Pittman v. Secretary, Department of Corrections et al
Filing
30
ORDER that Pittman's petition is denied. The Clerk is directed to enter judgment against Pittman and to close this case. COA and IFP on appeal denied. Signed by Judge Elizabeth A. Kovachevich on 2/20/2015. (SM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID JOSEPH PITTMAN,
Petitioner,
v.
Case No. 8:12-cv-1600-T-17EAJ
DEATH PETITION
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
ORDER
This cause is before the Court on Petitioner David Joseph Pittman’s timely-filed 28
U.S.C. § 2254 petition for writ of habeas corpus. Pittman is proceeding on his amended
petition and amended memorandum of law. (Docs. 14 and 15). Pittman is a Florida
prisoner under penalty of death.
For the reasons set out below, Pittman’s petition will be denied.
BACKGROUND
Pittman is in the lawful custody of the State of Florida, Department of Corrections.
Pittman was charged in a seven count Indictment with the first degree murders of Bonnie
Knowles, Barbara Knowles, and Clarence Knowles; Pittman was also charged with two
counts of arson, with burglary, and with grand theft. (A24/4636-4640). On April 19, 1991,
Pittman’s jury trial resulted in guilty verdicts on six of the seven counts – three counts of
first degree murder, the two counts of arson, and the one count of grand theft. (A26/5108-
5114). Following the penalty phase, the jury returned death recommendations by a vote of
9-3. On direct appeal, the Florida Supreme Court affirmed Pittman’s multiple convictions
and sentences. Pittman v. State, 646 So. 2d 167 (Fla. 1994).
PROCEDURAL HISTORY
The Trial, Penalty Phase and Sentencing
The facts adduced at trial are summarized in the Florida Supreme Court’s opinion
on direct appeal, Pittman v. State, 646 So. 2d 167 (Fla. 1994), as follows:
The record reflects that, shortly after 3 a.m. on May 15, 1990, a
newspaper deliveryman in Mulberry, Florida, reported to law enforcement
authorities that he had just seen a burst of flame on the horizon. When the
authorities investigated they found the home of Clarence and Barbara
Knowles fully engulfed in fire. After the fire was extinguished, the police
entered the house and discovered the bodies of Clarence and Barbara, as
well as the body of their twenty-year-old daughter, Bonnie. Although all of the
bodies were burned in the fire, a medical examiner determined that the cause
of death in each instance was massive bleeding from multiple stab wounds.
In addition, the medical examiner testified that Bonnie Knowles’ throat had
been cut. A subsequent investigation revealed that the fire was the result of
arson, that the phone line to the house had been cut, and that Bonnie
Knowles’ brown Toyota was missing.
A construction worker testified that, when he arrived at work at 6:30
a.m. on the morning of the fire, he noticed a brown Toyota in a ditch on the
side of the road near his job site. Other testimony revealed that the location
of the Toyota was about one-half mile from the Knowles residence. The
worker also observed a homemade wrecker, which he later identified as
belonging to Pittman, pull up to the Toyota and, shortly thereafter, saw a
cloud of smoke coming from that direction. Another witness who lived near
the construction site also saw the smoke and observed a man running away
from a burning car. This witness later identified Pittman from a photo-pack as
the man she saw that morning. Investigators determined that the car fire, like
the earlier house fire, was the work of an arsonist.
At the time of the murders, another of the Knowles’ daughters, Marie,
was in the process of divorcing Pittman. The divorce was not amicable and
the State introduced testimony that Pittman had made several threats against
Marie and her family. The State also produced evidence that Pittman had
recently learned that Bonnie Knowles had tried to press criminal charges
2
against him for an alleged rape that had occurred five years earlier.
Carl Hughes, a jailhouse informant, testified that Pittman told him that
he had gone to the Knowles’ house on the evening of the murders to speak
with Bonnie Knowles about the problems he was having with her family.
Bonnie let Pittman in the house and, when she refused his sexual advances,
he killed her to stop her cries for help. Pittman then admitted to killing
Barbara Knowles in the hallway outside Bonnie’s bedroom and to killing
Clarence in the living room as Clarence tried to use the phone. Pittman also
told Hughes that he burned the house, stole the Toyota and abandoned it on
the side of the road, and later returned to the Toyota and burned it as well.
The record further reflects that Pittman feared that the police
suspected his involvement in the murders, and, at the prompting of his
mother, Pittman turned himself in to the police on the day after the murders.
In response to the prosecution’s case, the defense presented
testimony critical of the police investigation and attempted to establish that
Marie, Pittman’s former wife, and her new husband had a motive to commit
the murders. Pittman testified in his own defense and stated that he had
nothing to do with the crimes charged. He also denied that he had told
anyone he had committed the murders. The jury found Pittman guilty of three
counts of first-degree murder, two counts of arson, and one count of grand
theft, and found him not guilty of burglary.
In the penalty phase, the State established that Pittman was convicted
of aggravated assault in 1985. In mitigation, Pittman presented the testimony
of his mother that he was a difficult child to deal with and that she had
disciplined him severely. A clinical psychologist testified that Pittman’s father
was a paranoid schizophrenic; that as a child Pittman suffered from a severe
attention deficit disorder with hyperactivity; and that Pittman has organic
personality syndrome, which causes paranoia and an unstable mood. After
hearing this testimony, the jury recommended the death penalty for each
murder conviction by a vote of 9 to 3. In his sentencing order, the judge found
two aggravating circumstances for each murder: (1) previous conviction of
another capital or violent felony, and (2) the murders were heinous,
atrocious, or cruel.[FN1] The judge then expressly rejected the mitigating
factors of Pittman’s being under the influence of extreme mental and
emotional disturbance and concluded that the aggravating factors
outweighed the proven mitigating factors. The judge imposed the death
penalty for each murder. [FN2] Pittman has raised ten issues in his appeal
to this Court, three of which are directed to the guilt phase of the trial.[FN3]
[FN1] The sentencing order states:
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I. AGGRAVATING CIRCUMSTANCES
1. As an aggravating circumstance, the Defendant,
David Joseph Pittman, was proven beyond and to the
exclusion of every reasonable doubt to have a previous
conviction of a felony involving the use or threat of violence; to
wit: Aggravated Assault. (Case No. CF85–3584A1Sentenced
on March 12, 1986.)
2. As an aggravating circumstance, the Defendant,
David Joseph Pittman, was proven beyond and to the
exclusion of every reasonable doubt to have committed two
previous capital felonies as to each of the three murders for
which he has been found guilty; to wit: the murders of Bonnie
Knowles and Barbara Knowles as to the murder of Clarence
Knowles; the murders of Barbara Knowles and Clarence
Knowles as to the murder of Bonnie Knowles; the murders of
Clarence Knowles and Bonnie Knowles as to the murder of
Barbara Knowles.
3. As an aggravating circumstance, the commission of
the First Degree Murder of Bonnie Knowles was especially
heinous, atrocious or cruel.
By testimony and evidence in the record the court finds that the
State proved beyond and to the exclusion of all reasonable
doubt that Bonnie Knowles experienced conscious pain and
suffering before death as a result of the Defendant cutting and
stabbing Bonnie Knowles numerous times with a knife or
similar object.
4. As an aggravating circumstance, the commission of
the First Degree Murder of Barbara Knowles was especially
heinous, atrocious or cruel.
By the testimony and evidence in the record the Court finds
that the State proved beyond and to the exclusion of every
reasonable doubt that Barbara Knowles [a] experienced predeath apprehension of physical pain; [b] experienced
conscious pain and suffering before death as a result of the
Defendant stabbing Barbara Knowles numerous times with a
knife or similar object; and [c] that she experienced
apprehension of impending death even absent physical pain.
5. As an aggravating circumstance, the commission of
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First Degree Murder of Clarence Knowles was especially
heinous, atrocious or cruel.
By testimony and evidence in the record the Court finds that
the State proved beyond and to the exclusion of every
reasonable doubt that Clarence Knowles [a] experienced predeath apprehension of physical pain; [b] experienced
apprehension of death even absent physical pain; and [c]
experienced conscious pain and suffering before death as a
result of the Defendant stabbing Clarence Knowles numerous
times with a knife or similar object.
THE COURT concludes from these facts that David Joseph
Pittman’s actions in murdering each of the three individuals
was especially heinous, meaning extremely wicked or
shockingly evil; was especially atrocious, meaning
outrageously wicked or vile; and was especially cruel, meaning
designed to inflict a high degree of pain with utter indifference
to, or even with enjoyment of, the suffering of others.
[FN2] The sentencing order states:
II. MITIGATING CIRCUMSTANCES
As to mitigating circumstances, the Court finds the following:
1. That the three First Degree Murders for which the Defendant
is to be sentenced were not committed while the Defendant
was under the influence of extreme mental or emotional
disturbances, nor were they mitigated by the use of alcohol as
suggested. To the contrary, the Court finds the Defendant [a]
arranged the visit to his father’s house on the eve of the
murders, the first time in months that he had been to his
father’s house; [b] that he left the house by an outside door
from a locked room; [c] walked the short distance in the early
morning hours to the victim’s home; and [d] there cut the
telephone lines to the outside of the house.
The Defendant upon entering the victim’s home, systematically
killed all the occupants of the house using a weapon that
assured the least possibility of drawing the attention of
witnesses. He then proceeded in a knowledgeable way to pour
gasoline about the house and out into the yard. Testimony at
the trial revealed that he understood the use of fire to destroy
evidence. Before setting the fire, however, he secured the keys
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to Bonnie Knowles’ car for the purpose of his getaway.
The Defendant’s actions and all other evidentiary
circumstances considered show a direct conscious plan to kill
and avoid apprehension. These actions do not indicate a
person functioning under the influence of extreme mental or
emotional disturbances. In regard to the influence of alcohol,
other than the expert’s opinion, the record does not reflect it to
have been a factor in the commission of the murders.
2. Except for the solicited opinions of the Defendant’s expert
that the Defendant’s capacity to conform his conduct to the
requirements of the law was substantially impaired, this
mitigating circumstance is unsupported by any other evidence
in the record.
To the contrary, these facts reveal that all the actions by the
Defendant leading up to the killings, the nature of the killings
themselves, the methodical steps taken to destroy evidence,
to effectuate a getaway, and to establish an alibi were the
product of deliberate thought. These actions clearly show that
the Defendant knew what he was doing and that it was
unlawful. Again the presence of alcohol as a mitigating factor
is unsupported by the record except for the expert’s opinion.
THE COURT finds there is nothing in the record to
demonstrate that the Defendant could not conform his conduct
to the requirements of law.
3. The expert has offered an opinion as a mitigating
circumstance that the Defendant suffers brain damage. Other
than this opinion there exists no corroborating evidence to
suggest the presence of this damage or its degree, nor its
actual relationship to the murders.
4. Additional mitigating circumstances offered in evidence are
that the Defendant was and may still be a hyperactive
personality, and that he may have suffered physical and sexual
abuse as a child. Also the expert testified that the Defendant
was an impulsive person with memory problems and impaired
social judgment.
Taking all these mitigating circumstances in a light most
favorable to the Defendant, the Court finds they have little if
any connection to the murders. The record speaks clearly of an
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individual who went about the killings and the destruction of
evidence in a deliberate, methodical and efficient manner to
such an extent that detection was nearly avoided. But for a
lady picking roses early one morning who happened to see the
Defendant running from Bonnie Knowles’ burning car, the case
might not have been successfully prosecuted.
While addressing meaningful facts, the record reflects another
that enlightens upon the issues of the Defendant’s intentions
and his capacity to understand what he was doing was
unlawful. That fact was the Defendant’s cutting of the
telephone lines. This was admitted by the Defendant to witness
Hughes as being done before the Defendant entered the home
of the victims.
THE COURT, therefore, finds the aggravating circumstances
established by the proper burden of proof to substantially
outweigh all mitigating circumstances reflected in the record.
[FN3] The issues are as follows: (1) whether the trial court
erred in allowing evidence of collateral crimes and bad acts; (2)
whether the trial court erred in admitting identification
testimony; (3) whether the trial court erred in excluding hearsay
statements of a third party’s alleged confession; (4) whether
the trial court failed to hold a presentencing hearing; (5)
whether the trial court rendered a legally insufficient sentencing
order; (6) whether the heinous, atrocious or cruel aggravating
circumstance is unconstitutionally vague; (7) whether the trial
court erred in instructing the jury on the heinous, atrocious or
cruel aggravating circumstance; (8) whether the trial court
erred in failing to find the two statutory mental mitigating
circumstances; (9) whether the trial court erred in failing to find
nonstatutory mitigating circumstances; (10) whether the death
penalty is disproportionate in this case.
Pittman, 646 So. 2d at 168-70.
Direct Appeal:
Petitioner raised ten issues in his initial brief on direct appeal in Pittman v. State,
FSC Case No. SC78605 (Pittman v. State, 646 So. 2d 167 (Fla. 1994)):
ISSUE I: THE TRIAL COURT ERRED BY ALLOWING THE
STATE TO INTRODUCE A MYRIAD OF EVIDENCE OF
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COLLATERAL CRIMES AND BAD ACTS BECAUSE THE
EVIDENCE WAS IRRELEVANT, EXTREMELY PREJUDICIAL
AND BECAME A FEATURE OF THE TRIAL.
ISSUE II: THE TRIAL COURT ERRED BY FAILING TO
GRANT DEFENSE MOTIONS TO SUPPRESS THE STATE’S
IDENTIFICATION EVIDENCE BECAUSE OF THE UNDULY
SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES.
ISSUE III: THE TRIAL COURT ERRED BY EXCLUDING THE
TESTIMONY OF GEORGE HODGES THAT HIS STEPSON
CONFESSED TO THE CRIME FOR WHICH PITTMAN WAS
ON TRIAL, AND RELATED EVIDENCE, OR,
ALTERNATIVELY, GRANTING A CONTINUANCE FOR
FURTHER INVESTIGATION, THUS PRECLUDING THE
DEFENSE THAT SOMEONE ELSE COMMITTED THE
CRIME.
ISSUE IV: THE TRIAL COURT FAILED TO HOLD A
PRESENTENCING HEARING TO CONSIDER EVIDENCE,
ARGUMENTS OF COUNSEL, AND PITTMAN’S OWN
STATEMENT, PRIOR TO SENTENCING HIM TO DEATH.
ISSUE V: THE TRIAL JUDGE RENDERED A LEGALLY
INSUFFICIENT SENTENCING ORDER IMPOSING THREE
DEATH SENTENCES.
ISSUE VI: PITTMAN’S DEATH SENTENCE VIOLATES THE
EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE THE
HEINOUS, ATROCIOUS OR CRUEL AGGRAVATING
CIRCUMSTANCE IS VAGUE, ARBITRARILY AND
CAPRICIOUSLY APPLIED, AND DOES NOT GENUINELY
NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE
DEATH PENALTY.
ISSUE VII: THE TRIAL COURT ERRED BY INSTRUCTING
THE JURY ON AND FINDING THE AGGRAVATING
CIRCUMSTANCE THAT THE CAPITAL FELONY WAS
ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL.
ISSUE VIII: THE TRIAL COURT ERRED BY FAILING TO
FIND AND WEIGH THE TWO STATUTORY MENTAL
MITIGATING CIRCUMSTANCES ESTABLISHED BY THE
EVIDENCE.
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ISSUE IX: THE TRIAL COURT ERRED BY FAILING TO FIND
UNREBUTTED NONSTATUTORY MITIGATION WHICH WAS
CLEARLY ESTABLISHED BY THE EVIDENCE.
ISSUE X: THE DEATH PENALTY IS DISPROPORTIONATE
BECAUSE OF THE SUBSTANTIAL MITIGATION IN THIS
CASE.
(A32).
On September 29, 1994, the Florida Supreme Court affirmed Pittman’s convictions
and death sentences and rehearing was denied December 19, 1994. Pittman v. State, 646
So. 2d 167 (Fla. 1994) (A35; A37). The mandate issued on January 23, 1995. (A38).
Pittman filed a petition for Writ of Certiorari in the United States Supreme Court on March
20, 1995 (B1), which was denied on May 15, 1994. Pittman v. Florida, 514 U.S. 1119, 115
S. Ct. 1982 (1995). (B3).
State Postconviction Proceedings:
Pittman filed his initial Rule 3.850 motion to vacate on March 24, 1997. (D4/553592). The motion was amended several times. A [second] Huff hearing/case management
conference was held on January 20, 2006, before a successor judge, the Honorable
Harvey Kornstein. (D22/3353-3406). The postconviction court granted an evidentiary
hearing on the following claims: #1 [Brady/Giglio & “Newly Discovered” Evidence]; #2
[Brady/Giglio/IAC-Guilt Phase]; #3 [IAC-Guilt Phase]; and #7 [IAC-Penalty/Sentencing].
(D22/3408-3409). Evidentiary hearings were conducted May 8-11, 2006, on claims #1, #2,
#3, and #7. The trial court also conducted evidentiary hearings on two additional subclaims.1 On November 5, 2007, the trial court entered a 113-page written order denying
1
1 On February 15, 2007, a limited evidentiary hearing was held on the
prosecutor’s handwritten notes of his pre-trial interview with Barbara Marie Pridgen [Marie],
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postconviction relief. (D34/5313-5425).
Pittman appealed the order denying postconviction relief to the Florida Supreme
Court. In Pittman v. State, FSC Case No. SC08-146 (Pittman v. State, 90 So. 3d 794 (Fla.
2011)), Petitioner raised the following two issues and sub-claims:
ARGUMENT I: MR. PITTMAN WAS DEPRIVED OF HIS RIGHTS TO DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT, AS WELL AS HIS
RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS,
BECAUSE EITHER THE STATE WITHHELD EVIDENCE WHICH WAS
MATERIAL AND EXCULPATORY IN NATURE AND/OR PRESENTED
MISLEADING AND FALSE EVIDENCE AND/OR DEFENSE COUNSEL
UNREASONABLY FAILED TO DISCOVER AND PRESENT EXCULPATORY
EVIDENCE, AND/OR THE FAVORABLE EVIDENCE CONSTITUTES
NEWLY DISCOVERED EVIDENCE OF INNOCENCE, ALL OF WHICH
WHEN CONSIDERED CUMULATIVELY AS REQUIRED UNDERMINES
CONFIDENCE IN THE RELIABILITY OF THE TRIAL CONDUCTED
WITHOUT THE EVIDENCE PRESENTED.
ARGUMENT II: MR. PITTMAN RECEIVED A CONSTITUTIONALLY
DEFICIENT ADVERSARIAL TESTING DURING THE PENALTY PHASE
BECAUSE EITHER THE STATE WITHHELD FAVORABLE INFORMATION
AND/OR MR. PITTMAN RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL AND/OR NEWLY DISCOVERED EVIDENCE SHOWS THAT
THE DEATH SENTENCE SHOULD BE VACATED.
(D 47).
Simultaneously with his initial postconviction brief, Pittman filed a Petition for Writ
of Habeas Corpus in the Florida Supreme Court, Case No. SC08-2486, and raised the
Pittman’s ex-wife. (D29/4528-4597, D30/4598-4647). On March 8, 2007, Pittman filed an
Amendment to Second Amended Motion to Vacate, alleging a lethal injection claim based
on the December, 2006 execution of Angel Diaz. (D30/4695-4716). A case management
hearing was held on April 23, 2007; and the trial court summarily denied this claim in its
final order of November 5, 2007. (D34/5313-5425). On June 1, 2007, Pittman filed a
Second Amendment to Second Amended Motion to Vacate, this time seeking to add a
hearsay witness, Chastity Eagan, as alleged “newly discovered” evidence. (D32/49394947). An evidentiary hearing was held on July 27, 2007, concerning this witness.
(D32/4982-5055).
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following six claims:
CLAIM I: APPELLATE COUNSEL FAILED TO RAISE ON APPEAL
NUMEROUS MERITORIOUS ISSUES WHICH WARRANT REVERSAL OF
MR. PITTMAN’S CONVICTION AND SENTENCE OF DEATH.
CLAIM II: UNDER THE DUE PROCESS CLAUSE, THIS COURT ERRED IN
AFFIRMING MR. PITTMAN’S CONVICTION WHEN EVIDENCE THAT A
THIRD PARTY HAD CONFESSED TO THE MURDER WAS EXCLUDED
FROM HIS TRIAL. TO THE EXTENT THAT APPELLATE COUNSEL
INADEQUATELY RAISED OR BRIEF THE ISSUE, HIS PERFORMANCE
WAS INEFFECTIVE OF APPELLATE COUNSEL.
CLAIM III: DURING THE DIRECT APPEAL, THE STATE OF FLORIDA
FAILED TO DISCLOSE PERTINENT FACTS WHICH WERE NECESSARY
TO THIS COURT’S CONSIDERATION OF THE ISSUES RAISED BY MR.
PITTMAN, AND AS A RESULT, THE DIRECT APPEAL DID NOT
COMPORT WITH THE SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS.
CLAIM IV: MR. PITTMAN’S DEATH SENTENCE IS PREDICATED ON AN
AUTOMATIC AGGRAVATING CIRCUMSTANCE, CONTRARY TO THE
EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE
FLORIDA CONSTITUTION. APPELLATE COUNSEL RENDERED
INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE THIS ISSUE OF
FUNDAMENTAL ERROR.
CLAIM V: MR. PITTMAN WAS DENIED A FAIR TRIAL AND A FAIR,
RELIABLE AND INDIVIDUALIZED CAPITAL SENTENCING
DETERMINATION IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND THE CORRESPONDING PROVISIONS OF THE FLORIDA
CONSTITUTION, BECAUSE THE PROSECUTOR’S ARGUMENTS AT THE
PENALTY PHASE PRESENTED IMPERMISSIBLE CONSIDERATIONS TO
THE JURY, INCLUDING NON-STATUTORY AGGRAVATING FACTORS,
MISSTATEMENTS OF THE LAW AND FACTS AND THEY WERE
INFLAMMATORY AND IMPROPER. APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THESE ERRORS ON APPEAL.
CLAIM VI: MR. PITTMAN’S SENTENCING JURY WAS MISLED BY
COMMENTS, QUESTIONS, AND INSTRUCTIONS THAT
UNCONSTITUTIONALLY AND INACCURATELY DILUTED THE JURY’S
SENSE OF RESPONSIBILITY TOWARDS SENTENCING IN VIOLATION
OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED
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STATES CONSTITUTION. APPELLATE COUNSEL WAS INEFFECTIVE
FOR FAILING TO RAISE THIS ISSUE OF FUNDAMENTAL ERROR.
