations omitted). Fundamental fairness is violated when the
evidence excluded is 'material in the sense of a crucial, critical,
highly significant factor.' " (citation omitted). Id. at 1544. We agree
with the proposition of law espoused by petitioner; however, we decline
to hold that petitioner in the case at bar was denied fundamental
fairness merely because the trial judge refused to allow petitioner to
establish that Hathaway was homosexual.
The trial court allowed petitioner to fully cross-examine Hathaway
regarding any transfer in exchange for his testimony.
A review of the record shows that all witnesses at
trial consistently testified that the transfer was for the purpose of
protection. Further, Hathaway's testimony corroborated Sturgis' dying
declaration wherein petitioner was specifically named as one of the
assailants. The district court held the trial court's procedural ruling
neither kept out evidence that was in itself exculpatory nor admitted
evidence that was incriminating. The evidence was tangentially directed
at impeaching the credibility of a state's witness. The record in this
case fails to support petitioner's argument that the homosexual
relationship between Hathaway and Zeigler was the basis of a state deal
for testimony. In light of the narrow ruling of the trial court, we
conclude the excluded evidence was not "material in the sense of a
crucial, critical, highly significant factor."
II. THE ALLEGED "DEAL" BETWEEN HATHAWAY AND THE
Petitioner's next argument is that the state failed
to reveal a deal it had made with Hathaway. Petitioner contends some
time during preparation for the 3.850 motion, a memorandum written by
Bill Beardsley, a state prison official, was discovered which requests a
transfer for Hathaway and Zeigler. Petitioner argues this memorandum
confirms the existence of a deal between Hathaway and the state.
Petitioner alleges the state, in violation of due process, failed to
reveal to petitioner this memorandum, which petitioner alleges is
crucial to proving a deal between Hathaway and the state. Petitioner
argues the state was obligated to provide petitioner the memorandum at
trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972).
Petitioner contends the argument based on the
memorandum is a separate and distinct claim from petitioner's claim that
Hathaway's homosexuality was the basis of a deal between Hathaway and
the state. And, as petitioner argues, since the district court did not
adjudicate this issue, petitioner is entitled to habeas corpus relief or
alternatively a new evidentiary hearing. For the reasons that follow, we
The district court, at its hearing on petitioner's
writ of habeas corpus, analyzed the claim at bar in two separate ways.
Initially the district court found the petitioner had procedurally
defaulted his claim that the state had failed to reveal a deal it had
made with Hathaway under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977).
With all due respect to the district court, we disagree. As previously
mentioned, the record reveals petitioner was allowed the opportunity at
trial to attempt to prove his allegations that Hathaway received a
transfer in exchange for his testimony. As indicated, this claim was
also raised by petitioner on direct appeal to the Florida Supreme Court,
Demps v. State, 395 So.2d 501, 504 (Fla.1981), and further when
petitioner sought an evidentiary hearing pursuant to Fla.R.Crim.P.
3.850. Demps v. State, 416 So.2d 808, 809 (Fla.1982). Under these facts,
we cannot agree with the initial analysis made by the district court
that petitioner has procedurally defaulted this claim.
However, the district court alternatively assessed
the merits of petitioner's argument that the state had made a deal with
Hathaway in conjunction with petitioner's argument that the trial court
erred in limiting the cross examination of Hathaway. Petitioner argues
the Beardsley memorandum coupled with the additional allegations of
Giglio and Brady violations distinguish this argument from the Hathaway
cross-examination argument. We do not agree. Both arguments advanced by
petitioner are grounded in the impeachment of Hathaway's motive for
testifying. Petitioner seems to be attempting to avoid a resolution of
the merits of his claim that Hathaway's homosexuality was the basis of a
deal with the state by re-phrasing the same claim in terms of a
discovery violation, (that the state failed to reveal a deal it had made
with Hathaway), in order to revive the initial claim.
The record, surprisingly, does not contain
Beardsley's memorandum, on which petitioner bases his claim of a state
deal with Hathaway. However, during oral argument, counsel for
petitioner openly conceded the memorandum, on its face, states the
purpose of the transfer was for protection. Counsel further stated that
both Beardsley and Hathaway had, at all times, testified the transfer
was for protection. Finally, counsel conceded there was no additional
testimony concerning the alleged deal between Hathaway and the state.
Petitioner argues nevertheless that the jury should have been aware of
the existence of the memorandum. The law is clear that the failure of
the government to disclose both to the defense and trial jury the
existence of any promises, agreements, and understandings made with key
witnesses deprives a defendant due process of law. Giglio v. United
States, 405 U.S. 150, 153-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108-09
Other than petitioner's base assertion, the record
reveals, however, that there is nothing to support petitioner's argument
that Hathaway received a deal from the state. Petitioner has asserted
this claim from the outset of the trial. Petitioner elicited testimony
at trial, before the jury, regarding the possibility of a deal between
Hathaway and the state. All of the witnesses testified petitioner's
transfer to another correctional institution was solely for the purpose
of protection. We have no reason to question the veracity of this
testimony, especially in light of the fact that Sturgis was apparently
killed for being a "snitch." Petitioner's argument that Hathaway
received a deal from the state is simply unsupported by the record.
Petitioner also contends that the state failed to
reveal the memorandum to petitioner in violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree. Brady
and its progeny refer to exculpatory evidence requested by an accused
that is suppressed by the prosecution. We decline to hold that
Beardsley's memorandum requesting a transfer for Hathaway and Zeigler,
for the purpose of protection, forms the basis for a Brady claim.
Further, the record reveals counsel for the state was unaware of the
The district court, at its hearing on petitioner's
Writ of Habeas Corpus, heard all the evidence presented by petitioner
and concluded petitioner's claims failed to state grounds for habeas
relief. We agree. After our own independent review of the record, we
find a new evidentiary hearing regarding the Beardsley memorandum would
be of no use. See Morgan v. United States,
438 F.2d 291, 293 (5th Cir.1971).
We affirm the district court with respect to the claims regarding
III. ALLEGED INTERFERENCE WITH DEFENSE WITNESS SQUIRES
The last argument advanced by petitioner is whether
the district court erred in refusing to grant an evidentiary hearing on
petitioner's claim that the state substantially interfered with defense
witness Michael Squires. Petitioner first raised this issue at his
motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850.
Petitioner asserted in his motion that Squires did not testify as
originally intended because Beardsley offered to have him paroled and
transferred in exchange for Squires' refusal to testify on behalf of
petitioner. The trial court denied petitioner's motion without a hearing.
The Florida Supreme Court remanded the case to the trial court for an
evidentiary hearing on petitioner's claim that the state interfered with
Squires. Demps, 416 So.2d 808 (Fla.1982).
The hearing was conducted after approximately
eighteen months of extensive preparation. The testimony included that of
Squires, Beardsley, Hathaway, and various prison and parole officials.
The trial court denied relief finding that the petitioner had failed to
prove his claim that the state interfered with Squire's testimony "by
any believable evidence." The Florida Supreme Court affirmed the trial
court's denial of petitioner's 3.850 motion. Demps, 462 So.2d 1074 (Fla.1985).
Petitioner filed a writ of habeas corpus motion before the district
court alleging state interference with Squires. The district court heard
oral argument on the petition and in a lengthy decision denied
Substantial interference with a defense witness's
free and unhampered choice to testify violates due process rights of the
defendant. United States v. Goodwin, 625 F.2d 693, 703 (5th Cir.1980);
United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977). When such
a violation of due process rights occurs, a court must reverse the
conviction without regard to prejudice to the defendant. Goodwin, 625
F.2d at 703; United States v. Hammond, 598 F.2d 1008, 1013 (5th
Petitioner's request for a new evidentiary hearing is
governed by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770
(1963). Under Townsend, a federal court must grant an evidentiary
hearing to a habeas applicant under the following circumstances:
1. the merits of the factual dispute were not
resolved in the state hearing;
2. the state factual determination is not fairly
supported by the record as a whole;
3. the fact-finding procedure employed by the state
court was not adequate to afford a full and fair hearing;
4. there is a substantial allegation of newly
5. the material facts were not adequately developed
at the state court hearing; or
6. for any reason it appears that the state trier of
fact did not afford the habeas applicant a full and fair fact hearing.
