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Bennie Eddie DEMPS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Prison gang
Number of victims: 3
Date of murders: 1971 - 1976
Date of birth: June 17, 1950
Victims profile: R.N. Brinkworth and Celia Puhlick / Alfred Sturgis (fellow inmate)
Method of murder: Shooting / Stabbing with knife
Location: Lake County, Florida, USA
Status: Executed by lethal injection in Florida on June 7, 2000
 
 
 
 
 

Florida Supreme Court

 
 

opinion 71363

opinion 71402

 

opinion 75944

opinion SC00-1118

 
 
 
 
 
 

Summary:

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 informants.

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 Office.

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 1972.

 
 

ProDeathPenalty.com

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.

The state 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.

A year 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 - APBNews Online

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.

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 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 said.

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 assailant."

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 do with."

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.

'Perjury Incorporated'

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.

Demps 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 prisoners."

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 hearsay.

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 killed before.

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 in 1972.

 
 

Florida Court Rejects Execution Appeal

By Robert 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. Wednesday.

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 say.

 
 

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.

At 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 pain."

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 procedure.

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 said.

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 in peace."

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 prayer.

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 clemency.

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 Death Penalty

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 killer.

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.

Demps’ attorney, George Schaefer, disputed that, saying the court had notified the warden by 5:30 p.m. Crosby refused to answer questions.

A governor’s 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.

The ex-Marine 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.

Last 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 record.

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)

 
 

JusticeDenied.org

"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 it.

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 stopped before.

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.

In 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.

I have 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 innocence.

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

Wednesday, 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.

Demps was 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 Demps' attorneys.

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 appeal.

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.

They 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 DOCUMENT

 
 

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 and sentence.

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 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 hand?
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 me."
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."
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."

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 downward thrusts. Upon seeing this, Hathaway quickly left the scene.

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,
v.
Louie L. Wainwright, Secretary, Florida Department of Corrections, and Jim Smith, Attorney General, State of Florida, Respondents-Appellees.

No. 85-3985

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.

PER CURIAM.

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.

FACTS

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.1 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,2 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. 3.850,3 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.

ISSUES

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 504.

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 omitted).

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.4 The trial court allowed petitioner to fully cross-examine Hathaway regarding any transfer in exchange for his testimony.5

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 STATE

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).6

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 disagree.

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).7 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 (1972).

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 memorandum.

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).8 We affirm the district court with respect to the claims regarding Hathaway.

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 petitioner relief.

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 Cir.1979).

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 discovered evidence;

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.9 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.10 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' killing.

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 habeas corpus.

CONCLUSION

For the foregoing reasons, the decision of the district court is AFFIRMED.

*****

1 Petitioner and his co-defendants, Mungin and Jackson, were jointly tried although each was represented by separate counsel. Petitioner's co-defendants are not the subject of this appeal

2 The record reveals Robert Zeigler was an inmate at FSP at the time of the killing

3 Fla.R.Crim.P. 3.850 provides in pertinent part as follows:

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 sentence.

4 Boykins, 737 F.2d 1539, 1544 (11th Cir.1984), the case petitioner relies on for the proposition that petitioner's trial was fundamentally unfair, is readily distinguishable. In Boykins, the trial court excluded as irrelevant a psychiatrist's testimony related to the defendant's previous history of mental illness where the defendant's sole defense was insanity

5 Although Demps relies exclusively on a due process argument, we note that limitations on cross-examination can also raise problems under the Sixth Amendment confrontation clause. See Delaware v. Van Arsdall, --- U.S. ----, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Unlike in Van Arsdall, Demps was allowed to effectively cross-examine the government's witness as to potential bias. We do not think that Demps' ability to confront the witness was prejudiced by the limitations imposed by the trial court. See id. at ----, 106 S.Ct. at 1436 (prejudice inquiry under confrontation clause focuses on the ability to effectively cross-examine the individual witness)

6 The United States Supreme Court in Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), ruled "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The Court in Giglio, 405 U.S. at 150-55, 92 S.Ct. 763, 31 L.Ed.2d 104, (1972), ruled the prosecution's failure to disclose a promise made to its key witness, that he would not be prosecuted if he testified for the government, violated the due process rights of the accused

7 In Wainwright, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held respondent, Sykes' failure to raise objections to inculpatory statements either at trial or on appeal barred federal habeas corpus review, absent a showing of cause and prejudice

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981

9 During the 3.850 hearing, the following colloquy took place between counsel for the state and Mr. Squires:

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?

Q. Yes.

A. I don't recall that.

Q. Okay.

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?

A. Yes.

Q. You do recall that, do you not?

A. Yes.

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?

Q. Yes.

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?

Q. Yes.

A. Of course, I did.

10 The ruling of the trial judge, as recorded at the 3.850 hearing, is as follows:

[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 still sustained.

 
 

874 F.2d 1385

Bennie E. Demps, Petitioner-Appellant,
v.
Richard L. Dugger, as Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 87-3767

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.1 We affirm.

I. Background

A. Facts

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.2

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.3

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).4 Thereafter, petitioner filed a motion to vacate, set aside or correct the judgment which the state trial court denied without a hearing.5 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.6 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 appeal.

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).7

In this case, the judge gave an instruction functionally identical to that given in Hitchcock.8 Hence, we assume the jury did not consider any nonstatutory mitigating evidence in making their sentencing recommendation.9 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.10 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.11 Since a harmless error does not merit reversal, we address the preliminary question of whether the alleged Hitchcock error in this case is harmless.12

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 sentence.