(D 50).
On June 30, 2011, the Florida Supreme Court affirmed the denial of postconviction
relief and denied Pittman’s state habeas petition. Pittman v. State, 90 So. 3d 794 (Fla.
2011). (D53). Pittman’s motion for rehearing was denied June 7, 2012, and the mandate
issued June 25, 2012. (D55; D56). Pittman did not petition the United States Supreme
Court for a writ of certiorari.
Federal Habeas Proceedings
On July 19, 2012, Pittman filed a 28 U.S.C. § 2254 Petition for Writ of Habeas
Corpus and a Memorandum of Law in this Court (Docs. 1 and 2), which were amended on
August 31, 2012. (Docs. 14 and 15). Pittman is proceeding on the amended petition
(hereinafter “Petition” or “petition”).
STANDARDS OF REVIEW
In Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), the United States Supreme
Court reiterated the following standards of review under 28 U.S.C. § 2254:
As amended by AEDPA, 28 U.S.C. §2254 sets several limits on the
power of a federal court to grant an application for a writ of habeas corpus on
behalf of a state prisoner. Section 2254(a) permits a federal court to entertain
only those applications alleging that a person is in state custody “in violation
of the Constitution or laws or treaties of the United States.” Sections 2254(b)
and (c) provide that a federal court may not grant such applications unless,
with certain exceptions, the applicant has exhausted state remedies.
If an application includes a claim that has been “adjudicated on the
merits in State court proceedings,” §2254(d), an additional restriction applies.
Under § 2254(d), that application “shall not be granted with respect to [such
a] claim... unless the adjudication of the claim”:
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
12
determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.”
This is a “difficult to meet,” Harrington v. Richter, 562 U.S. ––––, ––––,
131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011), and “highly deferential standard
for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123
S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)(citation and internal
quotation marks omitted). The petitioner carries the burden of proof. Id., at
25, 123 S.Ct. 357.
Cullen v. Pinholster, 131 S. Ct. 1388, 1398.
AEDPA altered the federal court’s role in reviewing state prisoner applications in
order to “prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct.
1843 (2002). In addition to the foregoing, the following principles apply.
A. Federal Question
A federal court may only entertain an application for a writ of habeas corpus from
a state prisoner who claims his custody violates the “Constitution or the laws or treaties of
the United States.” 28 U.S.C. § 2254(a). Questions of state law are generally insufficient
to warrant review or relief by a federal court under § 2254. Estelle v. McGuire, 502 U.S. 62,
68, 112 S. Ct. 475 (1991); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983);
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000). A violation of a state rule of
procedure, or of state law itself, is not a violation of the federal constitution. Branan v.
Booth, 861 F.2d 1507, 1508 (11th Cir. 1989).
B. Deference to State Court Decisions
On habeas review, the state court’s application of the facts to the law may not be
13
overturned unless it contradicts a decision of the United States Supreme Court or involves
an unreasonable factual finding. 28 U.S.C. § 2254(d). These provisions bar de novo review
in federal court. A decision of a state court is only “contrary to” clearly established Supreme
Court precedent if a state court has applied the wrong legal standard or has applied the
right legal standard but reached a different conclusion than the United States Supreme
Court did on materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 41213, 120 S. Ct. 1495, 1522 (2000). In order for the state court’s determination of the merits
of the claim to be unreasonable, it must be objectively unreasonable. “The question under
AEDPA is not whether a federal court believes the state court’s determination was correct
but whether that determination was unreasonable - a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007).
The ‘clearly established law’ requirement of § 2254(d)(1) does not include the law
of the lower federal courts.” Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008).
Therefore, circuit court precedent cannot form the basis for habeas relief under AEDPA.
Evans v. Sec’y, Fla. Dept. of Corr., 2012 WL 5200326 (11th Cir. 2012), citing Parker v.
Matthews, ––– U.S. ––––, 132 S. Ct. 2148, 2155 (2012) (citation omitted); Carey v.
Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654 (2006). Furthermore, the “only Supreme
Court decisions against which a state court decision is to be measured are those on the
books at the time the state court decision was issued.” Evans, 2012 WL 5200326, citing
Greene v. Fisher, ––– U.S. ––––, 132 S. Ct. 38, 45 (2011); Cullen v. Pinholster, ––– U.S.
––––, 131 S. Ct. 1388, 1399 (2011).
The state courts’ factual findings are subject to a presumption of correctness under
28 U.S.C. §2254(e)(1). The state court’s factual conclusions must be accepted by the
14
federal courts on habeas review, unless the petitioner demonstrates by clear and
convincing evidence that they are incorrect. “The question whether a state court errs in
determining the facts is a different question from whether it errs in applying the law.” Reese
v. Sec’y, Fla. Dept. of Corr., 675 F.3d 1277, 1287 (11th Cir. 2012), citing Rice v. Collins,
546 U.S. 333, 342, 126 S. Ct. 969, 976 (2006). But the standard of review is again
deferential. In a habeas proceeding, the federal court’s “review of findings of fact by the
state court is even more deferential than under a clearly erroneous standard of review.”
Reese, 675 F.3d at 1287, citing Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).
Brecht v. Abrahamson
In Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993), the Supreme Court
set forth the standard for relief where error is determined, on habeas review, to exist. This
test is “less onerous” then the harmless error standard enunciated in Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967). “The test is whether the error ‘had substantial
and injurious effect or influence in determining the jury’s verdict.’ Under this standard,
habeas petitioners may obtain plenary review of their constitutional claims, but they are not
entitled to habeas relief based on trial error unless they can establish that it resulted in
‘actual prejudice.’” 507 U.S. at 637, 113 S. Ct. at 1722. This standard applies and does so
even if the state court did not find error. Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321 (2007).
C. Ineffective Assistance of Counsel
For an ineffectiveness of counsel claim, the “clearly established” standard is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, “[a]
convicted defendant making a claim of ineffective assistance of counsel must identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable
15
professional judgment.” 466 U.S. at 690, 104 S. Ct. at 2066. Counsel “is strongly presumed
to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id.
The “Federal Constitution imposes one general requirement: that counsel make
objectively reasonable choices.” Bobby v. Van Hook, 558 U.S. 4, 130 S. Ct. 13, 17 (2009)
(internal quotations and citations omitted). Petitioner bears the heavy burden to “prove, by
a preponderance of the evidence, that counsel’s performance was unreasonable.” Jones
v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006), cert. denied sub nom., Jones v. Allen,
549 U.S. 1030, 127 S. Ct. 619 (2006). And, a court must “judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct,” Roe v. Flores–Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029 (2000) (quoting
Strickland, 466 U.S. at 690).
Even if deficient performance is demonstrated, a petitioner must also show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068. It must be
“reasonably likely” the result would have been different; “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington, 131 S. Ct. at 793 (citations omitted).
The failure to demonstrate either prong of Strickland is dispositive of the claim against the
petitioner. 466 U.S. at 697.
This Court does not apply Strickland de novo, but rather through the additional layer
of AEDPA deference. 28 U.S.C. § 2254(d)(1). As the Supreme Court has noted, “[t]he
standards created by Strickland and § 2254(d) are both highly deferential, and when the
16
two apply in tandem, review is doubly so.” Harrington, 131 S. Ct. at 788 (internal quotation
marks and citations omitted). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard. Harrington, 131 S. Ct. at
788.
For the following reasons, Pittman has not established that the state court’s decision
was either “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. §
2254(d)(1), or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d)(2).
DISCUSSION
GROUND I
MR. PITTMAN WAS DEPRIVED OF HIS RIGHTS TO DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT, AS
WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS, BECAUSE THE
STATE
WITHHELD EVIDENCE WHICH WAS MATERIAL AND
EXCULPATORY IN NATURE AND/OR PRESENTED FALSE
AND MISLEADING EVIDENCE.
THE BRADY/GIGLIO CLAIMS
Pittman asserts a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)
and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). (Petition, Doc. 14 at 6-39;
Memorandum, Doc. 15 at 2-21). Pittman raised his Brady and Giglio claims in his state
postconviction motion and they were denied after an evidentiary hearing. Petitioner then
17
raised the Brady and Giglio claims on postconviction appeal.2 See, Initial Brief, Case No.
SC08-146, Argument I (D47/57-97). The Florida Supreme Court affirmed the denial of
postconviction relief in Pittman v. State, 90 So. 3d 794, 804 (Fla. 2011).
This Court’s review of the state court’s decision is limited by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). See, 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S.
362, 402-03, 120 S. Ct. 1495 (2000). Under AEDPA, when the state court has adjudicated
the petitioner's claim on the merits, a federal court may not grant habeas relief unless the
state court's decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” id. § 2254(d)(2). A state court's
factual findings are presumed correct unless rebutted by clear and convincing evidence.
Id. § 2254(e). “Implicit findings of fact are entitled to deference under § 2254(d) to the same
2
On postconviction appeal, Pittman v. State, 90 So. 3d 794, 804, fn. 8 (Fla. 2011),
the Florida Supreme Court noted that Pittman raised nine guilt phase issues and three
penalty phase issues on postconviction appeal. The Florida Supreme Court stated,
“Pittman raises the following guilt phase claims in his present appeal: (1) whether the
postconviction court erred in denying his claim under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L.Ed.2d 215 (1963), with respect to inmate Carl Hughes; (2) whether the
postconviction court erred in denying his Brady claim with respect to inmate David Pounds;
(3) whether the postconviction court erred in denying his Brady claim with respect to the
handwritten notes of other witness interviews; (4) whether the postconviction court erred
in denying his Brady claim with respect to Dennis Waters’ identification of the wrecker; (5)
whether the postconviction court erred in denying his Brady claim with respect to the letter
concerning William Smith; (6) whether the postconviction court erred in denying relief based
on the cumulative effect of all the withheld and newly discovered evidence; (7) whether the
postconviction court erred in denying his Giglio v. United States, 405 U.S. 150, 92 S. Ct.
763, 31 L.Ed.2d 104 (1972) claim; (8) whether the postconviction court erred in denying his
ineffective assistance of counsel claim; and (9) whether the postconviction court erred in
denying his newly discovered evidence claim.
18
extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir.
2008).
In Ponticelli v. Sec’y, Fla. Dept. of Corr., 690 F.3d 1271, 1292-1293 (11th Cir. 2012),
the Eleventh Circuit recently reiterated:
To obtain relief on his Brady claim, [Petitioner] had to “establish (1) the
government possessed evidence favorable to him; (2) the defendant did not
possess the evidence and could not have obtained it with reasonable
diligence; (3) the government suppressed the favorable evidence; and (4) the
evidence was material.” Lamarca v. Sec’y, Dep’t of Corr., 568 F.3d 929, 941
(11th Cir.2009) (internal quotation marks omitted). “Evidence would be
‘material’ if it is reasonably probable that a different outcome would have
resulted if the government had disclosed the evidence. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Ferguson v. Sec’y for the Dep’t of Corr., 580 F.3d 1183, 1205–06 (11th Cir.
2009)(some internal quotation marks and citation omitted).
The Florida Supreme Court addressed Petitioner’s Brady claims at length and
affirmed the trial court’s denial of relief on Pittman’s Brady claims as follows:
A. Brady Claim Concerning Carl Hughes
In this claim, Pittman asserts that the postconviction court erred in
denying his Brady claim with respect to inmate Carl Hughes. The United
States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), held that a prosecutor must disclose material information
that is favorable to the defense. To establish a Brady violation, a defendant
must show the following: (1) the State suppressed evidence, either
exculpatory or impeaching, that was favorable to the defense; (2) the State
did so either willfully or inadvertently; and (3) the defendant was prejudiced.
Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286
(1999). To satisfy the prejudice prong, the defendant must demonstrate a
reasonable probability that had the suppressed evidence been disclosed the
jury would have reached a different verdict. Id. A reasonable probability is a
probability sufficient “to undermine confidence in the verdict.” Id. at 290, 119
S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995)). A court’s decision with respect to a Brady claim is a
mixed question of law and fact, and a reviewing court will defer to the lower
court’s factual findings if they are supported by competent, substantial
evidence, but will review the court’s application of law to facts de novo,
Mordenti v. State, 894 So.2d 161, 168 (Fla. 2004); Way v. State, 760 So.2d
19
903, 913 (Fla. 2000), and the reviewing court will review the cumulative effect
of the suppressed evidence de novo. Mordenti, 894 So.2d at 168.
In this claim, Pittman asserts that the State failed to disclose certain
evidence with respect to inmate Carl Hughes, including the following: (1)
certain facts concerning Hughes’ ex-wife, Kathleen Anders; (2) Assistant
State Attorney (ASA) Pickard’s letter dated October 11, 1990, to Detective
Cosper; (3) Cosper’s handwritten notes of a July 6, 1990, interview with
Hughes; and (4) Hughes’ presentence investigation report. Pittman asserts
that the postconviction court erred in denying relief on this claim. This issue
was addressed at length at the evidentiary hearing below, and the
postconviction court ruled as follows:
The Defendant that Carl Hughes, who testified against
Mr. Pittman at the trial, was placed with Mr. Pittman so that he
could assist the State. The defense argues that Mr. Hughes
acted as a State agent and that the State’s action in placing
Mr. Hughes with Mr. Pittman violated Mr. Pittman’s Sixth
Amendment rights. The Defendant alleges that the State
withheld favorable evidence concerning Carl Hughes a witness
for the State at the Defendant’s trial. Mr. Hughes testified at
trial that the Defendant had confessed to the murders he was
charged with. Mr. Hughes’s ex-wife, Kathleen Anders, was
called by the defense as a witness at the evidentiary hearing.
Ms. Anders testified that Mr. Hughes asked her for money
when he was incarcerated at the Polk County Jail and became
angry with her when she said she didn’t have the money. Ms.
Anders testified that Mr. Hughes told her he was trying to keep
her from being arrested, and he had been asked by the Florida
Department of Law Enforcement to obtain information
regarding the Pittman case. Ms. Anders testified that Mr.
Hughes told her that she was under surveillance. Ms. Anders
testified that she spoke with Assistant State Attorney David
Bergdoll and was given a polygraph test. At the evidentiary
hearing, Assistant State Attorney Hardy Pickard testified that
he did not recall learning of any polygraph being given to Ms.
Anders or about any potential criminal charges against her. Ms.
Anders said she was in contact with FDLE agent Randy Dey,
and she did not recall if Mr. Hughes asked her to tell Dey that
he had some information on Pittman. Ms. Anders testified that
she did frequently relay messages back and forth between Mr.
Hughes and Mr. Dey, but they were not related to Mr. Pittman’s
case. Norgard, the Defendant’s trial counsel testified at the
evidentiary hearing that if he had known of a threat of criminal
prosecution to Mr. Hughes’ wife by the State Attorney’s office
20
or law enforcement it would have been an area of
impeachment he would have gone into, and he would have
wanted to contact Mr. Hughes’ wife to inquire about the threat.
At the trial, Mr. Hughes testified that he did not get any rewards
or incentives for testifying. Norgard testified that if he had
contacted Ms. Anders and learned that Mr. Hughes had said
he needed to get information against Mr. Pittman to save her
from prosecution, he would have pursued the evidence as
indicating that Mr. Hughes was an agent within the meaning of
the Fifth and Sixth Amendment.
A review of the direct and cross-examination of Mr.
Hughes at trial shows that any purported deal Mr. Pittman
thinks Mr. Hughes received was addressed on direct
examination and cross-examination at trial. On crossexamination it was brought out that Mr. Hughes had written a
letter to the sentencing judge prior to his sentencing letting him
know of his cooperation with FBI, and FDLE on HUD cases
and in the David Pittman case. It was also brought out that
ASA Bergdoll told the court at sentencing that looking at the
cooperation and full magnitude of his case they had arrived at
a recommendation of 6 years rather than 85 years....Even
assuming the undisclosed evidence regarding Ms. Anders had
some impeachment value, the Court finds that the Defendant
has not shown any reasonable probability that this information
weakens the case against the Defendant so as to give rise to
a reasonable doubt as to his culpability or might have led to a
different jury verdict.
The Defendant alleges that...a letter from Pickard to
Detective Cosper addressing the possibility of holding Mr.
Hughes in contempt if he refused to testify constituted Brady
material and should have been disclosed to defense counsel.
The Court does not find that this letter constitutes Brady
material. This matter was specifically addressed at trial, and
Mr. Hughes admitted that he knew he could be incarcerated for
more time for contempt if he refused to testify.
The Defendant alleges that...some handwritten notes of
an interview Detective Cosper had with Mr. Hughes on July 6,
1990, constituted Brady material. The defense particularly
focused on a handwritten note by Detective Cosper that said
“real off on time of occurrence.” The defense argues that they
were not advised that the interview took place, and information
showing more contact between Mr. Hughes and law
21
enforcement was important because it could be used to show
that Mr. Hughes’ story improved as he met with law
enforcement. At the evidentiary hearing, the defense was not
able to elicit any further information from Cosper regarding
what he might have meant by, “real off on time of occurrence.”
Pickard testified that he may not have been aware of all the
contacts Detective Cosper had with Mr. Hughes. The court
does not find that this note constitutes material information
under Brady. The Court does not find that the evidence could
have any reasonable probability of producing a different
outcome at the trial.
The Defendant alleges that...Mr. Hughes’ PSI prepared
in his State Court case constitutes Brady material that should
have been disclosed to the defense. Defense Counsel Robert
Norgard testified that he could have filed a motion requesting
Mr. Hughes’ PSI. The defense has not shown that defense
counsel could not have obtained the PSI through the exercise
of reasonable diligence, and the Court finds no Brady violation.
Based on this record, we conclude that Pittman has failed to
show that the postconviction court erred in denying this claim.
Pittman has failed to show that the State suppressed
admissible evidence that was favorable to the defense, that the
State did so either willfully or inadvertently, and that the
defendant was thereby prejudiced. Specifically, Pittman has
failed to show that, had the evidence been disclosed, there is
a reasonable probability that the jury would have reached a
different verdict. Under the above standard of review, Pittman
has failed to show that the State committed a Brady violation
with respect to this claim.
B. Brady Claim Concerning David Pounds
In this claim, Pittman asserts that the State failed to disclose certain
evidence with respect to inmate David Pounds, including the following: (1)
Pounds’ PSI and jail and prison records, and (2) Detective Cosper’s notes
concerning a June 18 or 19, 1990, interview with Pounds. Pittman asserts
that the postconviction court erred in denying relief on this claim. This issue
was addressed at length at the evidentiary hearing below and the
postconviction court ruled as follows:
The Defendant alleges that there was undisclosed
impeachment evidence regarding witness David Pounds. Mr.
Pounds testified at the Defendant’s trial for the State. The
Defense claims that the State improperly withheld David
22
Pounds’ 1990 PSI, which included a detailed psychological
history of Mr. Pounds and could have been used to address
the mental health of Mr. Pounds. Assistant State Attorney
Hardy Pickard testified that he never looked into Mr. Pounds’
mental health issues. Mr. Norgard testified at the evidentiary
hearing that if he had been aware of information in the PSI
regarding Mr. Pounds’ mental health he would have explored
it through discovery to see how he could use it to impeach Mr.
Pounds at the trial. Defense counsel did not ask the Court to
provide the PSI to the defense. The defense has not shown
that defense counsel could not have obtained the PSI through
the exercise of reasonable diligence, and the Court finds no
Brady violation.
Mr. Pounds listed the names of other people he thought
might have been in the jail pod along with him and Mr. Pittman
in a transcript of a taped statement taken on June 25, 1990.
Mr. Pounds included the name of Carl Hughes as one of the
people. The defense tried unsuccessfully to obtain information
regarding the jail records and alleges that the State was in
possession of a police report concerning jail locations and
recreation yard schedules for May 18-21, 1990, that should
have been provided to the defense. The exhibit showed that
Carl Hughes was not listed as being in the jail at the time. The
defense alleges that the jail roster could have been used to
locate inmate Reyome and impeach David Pounds by
demonstrating that Mr. Hughes was never in the same jail pod
with Mr. Pounds. The jail log would not have shown that
Pittman and Mr. Hughes were never together, or that Mr.
Pounds and Mr. Hughes were never together. Mr. Reyome’s
testimony at the evidentiary hearing indicated that inmates in
Pod 227 could see and talk to inmates in Pod 228.
At the evidentiary hearing, Assistant State Attorney
Pickard testified that he was unaware of Detective Cosper’s
handwritten notes of his interviews with David Pounds on June
4, 1990, June 18, 1990, and June 25, 1990. Police reports and
Pound’s taped statements to law enforcement on June 4, 1990,
and June 25, 1990, were disclosed to the defense at the time
of the trial. The defense alleges that the State violated Brady
by not providing Detective Cosper’s handwritten notes, which
indicated he may have interviewed Pounds on June 18, 1990.
In a 1990 deposition, Detective Cosper acknowledged only two
interviews with David Pounds. At the time of trial, David
Pounds indicated that Detective Cosper only spoke to him
23
twice. Detective Cosper’s handwritten notes of June 18, 1990,
are very abbreviated and appear to do nothing more than
confirm contact information and coincide with Detective
Cosper’s arrangement to interview Pounds at the DOC
reception center. At the evidentiary hearing, Mr. Norgard
discussed as an example of impeachment a reference to Carl
Hughes in Pound’s June 25 statement, and its relationship to
undisclosed evidence demonstrating that Pounds and Mr.
Hughes were not in the jail pod together with Pittman. As
indicated above, the State Attorney’s office was not aware of
the handwritten notes of Detective Cosper. At the evidentiary
hearing, Detective Cosper was not able to provide any relevant
information to further explain the notes he took at the three
interviews. The Court does not find...anything in the
[handwritten] notes that could reasonably be taken to put the
case in such a different light that it undermines confidence in
the verdict.
The defense alleges that the newly discovered
information regarding David Pounds undermines confidence in
the outcome of Pittman’s trial. The Court does not find that the
evidence could have any reasonable probability of producing
a different outcome at the trial.
The Defendant’s allegations with regard to ineffective
assistance of counsel are addressed more fully in [a different
claim]. However, the Court does not find that the evidence
supports a conclusion that trial counsel’s performance with
regard to discovering this information with regard to Mr.