Townsend, 372 U.S. at 313, 83 S.Ct. at 757; Collins
v. Francis, 728 F.2d 1322, 1344 (11th Cir.), cert. denied,
469 U.S. 963 , 105 S.Ct. 361, 83 L.Ed.2d 297 (1984).
Petitioner alleges that four of the Townsend factors, the first through
fourth, mandate a new evidentiary hearing.
The first factor to be examined is whether "the state
court actually reached and decided the issues of fact tendered by the
defendant" to assure the applicant a full and fair hearing. Townsend,
372 U.S. at 313-14, 83 S.Ct. at 757. See Armstead v. Maggio, 720 F.2d
894, 896 (5th Cir.1983) (citing Marshall v. Lonberger, 459 U.S. 422, 103
S.Ct. 843, 74 L.Ed.2d 646 (1983)). In the case at bar, the trial court
made a brief finding of fact. Additionally, the district court can find
material facts implied in the state court opinion where the following
two conditions are met: (1) the state court has decided petitioner's
constitutional claim on the merits; (2) the state court's view of the
facts is plain from the opinion or other indicia. Id. 372 U.S. at 314,
83 S.Ct. at 757.
The Florida Supreme Court, on June 24, 1982, remanded
to the trial court for an evidentiary hearing on the sole issue of
whether "the state through the Department of Corrections, induced a
witness, Michael Squires, not to testify." Demps, 416 So.2d at 809. The
state court held a two-day evidentiary hearing which yielded over three
hundred fifty (350) pages of testimony. In its order denying relief, the
trial court stated:
Having heard the testimony of the witnesses and
having observed the demeanor of each witness while testifying, and
further having examined all exhibits filed in evidence, this [C]ourt,
with full and conscious realization of the significance and magnitude of
the issues raised herein, finds that the Defendant has failed to prove
his claim by any believable evidence.
Petitioner contends the failure of the state court to
articulate its standard in disposing of petitioner's claim necessarily
mandates a new evidentiary hearing. We disagree. Where the standards
utilized by the state court are not articulated, the district court may
"properly assume that the state trier of fact applied correct standards
of federal law to the facts, in the absence of evidence ... that there
is reason to suspect that an incorrect standard was in fact applied."
Townsend, 372 U.S. at 315, 83 S.Ct. at 758.
We conclude the trial court, having held an
evidentiary hearing solely directed to the claimed interference by the
state, actually reached and decided the material issues of fact raised
by petitioner's claim. Credibility is for the fact finder. This record
shows that the state judge did not believe that testimony given in
support of the claim. We are not free to second guess such a
determination. See Marshall v. Lonberger, 459 U.S. 422, 432-38, 103 S.Ct.
843, 849-53, 74 L.Ed.2d 646 (1983).
Petitioner further seeks a hearing under the second
Townsend factor which requires that the court determine whether the
state's factual determinations as to petitioner's claim are fairly
supported by the record. Townsend, 372 U.S. at 316, 83 S.Ct. at 758. The
trial court, for two days, heard evidence regarding state interference
with Squires. Petitioner alleges Squires' testimony would have
contradicted Hathaway's testimony.
Squires testified before the trial court at the 3.850
hearing that Hathaway told Squires he was being pressured by a prison
investigator into testifying against petitioner and that he was not a
witness to the Sturgis homicide. Thus, Squires offered himself as a
defense witness, but was induced not to testify due to Bill Beardsley's
offer of a transfer to another correctional institution and subsequent
parole. The record reveals Squires was in fact transferred and did
receive a reduced sentence. The district court found, however, that
other than Squires' own testimony, the record does not suggest any
improper state interference. Rather, the record reveals that both
Squires' transfer and subsequent parole were granted based on Squires'
prior cooperation with state agents.
Beardsley testified at the 3.850 hearing that Squires
had provided prison authorities with inside information which had
incriminated both prison inmates and prison officials. Beardsley
acknowledged having discussed a transfer with Squires, but testified the
transfer was based upon the danger threatening Squires because of his "snitching."
Beardsley, in fact, wrote a memorandum to the Parole Commission
requesting a transfer for Squires. Beardsley's memorandum corroborated
his testimony, as well as that of other officials at FSP, that both the
requested transfer and parole of Squires were prompted by Squires' prior
role as prison informant.
The record further shows the actual decisions to both
transfer Squires and to move up his presumptive release date were made
by various other prison officials based on criteria other than and in
addition to Beardsley's recommendation. Classification specialist,
Warren Cornell, testified that Squires' treatment was based on Squires'
being an informant. Prison inspector-investigator, Paul Sheffield,
testified Squires was a "protection case" transferred to avoid personal
harm. Parole commissioner, Ken Simmons, testified Squires' sentence
reduction was based on "[p]ositive prison adjustment, institutional
adjustment, cooperation with the Department or prison people and other
law enforcement agencies" and that Beardsley's memorandum was merely one
factor in his consideration of the case.
The district court found that evidence from the
record supported the trial court's conclusion that Squires' veracity was,
at best, questionable. We agree.
Evidence at the hearing indicated Squires reneged on his claim that
Hathaway did not testify truthfully at trial. Squires subsequently
admitted under oath that the statement he signed was false. Finally, the
record shows, contrary to Squires' testimony, that Hathaway testified he
never told Squires he was being pressured by prison officials into
testifying against petitioner. After our own independent review of the
record, we find the district court's decision that the state did not
interfere with defense witness Squires is amply supported by the record;
therefore, petitioner is not entitled to a new evidentiary hearing under
the second Townsend factor.
The third Townsend factor to which an issue is raised
by petitioner requires a rehearing if the fact-finding procedure
employed by the state court did not adequately afford a full and fair
hearing. Townsend, 372 U.S. at 316, 83 S.Ct. at 758. To mandate a
rehearing under this factor, the state court must have made procedural
errors "grave enough to deprive the state evidentiary hearing of its
adequacy as a means of finally determining facts upon which
constitutional rights depend." Id. Petitioner claims the trial court's
refusal at the hearing to admit the testimony of Squires' girlfriend,
Wilda Pascall, was such a "grave" error.
At the hearing, Miss Pascall's testimony corroborated
Squires' testimony regarding the alleged state interference. Petitioner
sought to elicit the testimony on the grounds that Squires had been
impeached on cross-examination and that, therefore, the testimony by
Squires' girlfriend was admissible as a prior consistent statement. The
trial judge denied admission of the proffered testimony finding that
Squires had not been impeached on cross-examination and that, therefore,
admission of the testimony as a prior consistent statement was not
proper. See Van
Gallon v. State, 50 So.2d 882 (Fla.1951); Allison v. State, 162 So.2d
922 (Fla. 1st DCA 1964).
On appeal, the Florida Supreme Court affirmed, Demps,
462 So.2d 1074, 1075, stating "[t]he general rule regarding prior
consistent statements, or bolstering testimony, is that such evidence is
inadmissible absent impeachment based on an attempt to show a recent
fabrication or other reason for the witness's lack of credibility." (citations
omitted). We fail to find a procedural error in the trial court's
decision, much less one that undermines the court's ascertainment of the
truth. Thus, petitioner has failed to demonstrate a rehearing is
required under Townsend's third factor.
The final issue the court will address is whether
Townsend's fourth factor mandates a rehearing. This factor requires a
rehearing when petitioner has sufficiently demonstrated the existence of
newly discovered evidence "which could not reasonably have been
presented to the state trier of facts." Townsend, 372 U.S. at 317, 83
S.Ct. at 759. In this case, the newly discovered evidence offered by
petitioner is the affidavit of inmate Horace Maddox. Petitioner contends
the affidavit would impeach Hathaway by corroborating Squires' testimony
that Hathaway admitted having no personal knowledge of the Squires'
The district court found the evidence proffered by
petitioner did not offer new information or knowledge not known to
petitioner, but was only intended to impeach Hathaway. We agree with the
district court. The affidavit does not raise any new claim, it merely
corroborates Squires' testimony. Since it does not offer anything in
addition to the evidence already proffered by petitioner, we conclude
that it is merely cumulative and not "newly discovered evidence"
mandating a Townsend hearing.