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 service."

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, 1970.13

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 recommend life.

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 Demps' sentence.

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 penalty.

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.14

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 to lie.

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).

IV. Conclusion

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 asserted grounds.

AFFIRMED.

*****

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 its progeny.

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, supra.

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 harmlessness.1

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.2 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 mitigating factors.

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.1 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.2

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 murder.

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.3 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.

*****

1 Demps also 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

2 Demps 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)

3 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

4 The 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 sentences

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).

5 Mr. Demps also applied for executive clemency, which was denied. On June 1, 1982, the Governor signed a death warrant

6 The 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

7 In Lockett, 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

8 The jury 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.

9 We have 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)

10 The trial 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

11 In Elledge v. Dugger, 823 F.2d 1439 (11th Cir.1987), this court held that no Hitchcock error occurred despite improper jury instructions, since the judge clearly had the proper view of the law and considered the nonstatutory mitigating circumstances in carrying out his role as primary sentencer. That portion of the opinion was later withdrawn and thus, has no precedential value. Elledge v. Dugger, 823 F.2d 1439 (1987), opinion withdrawn in part, 833 F.2d 250 (11th Cir.1988), cert. denied, --- U.S. ----, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988). However, the issue was reconsidered and determined by this court in Jones v. Dugger, 867 F.2d 1277 (11th Cir.1989). Our court in Jones v. Dugger held that where there is Lockett error in the court's instructions to the advisory jury, the sentencing judge's consideration of nonstatutory factors in reaching his sentencing decision will not render the erroneous instruction harmless. Hence, in this case, the judge's consideration of the nonstatutory mitigating evidence does not render the Lockett error harmless. Instead, we consider whether the alleged nonstatutory mitigating evidence, if considered by the jury would have affected its sentencing decision

12 Although this court has applied harmless error analysis to Hitchcock errors in prior decisions, petitioner urges us to reexamine this issue. We believe that our post-Hitchcock opinions make it clear that harmless error analysis is appropriate for a Hitchcock violation. See Knight v. Dugger, 863 F.2d 705 (11th Cir.1988); Hargrave v. Dugger, 832 F.2d 1528, 1532 (11th Cir.1987); Armstrong v. Dugger, 833 F.2d 1430, 1436 (11th Cir.1986); Magill v. Dugger, 824 F.2d 879 (11th Cir.1987); Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988)

13 In recommending a dishonorable discharge, a reviewing officer stated that "[t]he nature of his offenses indicate that he is insubordinate and has no respect for constituted authority. As is evidenced by the short time between his court-martial and his next infraction he is not amenable to rehabilitation." Appendix, Memorandum of Review, Oct. 29, 1970

14 Were we to reach the merits of the Caldwell claim, it appears the judge's and prosecutor's statements to the jury did not minimize the importance of the jury's role in sentencing. Rather, the statements are of the type we upheld in Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988). The statements merely explained to the jury the respective functions of the judge and jury

*****

1 The "record" to which the majority refers is woefully incomplete. For example, although some documents indicate that Demps had a less than distinguished service record, other partial records before us indicate that Demps may have suffered a racially motivated beating while in the military, and may have been railroaded into accepting his discharge. In addition, the majority, based on records of Demps' criminal history, confidently finds that it was appropriate for Demps to have received a penalty greater than that of his co-perpetrators. However, the criminal histories of his co-perpetrators are not part of the record. When a life hangs in the balance, the need for a fully developed record is imperative

2 Such evidence is considered to be mitigating at the penalty phase of a capital case. See Masterson v. State, 516 So.2d 256, 258 (Fla.1987) (vacating death sentence imposed by judge who failed to find defendant's military record and history of drug abuse to be mitigating); Skipper, 476 U.S. at 8, 106 S.Ct. at 1673 (vacating death sentence where testimony of defendant's good adjustment to prison was excluded); Hargrave v. Dugger, 832 F.2d 1528, 1534 (11th Cir.1987) (finding history of drug abuse to be a mitigating factor); Brookings v. State, 495 So.2d 135, 143 (Fla.1986) (vacating death sentence imposed by judge over jury's recommendation of life imprisonment where co-perpetrators received lesser punishment)

1 At trial, defense counsel and the trial judge agreed that the statutory list of mitigating circumstances was not exclusive. Transcript, Vol. V, at 995-96

2 It appears that the basis for counsel's argument that Demps was wounded in combat came from Demps' initial medical classification at Florida State Prison. Those records stated that Demps had a bullet wound in the leg from the service

3 Additionally, if the Hitchcock claim is premised on the fact that counsel believed himself limited to statutory mitigating evidence, petitioner will append affidavits, psychiatric or psychological reports, and school or medical records to illustrate the evidence that was not presented

 
 

761 So. 2d 302

Bennie Demps, Appellant,
vs.
State of Florida, Appellee.

Bennie Demps, Petitioner,
vs.
Jeb Bush, etc., et al., Respondents,

Nos. SC00-1118 & SC00-1179

Florida Supreme Court

June 5, 2000

CORRECTED OPINION

PER CURIAM.

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 downward thrusts.

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 full:

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 153.

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. 1991)).

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 Brady7 claim.

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.

Two Cases:

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

 

 

 
 
 
 
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