Pounds falls below an objective standard of reasonableness,
or that but for his errors the outcome might have been different.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. Pittman has failed to
show that the State suppressed admissible evidence that was favorable to
the defense, that the State did so either willfully or inadvertently, and that the
defendant was thereby prejudiced. Specifically, Pittman has failed to show
that, had the evidence been disclosed, there is a reasonable probability that
the jury would have reached a different verdict. Under the above standard of
review, Pittman has failed to show that the State committed a Brady violation
with respect to this claim.
C. Brady Claim Concerning the Handwritten Notes of Other Witness Interviews
Pittman asserts that the State failed to disclose the notes of witness
24
interviews, including the following: (1) notes taken by Dectective Cosper and
ASA Pickard during a May 31, 1990, interview with Barbara Marie Pittman in
which she indicated that her sister, the victim Bonnie, was known for “making
up physical ailments,” and in which she indicated that Pittman “and my
parents had [a] pretty good relationship”; and (2) notes showing the correct
address of Aaron Gibbons, a witness concerning the George Hodges letter.
Pittman asserts that the postconviction court erred in denying relief on this
claim. This issue was addressed at the evidentiary hearing below and the
postconviction court ruled as follows:
Defendant alleges that notes taken by Detective Cosper
of an interview of Marie Pittman, Defense exhibit 13, indicated
that Marie Pittman told him that Bonnie made up physical
ailments. The defense alleges this statement by Marie was
never disclosed to them. The defense alleges that had this
information been provided to the defense they could have
argued to the jury that the rape allegation was another example
of Bonnie’s fabrications or was being used to strengthen
Marie’s position in a pending divorce and custody battle.
At the evidentiary hearing Detective Cosper was not
able to add to the information contained in his abbreviated
notes, and the State Attorney’s office was not aware that these
notes existed. The Court [finds that]...[a]lthough the notes
might contain some information that might be considered
favorable to the defense, there is no reasonable probability that
the jury verdict would have been different had the suppressed
information been used at trial.
Mr. Pittman also alleges that the State withheld
information from Cosper’s notes that Pittman had a good
relationship with Marie Pittman’s parents....[However,] the
statement regarding Mr. Pittman’s relationship with his wife’s
parents does not indicate what period of time is being
discussed. At the evidentiary hearing Detective Cosper was
not able to add to the information contained in his abbreviated
notes, and the State Attorney’s office was not aware that these
notes existed. The Court [finds that] ...[a]lthough the notes
might contain some information that might be considered
favorable to the defense, there is no reasonable probability that
the jury verdict would have been different had the suppressed
information been used at trial.
....
25
The Defendant also alleges that the State withheld
information from the defense concerning its investigation of the
George Hodges letter. The Defendant alleges that the State
withheld evidence contained in a note from Dee Dee Wright to
Mr. Pickard advising him that Gibbons had not taken off, and
he had moved to a specific address. The Defendant alleges
this information was intentionally withheld from the defense in
order to keep them from having further access to Gibbons....
The Defendant alleges the information that was withheld
clearly contributed to the trial court’s decision to exclude the
evidence. The Defendant argues that had everything been
revealed to the defense, the defense would have been
permitted to present Mr. Watson’s confession to the murder. At
the evidentiary hearing Assistant State Attorney Pickard
testified that he had no knowledge of Mr. Gibbons supposedly
taking off, and he said that both Gibbons and Watson showed
up in court for a hearing that was held with regard to the
George Hodges letter. The Court finds that the defense has not
supported any reason to believe the trial court’s decision to
exclude the evidence would have been affected by disclosure
of this information.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. The court’s factual
findings are supported by competent, substantial evidence and the court
properly applied the law. Pittman has failed to show that the State
suppressed admissible evidence that was favorable to the defense, that the
State did so either willfully or inadvertently, and that the defendant was
thereby prejudiced. Specifically, Pittman has failed to show that, had the
evidence been disclosed, there is a reasonable probability that the jury would
have reached a different verdict. Under the above standard of review,
Pittman has failed to show that the State committed a Brady violation with
respect to this claim.
D. Brady Claim Concerning Dennis Waters’ Identification of the Wrecker
In this claim, Pittman asserts that the State failed to disclose the fact
that Dennis Waters had advised law enforcement officers that his
identification of the wrecker as belonging to Pittman was uncertain. Pittman
asserts that the postconviction court erred in denying relief on this claim. This
issue was addressed at the evidentiary hearing below and the postconviction
court ruled as follows:
The defense alleges that there is new information that
26
could be used to impeach the testimony of witness Dennis
Waters. At the evidentiary hearing, Dennis Waters testified that
he was concerned that his testimony at the trial did not convey
the doubt he had regarding the wrecker he saw on the morning
after the murders. Mr. Waters testified that he had advised law
enforcement officers of his doubts that the wrecker was in fact
Mr. Pittman’s wrecker. In pre-trial deposition on December 27,
1990, Waters identified the wrecker he saw at Mr. Barker’s
place as being similar to the wrecker he saw on Prairie Mine
Road. At trial, Waters identified the wrecker as being the same
wrecker after noting some distinctive Bondo on the hood. The
defense claims that information that Waters’ identification was
equivocal could have been used as valuable impeachment.
Although Norgard testified at the evidentiary hearing that he
was unaware of any information that Mr. Waters’ identification
of the wrecker was equivocal, the equivocal nature of Waters’
deposition had already put the defense on notice that he had
vacillating levels of certainty on the matter. The Court finds the
defense’s allegation of a Brady violation in this matter to be
without merit.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. The court’s factual
findings are supported by competent, substantial evidence and the court
properly applied the law. Pittman has failed to show that the State
suppressed admissible evidence that was favorable to the defense, that the
State did so either willfully or inadvertently, and that the defendant was
thereby prejudiced. Specifically, Pittman has failed to show that, had the
evidence been disclosed, there is a reasonable probability that the jury would
have reached a different verdict. Under the above standard of review,
Pittman has failed to show that the State committed a Brady violation with
respect to this claim.
E. Brady Claim with Respect to Evidence Concerning William Smith
In this claim, Pittman asserts that the State failed to disclose William
Smith’s statement that the man who had been arrested for the murders
looked like the same person he had seen behind a car dealership two or
three weeks prior to the crimes. Pittman claims that the postconviction court
erred in denying relief on this claim. This issue was addressed at the
evidentiary hearing below and the postconviction court acknowledged it in its
order and then summarily denied relief:
The Defendant alleges that Mr. Smith was interviewed in July
of 1990 by the State, and he told them that the individual he
27
had seen behind the convenience store looked like an
individual he had seen at a car dealership 2 or 3 weeks before
that time. The Defendant alleges that the defense was never
provided with this information despite the fact that statements
of witnesses are required to be disclosed pursuant to rule
3.220, Fla. R. Crim. P. The defendant alleges that had defense
counsel known about this statement, the statement could have
been used to cast doubt on Mr. Smith’s identification of the
Defendant.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. Pittman has failed to
show that the State suppressed admissible evidence that was favorable to
the defense, that the State did so either willfully or inadvertently, and that the
defendant was thereby prejudiced. Specifically, Pittman has failed to show
that, had the evidence been disclosed, there is a reasonable probability that
the jury would have reached a different verdict. Under the above standard of
review, Pittman has failed to show that the State committed a Brady violation
with respect to this claim.
F. Cumulative Effect of All the Withheld and Newly Discovered Evidence and
Evidence of Ineffective Assistance of Counsel
In this claim, Pittman asserts that the postconviction court erred in
denying relief based on the cumulative effect of all the withheld evidence and
newly discovered evidence and evidence of ineffective assistance of trial
counsel (IAC), as discussed below. The various individual allegations made
by Pittman were addressed at length at the evidentiary hearing below and in
the postconviction court’s order denying relief, and the court concluded as
follows with respect to this claim:
The Defendant alleges that the new Jones evidence
must be evaluated cumulatively with the Brady evidence and
the evidence of ineffective assistance of counsel and when this
is done confidence has been undermined in the reliability of Mr.
Pittman’s trial. The Court does not find any reasonable
probability that the new evidence argued by the Defendant in
this Claim when considered cumulatively along with his other
claims of Brady violations and claims of ineffective assistance
of counsel would have made a difference in the outcome of the
verdict. [This claim] of the Defendant’s Motion is denied.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. Specifically, as noted
herein, Pittman has failed to show (1) that the State committed any Brady
28
violations; (2) that the asserted newly discovered evidence qualifies as such
under Jones v. State, 709 So. 2d 512 (Fla. 1998); and (3) that trial counsel
was ineffective. Whether Pittman’s claims are evaluated individually or
cumulatively, Pittman has failed to show that he is entitled to relief under the
applicable standards of review.
Pittman, 90 So. 3d at 804-11.
Here, as in Ponticelli, Pittman’s reliance on Porter and Sears are of no benefit to him
and Pittman has failed to show that the state courts unreasonably applied federal law in
affirming the trial court’s rejection of Pittman’s constitutional claims under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) or Giglio v. United States, 405 U.S. 150, 92
S. Ct. 763 (1972). The Florida Supreme Court did not contravene clearly established
federal law, unreasonably apply clearly established federal law, or reach an unreasonable
determination of the facts. 28 U.S.C. § 2254(d).
The Carl Hughes Claim
Pittman’s first Brady claim focuses on Carl Hughes, the disgraced director of
operations for the Lakeland Housing Authority who was convicted in federal court and in
state court on multiple criminal charges, including bribery and grand theft. Hughes did not
testify in postconviction; his trial testimony was neither changed nor recanted. In state
court, and here, Pittman has argued that the State violated Brady in allegedly failing to
disclose the following witnesses/information regarding Carl Hughes: (1) Hughes’ ex-wife,
Kathleen [Kathie] Anders; (2) the prosecutor’s letter of 10/11/90 to Detective Cosper; (3)
Cosper’s handwritten notes regarding an interview with Hughes on 7/6/90; and (4) Hughes’
confidential PSI.
On direct examination at trial, Hughes testified that he was incarcerated in a federal
penitentiary in New York for falsifying a firearms application and bribery. Hughes had been
29
charged in Polk County with 17 counts of bribery and grand theft. (DA-R/2246). Hughes
had an 18-month federal sentence and 4.5 years state sentence, concurrent. (DA-R/2247).
Hughes met Pittman in the Polk County Jail and their conversations occurred about June
20-27, from midnight to 5 a.m. (DA-R/2248; 2250). On cross-examination of Hughes at trial,
defense counsel emphasized that:
Prior to his current convictions, Hughes had been convicted of 6 prior
felonies. (DA-R/2272).
Hughes was going to be prosecuted as a career criminal. (DA-R/2274).
Hughes faced the possibility of 85 years in prison. ASA Bergdoll repeatedly
made it clear that he was seeking an enhanced penalty. (DA-R/2278; 2283).
Hughes had his attorney seek a plea agreement on Hughes’ behalf, but the
prosecutor said “no deals.” (DA-R/2284).
Hughes wrote two or three letters to ASA David Bergdoll, head of the career
criminal division, offering to help out the State in exchange for a deal. During
his 16 months in jail, Hughes saw plea bargains, but the State refused to plea
bargain in his case. (DA-R/2285-86).
Hughes never believed that there really would be an 85-year sentence. On
March 6, 1990, Hughes wrote to the judge complaining that the State
wouldn’t give him a deal and the State was being excessive. (DA-R/2284-85).
In his letter to the judge, Hughes also offered to turn State’s evidence on
about 20 people related to HUD cases. (DA-R/2286).
According to Hughes, his attorney, Roger Alcott, thought he could get a 10year cap with a guilty plea. (DA-R/2287).
No one ever promised Hughes anything whatsoever. ASA Bergdoll stood
very firm on the fact that the statute prohibited him from making any kind of
deals whatsoever. (DA-R/2299).
Hughes wrote several letters, against his counsel’s wishes, to ASA David
Bergdoll and to the sentencing judge. (DA-R/2299).
On April 25, 1990, Hughes pled “straight up” to the charges, with the
maximum penalty of 85 years. According to Hughes, his attorney assured
Hughes that if he acted in good faith, he could get a 10-year cap for Hughes;
30
if not, it wouldn’t exceed 20 years. (DA-R/2295-96).
Hughes thought the guidelines called for 7-9 years; Hughes was unaware of
ASA Bergdoll’s continuing recommendation in Hughes’ PSI for 85 years.
Three days after his plea, Hughes wrote to the trial judge offering to be
debriefed by the State on the HUD charges and to do anything to correct his
mistakes. (DA-R/2297).
Both before and after his plea, Hughes made offers to testify against other
people. Hughes stated he “had been asked to do that all through the course
of [his] confinement.” Hughes wanted a specific plea agreement, stating a
specific amount of time. (DA-R/2298).
Between the time of Hughes’ plea and sentencing, Hughes had
conversations with FDLE case agent Randy Dey and negotiated giving
information about the HUD charges. (DA-R/2300).
The only thing FDLE agent Randy Dey and FBI agent Brad Brekke promised
Hughes was that they would come forward and make the judge aware of
Hughes’ cooperation. Randy Dey never indicated that he could persuade the
trial judge and ASA Bergdoll was firm in wanting to ask for the maximum
penalty; therefore, the whole question at the time was what the sentencing
judge would do. (DA-R/2301; 2306).
Hughes wrote several letters to the trial judge. Hughes’ letter of May 16th
complained about being in isolation for almost five months; Hughes wanted
to get past the county jail stage and start doing his time. Hughes’ attorney
told Hughes that FDLE was upset with Hughes; Hughes’ probation report
wasn’t going well and the PSI investigator felt Hughes had lied to him. (DAR/2302-03).
Hughes had a plea agreement with the federal government and the federal
prosecutor agreed to dismiss some of the charges. (DA-R/2305). Also, HUD
did not want any more disclosures to the state and Hughes felt that he was
caught in the cross-fire between the state and the federal government. (DAR/2303-04). Hughes entered his plea in federal court on May 23, 1990. (DAR/2305-06).
On June 26, 1990, Hughes gave information about David Pittman to law
enforcement. That meeting [with Detective Cosper and FDLE Agent Dey]
lasted about an hour. (DA-R/2306).
Hughes asked to take a polygraph to confirm his credibility. Hughes initially
refused to give a taped statement since law enforcement would not give him
a polygraph. When Hughes asked if they would make his cooperation known
31
to the sentencing judge, Detective Cosper informed Hughes, “Carl, I can’t
promise you anything as much as a phone call.” (DA-R/2307-08).
Hughes later gave a taped statement. Page two of Hughes taped statement
to Detective Cosper included: “QUESTION: You understand that I can’t
promise you anything. However, you have been made aware that the court
would be advised of your cooperation in this matter, and that’s the only thing
I could do for you? ANSWER: I understand that.” (DA-R/2308).
Hughes felt that he still had a lot to lose, including his life and “ten years
probation following this.” (DA-R/2310).
On June 27, 1990, Hughes was on his bunk when he was attacked by
Pittman and Schneider. (DA-R/2311).
Hughes was not a very popular inmate with the jail administration and
Hughes thought that was why he spent 5 months in isolation. (DA-R/231516).
After being attacked in his jail cell, Hughes wrote Schneider a threatening
letter. (DA-R/2317).
At Hughes’ federal sentencing hearing (August 3, 1990), both FDLE agent
Randy Dey and FBI agent Brad Brekke informed the federal judge that
Hughes had been cooperating. (DA-R/2321).
On September 7, 1990, Hughes wrote a letter to the state judge regarding
cooperation that Hughes gave, or attempted to give, to the FBI, to FDLE in
the HUD cases, and to the state in the Pittman case. (DA-R/2322).
Hughes gave a taped statement to Detective Cosper, but he was unsure of
the date [September 11, 1990]. (DA-R/2323).
Hughes was sentenced in state court September 26, 1990. (DA-R/2323).
At Hughes’ sentencing hearing in state court, ASA Bergdoll advised the court
of Hughes’ cooperation with the HUD investigation and the homicide case.
ASA Bergdoll re-evaluated the State’s original intent to pursue career criminal
status/sentencing, relied on the statute’s exception for cooperation, and
“looking at the cooperation” and “full magnitude of the case,” ASA Bergdoll
recommended a total of 6 years.” (DA-R/2324; 2325-26).
On October 6, 1990, Hughes wrote a letter to ASA Bergdoll, thanking him “for
giving [Hughes] another chance in life.” (DA-R/2324; 2327-29). Hughes’ letter
to ASA Bergdoll also stated, “I respect you for standing firmly on your
32
decision not to plea bargain with me. Because of your persistence I was
forced to offer assistance.” (DA-R/2331).
The guidelines called for probation, and the PSI recommended 7-9 years, but
that included charges that were not allowed. Another PSI was never done,
but another score sheet was. (DA-R/2332-33).
Hughes spent 16 months in the county jail before sentencing. By the time of
Hughes’ anticipated release date (March 13, 1992), Hughes would have
served 33 months on a 4-1/2 half year sentence; about three times as much
as anybody else. Hughes would serve 17 months of his 18-month federal
sentence. (DA-R/2334).
Hughes did not know if Pittman’s statements were true. Therefore, Hughes
had his ex-wife [Kathie] contact law enforcement to confirm whether the
information from Pittman was true or not. Kathie contacted FDLE agent
Randy Dey, who confirmed, “Yes, in fact that murder did occur. We will be
very interested in talking to Carl about it.” (DA-R/2338-39).
On November 1, 1990, Hughes wrote another letter to ASA Bergdoll, and
thanked him for dropping some other charges (because Hughes faced 85
years on a straight-up plea and it served no prosecutorial purpose to
continue with the prosecution). According to Hughes, those charges included
the “absurdity” of a wiretapping charge for openly tape recording the public
housing staff meetings and an alleged aggravated assault involving plastic
toy laser guns. (DA-R/2341; 2343).
Hughes wrote quite a few letters to ASA Bergdoll and to the trial judge,
clearly asking for help, especially after articles appeared in the local
newspaper. In January of 1990, Hughes wrote to ASA Bergdoll to “try to get
four or five months off” his sentence because there was a discrepancy for the
time credited to him. (DA-R/2346).
Hughes also wrote letters to ASA Pickard. In one letter, Hughes complained
that he was sitting in state prison in violation of the trial court’s order, that he
should be in federal custody, and that “everybody is aware of my involvement
in the Pittman case. Get me out of her before I get killed.” (DA-R/2349).
Hughes did not want to come back to Polk County to testify, but knew that he
would be returned anyway. ASA Pickard gave Hughes the options to either
testify or face contempt, and six months. Hughes did not want to finish his
federal prison sentence and be stuck for six months in Polk County jail again.
(DA-R/2358-59).
Hughes thought he gave three different statements: one written, one off tape,
33
and one taped. (DA-R/2374).
Hughes’ written statement to Detective Cosper detailed Pittman’s statements
to Hughes, but Hughes did not know if Pittman said that he set the car on fire
right before Pittman went to his father’s house. (DA-R/2380-82).
Hughes was subjected to extensive cross-examination. Hughes’ criminal history,
unsuccessful efforts to obtain a “plea bargain,” repeated offers of assistance, initiation of
contact with law enforcement via his ex-wife, Kathie [Anders], and description of Pittman’s
various admissions to Hughes were explored in detail. Again, in denying Pittman’s Brady
claim regarding Carl Hughes, the trial court emphasized that any purported “deal” was
thoroughly addressed at trial, that Pittman failed to show that the privileged, hearsay
statements to Hughes’ then-wife, Kathleen Anders, would have been admissible at trial,
and even if her hearsay testimony was arguably admissible as alleged impeachment,
Pittman failed to show any reasonable probability that this information weakened the case
against Pittman “so as to give rise to a reasonable doubt as to his culpability or might have
led to a different jury verdict.” (PCR V34/5386). As the trial court concluded:
A review of the direct and cross-examination of Mr. Hughes at trial
shows that any purported deal Mr. Pittman thinks Mr. Hughes received was
addressed on direct examination and cross-examination at trial. On crossexamination it was brought out that Mr. Hughes had written a letter to the
sentencing judge prior to his sentencing letting him know of his cooperation
with FBI, and FDLE on HUD cases and in the David Pittman case. It was also
brought out that Assistant State Attorney Bergdoll told the Court at
sentencing that looking at the cooperation and full magnitude of his case they
had arrived at a recommendation of 6 years rather than 85 years.
Additionally, the defendant has not shown that Mr. Hughes’s hearsay
statements to Ms. Anders were admissible at trial. Even assuming the
undisclosed evidence regarding Ms. Anders had some impeachment value,
the Court finds that the Defendant has not shown any reasonable probability
that this information weakens the case against the Defendant so as to give
rise to a reasonable doubt as to his culpability or might have led to a different
jury verdict.
34
(PCR V34/5386).
The state courts did not contravene clearly established federal law, unreasonably
apply clearly established federal law, or reach an unreasonable determination of the facts.
Pittman cites to the postconviction testimony of Hughes’ former wife, Kathleen Anders.
(Doc. 14 at 11). First of all, at the time of trial, the defense knew that Hughes had initiated
contact with FDLE Agent Randy Dey via Hughes’ [then] wife, Kathie. At trial, both Randy
Dey and Hughes addressed the initial contact by Hughes’ wife. (DA-R/2338-39; 2408). A
Brady claim cannot stand if the defense knew of the witness at the time of trial. Second,
Pittman did not establish that the State was ever aware of the arguments or conversations
between Hughes and his [then] wife. The Brady rule only applies to the discovery, after trial,
of information which had been known to the prosecution but unknown to the defense. See,
United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392 (1976). Third, the trial record
confirms that any purported “deal” to Hughes was addressed, at length, on direct and
cross-examination at trial. Fourth, Pittman failed to show that any confidential hearsay
statements Hughes allegedly made to his wife were not privileged and would have been
admissible at trial. See, Section 90.504, Florida Statutes. Fifth, according to Ms. Anders in
postconviction, approximately 16 years earlier, Hughes called her and asked her to give
some money to a friend, Hughes became very angry when she said that she didn’t have
it; Hughes then claimed that he was trying to keep her from being arrested along with him
and had been asked by FDLE to obtain information regarding the case that had been in the
newspapers [Pittman]. Ms. Anders simultaneously denied any wrongdoing and admitted
that she was administered a polygraph. See, Wood v. Bartholomew, 516 U.S. 1, 8 (1995)
(reversing federal appellate court’s speculation and misapplication of Brady principles and
35
concluding that it was not “reasonably likely” that disclosure of inadmissible information –
witness’ polygraph results - would have resulted in a different outcome). At most, Hughes’
attempt to make his wife feel indebted to him, assuming it occurred, is scarcely more than
Hughes’ self-serving bluster when juxtaposed against her steadfast denial of any
wrongdoing. To satisfy Brady’s prejudice prong, a defendant must show that the
suppressed evidence was material. Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555
(1995). A new trial is only warranted when the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the
verdict. Strickler, 527 U.S. at 290. Given the significant amount of evidence impeaching
Hughes at trial, even assuming the admissibility of Anders’ hearsay and alleged additional
impeachment value from Hughes’ self-serving tirade to her, there was no reasonable
probability that it would have led the jury to doubt the incriminating portions of Hughes’
testimony.