The district court acknowledged the assertion that
defense counsel exercised due diligence in investigating, gathering and
preparing evidence for the hearing on petitioner's motion for post
conviction relief. However, the district court held this bare assertion
failed to meet Townsend's requirement that the evidence "could not
reasonably have been presented to the state trier of facts." Townsend,
372 U.S. at 317, 83 S.Ct. at 759. Petitioner's request for a rehearing
based on Townsend's fourth factor is denied.
The district court, having found that petitioner
received a full and fair hearing on his claim that the state interfered
with the testimony of defense witness Squires, concluded that the
presumption of correctness accorded the state court findings necessarily
stands. See 28 U.S.C. Sec . 2254(d) (1982); Sumner v. Mata, 449
U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); Jones v. Kemp,
794 F.2d 1536, 1539 (11th Cir.1986); Peek v. Kemp, 784 F.2d 1479, 1483
(11th Cir.1986) (en banc). Petitioner having failed to overcome the
presumption of correctness, is not entitled to relief on his request for
For the foregoing reasons, the decision of the
district court is AFFIRMED.
A prisoner in custody under sentence of a court
established by the laws of Florida claiming the right to be released
upon the ground that the judgment was entered or that the sentence was
imposed in violation of the Constitution or Laws of the United States,
or of the State of Florida, or that the court was without jurisdiction
to enter such judgment or to impose such sentence or that the sentence
was in excess of the maximum authorized by law, or that his plea was
given involuntarily, or the judgment or sentence is otherwise subject to
collateral attack, may move the court which entered the judgment or
imposed the sentence to vacate, set aside or correct the judgment or
Q. Mr. Squires, in addition to the convictions that
you detailed, you have also had, while in prison, disciplinary
convictions through administrative procedures for lying and improper
conduct associated with lying, haven't you, sir?
A. Not that I recall.
Q. Let me refresh your memory. In 1959, the first
year you were in prison, do you remember on January 25th of being
convicted in disciplinary court for lying?
A. No, sir. I was a teenager. That is 20 or 30 years
ago that you are talking about.
Q. And also let me ask you that, if on the 19th of
that same month, you were convicted in administrative court for lying,
also, do you remember that?
A. I was convicted of it?
Q. Yes, in administrative court.
A. Convicted of lying?
A. I don't recall that.
A. I wish you would show it to me.
Q. Mr. Squires--
A. I don't recall ever being convicted of lying....
Q. Mr. Squires, when you gave your deposition on
March 1st, 1978, do you recall being under oath in that proceeding?
Q. You do recall that, do you not?
Q. One of the first questions that you were asked in
that deposition was regarding how you became a witness in this case, a
reported witness, and you said that you were next to Harry Mungin, and
he asked you to sign an affidavit; is that correct?
A. Are you talking bout what I said in that statement?
A. I don't recall exactly. Most of it is predicated
on lies and I can't remember my lies.
Squires further testified at the hearing as follows:
Q. So, you lied to your lawyer in February of 1981
... is that correct?
A. Did I lie to my own lawyer?
A. Of course, I did.
[Counsel for the State]: Now, I am going to object to
being hearsay and also self-serving and also bolsters the credibility of
their own witness. This is improper under these circumstances.
THE COURT: The objection is sustained.
[Counsel for the Petitioner]: Your Honor, may I make
an argument for the record?
THE COURT: Yes, sir.
[Counsel for Petitioner]: Thank you, Your Honor.
Under the Florida Evidence Manual of Section 197.3(c) [sic] states that,
if a witness has been impeached, that it is proper to rehabilitate the
witness to a prior consistent statement.
Your Honor, I would submit that what she is about to
testify to would be a prior consistent statement by the Witness Squires
and, therefore, would be admissible.
THE COURT: Impeached by whom?
[Counsel for Petitioner]: By the States Attorney
through his cross examination of Mr. Squires.
THE COURT: In what respect was he impeached?
[Counsel for Petitioner]: His credibility.
THE COURT: He testified--he is the one that offered
it. He is the one that told what an honest person he was, he placed it
in evidence, and stated that everything previously said was a lie, and
he didn't sway from that on cross examination.
So, if that is the basis for it, the objection is
Bennie E. Demps, Petitioner-Appellant,
Richard L. Dugger, as Secretary, Department of Corrections, State of
Federal Circuits, 11th Cir.
June 13, 1989
Appeal from the United States District Court for the
Middle District of Florida.
Before FAY, JOHNSON and CLARK, Circuit Judges.
FAY, Circuit Judge:
This appeal concerns the third federal habeas corpus
petition filed by Bennie E. Demps, pursuant to 28 U.S.C. Sec .
2254. In 1978, Demps was convicted of the jailhouse murder of a fellow
inmate and sentenced to death. His third habeas petition sets forth four
claims for relief: 1) Petitioner's capital sentencing proceeding did not
comport with Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d
347 (1987), or Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978), and therefore, resentencing is required because the state
cannot demonstrate that the error was harmless; 2) The comments made to
the sentencing jury diluted their responsibility in violation of
Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985); 3) The state withheld critical exculpatory evidence regarding
its witness, Larry Hathaway, in violation of petitioner's sixth, eighth
and fourteenth amendment rights; and 4) Petitioner's trial counsel was
prejudicially ineffective for failing to impeach Hathaway and for
failing to introduce mitigating evidence regarding petitioner's
background. The federal district court denied relief on all four claims.
This court has already reviewed and set forth the
facts giving rise to the petitioner's conviction. See Demps v.
Wainwright, 805 F.2d 1426 (11th Cir.1986). We therefore only generally
outline the facts established at trial. On September 6, 1976, Alfred
Sturgis was found in his cell in Florida State Prison bleeding from stab
wounds. On the way to the hospital, Sturgis in a dying declaration told
A.V. Rhoden, a correctional officer, that Demps, Jackson and Mungin had
been the assailants. At the time of the stabbing, Demps was serving
sentences for the first-degree murder of two persons and the attempted
murder of another.
Inmates Bennie Demps, James Jackson and Harry Mungin
were indicted, tried and convicted of first degree murder. At trial, in
addition to Rhoden's testimony regarding Sturgis' dying declaration, the
state presented testimony of Larry Hathaway, a fellow inmate of the
defendants. In exchange for Hathaway's testimony, the state agreed to
transfer Hathaway to another correctional institution with his
homosexual lover, Robert Zeigler.
Hathaway testified that as he walked along a prison
corridor, he witnessed Mungin standing in a cell doorway, apparently
acting as a lookout. As Hathaway passed by Mungin, he saw Demps holding
Sturgis down while Jackson stabbed him. At the sentencing phase of the
trial, the jury recommended the death penalty for Jackson and Demps, and
life imprisonment for Mungin. The trial judge sentenced Mungin and
Jackson to life, but sentenced Demps to death.
B. Procedural Posture
On appeal, the Florida Supreme Court affirmed Demps'
death sentence and the United States Supreme Court denied certiorari.
Demps v. State, 395 So.2d 501 (Fla.), cert. denied,
454 U.S. 933 , 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).
Thereafter, petitioner filed a motion to vacate, set aside or correct
the judgment which the state trial court denied without a hearing.
The Florida Supreme Court affirmed the trial court ruling on all claims
except for the petitioner's claim of state interference with a defense
witness, which was remanded for an evidentiary hearing. Demps v. State,
416 So.2d 808, 809 (1982). The trial court conducted a hearing and again
denied the petitioner's motion. The denial was affirmed on appeal. Demps
v. State, 462 So.2d 1074 (Fla.1984).
On March 28, 1985, Demps filed a petition for a writ
of habeas corpus in federal district court raising six grounds for
relief. The district
court denied relief on all grounds and this court affirmed. Demps v.
Wainwright, 805 F.2d 1426 (11th Cir.1986). The Supreme Court denied
certiorari. Demps v. Dugger, --- U.S. ----, 108 S.Ct. 209, 98 L.Ed.2d
160 (1987). On December 17, 1985, the petitioner filed a second writ of
habeas corpus alleging that the excusing of jurors opposed to the death
penalty denied the petitioner an impartial jury from a cross-section of
the community in violation of his sixth and fourteenth amendment rights.