Next, Pittman cites to the prosecutor’s letter to Detective Cosper on October 11,
1990. (Doc. 14 at 12). This letter instructed Detective Cosper to locate Hughes in the prison
system, tell Hughes that if he refuses to testify “we will ask that he be held in contempt” and
“[i]f that prospect, which would be added to his present sentence and delay his release,
does not concern him and he still refuses to testify, we will simply try the case without him.”
(PCR-E V5/839). The trial court found that the prosecutor’s letter did not constitute Brady
material and this matter was specifically addressed at trial - Hughes admitted that he knew
he could be incarcerated for more time for contempt if he refused to testify. At trial, Hughes
acknowledged that he could receive six months for contempt and Hughes agreed that he
did not want to “finish this federal prison sentence [and] be stuck for six months in Polk
36
County Jail again.” (DA-R/2358-59). There is no Brady claim where the same information
(contempt and six months) was known to the defense and addressed at trial.
Next, Pittman cites to defense postconviction exhibit 15, Detective Cosper’s 1-1/2
pages of handwritten notes from an interview with Hughes on July 6, 1990. (Doc. 14 at 1415). The state court found that Detective Cosper’s handwritten notes did not constitute
material information under Brady and did “not find that the evidence could have any
reasonable probability of producing a different outcome at the trial.” (PCR V34/5387). On
October 3, 1990, Detective Cosper was deposed by the defense prior to trial. During his
deposition, Detective Cosper addressed, at length, his police reports, witness interviews,
including taped interviews, his interview with Hughes on June 26, 1990, and Hughes’ taped
statement on 9/11/90, all of which were provided to the defense at the time of trial. During
Detective Cosper’s pre-trial deposition, defense counsel confirmed his understanding that
taped interviews were normally conducted after oral interviews. Detective Cosper noted
that, absent oversight, his written reports would address any significant off-tape statements.
Detective Cosper also met with Hughes on July 6, 1990, and Cosper’s handwritten notes
included cryptic remarks such as “F/S across ST,” “burned in bucket” and “real off on time
of occurrence.” The transcript of Hughes’ taped statement, which the defense had at the
time of trial, also included Hughes’ remark that Pittman “said several times that one thing
that was going for him was that you all were totally wrong about the time. . .” (PCR-E
V6/917). On cross-examination at trial, defense counsel repeatedly questioned Hughes on
whether Pittman allegedly told Hughes that Pittman had set the car on fire right before
Pittman went to his father’s house [three hours before the burning car was discovered, i.e.,
“real off on time of occurrence”]. (DA-R/2381-82). Pittman failed to show that Detective
37
Cosper’s handwritten notes of a contact with Hughes on 7/6/90 constituted any material
information under Brady; and the cryptic remark “real off on time of occurrence” arguably
refers to the same subject - the timing of the car fire - addressed in the taped statement
and on cross-examination at trial. (DA-R/2381-82).
Pittman next asserts a perfunctory claim based on Hughes’ PSI. (Doc. 14 at 17-18).
Trial counsel, Robert Norgard, admitted that he could have filed a motion requesting
Hughes’ PSI, and the postconviction court found “the defense has not shown that defense
counsel could not have obtained the PSI through the exercise of reasonable diligence,” and
found no Brady violation. (PCR V34/5387). As to Pittman’s corollary IAC claim, the trial
court found no deficiency of counsel and no resulting prejudice. (PCR V34/5388). Notably,
during the cross-examination of Hughes at trial, both defense counsel Norgard and witness
Hughes referred to information contained in Hughes’ PSI. (DA-R/2297; 2332-33). Thus,
defense counsel apparently was familiar with the contents of Hughes’ PSI at the time of
Pittman’s trial. (DA-R/2297). Because the information was not only equally accessible to
the defense, but apparently was available or known to the defense at the time of trial, any
Brady claim was unfounded.
The David Pounds Claim
Next, Pittman argues that the prosecutor allegedly violated Brady by failing to obtain
David Pounds’ confidential PSI, which included Pounds’ psychological history, and by
failing to obtain the DOC’s confidential medical file on Pounds, and then furnish the sealed
PSI and DOC’s confidential medical file to Pittman. (Doc. 14 at 18-20). In denying this
claim, the state court did not contravene clearly established federal law, unreasonably
apply clearly established federal law, or reach an unreasonable determination of the facts.
38
At trial, David Pounds testified that he was incarcerated at Union Correctional
Institution, serving a life sentence for armed robbery. Pounds had been convicted of six
felonies. (DA-R/1892). Pounds previously was convicted of eleven misdemeanors that
involved either dishonesty or making false statements. (DA-R/1893). On several occasions
when Pounds and Pittman were in the cell together, Pittman said “the people that I killed”
and then he changed it to “the people they say I killed”. (DA-R/1895). One time, Pittman
made the statement to Pounds that he had done it. (DA-R/1897). They were watching the
news on the Mulberry homicides and Pounds ribbed Pittman and said “Come on, man, you
know you did it” and Pittman replied, “Yeah, I did it, but there’s no way they can pin it on
me. My alibi is too good because of the time frames involved.” Pittman’s alibi was that he
was home in bed approximately 10 minutes after the murders were supposedly committed
and Pittman’s father would give him an alibi. (DA-R/1898). Pittman told Pounds that there
was no way they could lift fingerprints off the car because it had been burned and the fire
department used water to put out the fire and that would have washed away the
fingerprints. Pittman said his in-laws’ attitude toward him was not good because they were
supportive of their daughter in the divorce. Pittman said he had a wrecker that had the
boom removed and a circle on the hood that hadn’t been painted. Pittman also said that
someone had seen a black wrecker in the area, but his wrecker was blue and there was
only one spot on the hood where he had run out of paint. (DA-R/1899). Pounds and
Pittman had only this one discussion at any great length and it was about the time of the
11:00 news. There were six other inmates in the cell, but they were not participating in the
conversation. (DA-R/1900). There was a lapse of a few days from the time Pittman told
Pounds these things until Pounds contacted the State Attorney’s Office. Pounds had
39
already been convicted and sentenced in his case. (DA-R/1901). At first, Pounds thought
he might help the State and that might help in mitigation of his sentence. Detective Cosper
took a statement from Pounds, but Pounds did not divulge all the information he had. (DAR/1902). Pounds did not tell Detective Cosper that Pittman had given him a direct
confession. Pounds wanted to contact his parents first, to get their opinion on whether he
should become involved with the case. (DA-R/1903). After Pounds spoke with his mother,
Detective Cosper went to Central Florida Reception Center and took a second statement
from Pounds. This time, Pounds told Detective Cosper that Pittman actually had committed
the murders. (DA-R/1904). At that point, Detective Cosper made it perfectly clear to Pounds
that if Pounds became a witness, there was nothing they could do to help him with his
sentence, as did the State Attorney’s office. No one told Pounds that he would get his
sentence reduced if he testified. Pounds wanted to testify because he was thinking about
the victims’ families. (DA-R/1905). On cross-examination, defense counsel stressed:
Pounds was sentenced on May 9, 1990 and Pittman was placed in Pounds’
cell on May 15, 1990. (DA-R/1905).
Pounds was not aware that there were still 60 days from the conclusion of
Pittman’s trial for Pounds’ attorney to file a 3.800 motion. (DA-R/1909).
Pounds also did not tell Detective Cosper everything in the first statement
because, according to Pittman’s defense counsel, Pounds wanted to get paid
for it. The only person Pounds could recall being around when Pittman made
his statements was Raymond Kayoni (phonetic) [Reyome]. (DA-R/1914).
Pounds didn’t know if the others who were watching TV heard Pittman’s
comments or not. It was pretty loud. Besides having committed the crime
himself, Pittman may have learned the information from his attorney. (DAR/1915).
Pounds was not sure how badly his memory had been affected by his
extensive alcohol use. During 1979-1986, Pounds was severely alcoholic and
having blackouts. While Pounds was on psychotropic medications, he was
40
maintaining a 3.5 GPA in college. During his deposition of December 28,
1990, Pounds informed defense counsel that he was currently on
psychotropic medication for mental disorders, which also affected his
memory. (DA-R/1920-22).
According to defense counsel, Pounds basically lied to Detective Cosper the
first time he talked to him when he said that he did not have any additional
information. (DA-R/1924).
Pounds did not consider it lying. Pounds did not consider withholding
information that he was not obligated to tell anybody to be a lie. (DA-R/1925).
Pounds admitted that he initially withheld information from Detective Cosper,
which defense counsel emphasized as lying. (DA-R/1931-33).
On redirect examination at trial, Pounds read the letter he wrote to his mother. (DAR/1936-37). Pounds’ letter to his mother stated, in pertinent part:
The problem is that I know David Pittman did it. He told me he did. I
didn’t tell the detective that he actually told me he did it but he did. He said
there was no way that he could get convicted of it though.
Now, if I help the State Attorney prosecute David Pittman I can get this
life sentence off of me. But, you know, I have to snitch, and that’s what I
would be doing. I would never tell on a friend if they told me something like
that, but I don’t even know David Pittman. Killing three people is a serious
crime.
The detective gave me his name and number and he wants me to give
a statement under oath and take a polygraph test. Then I would have to
testify in court against him. Would you do it or not? I don’t know what I should
do. It is awful tempting to get this life sentence off of me. Give me some
advice on this.
(DA-R/1936-37).
SAO Investigator Martin Hodges interviewed Pounds the week before the postconviction hearing. Pounds was going to change his testimony to help Pittman, but Pounds
decided against lying and confirmed that his trial testimony was true. ASA Pickard never
looked into Pounds’ mental health issues and did not know any more than the defense
41
knew. Attorney Norgard did not ask the trial court to provide the sealed PSI to the defense.
Although the prosecutor arguably may have had “access” to Pounds’ PSI, this access,
alone, did not authorize the State to release otherwise confidential records. Furthermore,
Brady does not require the prosecutor to obtain and disclose evidence which is available
to the defense from other sources. Pittman did not show that defense counsel could not
have obtained the otherwise confidential records through the exercise of reasonable
diligence; therefore, the trial court found no Brady violation. (PCR V34/5388). There is no
Brady violation where the defense either had the information or could have obtained it
through the exercise of reasonable diligence. Moreover, Pounds’ dubious mental health
was addressed both at Pounds’ deposition and again at trial. (DA-R/1920-22).
Pittman next argues that the jail records would have been useful in impeaching
Pounds by allegedly demonstrating that Hughes was never in the pod with Pounds. The
trial court found that “the jail log would not have shown that Pittman and Hughes were
never together, or that Pounds and Hughes were never together. Reyome’s testimony at
the evidentiary hearing indicated that inmates in Pod 227 could see and talk to inmates in
Pod 228.” (PCR V34/5388-89). The trial court’s fact-specific determination is unassailable.
Furthermore, the “mere possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” See, United States v. Agurs, 427 U.S. 97, 109-10,
96 S. Ct. 2392 (1976).
Addressing Detective Cosper’s purported “interview” with Pounds on June 18, 1990,
the trial court found that Detective Cosper’s handwritten notes of June 18, 1990 (PCR-Evid.
V5/729) “are very abbreviated and appear to do nothing more that confirm contact
42
information and coincide with Detective Cosper’s arrangement to interview Pounds at the
DOC reception Center.” (PCR V34/5389). Pittman does not dispute this dispositive factual
determination supporting the state court’s conclusion that the handwritten notes were not
Brady material. The trial court did not find anything “that could reasonably be taken to put
the case in such a different light that it undermines confidence in the verdict.” (PCR
V34/5390). Pittman failed to show any materiality from Detective Cosper’s travel directions
and arrangement to interview Pounds at the DOC reception center.
The ASA’s handwritten notes & Detective’s handwritten notes
Next, Pittman alleges that the State allegedly violated Brady by not disclosing the
prosecutor’s handwritten notes and Detective Cosper’s handwritten notes of an interview
with Pittman’s ex-wife, Marie, on May 31, 1990. These notes were not subject to disclosure
under Brady,3 and, in fact, “non-verbatim, non-adopted witness statements are not
admissible at trial as impeachment evidence.” See, Williamson v. Moore, 221 F.3d 1177,
1183 (11th Cir. 2000).
Pittman next cites to remarks that Pittman and Marie’s parents “had [a] pretty good
relationship” [at some unspecified time] and Bonnie would “make up physical ailments.”
(Doc. 14 at 27-28). And, as to Pittman’s “crank” use and remark that Pittman (at some
3
Pittman’s reliance on Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256 (2004) is
misplaced. As the Eleventh Circuit noted in Jennings v. McDonough, 490 F.3d 1230, 1239,
n.8 (11th Cir. 2007), “[a]lthough the Court in Banks did warn that a rule “declaring
‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally
bound to accord defendants due process,” id. at 696, 124 S. Ct. at 1275, that statement
was made in response to the State’s contention that the “prosecution can lie and conceal
and the prisoner still has the burden to . . . discover the evidence.” Id.; see also, id. at 694,
124 S. Ct. at 1274 (noting that the prosecution continually allowed “untruthful testimony to
stand uncorrected” on the matter underlying the Brady claim).”
43
undisclosed time) had a good relationship with Marie’s parents, the trial court found that the
“defense was well aware of the Defendant’s difficulties with drugs, and the statement
regarding Pittman’s relationship with his wife’s parents does not indicate what period of
time is being discussed.” (PCR V34/5398). The trial court did “not find that the notes qualify
as a statement that should have been disclosed to the defense, pursuant to Rule 3.220,
Fla. R. Crim. P., and they are not Brady material. Although the notes might contain some
information that might be considered favorable to the defense, there is no reasonable
probability that the jury verdict would have been different had the suppressed information
been used at trial.” (PCR V34/5398).
The handwritten notes did not contain any information that was material under
Brady. The unremarkable disclosure that Pittman had - at some unspecified point in time a “pretty good relationship” with Marie’s parents would not diminish the strength of the
State’s case, nor bolster Pittman’s “someone else did it” defense. Marie was not the only
witness who testified to Pittman’s fractured relationship with her parents, and Marie was
not the only witness to testify about the threats Pittman made against Marie and her family.
Witness Johnny Taylor testified that he met Pittman at the Bartow Correctional Center and
Pittman’s attitude toward the wife’s parents was one of hatred. Pittman said he would kill
them but did not give any reasons. Pittman said he was going to kill them. (DA-R/2454).
Deborah Caves, an acquaintance, recalled Pittman making a statement to his wife, Marie,
that he would kill her and her family if she got a divorce from him. (DA-R/2497).
Correctional Officer William Hunter testified that in late 1989 and early 1990, Pittman told
him of the family problems he had. Pittman felt that his in-laws were responsible and
instrumental in keeping Pittman and his wife apart and Pittman was adamant that he would
44
resort to violence if necessary to resolve the problem. (DA-R/2792). Pittman stated that if
necessary he would kill them; Pittman could do it in a heartbeat. (DA-R/2793). Pittman had
a lot of knowledge about stealing cars and said he would burn them if he was in a rush and
that torching took care of any evidence. (DA-R/2794-95). Furthermore, any suggestion by
Marie that Bonnie made up physical ailments does not materially undermine the State’s
prosecution, nor credibly bolster Pittman’s defense. The issue was not whether Bonnie’s
belated rape allegation was true; rather, it was that the allegation had been made against
Pittman. Moreover, at the conclusion of Marie’s deposition, the prosecutor specifically
alerted defense counsel to additional areas of inquiry and Pittman was fully aware of the
nature of his own relationship with the parties.
The state courts did not unreasonably apply Brady in concluding that even if the
State arguably withheld any of the foregoing, Pittman could not demonstrate that he was
prejudiced by the alleged nondisclosure. The undisclosed favorable evidence must place
“the whole case in such a different light as to undermine confidence in the verdict.”
Strickler, 527 U.S. at 290. The evidence cited by Pittman would have been merely
cumulative impeachment. Marie testified at length and was subjected to extensive crossexamination. (DA-R/2524-2631; 2893-2912). Marie was Pittman’s alternate suspect, Marie
testified that her mother physically abused her as a child, the older she became, the worse
the abuse. Her father refused to believe Marie, and Marie ran away from home when she
was 16 or 17 years old. (DA-R/2894-98). Marie’s alleged motive and capacity for
truthfulness was already significantly impeached and any additional impeachment would
have merely been cumulative.
Next, Pittman summarily concludes that Detective Cosper’s handwritten notes of the
45
May 30, 1990, interview with the defendant’s father, Eugene Pittman, might have been
useful to “refresh Eugene Pittman’s recall” or “impeach Eugene to the extent that he
deviated” from an earlier statement. (Doc. 14 at 29-30). Again, “non-verbatim, non-adopted
witness statements are not admissible at trial as impeachment evidence.” See, Williamson.
Pittman had Detective Cosper’s handwritten notes in postconviction and he failed to
specifically identify anything at all, that remotely supports a legitimate Brady claim.
Moreover, Eugene Pittman also testified as a defense witness and Pittman was not denied
access to Eugene, Pittman’s father. A Brady claim cannot stand if a defendant knew of the
evidence allegedly withheld or had possession of it.
Pittman argues that the whereabouts of Aaron Gibbons was undisclosed. (Doc. 14
at 30). In denying this claim, the trial court reiterated that ASA Pickard testified that both
Gibbons and Watson showed up in Court for a hearing that was held mid-trial with regard
to the George Hodges’ letter. (PCR V34/5400). Pittman does not dispute this conclusive
adverse determination.
The Dennis Waters Claim
Next, Pittman repeats that Dennis Waters’ alleged uncertainty over the wrecker
constituted a Brady violation. (Doc. 14 at 31). During Dennis Waters’ pre-trial deposition,
taken by defense counsel Norgard on 12/27/90, Waters thought the wrecker was similar;
and, at trial, Waters identified it as the same wrecker (noting the distinctive “Bondo” on the
hood). (DA-R/1650). In postconviction, Waters again thought that the wrecker was similar,
which was the same thing that he said in his pre-trial deposition. In denying Pittman’s claim
regarding Waters’ vacillating levels of certainty, the trial court found that the “equivocal
nature of Water’s deposition had already put the defense on notice that he had vacillating
46
levels of certainty on the matter.” (PCR V34/5391). Again, Pittman did not dispute this
dispositive finding; and, once again, his alleged Brady claim was without merit. (PCR
V34/5391).
The William Smith Sub-Claim
William Smith, who lived near the Majik Market on Highway 60, testified that
between 6:30 and 6:45 a.m. on May 15th, he saw a homemade wrecker come to a stop
behind the store. (DA-R/1793). It was dark blue or black with booms, and orange primer
coat on the right front fender of the hood. A white male got out of the vehicle and picked
up a five gallon gas can, shook it on the ground and set it back in the truck. (DA-R/1795).
Later on the 6:00 television news, Smith saw the guy who had been arrested and he told
his wife that it was the same person he had seen earlier that day. (DA-R/1801).
On July 2, 1990, ASA Pickard sent Detective Cosper a letter that included the
following instruction, with a handwritten notation “not necessary” in the margin next to this
paragraph:
(2) Smith said he thought he recognized the defendant as the same
person he saw 2 to 3 weeks prior at Charles Layton’s Used Car Lot on Hwy.
60 and 37 in Mulberry trying to sell a Pontiac to Layton. Please contact
Layton and see if he knows defendant and can verify that incident.
(PCR-E V6/843).
The failure to disclose the prosecutor’s request to Detective Cosper, which is marked
with the notation “not necessary” at the same paragraph, does not constitute a Brady
violation. There is “no constitutional requirement that the prosecution make a complete and
detailed accounting to the defense of all police investigatory work on a case.” United States
v. Agurs, 427 U.S. 97, 109, 96 S. Ct. 2392 (1976).
47
Pittman also repeats that the State’s case was circumstantial, except for Hughes and
Pounds. (Doc. 14 at 33). In other words, the State presented direct evidence at trial. The
State also presented three additional witnesses (Caves, Taylor, and Hunter) who testified
regarding Pittman’s threats of harm to his in-laws. In short, there was more than one
witness to testify about Pittman’s incriminating admissions and confessions.
Pittman also contends that the state court allegedly failed to conduct the requisite
cumulative analysis. This claim is belied by the record. Both the trial court (PCR V34/5394;
5400) and Florida Supreme Court, Pittman, 90 So. 3d at 810-811, evaluated Pittman’s
claims cumulatively. Furthermore, in Ponticelli, the Eleventh Circuit rejected a similar claim,
noting:
Ponticelli argues that the Supreme Court of Florida reviewed his Brady
claim too “narrowly” and “ignored much of the evidence presented at the
postconviction hearing,” but “to merit AEDPA deference the state court need
not...provide a detailed opinion covering each aspect of the petitioner’s
argument.” Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 748 (11th Cir.
2010). That the Supreme Court of Florida did not explicitly discuss every
piece of evidence is of no moment because we must presume “that state
courts know and follow the law,” and “state court decisions [must] be given
the benefit of the doubt.” Visciotti, 537 U.S. at 24, 123 S.Ct. at 360. “[F]ederal
habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a license to penalize a state court for its opinion-writing
technique.” Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1396, 182
L.Ed.2d 398 (2012) (Scalia, J., dissenting)(quoting Harrington, 131 S.Ct. at
786). And Allen v. Secretary, Florida Department of Corrections forecloses
Ponticelli’s argument that the “piecemeal” analysis of the court suggests that
it did not follow the correct standard for materiality. See 611 F.3d at 749. In
Allen, we reasoned that the “existence of item-by-item analysis...is not
inconsistent with a cumulative analysis. Indeed, the only way to evaluate the
cumulative effect is to first examine each piece standing alone.” Id. at 749
(internal quotation marks omitted); see also Kyles v. Whitley, 514 U.S. 419,
436 n. 10, 115 S.Ct. 1555, 1567 n. 10, 131 L.Ed.2d 490 (1995) (“We evaluate
the tendency and force of the undisclosed evidence item by item; there is no
other way. We evaluate its cumulative effect...separately.”). Ponticelli cannot
overcome the presumption that the Florida state court assessed prejudice
cumulatively. See Visciotti, 537 U.S. at 24, 123 S.Ct. at 360; see also Greene
48
v. Upton, 644 F.3d 1145, 1159–60 (11th Cir. 2011)(“Greene raised a claim
on direct appeal about the cumulative effect of the prosecutor’s allegedly
prejudicial statements, and the Supreme Court of Georgia rejected
it....Although Greene contends that the Supreme Court of Georgia failed even
to consider his claim of cumulative prejudicial effect, we must presume
otherwise.”).