The district court dismissed the petition and the petitioner did not
The Governor of Florida signed a second death warrant
and the petitioner's execution was scheduled for Thursday, November 5,
1987 at 7:00 a.m. The petitioner returned to the Florida Supreme Court
seeking a stay of execution on the ground that his sentencing proceeding
was unconstitutional under the authority of Hitchcock v. Dugger, 481 U.S.
393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The Florida Supreme Court
denied relief, finding the Hitchcock error harmless. Demps v. Dugger,
514 So.2d 1092 (Fla.1987).
Following this denial, the petitioner again filed an
emergency motion to vacate the sentence in state trial court which was
denied. On appeal, the Florida Supreme Court affirmed. Demps v. State,
515 So.2d 196 (Fla.1987). Thereafter, the petitioner filed his third
petition for habeas relief in federal district court raising the four
issues set forth above. The district court denied relief on all grounds
and the petitioner appealed to this court challenging the district
court's rulings. We review each issue respectively.
II. Hitchcock Claim
Petitioner first contends that according to Hitchcock
the jury instructions unconstitutionally precluded the jury from
considering mitigating circumstances not enumerated in the Florida death
penalty statute, Fla.Stat. Sec. 921.141 (1975). In Hitchcock, the
advisory jury was instructed not to consider, and the sentencing judge
refused to consider, evidence of nonstatutory mitigating circumstances.
The Supreme Court found this violated petitioner's
constitutional right to "present [at the sentencing hearing] any and all
relevant mitigating evidence that is available." Hitchcock, supra, at
399, 107 S.Ct. at 1824 (quoting Skipper v. South Carolina, 476 U.S. 1,
106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)). The eighth and fourteenth
amendments require the sentencer to consider all relevant mitigating
evidence in capital cases. Hitchcock, 107 S.Ct. at 1822 (citations
omitted); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982).
In this case, the judge gave an instruction
functionally identical to that given in Hitchcock.
Hence, we assume the jury did not consider any nonstatutory mitigating
evidence in making their sentencing recommendation.
However, evidence in the record leads us to conclude that the judge in
fact did consider the nonstatutory mitigating evidence in carrying out
his role as the primary sentencer.
In this case, we refrain from deciding whether both the judge and the
jury must refuse or be prohibited from considering nonstatutory
mitigating evidence to constitute a Hitchcock error.
Since a harmless error does not merit reversal, we address the
preliminary question of whether the alleged Hitchcock error in this case
First, we stress that an alleged Hitchcock error is
evaluated on a case-by-case basis. See Knight v. Dugger, 863 F.2d 705
(11th Cir.1988). To determine whether an error occurred and whether it
affected the jury requires an indepth review of the entire record. Id.
at 708. Further, evaluating whether an error is harmless is governed by
the strict Chapman criterion. Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967). The error must be harmless beyond a
reasonable doubt. Id. at 24, 87 S.Ct. at 828. To be harmless in the
Hitchcock context, the court must determine beyond a reasonable doubt
that the proposed mitigating evidence regarding the defendant's
character would not have influenced the jury to recommend a life
In this case, we conclude beyond a reasonable doubt
that the proposed mitigating evidence would not have persuaded the jury
to recommend life. Petitioner presented four types of evidence which he
alleges would have influenced the jury to recommend life. First,
petitioner argues that his "honorable military combat service" would
have supported a jury recommendation of life. The evidence, however,
reflected something quite different than "honorable military combat
On November 20, 1969, Demps enlisted in the United
States Marine Corps for a two year period. His service record revealed
one special court-martial conviction and two nonjudicial punishments for
five assaults, communication of a threat, and disobeying a lawful order.
Due to these offenses, after eleven months of service, Demps received a
dishonorable discharge in November, 1970.
In January, 1979, under a special discharge review
program, Demps' dishonorable discharge was upgraded to a general
discharge. Contrary to petitioner's allegations that he had served in
military combat, the record reflects no evidence indicating any overseas
combat experience. Rather, the record shows that Demps had been
stationed at Camp LeJeune, North Carolina. We do not believe Demps'
military record reflected at all favorably on his character and hence,
we are persuaded that the evidence would not have influenced the jury to
Second, petitioner presented evidence to the jury of
his history of drug abuse and argues that this was evidence which would
have mitigated his death sentence. It is true that a history of drug
addiction can be considered by juries as nonstatutory mitigating
evidence. See Hargrave v. Dugger, 832 F.2d 1528, 1534 (11th Cir.1987);
Fead v. State, 512 So.2d 176, 179 (Fla.1987) (jury could have found as
mitigating, evidence that the defendant committed crime under the
influence of alcohol). However, in this case, we do not think this
evidence would have influenced the jury's recommendation.
The evidence available indicated that Demps had a
history of drug addiction prior to being admitted into the correctional
system. The murder of Alfred Sturgis occurred in prison and no evidence
exists to show that drugs or treatment for drug dependency in any way
influenced Demps' participation in this murder. Therefore, while the
evidence of a history of drug addiction can be mitigating evidence, we
believe that the circumstances in this case indicate beyond a reasonable
doubt that this evidence would not have influenced the jury to mitigate
Third, petitioner asserts that his record indicated
he presented no problems during his seven year prison term prior to the
stabbing. Like his history of drug abuse, this evidence can be
classified as mitigating. See, e.g., Skipper, 476 U.S. 1, 106 S.Ct.
1669, 90 L.Ed.2d 1 (1986) (evidence that petitioner was well-behaved and
well-adjusted in prison was relevant mitigating evidence). However,
quite to the contrary, the presentence investigation report indicated
that Demps had a prison record of continuing disciplinary problems. In
our opinion, Demps' record would not have affected the mind of a juror
in any way where the murder for which the jury recommended death
occurred in the prison.
Finally, petitioner stresses that the two co-perpetrators
of the murder received a life sentence while he alone was sentenced to
death. Petitioner claims that this should be considered as mitigating.
Petitioner relies on the language in Downs v. Dugger, 514 So.2d 1069 (Fla.1987),
where the Florida Supreme Court stated that it "has recognized as
mitigating the fact that an accomplice in the crime in question, who was
of equal or greater culpability, received a lesser sentence than the
accused." Id. at 1072 (citations omitted).
However, in reviewing Demps' sentence as compared to
that of his co-perpetrators, the Florida Supreme Court also recognized
that "only Demps had the loathsome distinction of having been previously
convicted of the first-degree murder of two persons and attempted murder
of another, escaping the gallows only through the intervention of Furman
v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)." Demps
v. Dugger, 514 So.2d 1092, 1093 (Fla.1987). We conclude that Demps'
prior criminal record was sufficient to justify imposing a more serious
Since we find beyond a reasonable doubt that the
evidence excluded from the jury's consideration would not have affected
its sentencing recommendation, we conclude that any error which may have
occurred was harmless and therefore, resentencing is not required.
III. Successive Applications and Abuse of the Writ
Because petitioner has either previously raised the
grounds for relief which follow or failed to raise them when the facts
and law were readily accessible, we conclude that petitioner's last
three claims constitute successive claims or an abuse of the writ and
thus are procedurally barred.
For purposes of analyzing petitioner's final three
issues, we will attempt a concise review of when a claim may be
classified as successive or as an abuse of the writ. Rule 9(b) of the
Rules Governing Section 2254 Cases deals with successive habeas
petitions. It provides that the judge may dismiss a second or successive
habeas petition where 1) "it fails to allege new or different grounds
for relief and the prior determination was on the merits," or 2) "if new
and different grounds are alleged, the judge finds that the failure of
the petitioner to assert those grounds in a prior petition constituted
an abuse of the writ." This rule codified many of the judicially
developed principles regarding successive habeas petitions. See Advisory
Committee Note, Federal Civil Judicial Procedure and Rules (1988).
As the rule indicates, a successive application
involves a new habeas application which sets forth an identical ground
for relief as was raised in an earlier application. Sanders v. United
States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The identical
ground for relief may be denied even when supported by different factual
allegations or legal arguments, or when couched in different language.
Id. at 16, 83 S.Ct. at 1077; see, e.g., Raulerson v. Wainwright, 753
F.2d 869, 873 (11th Cir.1985) (different factual support for same legal
argument); United States v. Jones, 194 F.Supp. 421 (D.C.Kan.1961), aff'd
mem., 297 F.2d 835 (10th Cir.1962) (claim couched in different language).
The government carries the burden to plead abuse of the writ. Sanders,
373 U.S. at 10, 83 S.Ct. at 1074. However, once the government has done
this, the petitioner has the burden of proving that he has not abused
the writ. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92
L.Ed. 1356 (1948).
Even if the prior claim was denied on the merits, an
applicant is entitled to show that in the interest of justice the claim
should be redetermined. Sanders, 373 U.S. at 16, 83 S.Ct. at 1077. If
factual issues are involved, the applicant may obtain reconsideration of
the claim by showing that the evidentiary hearing on the prior
application was not full and fair. Id. at 17, 83 S.Ct. at 1078. If legal
questions are involved, the applicant may show that an intervening
change in the law occurred or a similar justification prevented the
applicant from arguing a crucial point. Id.
An abuse of the writ can also involve situations
where the claim was not asserted in a prior application or where the
claim was presented earlier, but not adjudicated on the merits. If the
claim was not asserted in a prior proceeding, the petitioner must show
that the failure to present the ground did not result from intentional
abandonment or withholding, or inexcusable neglect. Witt v. Wainwright,
755 F.2d 1396, 1397 (11th Cir.) cert. denied,
470 U.S. 1039 , 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985).
For example, an abuse of the writ can occur where a
petitioner deliberately refrains from asserting one of two grounds for
relief in the first petition in an attempt to obtain two hearings
instead of one. Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. However, a
retroactive change in the law or newly discovered evidence may justify
the petitioner's failure to assert the claim earlier. In any event, a
court must reach the merits of the claim if the ends of justice so
require. Id. Within this framework, we analyze petitioner's final three
grounds for relief.
A. Caldwell Claim
First, petitioner contends that the prosecutor and
the judge misled the jury as to its proper role in capital sentencing
which diminished its responsibility in violation of the eighth and
fourteenth amendments. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct.
2633, 86 L.Ed.2d 231 (1985). We conclude that petitioner's failure to
raise this claim in an earlier petition constitutes an abuse of the writ.
Petitioner's failure to raise this claim in his
second habeas petition is the result of inexcusable neglect. The United
States Supreme Court issued the Caldwell decision on June 11, 1985.
Petitioner filed his second petition for habeas corpus relief over six
months later, on December 17, 1985, without raising the Caldwell claim.
See, supra note 5. Hence, petitioner reasonably should have known of the
law and raised this claim in his second petition.
Further, the ends of justice do not require
consideration of this claim. No change in the intervening law occurred
and petitioner has pointed to no other circumstances to explain his
failure to raise the claim in an earlier petition. We conclude that
petitioner has failed to carry his burden of disproving an abuse of the
writ and therefore, we deny relief on this ground.
B. Exculpatory Evidence Claim
Petitioner also contends that the state withheld
critical exculpatory evidence regarding its key witness, Larry Hathaway.
Specifically, petitioner asserts that the state withheld evidence
regarding 1) Larry Hathaway's complicity in the crime, 2) the true deal
the state had with Hathaway, and 3) Hathaway's mental illness, and
propensity to lie. Petitioner contends that the withholding of this
evidence violated his sixth, eighth and fourteenth amendment rights.
Demps raised the same claim in his first habeas
petition. See supra note 6. In his first habeas petition, Demps argued
that the state withheld exculpatory evidence regarding the deal made
with Hathaway (i.e. a memorandum written by a prison official regarding
Hathaway's transfer to another correctional facility). See Demps v.
Wainwright, 805 F.2d 1426, 1432 (11th Cir.1986). Addressing the merits
of the claim, we rejected that the alleged withholding of this evidence
violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). Demps v. Wainwright, 805 F.2d at 1432.
Similarly, in his present petition, Demps raises an
identical claim, but has asserted different factual support. In addition
to his prior allegation that the state withheld evidence regarding the
deal made with Hathaway, petitioner alleges that the state withheld
evidence regarding Hathaway's complicity in the crime and his propensity
This claim, like the claim asserted in the first
habeas petition, alleges suppression of evidence aimed at impeaching
Hathaway's testimony. Petitioner is attempting to revive his initial
claim by rephrasing it with different factual support. No evidence
exists to indicate petitioner was hampered in any way from asserting
these factual grounds when he raised this claim previously. Hence, we
conclude that the assertion of this claim in petitioner's third habeas
petition constitutes an abuse of the writ. See In re Shriner, 735 F.2d
1236 (11th Cir.1984).
C. Ineffective Assistance of Counsel
Finally, petitioner asserts that trial counsel's
failure to effectively impeach Hathaway and to present compelling
mitigating evidence constituted ineffective assistance of counsel. Since
petitioner presents no reasonable justification for his failure to raise
this claim in a prior petition, we deny this claim as an abuse of the
writ. Moreover, even if we were to address the merits, it is apparent
that petitioner does not state a viable ineffective assistance of
counsel claim. Petitioner identifies no specific act or omission of
counsel which is allegedly the result of unreasonable professional
judgment. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,
2066, 80 L.Ed.2d 674 (1984).
Because we find that any Hitchcock error which
occurred in this case was harmless, resentencing is not required.
Further, since petitioner either failed to raise his last three claims
in a prior petition or had presented these claims previously, their
assertion in this third habeas petition constitutes an abuse of the writ.
Therefore, we affirm the district court's denial of relief on all of the
JOHNSON, Circuit Judge, concurring in part, and
dissenting in part:
I concur in the majority's disposition of the
petitioner's second, third, and fourth claims for relief and with the
majority's determination that Hitchcock error was committed at
petitioner's sentencing hearing. However, because of the insufficiency
of the record before us, I must respectfully dissent from the majority's
finding that the error was harmless.
The majority is correct in asserting that Hitchcock
error may be harmless in some cases. See Clark v. Dugger, 834 F.2d 1561,
1569-70 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1282, 99
L.Ed.2d 493 (1988) (error harmless where "there simply were no
nonstatutory mitigating circumstances to consider"); see also Knight v.
Dugger, 863 F.2d 705, 708-10 (11th Cir.1988) (dicta that Hitchcock error
may be harmless). However, this Court has only once found Hitchcock
error to be harmless, see Clark, supra, and the Supreme Court has never
found the error to be harmless in its four reversals of death sentences
for failure of the sentencer to consider non-statutory mitigating
circumstances. See Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95
L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct.
1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,
57 L.Ed.2d 973 (1978).
In addition, a recent decision from this Court
emphasized the narrow range of situations in which Hitchcock error may
be harmless. In Knight, supra, the State of Florida argued that the
failure of a jury to consider all mitigating factors was harmless
because "so many aggravating factors were found (four) that no amount of
non-statutory mitigating evidence could change the result in the case."
863 F.2d at 710. In rejecting the state's reasoning, we stated:
No authority has been furnished for this proposition
and it seems doubtful that any exists. The State's theory, in practice,
would do away with the requirement of an individualized sentencing
determination in cases where there are many aggravating circumstances.
It is this requirement, of course, that is at the heart of Lockett and
Id. The Knight decision leaves little room for the
application of harmless error analysis, except in the situation where no
non-statutory mitigating evidence could have been proffered. See Clark,
In fact, this is what the majority holds--that Demps'
evidence was not mitigating at all. If Demps has no true mitigating
evidence to offer, then it must be conceded that any error in the jury
instructions was harmless. However, the district court below made no
ruling as to the quality or quantity of mitigating evidence. In the
absence of factual findings on Demps' claims of mitigating evidence,
this Court should not make any determination on the question of
In the district court below, Demps claimed that the
jury was improperly prevented from considering evidence of what he
alleged to be an honorable military record, good adjustment to prison, a
history of drug addiction, and an unequal sentence received by a co-perpetrator.
If any of his claims were true, excluding them from the jury's
consideration would have constituted reversible error. However, the
district court made no findings as to the truthfulness of Demps' claims.