Pittman failed to show that the state court’s determination was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2).
The Misleading Conduct Claim
Pittman repeats his purported Giglio claim based on shotgun allegations of allegedly
false or misleading testimony. (Doc. 14 at 37). Giglio involves a prosecutor’s knowing
presentation, at trial, of false testimony against the defendant. Giglio, 405 U.S. at 154-55.
To obtain relief on his Giglio claim, [Petitioner] had to “prove: (1) the prosecutor knowingly
used perjured testimony or failed to correct what he subsequently learned was false
testimony; and (2) such use was material, i.e., that there is any reasonable likelihood that
the false testimony could have affected the judgment.” Trepal v. Sec’y, Fla. Dept. of Corr.,
684 F.3d 1088, 1107-08 (11th Cir. 2012) (internal quotation marks omitted).
Pittman summarily asserts that the following was allegedly false or misleading:
Hughes’ trial testimony that he “was given no favors” (DA-R/2337); that Hughes allegedly
gave no interviews between June 26 and September 11(although Hughes stated at trial that
“I gave, I think, three different statements: one written, one off tape, and one taped.” (DAR/2374))]; FDLE Agent Randy Dey’s deposition and Detective Cosper’s deposition - that
49
Hughes’ taped statement on September 11th was Hughes’ second one; testimony that
Pounds was only interviewed by Cosper twice; the State’s argument that Pittman and his
ex-wife’s parents had “bad blood” between them; Dennis Waters’ positive identification of
the homemade wrecker he saw on the morning of May 15th; and information the State
provided to the defense as to Aaron Gibbons’ address and availability. Pittman’s reliance
on depositions and pre-trial information is of no benefit to him. Giglio involves a
prosecutor’s knowing presentation, at trial, of false testimony against the defendant. Giglio,
405 U.S. at 154-55.
Pittman’s conclusory allegations of alleged falsity were insufficient to fairly preserve
any claim for review in state court and Pittman’s mischaracterizations of the foregoing as
allegedly false testimony are rejected by this Court. Pittman was afforded more than a
week of evidentiary hearings and he failed to prove any of his alleged Giglio violations. The
state court found that Pittman failed to show that the prosecutor presented false testimony
and that the prosecutor knew the testimony was false. The Florida Supreme Court rejected
Pittman’s Giglio claim as follows:
G. Giglio Claim
In this claim, Pittman asserts that the postconviction court erred in
denying his Giglio claim with respect to Carl Hughes and other matters. The
United States Supreme Court in Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), held that a prosecutor cannot
knowingly present false testimony against a defendant. To establish a Giglio
violation, it must be shown that (1) the prosecutor presented false testimony;
(2) the prosecutor knew the testimony was false; and (3) the false evidence
was material. Guzman v. State, 941 So.2d 1045, 1050 (Fla. 2006). Once the
defendant establishes the first two prongs, the State bears the burden of
showing that the false evidence was immaterial by showing that its use was
harmless beyond a reasonable doubt. Id. To do this, the State must show
that “there is no reasonable possibility that the error contributed to the
conviction.” Id. (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)).
50
A court’s decision with respect to a Giglio claim is a mixed question of law
and fact, and a reviewing court will defer to the lower court’s factual findings
if they are supported by competent, substantial evidence, but will review the
court’s application of law to facts de novo. Sochor v. State, 883 So.2d 766,
785 (Fla. 2004).
Pittman asserts that the State knowingly presented false or misleading
evidence with respect to Carl Hughes’ testimony that he received no benefit
in exchange for his testimony (“I was given no favors”) and that he gave no
interviews between June 26, 1990, and September 11, 1990. Pittman asserts
that the postconviction court erred in denying relief on this claim. This issue
was addressed at the evidentiary hearing below and the postconviction court
ruled as follows:
In his Motion, the defense alleges that State witness,
Carl Hughes’s testimony was less than truthful regarding his
relationship with the State. The Defendant alleges that Mr.
Hughes made statements that he was going to attempt to get
statements from Mr. Pittman and that doing so was part of the
deal with the State that existed prior to his placement with Mr.
Pittman. The Defendant alleges that Mr. Hughes decided not
to go through with his testimony but was coerced into doing so
when the State threatened to prosecute him and a family
member unless he went through with the deal. The defense
alleges that an interview Hughes had with Detective Cosper on
July 6, 1990 was never disclosed to the defense. This matter
is fully discussed by the Court under Claim I. The Defendant
also alleges that the State violated Mr. Pittman’s due process
rights by allowing Hughes to testify that he had been advised
by other inmates that Mr. Pittman talked about this case
nonstop and indicated to some inmates that he may have done
it. The Defendant claims that the State knew that this wasn’t
the case; and they failed to disclose that they knew that
another inmate, Elton Ard, had indicated that Mr. Pittman had
never given an indication that he had killed anyone. The Court
does not find that this allegation has any merit, and it was not
supported by the defense at the evidentiary hearing.
Based on this record, we conclude that Pittman has
failed to show that the postconviction court erred in denying
this claim. The court’s factual findings are supported by
competent, substantial evidence and the court properly applied
the law. Pittman has failed to show that the prosecutor
presented false testimony and that the prosecutor knew the
testimony was false. Under the above standard of review,
51
Pittman has failed to show that the State committed a Giglio
violation with respect to this claim.
Pittman, 90 So. 3d at 811-812.
Again, AEDPA “imposes a highly deferential standard for evaluating state court
rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico
v. Lett, ––– U.S. ––––, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks omitted). “A
state court’s determination that a claim lacks merit precludes federal habeas relief so long
as fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, ––– U.S. ––––, 131 S. Ct. 770, 786 (2011) (internal quotation marks
omitted). See also, Ponticelli v. Sec’y, Fla. Dept. of Corr., 690 F.3d 1271, 1292-1294 (11th
Cir. 2012) (The trial court found and the state supreme court affirmed that the prosecution
did not knowingly present false testimony and [Petitioner] failed to satisfy his burden of
rebutting, by clear and convincing evidence, these factual determinations. See, 28 U.S.C.
§ 2254(e)(1).
Pittman failed to show that the state court’s decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). Furthermore, Giglio error is trial error, not a structural defect.
Ventura, 419 F.3d at 1278 n. 3. Therefore, this court can grant relief on that claim only if
(1) the petitioner establishes that a Giglio error occurred and (2) that error had “substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637,
113 S. Ct. at 1722. The shotgun barrage of complaints listed by Pittman, even if any Giglio
52
error, did not have “a substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714. Thus, even if Pittman arguably could
establish a Giglio violation, which he failed to do, error, if any, would be harmless. See,
Trepal v. Sec’y, Fla. Dept. of Corr., 684 F.3d 1088, 1111-17 (11th Cir. 2012).
Ground one does not warrant habeas corpus relief.
GROUND II
MR. PITTMAN WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL AT THE GUILT PHASE OF HIS TRIAL IN
VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Pittman renews his allegation that he was denied the effective assistance of counsel
during the guilt phase. (Petition, Doc. 14 at 39-44; Memorandum, Doc. 15 at 21-24).
Pittman alleges that his experienced trial attorneys, Robert Norgard and Robert Trogolo,
were ineffective at the guilt phase4 in failing to: (1) elicit from James Troup the fact that
even though there was smoke inside the Toyota when he came upon it on the side of the
road, the smoke was not yet coming out of the car, (2) contact inmate John Schneider in
person, and (3) obtain inmate Pounds’ PSI.
Again, this case is governed by AEDPA, which means that Pittman may be granted
habeas relief only if the Florida courts’ decisions were “contrary to, or an unreasonable
application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). This Court is “not
4
In state court, Pittman also asserted that trial counsel was ineffective at the guilt
phase in failing to dispute Dennis Waters’ level of certainty in identifying the homemade
wrecker. (See D47/92). Petitioner does not present any IAC/guilt phase claim based on
Dennis Waters. See Doc. 14 at 40-44. Therefore, any IAC/guilt phase claim based on
Waters’ identification of the wrecker is abandoned.
53
applying Strickland de novo, but rather through the additional prism of AEDPA deference.
Thus, under this doubly deferential standard, ‘[t]he pivotal question is whether the state
court[s’] application of the Strickland standard was unreasonable. And if, at a minimum, fair
minded jurists could disagree about the correctness of the state court[s’] decision, the state
court [s’] application of Strickland was reasonable and AEDPA precludes the grant of
habeas relief.” Morris v. Sec’y, Dept. of Corr., 677 F. 3d 1117 (11th Cir. 2012).
Pittman’s IAC/guilt phase claim was raised in his Rule 3.851 motion to vacate and
denied after an evidentiary hearing. Pittman included an IAC/guilt phase claim on his postconviction appeal. See, Initial Brief, Case No. SC08-146 (Argument I, D47/91-94). In
affirming the trial court’s denial of the IAC/guilt phase claim, the Florida Supreme Court
stated, in pertinent part:
H. Ineffectiveness Claim
In this claim, Pittman asserts that the postconviction court erred in
denying his claim of ineffective assistance of trial counsel with respect to the
guilt phase of the trial. Following the United States Supreme Court decision
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)(holding that the Sixth Amendment right to counsel embodies the right
to effective assistance of counsel), this Court held that two requirements
must be met to satisfy the deficient performance and prejudice prongs of
Strickland:
First, the claimant must identify particular acts or
omissions of the lawyer that are shown to be outside the broad
range of reasonably competent performance under prevailing
professional standards. Second, the clear, substantial
deficiency shown must further be demonstrated to have so
affected the fairness and reliability of the proceeding that
confidence in the outcome is undermined. A court considering
a claim of ineffectiveness of counsel need not make a specific
ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)(citations omitted).
54
Several additional criteria apply to such claims. First, there is a strong
presumption that counsel’s performance was not ineffective. See Strickland,
466 U.S. at 689, 104 S.Ct. 2052 (“Judicial scrutiny of counsel’s performance
must be highly deferential.”). Second, “[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Id. Third, the defendant must “overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158,
100 L.Ed. 83(1955)). Specifically, “strategic decisions do not constitute
ineffective assistance of counsel if alternative courses have been considered
and rejected and counsel’s decision was reasonable under the norms of
professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000).
Because both prongs of the ineffectiveness test set forth in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
present mixed questions of law and fact, this Court employs a mixed
standard of review. Sochor v. State, 883 So.2d 766, 771 (Fla. 2004). The
Court will defer to the postconviction court’s factual findings as long as they
are supported by competent, substantial evidence in the record, and the
Court will review the lower court’s legal conclusions de novo. Id. at 772.
In this claim, Pittman argues that his trial attorneys, Norgard and
Trogolo, were ineffective in failing to do the following: in failing to elicit from
James Troup the fact that even though there was smoke inside the Toyota
when he came upon it on the side of the road, the smoke was not yet coming
out of the car; in failing to contact inmate John Schneider in person; in failing
to obtain inmate Pounds’ PSI; and in failing to dispute Waters’ level of
certainty in identifying the homemade wrecker. This issue was addressed at
the evidentiary hearing below, and the court addressed it at length its order
denying relief. Specifically, with respect to Troup, the court ruled as follows:
“The Court does not find that counsel’s performance fell below a reasonable
standard with respect to this allegation. To the extent counsel’s failure to elicit
the information from Troup might be considered deficient performance, the
Court finds the second prong of the Strickland standard has not been met.
There is no reasonable basis to assume that but for such deficient
performance, the result of the proceeding would have been different.” With
respect to Schneider, the court ruled as follows: “To the extent counsel’s
failure to interview Schneider might be considered deficient performance, the
Court finds the second prong of the Strickland standard has not been met.
There is no reasonable basis to assume that but for such deficient
performance, the result of the proceeding would have been different.” And
with respect to this claim overall, the court concluded as follows:
55
The Defendant has not shown that counsel’s performance fell below
an objective standard of reasonableness with respect to the allegations he
makes in [this claim] of his Motion. In addition, to the extent it might be
argued that there was deficient performance, the Court does not find there
is any reasonable probability that the result of the proceedings would have
been different but for such deficiencies. [This claim] of Defendant’s motion
is denied.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. The court’s factual
findings are supported by competent, substantial evidence and the court
properly applied the law. Pittman has failed to show that counsel
rendered deficient performance in the guilt phase and that the
defendant was thereby prejudiced. Under the above standard of review,
Pittman has failed to show that trial counsel was ineffective in this respect.
Pittman, 90 So. 3d at 812-13 (e.s.).
The “unreasonable application” standard is a difficult one for a habeas petitioner to
meet and is more than merely an “incorrect application” of federal law. Renico v. Lett, 130
S. Ct. 1855, 1862 (2010). Furthermore, under the AEDPA, the “determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.”
Rutherford v. Crosby, 385 F.3d 1300, 1306-07 (11th Cir. 2004) (citing § 2254(e)). Thus,
under the AEDPA, a habeas petitioner “must do more than satisfy the Strickland v.
Washington, 466 U.S. 668 (1984) standard. He must also show that in rejecting his
ineffective assistance of counsel claim the state court ‘applied Strickland to the facts of his
case in an objectively unreasonable manner.’” Rutherford, 385 F.3d at 1309 (quoting Bell
v. Cone, 535 U.S. 685, 699 (2002)).
Again, Pittman was represented at trial by very experienced trial counsel, attorneys
Robert Norgard and Robert Trogolo. “When courts are examining the performance of an
experienced trial counsel, the presumption that his conduct was reasonable is even
56
stronger.” Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.2000) (en banc). The
state courts reasonably applied the facts and proper precedent, Strickland, to reject
Petitioner’s IAC/guilt phase claim. The state court’s decision does not conflict with any
clearly established Supreme Court precedent nor does it constitute an unreasonable
application of any such precedent under the facts of this case.
At trial, James Troup testified that he saw a car on fire on Prairie Mine Road at
around 6:30 a.m. (DA-R/1283). In denying the IAC sub-claim (based on the failure to elicit
testimony from Troup that he did not see smoke coming from the vehicle to allegedly
impeach the observations of Barbara Davis5), the trial court found no deficiency; and, even
assuming any deficiency, there was “no reasonable basis to assume that but for such
deficient performance, the result of the proceeding would have been different.” (PCR
V34/5403). In short, the jury already knew that Troup did not see anyone around the
burning car. (DA-R/1290-91).
With regard to the failure to contact inmate John Schneider in person, trial counsel,
5
Barbara Davis identified Pittman as the man next to the passenger side of the
burning car and who came up the embankment at a “jog-like” pace. Ms. Davis lived in an
apartment on Prairie Mine Road next to where the Toyota was abandoned and burned.
(DA-R/1699—1700). At approximately 6:40 a.m. on the morning of the fire, Ms. Davis was
outside picking roses when she saw a ball of smoke. (DA-R/1702-03). When Ms. Davis
subsequently approached the location of the fire, she saw a man coming up the
embankment from beside the car. (DA-R/1704-05). The man was right next to the
passenger side of the car - an inch or two away from it. (DA-R/1704) The man went across
the parking lot, taking “big steps at record speed.” (DA-R/1705) Ms. Davis saw the right
side of the man’s face; she described him as a white male with acne or indents in his face,
a long and pointed nose, and dirty blonde hair hanging down on his head. (DA-R/1705;
1711-1712; 1714). Later that day, the police took her to Bartow where she identified
Pittman’s photo from two separate photo-packs; the first group of photos were front view
only and the second group were right side profile photographs. (DA-R/1714-16; 1720). Ms.
Davis also identified Pittman in court. (DA-R/1719).
57
Robert Norgard testified in postconviction that Schneider6 was not contacted (in person)
at the time of trial because Schneider’s attorney informed the Public Defender’s investigator
that Schneider was afraid and Schneider didn’t want to talk to them. Strickland mandates
an evaluation of the conduct from counsel’s perspective at the time. 466 U.S. at 689.
Further, as the state court found, “[t]here is no reasonable basis to assume that but for
such deficient performance, the result of the proceeding would have been different.” (PCR
V34/5403). Pittman was represented by experienced capital defense attorneys who were
zealous advocates on Pittman’s behalf. The state court did not unreasonably apply
Strickland in finding that Pittman failed to establish any deficiency of counsel; and, even
assuming deficient performance, there was no reasonable probability that the result of the
proceedings would have been different. (PCR V34/5405).
On cross-examination of David Pounds at trial, defense counsel elicited the
following:
DA-R/1905
Pounds was sentenced on May 9, 1990 and the
defendant was placed in Pounds’ cell on May 15,
1990.
DA-R/1909
Pounds was not aware that there were still 60
days from the conclusion of Pittman’s trial for
Pounds’ attorney (Robert Doyle) to file a 3.800
motion.
DA-R/1914
Pounds also did not tell Det. Cosper everything
in the first statement because, according to
Pittman’s defense counsel, Pounds wanted to
get paid for it. The only person Pounds could
recall being around when the defendant made
6
At the postconviction hearing, Schneider testified that he saw Hughes going
through Pittman’s papers on two occasions, and that inmates in the jail had access to
newspapers.
58
his statements was Raymond Kayoni (phonetic).
DA-R/1915
Pounds didn’t know if the others who were
watching TV heard the defendant’s comments or
not. It was pretty loud in there. Besides having
committed the crime himself, the defendant may
have gotten the information from his own
attorney.
DA-R/1920
Pounds was not sure how badly his memory had
been affected by his extensive alcohol use.
During 1979 – 1986, Pounds was severely
alcoholic and having blackouts. While Pounds
was on psychotropic medications, he was
maintaining a 3.5 GPA in college. During his
deposition of December 28, 1990, Pounds
informed defense counsel that he was currently
on psychotropic medication for mental disorders,
which also affect his memory.
DA-R/1924
According to defense counsel, basically, Pounds
lied to Detective Cosper the first time he talked to
him when he said that he didn’t have any
additional information.
DA-R/1925
Pounds didn’t consider it lying. He didn’t consider
withholding information that he wasn’t obligated
to tell anybody to be a lie.
DA-R/1929
Pounds’ appeal was denied by the 2DCA on
January 24, 1991 when they affirmed his
judgment and sentence.
DA-R/1930
Pounds thought he had 60 days from that date to
file a 3.800 but that time had expired. He told his
lawyer to begin work on a 3.850.
DA-R/1931
Pounds admitted that he initially withheld
information from Detective Cosper, which
defense counsel emphasized as lying.
On redirect examination, Pounds read the letter he wrote to his mother. (DA-R/193637). Pounds’ letter to his mother stated, in pertinent part:
59
The problem is that I know David Pittman did it. He told me he did. I
didn’t tell the detective that he actually told me he did it but he did. He said
there was no way that he could get convicted of it though.
Now, if I help the State Attorney prosecute David Pittman I can get this
life sentence off of me. But, you know, I have to snitch, and that’s what I
would be doing. I would never tell on a friend if they told me something like
that, but I don’t even know David Pittman. Killing three people is a serious
crime.
The detective gave me his name and number and he wants me to give
a statement under oath and take a polygraph test. Then I would have to
testify in court against him. Would you do it or not? I don’t know what I should
do. It is awful tempting to get this life sentence off of me. Give me some
advice on this.
(DA-R/1936-37).
In postconviction, State Attorney Investigator Martin Hodges interviewed Pounds the
week before the evidentiary hearing. Pounds was going to change his testimony to help
Pittman, but he decided against lying and confirmed that his trial testimony was true.
The question is not how the district court or this Court would rule if presented with
the issue for the first time and not whether we think the state court decision is correct, but
whether its decision is contrary to, or an unreasonable application of, clearly established
federal law.
Pittman’s claim of an entitlement to cumulative prejudice analysis also must fail. As
the Eleventh Circuit explained in Evans,
While the prejudice inquiry should be a cumulative one as to the effect
of all of the failures of counsel that meet the performance deficiency
requirement, only the effect of counsel’s actions or inactions that do meet
that deficiency requirement are considered in determining prejudice.
Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (“[A]ny deficiencies in
counsel’s performance must be prejudicial to the defense in order to
constitute ineffective assistance under the Constitution”); id. at 694, 104 S.Ct.
at 2068 (“The defendant must show that there is a reasonable probability
60
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”) (emphasis added). Because Evans has failed
to show any deficiency in counsel’s performance based on not calling any of
the other six witnesses, there is no deficiency to accumulate in order to
establish prejudice. Cf. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132
(11th Cir.2012)(“[N]one of Morris’s individual claims of error or prejudice have
any merit, and therefore we have nothing to accumulate.”). We reject Evans’
cumulative prejudice argument.
Evans v. Sec’y, Fla. Dept. of Corr., 2012 WL 5200326, *17 (11th Cir. 2012).
Viewing the state court record as a whole, and examining it through the lens of
double deference, the new testimony adduced at the postconviction evidentiary hearing is
insufficient to establish that the Florida Supreme Court’s determination was an
unreasonable application of Strickland, or, in other words, that no fair minded jurist could
reach the conclusion that the Florida Supreme Court reached in this case.
Ground two does not warrant habeas corpus relief.
GROUND III
MR. PITTMAN RECEIVED A CONSTITUTIONALLY
DEFICIENT ADVERSARIAL TESTING DURING THE
PENALTY PHASE DUE TO THE INEFFECTIVE
ASSISTANCE OF COUNSEL
Pittman repeats his claim of ineffective assistance of counsel at the penalty phase.
(Petition, Doc. 14 at 45-53; Memorandum, Doc. 15 at 24-28). In state court, and here,
Pittman alleged that defense counsel was ineffective in failing to (1) present four additional
witnesses — Robert Barker, Michael Pittman, Jean Wesley and Tillie Woody — to attest
to his substance abuse and life-long afflictions, and (2) elicit additional information from
three witnesses — Tammie Davis, William Pittman, and Dr. Dee — who previously testified
during the penalty phase.