It instead held on the basis of Elledge v. Dugger, 823 F.2d 1439 (11th
Cir.1987) (per curiam), opinion withdrawn in relevant part, 833 F.2d 250
(11th Cir.1988), cert. denied, --- U.S. ----, 108 S.Ct. 1487, 99 L.Ed.2d
715 (1988), that the trial judge's consideration of all mitigating
factors rendered the erroneous jury instructions harmless. Its
disposition of the case leaves us no basis upon which to make a ruling
regarding the validity of Demps' factual claims of the existence of
The determination of whether the error committed in
Demps' case was harmless or not depends entirely on the truth of his
claim that unconsidered mitigating factors existed. Without an
evidentiary hearing having been conducted below, it is inappropriate for
this Court to pass upon such crucial facts de novo. See United States v.
C.G., 736 F.2d 1474, 1479 (11th Cir.1984); United States v. Johnson, 700
F.2d 699, 701 (11th Cir.1983); United States v. Robinson, 625 F.2d 1211,
1217 (5th Cir.1980). The parties' briefs present two entirely different
versions of the same relevant facts. Our job is normally to review the
factual findings of lower courts and not to make such finding ourselves.
Consequently, I would remand the question of the existence of mitigating
factors to the district court for an evidentiary hearing. See Ruffin v.
Dugger, 848 F.2d 1512, 1519-20 (11th Cir.1988) (per curiam) (Tjoflat,
J., dissenting) (remand to district court for hearing on harmlessness of
Hitchcock error would be appropriate).
CLARK, Circuit Judge, specially concurring:
I concur that the appropriate disposition of this
case is an affirmance of the district court's denial of relief. Judge
Fay, Judge Johnson, and I all agree that there was an erroneous
Hitchcock instruction. Our disagreement over defining the issue in the
case is the reason our analyses differ. I am unable to join Judge Fay's
opinion because he bases his analysis on the harmlessness of Hitchcock
error. However, I do not agree with Judge Johnson that Demps presented
any evidence of nonstatutory mitigating circumstances that is even
arguably credible. Since Demps has not presented such evidence, the
petition should be denied.
Judge Fay concludes:
To be harmless in the Hitchcock context, the court
must determine beyond a reasonable doubt that the proposed mitigating
evidence regarding the defendant's character would not have influenced
the jury to recommend a life sentence.
In this case, we conclude beyond a reasonable doubt
that the proposed mitigating evidence would not have persuaded the jury
to recommend life.
Panel op. at 1390. I believe that the law of the
circuit is as Judge Johnson relates. This court does not undertake the
task of weighing the nonstatutory mitigating evidence against the
statutory aggravating circumstances to determine whether the evidence
would have persuaded the jury to recommend life. Knight v. Dugger, 863
F.2d 705 (11th Cir.1989), stands for that proposition.
To constitute a potential Hitchcock error there must
be (1) an instruction to the jury that excludes the jurors from
considering nonstatutory mitigating evidence and (2) the availability of
nonstatutory mitigating evidence. There are cases where the evidence was
heard but excluded from consideration and other cases where it was not
even offered because Florida law at the time taught that such evidence
was not admissible. This case is not a potential Hitchcock error case.
Although there was an erroneous Hitchcock instruction, there has been no
showing that any credible nonstatutory mitigating evidence was presented
to the jury. Moreover, the record indicates that counsel did not believe
he was limited to presenting only statutory mitigating circumstances.
If such evidence exists, the case should be returned to the state court
for resentencing as was done in Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982) and Skipper v. South Carolina, 476 U.S.
1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
The evidence urged to be mitigating is divided into
four categories: (1) evidence of Demps' military record, (2) his good
adjustment to prison, (3) a history of drug addiction, and (4) the
unequal sentence received by his accomplices. Although all four of these
factors can be mitigating, there are no credible facts in the record to
show that these mitigating facts exist in this case.
At the penalty phase, defense counsel presented Demps'
military file to the jury. He argued that Demps had an honorable record
in the Marines and that he was wounded in combat. As Judge Fay points
out, the record shows that Demps was initially given an undesirable
discharge that was later upgraded to a general discharge. The record
also reflects that Demps was not wounded in combat.
Defense counsel also argued that Demps had no
disciplinary problems in prison. Demps' presentence investigation report,
which is part of the record, belies that allegation. He had sixteen
charges against him at the Florida State Prison between September 28,
1971 and December 1, 1977, not including his participation in the murder
of Sturgis. These offenses included attempting to escape, creating
disturbances, flooding his cell, interfering with officers, fighting,
destroying state property and inciting a minor disturbance.
Defense counsel argued that Demps' history of drug
addiction was relevant mitigating evidence. This addiction predated his
1971 conviction and imprisonment for murder of two persons locked in the
trunk of an automobile and there is no evidence in the record to show
that Demps was addicted at the time of the murder we are concerned with.
Although there is passing reference in the psychologist's report that
drug addiction "may have resulted in the kind of brain damage suggested
by current test results," (Appendix BB, Record Excerpts) there is no
evidence that the drug addiction affected Demps at the time of this
Finally, appellant argues that his accomplices' life
sentences could have been considered as mitigating evidence by Demps'
sentencing jury. I find that argument unpersuasive in this case and
uncontrolled by the authorities cited in Judge Johnson's dissent. In
this case, all three perpetrators were convicted in one single trial.
The jury returned death recommendations for Demps and Jackson, but gave
a life recommendation for co-defendant Mungin. The trial judge overrode
the recommendation as to Jackson. The appellant's argument therefore is
that Mungin's life sentence was a nonstatutory mitigating circumstance
the jury could have considered when sentencing Demps. I simply cannot
understand the argument in this case. This is not comparable to the
scenario where co-defendants are tried separately, and the triggerman
and leader receives a life sentence, while a youthful co-perpetrator who
merely accompanied the killer receives the death penalty. Under those
facts, I would agree that the jury should have evidence of the
accomplice's sentence, however, those are not the facts here. In this
case, Demps held Sturgis down while Jackson stabbed him. I fail to see
how the life sentence given to Mungin, who was the lookout, was
mitigating evidence for Demps.
In this case, defense counsel argued that
nonstatutory mitigating circumstances existed to spare Demps' life. A
thorough review of the record demonstrates that there are no facts to
support the existence of these mitigating circumstance. At this stage
after several appeals to the Florida Supreme Court, U.S. Supreme Court
and to our court, it is incumbent on counsel for the petitioner to
present in a credible form facts which counsel can prove true in an
evidentiary hearing. Normally, this is not a problem since the penalty
phase will contain the testimony of witnesses with respect to such
nonstatutory mitigating circumstances.
If the state contests the veracity of the evidence, an evidentiary
hearing might be in order. In this case, however, the record
demonstrates that these mitigating circumstances do not exist. The
petitioner has failed to allege facts to prove the existence of
nonstatutory mitigating circumstances. In such a case, an evidentiary
hearing is not required.
For the foregoing reasons, I do not see the issue as
requiring a Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967), harmless error analysis. Nor do I see this as a case that
requires an evidentiary hearing since no new nonstatutory evidence is
adduced by petitioners. This case is comparable to Clark v. Dugger, 834
F.2d 1561, 1569-70 (11th Cir.1987), cert. denied, --- U.S. ----, 108
S.Ct. 1282, 99 L.Ed.2d 493 (1988). There the panel found:
Here, however, there simply were no nonstatutory
mitigating circumstances to consider. Clark did not introduce any
evidence that would support the existence of a nonstatutory mitigating
circumstance. As explained supra, Clark's counsel, after her
investigation, made a tactical decision that any testimony at the
penalty phase could only prove harmful. Thus, Clark failed to introduce
any mitigating evidence whatever.
834 F.2d at 1569 (footnotes omitted).
Admittedly the Clark panel held that "any Hitchcock
error was harmless under Chapman v. California." This is the wrong label
applied by the Clark panel and by Judge Fay. Where there is no
nonstatutory mitigating evidence there can be no Hitchcock error and
harmlessness need not be considered.
In conclusion, I deem it an inappropriate function
for a federal court to weigh nonstatutory mitigating evidence against
aggravating circumstances and decide whether a petitioner should get the
death penalty as an alternative to a resentencing hearing. That is an
invasion of the separate states' rights and obligations for their courts
to insure appropriate sentencing in death penalty cases. At the same
time, a federal court should not put blinders on when faced with a
potential Hitchcock error. It is proper for the court to examine a
petitioner's alleged nonstatutory mitigating evidence to determine if
such evidence does in fact exist. If it is nonexistent, the case should
stop there. If there is credible evidence demonstrated by the petitioner,
we should return the case to the state court for resentencing. In this
case, there being no credible evidence, the petition should be denied.
claims that Florida's capital sentencing statute is unconstitutional.
Technically this claim is procedurally barred because he failed to raise
this argument in district court. However, we can reject this argument on
the merits since the Supreme Court plainly upheld the constitutionality
of the statute in Proffitt v. Florida,
428 U.S. 242 , 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). This
holding was later reaffirmed in Lockett v. Ohio, 438 U.S. at 606, 98
S.Ct. at 2965
received the death penalty for these convictions. However, the death
sentence was commuted to life imprisonment following Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)
In a prior
habeas corpus petition, this court denied Demps' challenge that the
state court erred in excluding cross-examination regarding Hathaway's
homosexual relationship with Zeigler, allowing Demps to establish only
that they were close friends. See Demps v. Wainwright, 805 F.2d 1426
(11th Cir.1986). The trial court, however, allowed Demps to fully
cross-examine Hathaway regarding any transfer in exchange for his
testimony. Id. at 1431
petitioner challenged his conviction on three grounds: 1) The state
violated discovery rules and deprived petitioner of a valuable tool for
cross-examination by not producing A.V. Rhoden's written statement of
his conversation with Sturgis en route to the hospital; 2) The judge
improperly instructed the jury regarding mitigating circumstances; 3)
The disparity of sentences among Demps' codefendants violated the
proposition that equally culpable defendants should receive equal
On September 9, 1980, Mr. Demps, along with other
death row inmates, filed an application for extraordinary relief and
petition for writ of habeas corpus in the Florida Supreme Court. Relief
was denied. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied,
454 U.S. 1000 , 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).
also applied for executive clemency, which was denied. On June 1, 1982,
the Governor signed a death warrant
petition raised the following grounds for relief: 1) The state
substantially interfered with a defense witness; 2) The state failed to
reveal the deal which had been made with its key witness, Larry Hathaway;
3) The trial court limited the jury's consideration of mitigating
circumstances which violated petitioner's eighth and fourteenth
amendment rights; 4) The trial court unconstitutionally limited the
cross-examination of Larry Hathaway; 5) The petitioner's death sentence
is disproportionate, arbitrary and capricious; and 6) The testimony of
Wilda Paschall was wrongfully excluded at the state evidentiary hearing
the Supreme Court recognized that "in noncapital cases, the established
practice of individualized sentences rests not on constitutional
commands, but on public policy enacted into statutes.... The
nonavailability of corrective or modifying mechanisms with respect to an
executed capital sentence underscores the need for individualized
consideration as a constitutional requirement in imposing the death
sentence." Lockett, 438 U.S. at 604-605, 98 S.Ct. at 2965
instructions in Mr. Demps' case stated:
[A]t the conclusion of the taking of the evidence and
after argument of counsel, you will be instructed on the factors in
aggravation and mitigation you may consider. The mitigating
circumstances which you may consider, if established by the evidence,
are as follows: [listing statutory mitigating circumstances].
Record on Appeal at pp. 1095-96. The jury
instructions in the Hitchcock case stated:
[You will be instructed] on the factors in
aggravation and mitigation that you may consider under our law. [T]he
mitigating circumstances which you may consider shall be the following:
[listing the statutory mitigating circumstances].
Hitchcock, 107 S.Ct. at 1824.
held that allowing the defendant to introduce nonstatutory mitigating
evidence is meaningless if the jury is instructed not to consider it in
making its sentencing recommendation. Magill v. Dugger, 824 F.2d 879,
893 (11th Cir.1987)
judge indicated that these standard jury instructions would not limit
his own ability to consider nonstatutory mitigating evidence. During the
charge conference, the judge stated that: "[t]here's no doubt that the
statute uses the term limited as far as to aggravating circumstances and
does not use that term, of course, mitigating. The case law on it boils
down to not only the mitigating factors enumerated in the statute, but
any relevant information that would go to mitigation." Transcript vol. V
at p. 996
761 So. 2d 302
Bennie Demps, Appellant,
State of Florida, Appellee.
Bennie Demps, Petitioner,
Jeb Bush, etc., et al., Respondents,
Nos. SC00-1118 & SC00-1179
Florida Supreme Court
June 5, 2000
Bennie Demps, under his fourth warrant of death,
appeals an order of the trial court denying his fourth motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850 and also seeks mandamus relief. We have jurisdiction. Art. V, §
3(b)(1), Fla. Const. We affirm the denial of the rule 3.850 motion, and
we deny the petition for writ of mandamus.
The present crime involves the stabbing death of an
inmate "snitch." When the murder took place, Bennie Demps already was
serving two consecutive life sentences and a twenty-year sentence for
two other first-degree murders and an attempted murder (he had locked
three people in the trunk of a car and shot repeatedly into the trunk).
His death sentences for those murders had been reduced to life pursuant
to Furman.1 The facts of the present crime are set forth in this Court's
opinion on direct appeal:
On September 6, 1976, personnel at the Florida State
Prison discovered inmate Alfred Sturgis in a cell, bleeding profusely
from stab wounds. He was rushed first to the hospital at Union
Correctional Institute, then to the state prison at Lake Butler. Due to
inadequate facilities at both institutions, Sturgis was taken to Shands
Teaching Hospital in Gainesville, where he died soon after arrival.
A grand jury indicted inmates Bennie Demps, James
Jackson and Harry Mungin for the murder of Alfred Sturgis.
In the course of preliminary depositions, defense
counsel learned that while en route to the hospital, Sturgis told
correctional officer A. V. Rhoden that appellant, Jackson and Mungin had
committed the knifing. Rhoden later reduced the statement to writing and
included it in a report 1 Furman v. Georgia, 408 U.S. 238 (1972). See
Anderson v. State, 267 So. 2d 8, 10 (Fla. 1972).
filed with R. K. Griffis, a Department of Corrections
investigator. After defense requests to produce the written document,
the state informed the court that Mr. Griffis had misplaced Rhoden's
statement. In a pretrial hearing the court refused to dismiss the
indictment based on the state's failure to produce Rhoden's report.
At trial Mr. Rhoden explained to the jury what
Sturgis had told him in the ambulance: . . . .
Q Did he say anything else?
A Yes, sir, he said: "You have to get Mungin and
Demps, they held me and Jackson stabbed me."
I asked him, "Which Jackson?" And he said: "Toothless
Jackson." . . . .
Another witness for the prosecution, fellow inmate
Larry Hathaway, testified that while walking past Harry Mungin's cell on
the afternoon of the murder, Mungin told him to go downstairs and stay
there, because Mungin "was fixing to get rid of a snitch." He followed
Mungin's suggestion but returned a short while later, at which time he
noticed a struggle going on in the cell in which Sturgis was later found.
Mungin was standing in the door of the cell; inside, Hathaway could see
appellant holding Sturgis down on the bed while Jackson struck him with
Upon seeing this, Hathaway quickly left the scene.
Demps v. State, 395 So. 2d 501, 503-04 (Fla. 1981).
Demps was convicted of first- degree murder for his role in the crime
and was sentenced to death based inter alia on the fact that he had
committed two prior first-degree murders.2 We affirmed. See id. at 506.
The subsequent procedural history is set forth in
this Court's opinion addressing Demps' third rule 3.850 motion:
After the governor signed a death warrant, Demps
filed a rule 3.850 motion for postconviction relief, which the trial
court denied without an evidentiary hearing. This Court remanded for an
evidentiary hearing. Demps v. State, 416 So.2d (Fla. 1982). The trial
court held a hearing and again denied relief. We affirmed. Demps v.
State, 462 So.2d 1074 (Fla. 1984). Pursuant to a second death warrant,
Demps petitioned this Court for a writ of habeas corpus, which we denied.