Pittman’s IAC/penalty phase counsel claim was raised in his state postconviction
61
motion to vacate and denied after an evidentiary hearing. The trial court summarized the
testimony presented by the postconviction witnesses on his IAC/penalty phase claim -Robert Barker, Michael Pittman, Jean Wesley, Tillie Woody, Tammie Davis, William
Pittman, and Dr. Dee. (D34/5332-33; 5336-41). In addition, the trial court addressed the
testimony presented by these witnesses in denying this IAC/penalty phase claim
(D34/5410-5412) and concluded that Pittman failed to establish that trial counsel’s
performance with regard to presenting mental health and other mitigation evidence fell
below an objective standard of reasonableness. (D34/5412). In addition, Dr. Dee previously
testified during the penalty phase regarding Pittman’s mental health issues, drug problems,
and sexual abuse.7 (D34/5412).
After conducting the multi-day evidentiary hearing, the trial court denied Pittman’s
IAC/penalty phase claim as follows:
The defense argues that defense counsel was ineffective in failing to
present witnesses Robert Barker, Michael Pittman, Jean Wesley and Tilly
Woody during the penalty phase, and to elicit additional testimony from
Tammy Davis, William Pittman, and Dr. Dee, who did testify at the penalty
phase.
7
During the postconviction hearing, Dr. Dee agreed on cross-examination, that he
had quite a bit of experience in testifying in penalty phases of a death penalty case, and
he had quite a bit of experience before testifying in Pittman’s case. Dr. Dee testified that
there was nothing he would now change about the opinions he gave during the course of
the trial, but there was now a little additional information in terms of corroboration.
(D24/3790-92). Dr. Dee talked with Pittman and members of his family (Pittman’s aunt, an
uncle, his mother and his younger sister) and Dr. Dee testified at the penalty phase about
Pittman’s addiction. Dr. Dee recalled that the addiction was either alcohol and/or drugs, but
Pittman denied being addicted when Dr. Dee talked to him. (D25/3793-95). When Dr. Dee
asked Pittman if he had a drug addiction or used methamphetamines or drugs, Pittman told
him no. (D25/3795). Dr. Dee previously testified at the penalty phase about Pittman’s
having been sexually molested three or four times at the age of nine or ten; Dr. Dee
recalled that information came from Pittman. (D25/3797).
62
Pittman worked for Mr. Barker at his junkyard and Mr. Barker testified
at the evidentiary hearing to incidents of drug abuse by Pittman. Mr. Barker
testified that he saw Mr. Pittman using some crack cocaine in the months
proceeding the murders. Ms. Woody testified that she taught Mr. Pittman as
a student for sixth, seventh, and eighth grade at the Mulberry Middle School.
She testified that he was not a critical thinker and his behavior in the
classroom was average. She testified that he was not impulsive, and he did
not pick on other kids. She said he did not really cause problems for her. Ms.
Jean Wesley worked as a teacher’s aid with a class of six students including
David Pittman in 1974. She testified that it was a mixed class of emotionally
handicapped students and autistic students. She testified that she thought
David Pittman was eleven or twelve years of age when he was one of her
students, and he was not working on grade level for his age. She testified
that she did not remember him ever being aggressive to anybody when he
was upset.
Michael Eugene Pittman, David Pittman’s half brother testified to the
physical abuse David received as a child from his mother. He testified to
incidents of the Defendant being sexually abused and to Mr. Pittman’s use
of drugs. Tammy Davis testified at the evidentiary hearing that Mr. Pittman’s
mother had practically raised her. She testified to the physical abuse David
received as a child from his mother. She testified at trial, but she said at the
evidentiary hearing that she did not remember if David Pittman’s trial lawyers
ever asked her about her knowledge of David Pittman while he was growing
up.
William Pittman, David Pittman’s half brother testified at the
evidentiary hearing regarding sexual abuse suffered by Mr. Pittman and
incidents of drug abuse. He testified that he was not asked about his
knowledge about sexual abuse that might have happened or drug use his
brother was involved in. He testified that had be been asked these questions
he would have testified about them for his brother. On cross-examination, Mr.
Pittman testified that he did not tell David Pittman’s lawyers about his
brother’s methamphetamine problem because they did not ask. He testified
that he did not tell them information he was not asked about; and he did not
tell them about the sexual molestation because they did not ask him about
it.
Dr. Henry L. Dee, a clinical psychologist and clinical neuropsychologist
testified at the evidentiary hearing. He testified that he evaluated David
Pittman at the request of the defense in his murder trial in 1990, and he
testified at his trial on behalf of the defense. Dr. Dee testified that he talked
to some family members and relatives prior to testifying in the trial. Dr. Dee
agreed that he testified at trial about Mr. Pittman’s addiction. He testified that
Pittman’s addiction was alcohol and/or drugs, but Pittman denied being
63
addicted to him. He testified he was convinced of the addiction at the time of
the trial, but he didn’t have corroboration of it. He testified at the evidentiary
hearing that he did not have any independent recollection of talking to
Pittman’s family members about Pittman’s drug use. Dr. Dee also testified
that the family members he talked to, an aunt, an uncle, his mother, and a
younger sister might not have been in a position to give him that kind of
information. Dr. Dee agreed that it normally would be the kind of question he
would have asked them, but his notes revealed no information about it. Dr.
Dee agreed that he may not have talked to the people that were aware of
Pittman’s drug addiction. Dr. Dee also testified that the people he talked to
might not have known the significance of the drug addiction or didn’t tell him
about it. Dr. Dee agreed that he remembered testifying at trial that Pittman
had been sexually molested three or four times at age eight or nine.
Although the testimony of these witnesses presents a harsh and
depressing picture with respect to Mr. Pittman’s childhood, drug use and
sexual abuse; the Court does not find that the defense has shown that trial
counsel’s performance with regard to presenting mental health and other
mitigation evidence fell below an objective standard of reasonableness. Dr.
Dee testified at trial regarding Mr. Pittman’s mental health issues, drug
problems, and sexual abuse. Claim VII of Defendant’s Motion is denied.
(D34/5409-12).
Pittman’s initial brief on his postconviction appeal devoted three pages to his
IAC/penalty phase claim. See, Initial Brief, Case No. SC08-146, Argument II (D47/97-100).
The Florida Supreme Court affirmed the denial of relief as follows:
K. Ineffectiveness Claim Concerning the Penalty Phase
In this claim, Pittman asserts that trial counsel was ineffective in the
penalty phase in failing to present additional evidence of mental health issues
and other mitigation. He asserts that the postconviction court erred in
denying relief on this claim. He claims that defense counsel was ineffective
in the following ways: (1) in failing to present four additional witnesses —
Robert Barker, Michael Pittman, Jean Wesley and Tillie Woody—to attest to
his substance abuse and life-long afflictions, and (2) in failing to elicit
additional information from three witnesses—Tammie Davis, William Pittman,
and Dr. Dee--who testified during the penalty phase. This issue was
addressed at the evidentiary hearing below and the postconviction court
addressed it at length in its order denying relief, concluding as follows:
Although the testimony of these witnesses presents a
64
harsh and depressing picture with respect to Pittman’s
childhood, drug use and sexual abuse, the court does not find
that the defense has shown that trial counsel’s performance
with regard to presenting mental health and other mitigation
evidence fell below an objective standard of reasonableness.
Dr. Dee testified at trial regarding Pittman’s mental health
issues, drug problems, and sexual abuse. Claim VII of
Defendant’s Motion is denied.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. The court’s factual
findings are supported by competent, substantial evidence and the court
properly applied the law. Pittman has failed to show that counsel
rendered deficient performance in the penalty phase and that the
defendant was thereby prejudiced. Under the above standard of review,
Pittman has failed to show that trial counsel was ineffective in this respect.
Pittman, 90 So. 3d at 815-16 (e.s.).
Petitioner has not established that the state court’s adjudication of this claim either
(1) “resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States”
or (2) “resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
As Pittman recognizes, the postconviction court found that “Dr. Dee testified at trial
regarding Pittman’s mental health issues, drug problems, and sexual abuse.” (Doc. 15 at
25, citing PCR 5412). Trial counsel’s reasonable investigation into a defendant’s mental
health or presentation of mental health testimony is not rendered deficient simply because
collateral counsel presents more mental health testimony in postconviction. Nor is counsel
deemed ineffective because postconviction counsel secures the testimony of a more
favorable mental health expert. See, McClain v. Hall, 552 F.3d 1245, 1253 (11th Cir. 2008).
AEDPA “demands that state-court decisions be given the benefit of the doubt.” Renico v.
65
Lett, ––– U.S. ––––, 130 S. Ct. 1855, 1862, (2010) (quotation marks omitted); accord
Morton v. Sec’y, Fla. Dept. of Corr, 684 F.3d 1157 (11th Cir. 2012). To be unreasonable,
the alleged error in the state court’s finding must be so clear that there is no possibility for
“fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
Pittman’s burden of establishing ineffective assistance in this case was especially
difficult as he was represented by very experienced defense counsel. See, Chandler v.
United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc). Pittman’s experienced
defense counsel prepared for the penalty phase and presented mitigation about Pittman
to the penalty phase jury and the trial court. This not a bare bones penalty phase
presentation. “Which witnesses, if any, to call, and when to call them, is the epitome of a
strategic decision” that seldom, if ever, serves as grounds to find counsel’s assistance
ineffective. Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004).
The trial court’s sentencing order discussed the aggravating factors and mitigating
factors presented:
I. AGGRAVATING CIRCUMSTANCES
1. As an aggravating circumstance, the Defendant, David Joseph Pittman,
was proven beyond and to the exclusion of every reasonable doubt to have
a previous conviction of a felony involving the use or threat of violence; to wit:
Aggravated Assault. (Case No. CF85-3584A1-Sentenced on March 12,
1986.)
2. As an aggravating circumstance, the Defendant, David Joseph Pittman,
was proven beyond and to the exclusion of every reasonable doubt to have
committed two previous capital felonies as to each of the three murders for
which he has been found guilty; to wit: the murders of Bonnie Knowles and
Barbara Knowles as to the murder of Clarence Knowles; the murders of
Barbara Knowles and Clarence Knowles as to the murder of Bonnie Knowles;
the murders of Clarence Knowles and Bonnie Knowles as to the murder of
Barbara Knowles.
66
3. As an aggravating circumstance, the commission of the First Degree
Murder of Bonnie Knowles was especially heinous, atrocious or cruel. By
testimony and evidence in the record the court finds that the State proved
beyond and to the exclusion of all reasonable doubt that Bonnie Knowles
experienced conscious pain and suffering before death as a result of the
Defendant cutting and stabbing Bonnie Knowles numerous times with a knife
or similar object.
4. As an aggravating circumstance, the commission of the First Degree
Murder of Barbara Knowles was especially heinous, atrocious or cruel.
By the testimony and evidence in the record the Court finds that the State
proved beyond and to the exclusion of every reasonable doubt that Barbara
Knowles [a] experienced pre-death apprehension of physical pain; [b]
experienced conscious pain and suffering before death as a result of the
Defendant stabbing Barbara Knowles numerous times with a knife or similar
object; and [c] that she experienced apprehension of impending death even
absent physical pain.
5. As an aggravating circumstance, the commission of First Degree Murder
of Clarence Knowles was especially heinous, atrocious or cruel.
By testimony and evidence in the record the Court finds that the State proved
beyond and to the exclusion of every reasonable doubt that Clarence
Knowles [a] experienced pre-death apprehension of physical pain; [b]
experienced apprehension of death even absent physical pain; and [c]
experienced conscious pain and suffering before death as a result of the
Defendant stabbing Clarence Knowles numerous times with a knife or similar
object.
THE COURT concludes from these facts that David Joseph Pittman’s actions
in murdering each of the three individuals was especially heinous, meaning
extremely wicked or shockingly evil; was especially atrocious, meaning
outrageously wicked or vile; and was especially cruel, meaning designed to
inflict a high degree of pain with utter indifference to, or even with enjoyment
of, the suffering of others.
II. MITIGATING CIRCUMSTANCES
As to mitigating circumstances, the Court finds the following:
1. That the three First Degree Murders for which the Defendant is to be
sentenced were not committed while the Defendant was under the influence
of extreme mental or emotional disturbances, nor were they mitigated by the
use of alcohol as suggested. To the contrary, the Court finds the Defendant
67
[a] arranged the visit to his father’s house on the eve of the murders, the first
time in months that he had been to his father’s house; [b] that he left the
house by an outside door from a locked room; [c] walked the short distance
in the early morning hours to the victim’s home; and [d] there cut the
telephone lines to the outside of the house.
The Defendant upon entering the victim’s home, systematically killed all the
occupants of the house using a weapon that assured the least possibility of
drawing the attention of witnesses. He then proceeded in a knowledgeable way
to pour gasoline about the house and out into the yard. Testimony at the trial
revealed that he understood the use of fire to destroy evidence. Before setting
the fire, however, he secured the keys to Bonnie Knowles car for the purpose
of his getaway.
The Defendant’s actions and all other evidentiary circumstances
considered show a direct conscious plan to kill and avoid apprehension.
These actions do not indicate a person functioning under the influence
of extreme mental or emotional disturbances. In regard to the influence of
alcohol, other than the expert’s opinion, the record does not reflect it to have
been a factor in the commission of the murders.
2. Except for the solicited opinions of the Defendant’s expert that the
Defendant’s capacity to conform his conduct to the requirements of the law
was substantially impaired, this mitigating circumstance is unsupported by any
other evidence in the record.
To the contrary, these facts reveal that all the actions by the Defendant
leading up to the killings, the nature of the killings themselves, the
methodical steps taken to destroy evidence, to effectuate a getaway, and
to establish an alibi were the product of deliberate thought. These
actions clearly show that the Defendant knew what he was doing and that
it was unlawful. Again the presence of alcohol as a mitigating factor is
unsupported by the record except for the expert’s opinion.
THE COURT finds there is nothing in the record to demonstrate that the
Defendant could not conform his conduct to the requirements of law.
3. The expert has offered an opinion as a mitigating circumstance that the
Defendant suffers brain damage. Other than this opinion there exists no
corroborating evidence to suggest the presence of this damage or its degree,
nor its actual relationship to the murders.
4. Additional mitigating circumstances offered in evidence are that the
Defendant was and may still be a hyperactive personality, and that he
68
may have suffered physical and sexual abuse as a child. Also the expert
testified that the Defendant was an impulsive person with memory
problems and impaired social judgment.
Taking all these mitigating circumstances in a light most favorable to the
Defendant, the Court finds they have little if any connection to the
murders. The record speaks clearly of an individual who went about the
killings and the destruction of evidence in a deliberate, methodical and
efficient manner to such an extent that detection was nearly avoided. But
for a lady picking roses early one morning who happened to see the Defendant
running from Bonnie Knowles’ burning car, the case might not have been
successfully prosecuted.
While addressing meaningful facts, the record reflects another that enlightens
upon the issues of the Defendant’s intentions and his capacity to understand
what he was doing was unlawful. That fact was the Defendant’s cutting of the
telephone lines. This was admitted by the Defendant to witness Hughes as
being done before the Defendant entered the home of the victims.
THE COURT, therefore, finds the aggravating circumstances established
by the proper burden of proof to substantially outweigh all mitigating
circumstances reflected in the record.
Pittman, 646 So. 2d at 170, fn. 1 & 2 (e.s.).
On direct appeal, the Florida Supreme Court also noted
. . . In mitigation, Pittman presented the testimony of his mother that he was a
difficult child to deal with and that she had disciplined him severely. A clinical
psychologist testified that Pittman’s father was a paranoid schizophrenic; that
as a child Pittman suffered from a severe attention deficit disorder with
hyperactivity; and that Pittman has organic personality syndrome, which
causes paranoia and an unstable mood. After hearing this testimony, the jury
recommended the death penalty for each murder conviction by a vote of 9 to
3. In his sentencing order, the judge found two aggravating circumstances for
each murder: (1) previous conviction of another capital or violent felony, and
(2) the murders were heinous, atrocious, or cruel. [n1] The judge then
expressly rejected the mitigating factors of Pittman’s being under the influence
of extreme mental and emotional disturbance and concluded that the
aggravating factors outweighed the proven mitigating factors. [n2]
Pittman, 646 So. 2d at 169-170 (footnotes omitted).
In imposing the death sentence, the trial court rejected Pittman’s claim that his
69
conduct - the careful preparation and execution of this triple homicide - was mitigated by any
mental health theory. The facts and circumstances of the murders - including Pittman’s use
of gasoline and fire to destroy evidence - refuted the mental health theory presented in an
effort to reduce Pittman’s culpability. Indeed, the truth of the matter is closer to the testimony
presented by Pittman’s mother as “a child most women would not want to have to raise” (DAR/4357-58) and responsible for most of his fights (DA-R/4364). At the time of trial, it was
established that Pittman’s I.Q. is a lot higher than many people Dr. Dee dealt with; Pittman
was capable of making the decision whether to kill or not (DA-R/4476; 4487), and the night
of May 14 was the first night in months that Pittman had visited his father’s house - a fact
confirmed by Pittman’s own testimony. (DA-R/3885). In this case, each victim was stabbed
numerous times and bled to death. In addition, Bonnie Knowles’ throat was cut. Pittman, 646
So. 2d at 173. Pittman had made threats about his in-laws over a prolonged period of time,
waited for the first opportunity to confront them in the early morning hours at their home, cut
the telephone wires, killed the three members of the Knowles’ household, and burned the
house to destroy evidence.
The trial court’s sentencing order addressed the defense mitigation claims of brain
damage, hyperactivity, physical and sexual abuse as a child, his impulsivity with memory
problems in paragraphs (3) and (4) of the mitigating circumstances section of his sentencing
order (DA-R/5180). The alleged mental and emotional problems urged by the defense were
eclipsed by comparison to the “deliberate, methodical, and efficient manner to such an extent
that detection was nearly avoided.” (DA-R/5181) On direct appeal, the Florida Supreme Court
examined the sentencing order and also held:
The order also provides a reasoned judgment for its rejection of alcohol
70
use and brain damage as mitigating factors in this case, and for its acceptance
of the mitigating circumstances that Pittman was a hyperactive personality, that
he may have suffered physical and sexual abuse as a child, and that he was
an impulsive person with memory problems and impaired social judgment.
Finally, the order states with particularity the reasons that this mitigation did not
outweigh the aggravating circumstances. We have examined the sentencing
order and find no error.
Pittman, 646 So. 2d at 172.
Pittman failed to establish any deficiency of counsel and resulting prejudice under
Strickland and the state court’s decision is not an unreasonable application of Strickland.
Pittman not only brutally slaughtered three members of the Knowles’ family, but he previously
had been convicted of aggravated assault in 1985. “Pittman stabbed his in-laws to death in
the middle of the night after taking the precaution of cutting the phone lines. Clearly, these
murders justify the sentences imposed in this case.” Pittman, 646 So. 2d at 173.
The Florida Supreme Court also found that Pittman failed to establish any resulting
prejudice based upon his allegations of deficient performance. The state courts’
determination that Pittman failed to establish prejudice is entitled to considerable deference
in federal court. See, Woodford v. Visciotti, 537 U.S. 1149, 123 S. Ct. 957 (2003). As for the
second prong of Strickland, “[a] petitioner’s burden of establishing that his lawyer’s deficient
performance prejudiced his case is also high.” Van Poyck v. Sec’y, Fla. Dept. of Corr., 290
F.3d 1318, 1322 (11th Cir. 2002).
Pittman cites no Supreme Court precedent that suggests, much less establishes, that
defense counsel could be considered ineffective in this case. Instead, the cases cited by
Pittman are easily distinguishable from the instant case. For example, in Wiggins v. Smith,
539 U.S. 510, 123 S. Ct. 2527 (2003), trial counsel failed to discover that the defendant
suffered consistent abuse during the first six years of his life; was the victim of “physical
71
torment, sexual molestation, and repeated rape during his subsequent years in foster care,;”
was homeless for portions of his life; and had diminished mental capacities. 539 U.S. at 52829, 535.
In Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447 (2009), trial counsel collected no
records, conducted no interviews, and had only one short meeting with his client concerning
the penalty phase; a reasonable investigation would have revealed that the defendant was
abused as a child, served heroically in the Korean War but experienced trauma therefrom,
had a long-term substance abuse problem, and had impaired mental health and mental
capacity. 130 S. Ct. 447, 449, 453.
Similarly, Sears v. Upton, 130 S. Ct. 3259, 3261 (2010), which is not an AEDPA case,
does not suggest the state courts incorrectly decided this case. Sears’ counsel conducted
a facially deficient investigation and evidence relating to Sears’ cognitive impairments and
childhood difficulties was not brought to light when he was sentenced to death. In
postconviction, the defense presented unrebutted testimony which established that Sears
suffered from significant frontal lobe damage and that Sears did not have the normal or idyllic
childhood as depicted during the penalty phase. Sears, 130 S. Ct. at 3261.
The Eleventh Circuit has affirmed findings of no prejudice where, as here, (1) the new
mitigation evidence did not establish any statutory mitigating factors, (2) the new mitigation
evidence did not reduce the weight of the statutory aggravating factors, and (3) the jury had
heard some non-statutory mitigation of the same character the new mitigation presented, just
in less detailed form. See, Boyd v. Commissioner, Alabama Dept. of Corr., 697 F.3d 1320,
1341 (11th Cir. 2012), citing, inter alia, Robinson v. Moore, 300 F.3d 1320, 1346-48 (11th Cir.
2002).
72
In this case, Pittman’s dysfunctional family background, mental health, sexual abuse
and substance addiction were presented in mitigation. (DA-R/4315–4458). Defense counsel
presented Dr. Dee to testify about Pittman’s mental health, including addiction and sexual
abuse. (DA-R/4417-98). There was nothing of such compelling magnitude developed during
the postconviction hearing which could have altered the outcome in this case. See, Sochor
v. Sec’y, Dept. of Corr., 685 F.3d 1016, 1030 (11th Cir. 2012) (holding that where the death
sentence is supported by substantial aggravation [HAC and prior violent felony], a habeas
petitioner faces an especially heavy burden to establish that the mitigation that was not
presented due to counsel’s deficient performance would have sufficiently altered the
sentencing balance to establish prejudice under Strickland).
Pittman’s memorandum relies, primarily, on Porter and Sears (Doc. 15 at 26-28).
However, Pittman appears to raise similar arguments, based on Porter and Sears, that were
addressed at length and rejected by the Eleventh Circuit in Ponticelli v. Sec’y, Fla. Dept. of
Corr., 690 F.3d 1271, 1294-1302 (11th Cir. 2012).
In this case, the mental health mitigation presented during the postconviction hearing
was largely cumulative to Dr. Dee’s penalty phase testimony and must be balanced against
the likelihood of additional damaging testimony. Both the Supreme Court and the Eleventh
Circuit have held that it is reasonable for a state court to conclude that a petitioner suffers
no prejudice when the evidence is either weak or cumulative of the testimony presented at
trial. Ponticelli, 690 F.3d at 1296, citing, inter alia, Cullen v. Pinholster, ––– U.S. ––––, 131
S. Ct. 1388, 1409–10 (2011); Wong v. Belmontes, 558 U.S. 15, 130 S. Ct. 383, 387 (2009).
Furthermore, Dr. Dee inquired of Pittman about his drug abuse and Pittman denied it.
Accordingly, Pittman failed to meet his burden under Strickland. See, Cummings v. Sec’y,
73
Fla. Dept. of Corr., 588 F.3d 1331, 1357 (11th Cir. 2009), citing, inter alia, Stewart v. Sec'y,
Dept. of Corr., 476 F.3d 1193, 1210-11 (11th Cir. 2007) (denying claim of ineffective
assistance of trial counsel for failure to discover and inform defense mental health expert
of defendant's childhood abuse and mistreatment because defendant never told his counsel
about the abuse and mistreatment and, in fact “indicated just the opposite of poor treatment”
(quotation marks omitted)).
Moreover, drug abuse “has little mitigating value and can do as much or more harm
than good in the eyes of the jury.” Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002);
see also, Suggs v. McNeil, 609 F.3d 1218, 1232 (11th Cir. 2010) (observing that “evidence
of historical drug and alcohol use” is “unfavorable”). Both the Supreme Court and the
Eleventh Circuit have “rejected [the] prejudice argument [ ] where mitigation evidence was
a two-edged sword or would have opened the door to damaging evidence.” Ponticelli, 690
F.3d at 1296, citing, inter alia, Cummings v. Sec’y, Fla. Dept. of Corr., 588 F.3d 1331, 1367
(11th Cir. 2009) (internal quotation marks omitted); see also, e.g., Cullen, 131 S. Ct. at 140910; Belmontes, 130 S. Ct. at 387-88. Here, as in Ponticelli, in view of these precedents, it
cannot be said that the decision of the Supreme Court of Florida to reject Pittman’s claim
under Strickland “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” See,
Ponticelli, 690 F.3d at 1297, citing Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
Furthermore, as in Ponticelli, even if Pittman’s IAC/penalty phase claim was eligible
for de novo review, it would still fail. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.
1411, 1420 (2009); Reese v. Sec’y, Fla. Dept. of Corr., 675 F.3d 1277, 1291 (11th Cir.2012)
(quoting Berghuis v. Thompkins, ––– U.S. ––––, 130 S. Ct. 2250, 2265 (2010).
74
Even on de novo review, Pittman cannot establish deficient performance and that he
suffered resulting prejudice under Strickland. The defense not only investigated Pittman’s
background, but also presented evidence at both the guilt and penalty phases (including the
extensive testimony of Pittman himself at the guilt phase, DA-R/3786-3895). Pittman failed
to establish that trial counsel’s performance was deficient.
Pittman failed to show prejudice under Strickland. Here, as in Cullen, “[t]he State
presented extensive aggravating evidence.” In Florida, “the heinous, atrocious, or cruel [and]
the cold, calculated, and premeditated aggravators ... are two of the most serious
aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95
(Fla. 1999). The postconviction evidence does not undermine the application of these
aggravators. Additional substance abuse testimony likely could have caused some jurors to
vote in favor of death. See, Suggs, 609 F.3d at 1231. Pittman’s behavior before, during, and
after the murders suggests that he was in control of his actions. Before the murders, Pittman
threatened to kill members of the Knowles’ family. Pittman cut the telephone line and torched
the house to destroy evidence. There “is no reasonable probability that the additional
evidence Pittman presented in state postconviction would have changed the outcome. See,
Cullen, 131 S. Ct. at 1409.
Ground three does not warrant habeas corpus relief.
GROUND IV
THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENSE MOTIONS
TO SUPPRESS THE STATE’S IDENTIFICATION EVIDENCE BECAUSE OF
THE UNDULY SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES.
Pittman repeats a claim that he raised on direct appeal in state court, alleging that the
trial court erred in admitting identification testimony by three witnesses: Dennis Waters,
75
William Smith and Barbara Davis. Pittman alleges that the identification testimony was
influenced by unduly suggestive identification procedures. (Petition, Doc. 14 at 54-61;
Memorandum, Doc. 15 at 28-37). On direct appeal, the Florida Supreme Court determined
that none of the identifications were unduly suggestive under the “totality of the
circumstances” test of Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). The
Florida Supreme Court found that the first and second witnesses [Waters and Smith] “had
a sufficient opportunity to view the wrecker and had given fairly accurate descriptions before
the in-person identification. The third witness’s [Barbara Davis’] identification of Pittman from
the photo-pack was preceded by a general but accurate description of Pittman; the
identification was made within hours of the original viewing of Pittman; and the photographs
in the photo-pack were sufficiently similar to Pittman.” Pittman v. State, 646 So. 2d 167, 171
(Fla. 1994).
Again, the issue before this Court is whether the state court’s adjudication of this claim
either (1) “resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States” or (2) “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Pittman’s “suggestive identification” claim was based on three separate instances. The
first two concerned the separate identifications of the homemade wrecker by Waters and
Smith. The third concerned Barbara Davis, who identified Pittman as the man she saw
running away from the burning Toyota on the morning of the murders. Barbara Davis’
identification was based on a photo-pack that Pittman alleged was impermissibly suggestive.
As previously noted, Pittman’s “suggestive identification” claim was raised on direct
76
appeal. See, Initial Brief, Case No. SC78605, Issue II (A32/41-54). On direct appeal, Pittman
v. State, 646 So. 2d 167, 171 (Fla. 1994), the Florida Supreme Court applied the “totality of
the circumstances” test of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972) and denied the
“suggestive identification” claim as follows:
In his second claim, Pittman asserts that the trial court erred in admitting
identification testimony that was influenced by unduly suggestive identification
procedures. This claim is based on three separate instances. First, a witness
testified that he saw a brown Toyota abandoned on the side of the road early
on the morning of the murders. The witness also testified that he saw a
homemade wrecker approach the Toyota minutes before it was set on fire.
Later that evening, the police drove the witness to Pittman’s house to view
Pittman’s wrecker. The wrecker had been disassembled, [FN4] and the witness
was unable to confirm whether it was the wrecker he had seen that morning.
Later, after the police had reassembled the wrecker, the witness was brought
back to Pittman’s house and this time made a positive identification. Second,
another witness testified that he saw a homemade wrecker stop near his house
in the early morning hours on the day of the murders; that the driver, whom he
later identified as Pittman, got out of the wrecker, shook out the contents of a
gas can, returned to the wrecker and then drove off. This witness first identified
the wrecker several weeks after the murders from a photo-pack that included
photographs of Pittman’s wrecker only. Finally, another witness identified
Pittman as the man she saw running away from the burning Toyota on the
morning of the murders. Her identification was based on a photo-pack that,
according to Pittman, was impermissibly suggestive because no other
photograph in the photo-pack closely resembled Pittman.
[FN4] Pittman disassembled the wrecker early in the morning
after the murders and shortly before he turned himself in to the
police.
In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401
(1972), the United States Supreme Court stated that the test for allegedly
suggestive identification procedures is “whether under the ‘totality of the
circumstances’ the identification was reliable.”
The Court also set out the following factors to aid in an evaluation of the
likelihood of misidentification:
[T]he opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty
77
demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation.
Id. We have reviewed the record and find that, under the facts of this
case, none of the identifications described above were unduly suggestive
under the Neil test. The first and second witnesses had a sufficient
opportunity to view the wrecker and had given fairly accurate
descriptions before the in-person identification. The third witness’s
identification of Pittman from the photo-pack was preceded by a general
but accurate description of Pittman; the identification was made within
hours of the original viewing of Pittman; and the photographs in the
photo-pack were sufficiently similar to Pittman. [FN5]
[FN5] In fact, at one point during the suppression hearing the trial
judge remarked that three of the people displayed in the
photopack “could have been the defendant’s brother if not the
defendant himself.”
Pittman, 646 So. 2d at 171 (e.s.).
As previously noted, Pittman’s first two sub-claims relate to the allegedly “suggestive
identification” of Pittman’s homemade wrecker. In state court, Pittman failed to cite any
Supreme Court case holding that it is improper to either show a witness an inanimate object,
such as an automobile or truck, or show a witness multiple photos of an inanimate object,
such as an automobile or a wrecker truck. Pittman failed to identify any “clearly established
federal law” from the United States Supreme Court applying the “suggestive identification”
doctrine to the identification of inanimate objects. Again, the “only Supreme Court decisions
against which a state court decision is to be measured are those on the books at the time the
state court decision was issued.” Evans, 2012 WL 5200326 (11th Cir. 2012), citing Greene
v. Fisher, ––– U.S. ––––, 132 S. Ct. 38, 45 (2011); Cullen v. Pinholster, ––– U.S. ––––, 131
S. Ct. 1388, 1399 (2011).
In the absence of a clear holding by the Supreme Court about an issue of federal law,
the federal habeas court cannot say that a decision of a state court was an unreasonable
78
application of clearly established federal law. See, Wright v. Van Patten, 552 U.S. 120, 126,
128 S. Ct. 743, 747 (2008) (“Because our cases give no clear answer to the question
presented, let alone one in Van Patten's favor, it cannot be said that the state court
unreasonably applied clearly established federal law.”) (internal quotation marks omitted);
Schriro v. Landrigan, 550 U.S. 465, 478, 127 S. Ct. 1933, 1942 (2007) (The Arizona
Supreme Court did not unreasonably apply federal law because “we have never addressed
a situation like this.”); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654 (2006) (“Given
the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’
courtroom conduct of the kind involved here,” the denial of relief by the California Court of
Appeal “was not contrary to or an unreasonable application of clearly established federal
law.”).
Assuming that the state court’s decision -- denying Pittman’s challenge to the
identification of the homemade wrecker by Waters and Smith (and Smith’s recognition of
Pittman on the TV news as the same man that Smith saw at the Majik Market with the
wrecker and gas can) -- is subject to further review, Pittman has not established any basis
for habeas relief under the AEDPA.
A. Dennis Waters’ Identification of Pittman’s Wrecker
At the motion to suppress hearing on Waters’ identification of the wrecker, the parties
relied on the depositions of Waters (DA-R/5262-92) and Detective Teal (DA-R/5203-14), as
well as Detective Cosper’s testimony at the hearing. (DA-R/5057-61). Detective Cosper
testified that Waters was taken to the disassembled wrecker on McDonald Road on May 15
and did not identify it. Waters did identify it on May 16, after it was reassembled. (DA-R/505761). As Teal drove Waters to Plant City, Waters described the wrecker he had seen (older
79
model Ford, flatbed on back, dual wheels, primer color around it, blue boom on the back).
(DA-R/5208). From the road, Waters said he didn’t think he could identify this vehicle as the
one he had seen. They did not get out of the car to look. (DA-R/5209).
Waters testified in deposition that he recalled seeing a homemade wrecker near the
abandoned car. (DA-R/5269). Moments later, the wrecker was gone and the car was on fire.
The wrecker had been “bondoed” on the hood and there was a boom on the back. (DAR/5281). The truck was dark colored. (DA-R/5283). Waters thought it looked like a wrecker
Robert Barker used to have. (DA-R/5285). Teal subsequently drove him to Barker’s place
(but Waters didn’t know at that time it was Barker’s place).
There were two vehicles in the yard, torn apart, and Waters couldn’t identify either. On
May 16, Chief Hunter called and wanted Waters to look at a vehicle at Barker’s place. When
Waters saw the front of the truck, it looked like the one he’d seen on the fifteenth. (DAR/5288). The truck was black and blue. (DA-R/5290).
Pittman cited no Supreme Court case holding that it is improper either to show a
witness an inanimate object, such as an automobile or truck, or show a witness multiple
photos of an inanimate object, such as an automobile or a wrecker truck. Instead, Pittman
relied on inapposite decisions pertaining to suggestive photo displays or lineups to make an
identification of a human being. Dennis Waters made no identification -- either out of court
or in court -- of Pittman. Rather, Waters testified about the homemade wrecker he had
observed in the early morning hours near the abandoned car on Prairie Mine Road, just
minutes before the abandoned vehicle was burned because of Pittman’s arson.
Assuming that any “clearly established federal law” applied to hold improper an
allegedly suggestive view of an inanimate object or photo display of an inanimate object,
80
Pittman still cannot show any entitlement to relief. Pittman implied that Waters made the
identification because he knew that he was going was Bob Barker’s place and had been told
the wrecker had been reassembled. Actually, Waters was able to make the identification on
the second visit because an assembled vehicle looks quite different from a disassembled
vehicle (as David Pittman understood when he followed his sister Bobbie Jo’s advice to
disassemble his vehicle that a witness had seen at the crime scene). Moreover, Teal’s
deposition testimony was that they did not even get out of the car to look at the disassembled
vehicle on the first visit. (DA-R/5209).
The innocuous comment of Chief Hunter that the wrecker had been reassembled and
an invitation to Waters to go back to the Barker place adds nothing; any time the police ask
a witness to attend a lineup or a show up or photo display, the witness presumably
understands it is for the purpose of making an identification and that the police suspect what
is to be viewed is relevant to the case. Further, to the extent Pittman wanted to explain to the
jury that Waters’ identification was based on factors other than his observations at the time
of the offense, that his visits to the Barker place and viewing of disassembled and then
reassembled vehicle might have colored his testimony, Pittman was free to do so for, as
stated in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct 2243, 53 L.Ed.2d 140 (1977), such
argument is typical “grist for the jury mill.” 53 L.Ed.2d at 155.
Finally, even if Waters’ identification of the wrecker were improper, any error would
be harmless. See, Brecht. Barbara Davis placed Pittman at the scene of the burning vehicle;
William Smith identified Pittman at the Majik Market in the wrecker; Pittman separately
confessed to both Pounds and Hughes; and Pittman previously threatened members of the
81
Knowles family and boasted about using fire to destroy evidence.8 The state court’s decision
was neither an unreasonable application of clearly established federal law, nor based on an
unreasonable determination of the facts.
B. William Smith’s Identification of Pittman and his Wrecker
At the suppression hearing, the parties relied on the depositions of Joyce and William
Smith (DA-R/5049) and Detective Cosper’s testimony. (DA-R/5050-61).
Joyce Smith testified that between 6:30 and 7:00 a.m., she saw a man standing by
a wrecker behind the Majik Market. (DA-R/5225). She identified a photo of the wrecker. (DAR/5228). William Smith stated that between 6:30 and 6:45, he saw a wrecker parked behind
the Majik Market. (DA-R/5243). When Smith saw the television news clip of the man
arrested, Smith recognized him as the same man in the truck. (DA-R/5244). Smith noticed
the truck by the racket made by the cable. (DA-R/5245). The man shook a gas can on the
ground and set it back in the truck. (DA-R/5246). Two or three weeks later, the police showed
Smith pictures of the truck, but not of the man. (DA-R/5252). Detective Cosper showed Smith
photos of the wrecker and Smith identified it. (DA-R/5052-53).
8
Pittman spoke to Pounds about the car fire, saying there was no way fingerprints
could be lifted from the car due to the fire and water used to extinguish it. (DA-R/1897-98).
Pittman also told Marie how you could burn an automobile to get rid of fingerprints. (DAR/2548. Polk County Correctional Officer William Hunter testified that while Pittman was
incarcerated, Pittman complained about problems with the Knowles family. (DA-R/279192). Pittman felt his in-laws were responsible for keeping Marie from him; Pittman was
adamant he would resort to violence to resolve the problem. (DA-R/2792). Pittman stated
if necessary he would “kill them.” (DA-R/2793). Pittman said he had a lot of knowledge
about stealing cars and he would burn the car if in a rush and the fire would take care of
any evidence. (DA-R/2794-95). Fire Marshall’s crime lab analyst expert Victor Higg
uncovered evidence of flammable liquids on Pittman’s shoes and clothing. (DA-R/2724-25;
2737-39).
82
William Smith testified in deposition and at trial that the man he saw with a wrecker
and gas can at the Majik Market between 6:30 and 6:45 a.m. was the same person that he
saw on television being arrested for the crimes. (DA-R/5055, DA-R/1801). Smith was able
to make an in-court identification of Pittman. (DA-R/1802) The police provided no photos of
Pittman or other people for Smith to view and did not involve Smith in any lineup procedure.
There was no suggestive identification procedure utilized by the police to allow Smith
to identify Pittman. The police did show photographs of Pittman’s wrecker to Smith. Pittman
has not shown that the impermissible suggestive identification procedure doctrine applies in
a context other than identifying people. The fact that other people may have had a
homemade wrecker in the area is irrelevant to Smith’s testimony; Smith saw Pittman with a
wrecker and there was no suggestive procedure influencing the identification of Pittman.
Even if Smith’s identification of the wrecker (and Smith’s recognition of Pittman on the
news as the same man with the wrecker) was improper, which it was not, any error would be
harmless. See, Brecht. The state court’s decision was neither an unreasonable application
of clearly established federal law, nor based on an unreasonable determination of the facts.
C. Barbara Davis’ Identification of Pittman
The Florida Supreme Court did not unreasonably apply clearly established federal law
and did not unreasonably determine the facts when it rejected Pittman’s claim under the test
of Neil v. Biggers.9 The Florida Supreme Court found that Barbara Davis’ “identification of
Pittman from the photo-pack was preceded by a general but accurate description of Pittman;
9
See also, Hawkins v. Sec’y, Fla. Dept. of Corr., 219 Fed. Appx. 904, 907 (11th Cir.
2007) (unpublished) (noting that “[t]he state court’s findings on each of the Biggers factors
are entitled to a presumption of correctness, and [the petitioner must show] that those
findings were clearly erroneous.”
83
the identification was made within hours of the original viewing of Pittman; and the
photographs in the photo-pack were sufficiently similar to Pittman.” Pittman, 646 So. 2d at
171.
Barbara Davis testified that the person coming up the embankment from the burning
car passed by her about fifteen feet away. She saw the right side of his face and he had long
brown-blonde hair. His face had dents or holes in his right cheek and she looked at him for
one-half to one minute. (DA-R/4996-99). Davis also testified that she was shown
photographs at the Sheriff’s Office. She initially selected a photo, told them she was not
positive, waited 35 to 45 minutes and looked at a second set of photos depicting the right
side of the face. The police did not tell her if the photos in the two sets were the same
people. She made a positive identification and the police did not tell her she picked the right
or wrong person. (DA-R/5003-06).
Homicide Detective Land testified that he and Detective Hamlin prepared a photo-pack
including a photo of Pittman and five other similar photos. Barbara Davis was shown the
photographs prior to interviewing her. First, they showed her frontal photos and she was
“pretty positive” but “would feel better” if she could see a side view. (DA-R/5031-34). The
detective prepared a second set of photographs of the same people but shuffled the order.
Davis was shown the second photo-pack and immediately and positively selected Pittman.
Davis initialed and put the date on Pittman’s photographs from each photo-pack. (DAR/5035-36, Ex. 1 & 2).
Detective John Hamlin also testified that the detectives selected photographs of
Pittman and five unknowns with same hair length in the same age group who looked “close
to” Pittman. On the first photographs, Davis “could almost swear that was him” but, would be
84
more comfortable looking at the side view. (DA-R/5046-47). The same people were included
in the second set -- arranged in a different order -- and Davis was not told this. Davis made
a positive ID of Pittman. (DA-R/5048-49). That was the only testimony relied on at the
suppression hearing.
The trial court commented that the characterization of the face having “dents” or
“holes” or dimples seemed to be a semantic distinction involving a lady not of great
sophistication and that the witness seemed to be describing the same feature with a different
vocabulary. (DA-R/5068). Further, if the photographs were intended to be suggestive, it was
“highly subtle” because the six young white males had hair length varying an inch or two with
similar nose and cheek features and, indeed, three of the people “could have been the
defendant’s brother if not the defendant himself.” (DA-R/5069).
Barbara Davis got a good look at Pittman as he walked by -- it was daylight and the
sun had come up (DA-R/4993); she was able to describe the man she saw to police; she
identified him twice (frontally and on the side) in photo displays in which the police did not
suggest who to select; and she was able to make an in-court identification as well. (DAR/1719). The photo display contained similar-looking men and did not highlight any difference
in clothing or appearance among those displayed.
Even if the procedure used was unduly suggestive and improper, which it was not and
the state court found it was not, exclusion of the pretrial identification would not be required
so long as under the totality of circumstances the identification was reliable. See, Manson
v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977). The Florida Supreme Court determined
that none of the identifications were unduly suggestive under Neil and that Barbara Davis’
“identification of Pittman from the photo-pack was preceded by a general but accurate
85
description of Pittman; the identification was made within hours of the original viewing of
Pittman; and the photographs in the photo-pack were sufficiently similar to Pittman.” Pittman,
646 So. 2d at 171. Furthermore, error, if any, would be harmless. See, Brecht.
Once again, Pittman failed to establish that the state court’s decision was an
unreasonable application of clearly established Federal law or was based on an
unreasonable determination of the facts. See, 28 U.S.C. § 2254(d).
Ground four does not warrant habeas corpus relief.
GROUND V
THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE AND THE
TESTIMONY OF GEORGE HODGES THAT HIS STEP SON CONFESSED
TO THE CRIME FOR WHICH MR. PITTMAN WAS ON TRIAL.
Pittman renews a claim presented on direct appeal -- that the trial court erred by
excluding the hearsay testimony from another death row inmate, George Hodges,10 who
10
Hodges was convicted of first degree murder and sentenced
to death for killing Betty Ricks, a 20-year old store convenience
clerk. In 1986, Ricks filed a criminal complaint against Hodges for
indecent exposure. After Hodges’ efforts to dissuade Betty Ricks
from pursuing the criminal case failed, Hodges shot Ricks twice in
the head and neck with a rifle, killing her. See, Hodges v.
Attorney General, State of Fla., 506 F.3d 1337, 1339 (11th Cir.
2007).
Hodges’ stepson, Jesse Watson, testified at Hodges’ jury
trial. On Hodges’ direct appeal, the Florida Supreme Court
summarized the facts adduced at trial, which included:
Hodges worked on the maintenance crew of a department
store located across the road from the convenience store.