Demps v. Dugger, 514 So.2d 1092 (Fla. 1987). We also affirmed the trial
court's summary denial of Demps' second motion for rule 3.850 relief.
Demps v. State, 515 So.2d 196 (Fla. 1987). When Governor Martinez signed
a third death warrant in April 1990, Demps filed the current petition
for writ of habeas corpus in this Court. This Court granted a stay of
execution and Demps filed his third rule 3.850 motion in the trial court,
which the court summarily denied. Demps now appeals that denial of 3.850
relief and seeks relief under his pending habeas petition.
Demps v. Dugger, 714 So. 2d 365, 366-67 (Fla. 1998) (footnotes
omitted). We affirmed the denial of his third rule 3.850 motion and
denied his second habeas 2 Codefendants Jackson and Mungin were
convicted of first-degree murder and sentenced to life imprisonment (the
jury recommended death for Jackson and life for Mungin). Unlike Demps,
neither Jackson nor Mungin had been convicted of prior murders.
petition. See id. at 368.3
Demps on July 2, 1999, filed his fourth (i.e., the
present) rule 3.850 motion in circuit court, raising a single main issue.
He claimed that he recently (on July 3-5, 1998 4) discovered a
memorandum dated September 7, 1976, written by Chief Prison Inspector
and Investigator Cecil Sewell and addressed to Louie Wainwright, then
Secretary of the Department of Corrections. The memorandum reads in
Inspector Griffis notified this office of the death
of Inmate Alfred Sturgis, B/M, #033044, sentenced to life from Brevard
County for escape and murder, 2nd degree.
Received in our system 172. Inmate Sturgis' DOB was
Subject was housed on "W" wing at FSP, and was
stabbed in the chest with a home-made knife approximately 10" long.
Inmate Sturgis was sent to UCI outpatient clinic and then to Shands
Teaching Hospital, Gainesville. Dr. J. Isaacs, Shands, pronounced him
dead at approximately 7:30 p.m., September 6, 1976.
The stabbing occurred at approximately 4:30 p.m.,
September 6, 1976, and before Sturgis died, he named James Jackson, B/M,
#029667, as his assailant. 3 Demps also sought relief in federal court.
See, e.g., Demps v. Dugger, 874 F.2d 1385 (11th Cir. 1989) (affirming
denial of habeas relief); Demps v. Wainwright, 805 F.2d 1426 (11th Cir.
1986) (affirming denial of habeas relief). 4 Based on this date of
discovery, the Sewell memo falls within the one-year time limit of the
rule. See, e.g., Mills v. State, 684 So. 2d 801, 804-05 (Fla. 1996) ("Mills
must show . . . that the motion was filed within one year of the
discovery of evidence upon which avoidance of the time limit was based.").
The State Attorney's office has been notified and an
autopsy has been ordered. The family has also been notified. Inspector
Griffis is investigating and will send a complete report when finalized.
Demps claimed that this memo proves he is innocent.
The trial court on May 12, 2000, held a hearing to determine if an
evidentiary hearing was warranted on this claim and gave the parties
until May 18 to supplement the record. The trial court then denied Demps'
fourth rule 3.850 motion. Demps appeals, raising several issues.5 He
also has filed in this Court a petition for a writ of mandamus, raising
a single issue.6
The trial court below concluded as follows in its
order denying the present rule 3.850 motion:
10. For the purposes of this Order, the Court accepts,
without finding, that the memorandum is newly discovered. Furthermore,
the Court finds that it is possible that the memorandum could have been
introduced at trial for impeachment purposes. The issue before this
Court is whether it is probable that the memorandum, had Defendant
discovered it by trial, would produce an acquittal on retrial. See Jones
v. State, 709 So. 2d 512, 521 (Fla. 5 Demps frames the issues as follows:
(1) fundamental denial of due process; (2) denial of due process,
prejudicial withholding of exculpatory material, and State's failure to
comply with absolute discovery obligation; (3) evidentiary hearing
granted, scheduled, and continued; (4) denial of equal protection; (5)
denial of fundamental constitutional protections and procedural due
process raised to a substantive level; (6) prosecutorial misconduct,
denial of due process, equal protection and summary granting of
evidentiary hearing; (7) the trial court's denial of a stay and the
total disregard of Demps' procedural and substantive rights under
Florida law in deference to the executive's scheduled execution date
violate Demps' state and federal constitutional rights. 6 Demps claims
that the Governor failed to follow the proper statutory procedure when
he set the execution date for 6:00 p.m., June 7, 2000.
1998) (citing Jones v. State, 591 So. 2d 911, 915 (Fla.
11. The Court finds that the memorandum is of little
impeachment value as to A.V. Rhoden because it is not clear from what
source Sewell derives his assertion that Sturgis named Jackson as his "assailant."
It is also not clear why the word "assailant" was used. It could be that
it was used only to refer to the person who actually stabbed Sturgis.
Furthermore, the use of the word "assailant" by the memorandum's author
is not inconsistent with Rhoden's trial testimony . . . that Sturgis
said "You have to get Mungin and Demps, they held me and Jackson stabbed
me." Consequently, the possibility that the memorandum would produce an
acquittal on retrial is minimal. A minimal possibility does not meet the
standard enunciated in Jones and does not provide a basis for this Court
to conduct an evidentiary hearing on the motion before it.
12. In addition, the Court finds that if the
memorandum had impeachment value as to Rhoden, the availability of prior
consistent statements as well as the excited utterances made by Sturgis
to both Wilson, Raulerson and possibly others as well as the apparent
availability of eye-witness testimony of Hathaway would rebut the
impeachment value of the memorandum.
13. Defendant argues that pre-trial possession of the
memorandum would have altered the Defendants' joint defense strategy and
caused Defendant to use a different strategy. The Court finds this
assertion is not justified because of the substantial corroborative and
eyewitness testimony available to the state. . . . .
15. Defendant argues that the memorandum constitutes
exculpatory material subject to disclosure by the State and that he was
prejudiced by its suppression. For the reasons set forth above, the
Court finds that, assuming the memorandum was not disclosed to Defendant,
the memorandum could not reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict. See
Way v. State, No. SC78640 (Fla. April 20, 2000); Thompson v. State, Nos.
SC87481, SC88321 (Fla. April 13, 2000); State v. Riechmann, Nos.
SC98564, SC93236 (Fla. March 24, 2000).
Our review of the record shows that the trial court
properly applied the law governing this issue and properly concluded
that the record affirmatively demonstrates no entitlement to relief
whether the issue is addressed as a newly discovered evidence claim or a
Finally, Demps claims that the Sewell memorandum
proves that his death sentence is disproportionate and that the trial
court erred in ruling otherwise. We disagree. The trial court addressed
this issue and ruled as follows:
14. Defendant argues his death sentence was
disproportionate to the life sentences imposed upon the co- defendants.
The Court finds that this issue is procedurally barred. The Florida
Supreme Court determined the issue of proportionality on direct appeal,
Demps v. State, 395 So. 2d 501 (Fla. 1981), and nothing in Defendant's
alleged newly- discovered evidence calls into question the previous
determination of the relative culpability of Defendant versus his co-defendants.
A trial court's ruling on a pure question of law is
subject to de novo review.8 Our review of the record shows that the
trial court properly applied the law governing this issue. We find no
error. 7 Brady v. Maryland, 373 U.S. 83 (1963). 8 See Philip J. Padovano,
Florida Appellate Practice 147 (2nd ed. 1997).
We find Demps' remaining rule 3.850 claims and his
petition for mandamus relief to be without merit. We affirm the trial
court's order denying Demps' fourth rule 3.850 motion, and we deny the
petition for writ of mandamus.
It is so ordered.
HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE,
LEWIS and QUINCE, JJ., concur.
NO MOTION FOR REHEARING WILL BE ALLOWED.
An Appeal from the Circuit Court in and for Bradford
County, Robert Cates, Judge - Case No. 77CFA and an Original Proceeding
- Writ of Mandamus Bill Salmon and George F. Schaefer, Gainesville,
Florida, for Appellant/Petitioner Robert A. Butterworth, Attorney
General, and Curtis M. French, Assistant Attorney General, Tallahassee,
Florida, for Appellee/Respondents
Bennie Eddie Demps