A co-worker told police that she saw Hodges’ truck at the
convenience store around 5:40 a.m. on January 8. Hodges,
however, claimed to have been home asleep at the time of
the murder because he did not have to work that day. His
stepson, Jesse Watson, and his wife, Jesse’s mother,
supported his story. The police took a rifle from the
Hodges’ residence that turned out not to be the murder
weapon. The investigation kept coming back to Hodges,
86
alleged that his stepson, Jesse Watson, sent a letter to Hodges in which Watson implicated
himself in the Knowles’ family murders. (Petition, Doc. 14 at 61-66; Memorandum, Doc. 15
at 37-43). Hodges claimed to have destroyed the letter. In state court, Pittman conceded that
Jesse Watson was available to testify; Watson denied having written any such letter and
Watson denied committing the Knowles murders.
Pittman’s challenge to the exclusion of Hodges’ hearsay testimony was raised on
direct appeal. See, Initial Brief, Case No. SC78605, Issue III (A32/54-69). The Florida
Supreme Court denied relief as follows:
In his third claim, Pittman asserts that the trial court erred by excluding
the hearsay testimony of George Hodges, a death row inmate who alleged that
his stepson had implicated himself in the Knowles family murders. Early in the
trial, the prosecution received an unsolicited letter from Hodges. In this letter,
Hodges stated that he had received a letter from his stepson in which the
stepson stated that he had killed three people in a failed burglary attempt and
that he then burned the house. The trial judge gave defense counsel a few
days in which to investigate the allegations. Then, at a hearing on the matter,
the judge held that Hodges’ testimony concerning what his stepson had told
him was hearsay that did not fit within any exception and was therefore
however, and the police arrested him for this murder in
February 1989.
* * *
As did his mother’s, Watson’s trial testimony
differed from his original statement. He testified that
he and Hodges had identical rifles and that his, not
Hodges’, had been given to the police. He said that he
awakened before 6:00 a.m. the morning of the murder and
heard Hodges drive up in his truck. Hodges then came into
the kitchen carrying his rifle. When asked why he did not
originally tell the police about this, he responded that
he had wanted to protect Hodges. Watson also said that,
two months after the murder, he saw the rifle in the back
of Hodges’ truck, wrapped in dirty plastic, and that
there was a hole in the ground near the tool shed. He
also testified that, several months later, Hodges told
him that he had shot the girl at the convenience store.
Hodges, 595 So. 2d at 930-31 (e.s.).
87
inadmissible. [FN6] We find that the trial judge correctly excluded Hodges’
testimony as substantive evidence under the hearsay rule and that there
is no applicable hearsay exception.
[FN6] Although Pittman argued that section 90.804(2)(c), Florida
Statutes (1989)(“A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is
inadmissible, unless corroborating circumstances show the
trustworthiness of the statement.”), applied to the statement by
Hodges’ stepson, the trial judge found that the stepson was
available to testify and that the statement lacked
corroboration and trustworthiness.
Pittman, 646 So. 2d at 171-72 (e.s.).
Section 90.804(2)(c), Florida Statutes, provides an exception to the hearsay rule for
“statements against interest.” One of the requirements for that exception to apply is that the
declarant [Jessie Watson] must be unavailable. That requirement was not satisfied in
Pittman’s case because Watson was available. Another requirement of § 90.804(2)(c) is
that there must be corroborating circumstances showing the trustworthiness of the statement.
This requirement was also lacking -- Hodges first told Investigator Spote that Jessie Watson
did not specify how the victims were killed and Hodges then changed his story to say that
Watson claimed in the letter that they were stabbed. The purported letter from Watson to
Hodges does not exist; Hodges tore it up. Hodges claimed to have received the letter from
Watson in December 1990, yet Hodges failed to notify any prison authorities or law
enforcement about it. Watson denied under oath writing any such letter and denied any
involvement, as did Gibbons.
A violation of a state law or rule does not present a cognizable claim for federal
habeas corpus relief. See, Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S. Ct. 843,
853 (1983) (“[T]he Due Process Clause does not permit the federal courts to engage in a
88
finely tuned review of the wisdom of state evidentiary rules”). The Florida Supreme Court
properly rejected Pittman’s claim on an adequate and independent state law ground.
Years after his direct appeal was final, Pittman sought to relitigate his exclusion of
evidence claim in his state habeas petition, citing Holmes v. South Carolina, 547 U.S. 319,
319-20, 126 S. Ct. 1727 (2006). In denying this sub-claim, the Florida Supreme Court clearly
applied a procedural bar.11 See Pittman v. State, 90 So. 3d at 818. Again, the Florida
11
In Pittman, 90 So. 3d at 818, the Florida Supreme Court stated, in pertinent part:
B. Whether this Court Erred in Affirming the Exclusion of Certain Evidence
In this claim, Pittman asserts that this Court erred in affirming the trial
court’s ruling on an evidentiary issue. This Court ruled as follows:
In his third claim, Pittman asserts that the trial court
erred by excluding the hearsay testimony of George Hodges,
a death row inmate who alleged that his stepson had
implicated himself in the Knowles family murders. Early in the
trial, the prosecution received an unsolicited letter from
Hodges. In this letter, Hodges stated that he had received a
letter from his stepson in which the stepson stated that he had
killed three people in a failed burglary attempt and that he then
burned the house. The trial judge gave defense counsel a few
days in which to investigate the allegations. Then, at a hearing
on the matter, the judge held that Hodges’ testimony
concerning what his stepson had told him was hearsay that did
not fit within any exception and was therefore inadmissible. We
find that the trial judge correctly excluded Hodges’ testimony as
substantive evidence under the hearsay rule and that there is
no applicable hearsay exception.
Pittman, 646 So.2d at 171-72 (footnote omitted).
Pittman asserts that this ruling is contrary to United States Supreme
Court precedent. [FN 11] This claim, however, is procedurally barred.
See, e.g., Porter v. Crosby, 840 So.2d 981, 984 (Fla. 2003)(“[C]laims raised
in a habeas petition which petitioner has raised in prior proceedings and
which have been previously decided on the merits in those proceedings are
procedurally barred in the habeas petition.”). A habeas petition is not a
89
Supreme Court properly denied this claim on an adequate and independent state law ground.
Furthermore, Pittman has not established that the state court’s adjudication of his exclusion
of evidence claim on direct appeal either (1) “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States” or (2) “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”
On direct appeal (A32/54-55; 59; 61), Pittman cited both Chambers v. Mississippi, 410
U.S. 284, 93 S. Ct. 1038 (1973) and Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920
(1967). In Chambers, an individual named McDonald gave a sworn confession that he was
responsible for the murder that Chambers was charged with committing. Id. at 287, 93 S.
Ct. at 1042. McDonald later repudiated the confession. Id. at 288, 93 S. Ct. at 1042. At trial,
Chambers called McDonald as a witness but was kept from cross-examining him because
Mississippi’s “voucher” rule prevented a party from impeaching his own witness, unless the
second appeal.
[FN11] Pittman cites two cases to support this claim: Holmes
v. South Carolina, 547 U.S. 319, 319–20, 126 S.Ct. 1727, 164
L.Ed.2d 503 (2006)(holding that a defendant’s rights are
“abridged by evidence rules that infring[e] upon a weighty
interest of the accused and are arbitrary or disproportionate to
the purposes they are designed to serve”), and Williamson v.
United States, 512 U.S. 594, 600, 114 S.Ct. 2431, 129 L.Ed.2d
476 (1994)(holding that whereas a statement against interest
is admissible under the federal hearsay rule, a hearsay
statement that is collateral to a statement against interest is not
admissible).
Pittman, 90 So. 3d 794, 818
90
witness was adverse, and the trial court ruled that McDonald was not adverse. Id. at 291,
295-96. The trial court also prevented Chambers from calling, on hearsay grounds, several
friends of McDonald who heard him confess. The Supreme Court held that Chambers’ due
process rights were violated by the application of the hearsay rule to bar statements that
“were originally made and subsequently offered at trial under circumstances that provided
considerable assurance of their reliability.” Chambers, 410 U.S. at 302.
A criminal defendant’s right to offer testimony is not unlimited.12 Chambers noted that
the defendant “must comply with established rules of procedure and evidence designed to
assure both fairness and reliability.” Chambers, 410 U.S. 284, 302. The accused “does not
have an unfettered right to offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.
Ct. 646 (1988). There is no defense “right” to present uncorroborated and untrustworthy
evidence to the trier of fact from witnesses who cannot be cross-examined because they
have no knowledge of the substantive truth of their testimony. Chambers bears no factual or
constitutional similarity to the case at hand. In Chambers, Mississippi prohibited the
introduction of the hearsay statement against penal interest. Florida law did not. See, Baker
v. State, 336 So. 2d 364 (Fla. 1976). Baker was codified in the Florida Evidence Code
adopted by chapter 76-237, Laws of Florida; See also, Henyard v. State, 992 So. 2d 120,
12
The Compulsory Process Clause does not require criminal courts to admit
evidence that is irrelevant, Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142
(1986), testimony by persons who are mentally infirm, see Washington, 388 U.S. at 23 n.
21, 87 S. Ct. 1920, or evidence that represents a half-truth, see United States v. Nobles,
422 U.S. 225, 241, 95 S. Ct. 2160 (1975). The Supreme Court has acknowledged the
“power of States to exclude evidence through the application of evidentiary rules that
themselves serve the interests of fairness and reliability -- even if the defendant would
prefer to see that evidence admitted.” Crane, 476 U.S. at 690.
91
126, n.3 (Fla. 2008) (noting that Section 90.804(2)(c), Florida Statutes, modified Baker and
required outside corroborating circumstances indicating the truthfulness of the statement).
The hearsay statements at issue in Chambers “bore persuasive assurances of
trustworthiness,” 410 U.S. at 302, 93 S. Ct. at 1049, and all were corroborated by evidence
from witnesses available to testify of their own knowledge. In this case, unlike Chambers,
there was no evidence that Jessie Watson confessed to anybody else nor was there any
other witness (unlike Chambers) who claimed to have seen Watson commit the crimes.
Aaron Gibbons had not confessed to anyone that he committed the crime. Hodges contacted
Watson’s mother, but had not mentioned anything about her son admitting to a murder. In
the alleged letter from Watson to Hodges, Watson did not mention how they broke into the
house, or who the people were, or who killed the people, or how Watson and Gibbons got
to the house, nor was there any mention of stealing or burning a car. According to
employment records, Jesse Watson worked at Seminole Fertilizer from 7:00 a.m. to 7:00
p.m. on the day of the murder. Watson was at work at 7:00 a.m. when the Knowles’ vehicle
was burned at 6:40 a.m. There was no evidence to connect Watson or Gibbons to the crime
at all, aside from Hodges’ claim of a destroyed letter. (DA-R/3535-40; Defense Exhibits 18A
& B, deposition and taped statement of Jessie Watson; Defense Exhibits 11A & B, deposition
and typed interview of Aaron Gibbons; Defense Exhibit 22A, p. 12).
Washington v. Texas is of no benefit to Pittman either. As the Eleventh Circuit noted
in Callahan v. Campbell, 427 F.3d 897, 931 (11th Cir. 2005), in Washington, the witness the
defendant wanted to call was prevented from testifying by state law because he had been
convicted as a participant in the same crime. 388 U.S. at 16-17, 87 S. Ct. at 1922. In holding
the statute violated the Sixth Amendment right to compulsory process, the Supreme Court
92
did not hold a defendant could never be prevented from calling any witness. See, Id. at 23,
87 S. Ct. at 1925. Instead, the state statute violated the Constitution because it was an
“arbitrary rule[ ]that prevent[ed] [a] whole categor[y] of defense witnesses from testifying on
the basis of a prior categor[y] that presume[d] them unworthy of belief.” Id. at 22, 87 S. Ct.
at 1925. Unlike Washington, Pittman has never claimed the existence of any arbitrary rule
that excluded a whole category of witnesses.
Pittman’s memorandum (Doc. 15 at 38) also cites to Holmes v. South Carolina, 547
U.S. 319, 126 S. Ct. 1727 (2006), a Supreme Court case decided twelve years after the
Florida Supreme Court’s decision on direct appeal. See, Pittman v. State, 646 So. 2d 167
(Fla. 1994). Again, the “only Supreme Court decisions against which a state court decision
is to be measured are those on the books at the time the state court decision was issued.”
Evans, 2012 WL 5200326, citing Greene v. Fisher, ––– U.S. ––––, 132 S. Ct. 38, 45 (2011).
When Pittman sought to relitigate his exclusion of evidence claim in his state habeas
petition, citing Holmes, the Florida Supreme Court clearly applied a procedural bar. The
Florida Supreme Court rejected Pittman’s exclusion of evidence claim on an adequate and
independent state law ground and any attempt by Pittman to rely on the retroactive
application of a new rule is barred under Teague.
Moreover, Holmes would also reconfirm that the Florida Supreme Court’s decision is
not contrary to, or an unreasonable application of, clearly established federal law. In Holmes,
the Supreme Court found a South Carolina rule that excluded evidence implicating third
parties unconstitutional because the rule impermissibly based exclusion not on the strength
of the evidence at issue, but instead, on the strength of the prosecution’s case as a whole.
However, the Supreme Court also contrasted the challenged rule with another South
93
Carolina rule, which properly excluded:
evidence which can have no other effect than to cast a bare suspicion on
another, or to raise a conjectural inference as to the commission of the crime
by another . . . [B]efore such testimony can be received, there must be such
proof of connection with it, such a train of facts or circumstances, as tends
clearly to point out such other person as the guilty party.
Holmes, 547 U.S. at 328, 126 S. Ct. 1727 (quoting State v. Gregory, 198 S.C. 98, 16 S.E.2d
532, 534–35 (1941)). The Supreme Court noted that “[s]uch rules are widely accepted,”
Holmes, 547 U.S. at 328, 126 S. Ct. 1727, and allow trial judges to exclude evidence whose
probative value is outweighed by “certain other factors such as unfair prejudice, confusion
of the issues, or potential to mislead the jury.” Id. at 326.
In state court, and here, Pittman also cited to Pettijohn v. Hall, 599 F.2d 476 (1st Cir.
1979), a pre-AEDPA case in which the Court granted habeas relief for the denial of the Sixth
Amendment right to call witnesses. Again, circuit precedent does not constitute “clearly
established Federal law,” as determined by the Supreme Court, 28 U.S.C. § 2254(d)(1).
Therefore, it cannot form the basis for habeas relief under AEDPA. See, Parker v. Matthews,
––– U.S. ––––, 132 S. Ct. 2148, 2155 (2012); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct.
649, 654 (2006).
In Pettijohn, the defendant was convicted of armed robbery solely on the basis of the
victim’s eyewitness identification. Another eyewitness to the crime, Griffin, who was familiar
with the defendant, selected the photo of another man to police and, when the police told him
it was not the right one, selected the remaining photo of the defendant. At a suppression
hearing, Griffin expressed doubt as to whether he could independently identify Pettijohn as
the robber without relying on the prior photo display. The trial court ruled that Griffin’s
identification was inadmissible due to impermissibly suggestive police tactics. At trial, the
94
defense sought to call Griffin and introduce his prior identification of another man, but the
court ruled against these efforts. While the state courts had focused on impeachment, they
failed to consider it as relevant to the issue that another man perpetrated the crime. The
federal habeas court held that Pettijohn was denied the opportunity to present a defense.
Only Griffin and the victim were eyewitnesses to the crime and Pettijohn could support his
version of the event in no other way. Critical in the case was the reliable character of the
testimony -- Griffin had observed the crime from a relatively close area and his first
identification of another was made free of any suggestive police practices. Here, Pittman was
not denied the opportunity to call as a defense witness any eyewitness to the crime, unlike
Pettijohn.
Moreover, Pettijohn was found distinguishable in Perry v. Rushen, 713 F.2d 1447,
1454 (9th Cir. 1983). In Perry, no one had ever identified Wolfe (the person urged as a
possible perpetrator) as the assailant. The trial court did not commit constitutional error in
excluding evidence that Wolfe looked similar to the defendant and was in the area an hour
earlier. There was no violation of due process or right of compulsory process; the exclusion
of evidence based on its lack of probability and tendency to confuse the jury was not
improper. Florida’s rules of evidence are in compliance with Chambers and the trial court did
not err in excluding unreliable hearsay which lacked corroboration and trustworthiness and
would only confuse the jury.13
13
At trial, defense counsel also expressed a concern about looking “stupid” to the
jury if he spent the morning cross-examining Marie Pridgen regarding her motive and that
of Allen Pridgen to kill and then, based on Hodges’ claimed letter, now urge that Watson
had committed the murders. (DA-R/2819).
Pittman’s petition also refers to the trial court’s denial of an additional continuance.
95
Error, if any, was harmless. See, Brecht. The state court’s decision was not contrary
to, nor an unreasonable application of, Supreme Court precedent.
Ground five does not warrant habeas corpus relief.
GROUND VI
MR. PITTMAN WAS DENIED THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL DURING HIS DIRECT APPEAL PROCEEDINGS.
Pittman next raises a claim of ineffective assistance of appellate counsel for failing to
assert that some of the prosecutor’s arguments were improper. (Petition, Doc. 14 at 66-71;
Memorandum, Doc. 15 at 43-44). In addition, Pittman’s memorandum includes an
IAC/appellate counsel sub-claim based on an alleged improper aggravator. (Doc. 15 at 43,
citing Stringer v. Black, 112 S. Ct. 1130 (1992) and Maynard v. Cartwright, 108 S. Ct. 1853
(1988).
Again, in reviewing an ineffective assistance claim, this Court applies a “doubly”
deferential standard that takes into account § 2254’s deference to state courts and the
ordinary deference to counsel, affirming if “there is any reasonable argument that counsel”
acted pursuant to prevailing professional standards. See, Harrington v. Richter, 562 U.S.
––––, 131 S. Ct. 770, 788 (2011). The standard of review applicable to ineffective assistance
of appellate counsel claims mirrors the Strickland v. Washington, 466 U.S. 668 (1984),
standard for claims of trial counsel ineffectiveness. Appellate counsel need not raise
meritless issues on direct appeal. Owen v. Sec’y, Dept. of Corr., 568 F.3d 894, 915 (11th Cir.
(Doc. 14 at 66). The State addressed the continuance sub-claim in detail on direct appeal
(A33/60-66); this matter of state law provides no basis for federal habeas relief.
96
2009). Rather, “[e]xperienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central issue
if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.
Ct. 3308 (1983).
Any substantive challenges to the prosecutor’s comments are procedurally barred.
Furthermore, this Court’s inquiry is limited to whether the state court unreasonably applied
a holding of the Supreme Court, Williams, 529 U.S. at 412, 120 S. Ct. at 1523, and the
Supreme Court has never held that a prosecutor's closing arguments were so unfair as to
violate the right of a defendant to due process.14 Reese v. Sec’y, Fla. Dept. of Corr., 675 F.3d
1277, 1287-1288 (11th Cir. 2012). Thus, even if substantive review of the prosecutor’s
comments were available, which it is not, Pittman would not be entitled to habeas relief
because “it is not an unreasonable application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not been squarely established by [the
Supreme Court].” Reese, 675 F.3d at 1288, citing Knowles, 556 U.S. at 122, 129 S. Ct. at
1419.
Although Pittman raised a claim of ineffective assistance of appellate counsel in his
14
In Reese, 675 F.3d at 1291, the Eleventh Circuit further noted that “Darden
explains that a defendant must establish that the “prosecutors' comments so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” 477 U.S.
at 181, 106 S. Ct. at 2471 (citations and internal quotation marks omitted). To determine
whether a prosecutor's statements during the sentencing phase are “sufficiently egregious
to result in the denial of due process,” we consider the comments in the context of the
entire trial and examine “(1) whether the remarks were isolated, ambiguous, or
unintentional; (2) whether there was a contemporaneous objection by defense counsel; (3)
the trial court's instructions; and (4) the weight of aggravating and mitigating factors.” Land
v. Allen, 573 F.3d 1211, 1219–20 (11th Cir. 2009) (relying on Romine v. Head, 253 F.3d
1349, 1369-70 (11th Cir. 2001)).
97
state habeas petition in the Florida Supreme Court, Case No. SC08-2486, Claim I (D50/725), his argument on the “improper aggravator” sub-claim (D50/35-37) did not mention any
case, state or federal, at all. As a result, Pittman’s current arguments on the “improper
aggravator” sub-claim, now citing Stringer v. Black, 112 S. Ct. 1130 (1992) and Maynard v.
Cartwright, 108 S. Ct. 1853 (1988) (Doc. 15 at 43), are procedurally barred. Furthermore, the
trial court found the prior violent felony aggravator based upon the contemporaneous murder
of each Knowles family member. (DA-R 5176). In denying Pittman’s IAC/improper aggravator
sub-claim, the Florida Supreme Court stated:
D. Whether Appellate Counsel Was Ineffective in Failing to Argue that
Pittman’s Death Sentences Were Based on an Improper Aggravator
In this claim, Pittman asserts that the trial court erred in finding that the
prior violent aggravating circumstance was established by each of the
contemporaneous murders. He asserts that appellate counsel was ineffective
in failing to raise this claim on appeal. This claim, however, warrants no
relief. The underlying issue has already been decided adversely to
Pittman. See, e.g., Bevel v. State, 983 So.2d 505, 517 (Fla. 2008)(“This Court
has repeatedly held that where a defendant is convicted of multiple murders,
arising from the same criminal episode, the contemporaneous conviction as to
one victim may support the finding of the prior violent felony aggravator as to
the murder of another victim.”)(quotation marks omitted). Appellate counsel
cannot be blamed for failing to raise a meritless claim. See Groover v.
Singletary, 656 So.2d 424, 425 (Fla. 1995).
Pittman, 90 So. 3d at 819 (e.s.).
As to the IAC sub-claim regarding the prosecutor’s comments, the Florida Supreme
Court ruled:
E. Whether Appellate Counsel Was Ineffective in Failing To Argue that the
Prosecutor Used Improper Argument in the Penalty Phase
The gist of this claim is that the prosecutor made improper comments
to the jury during the penalty phase closing argument, and that appellate
counsel was ineffective in failing to raise this issue on appeal. This claim,
however, warrants no relief. Generally, appellate counsel cannot be deemed
98
ineffective for failing to raise a claim that was not preserved. See, e.g.,
Johnson v. Singletary, 695 So.2d 263, 266 (Fla. 1996)(“[A]ppellate counsel
cannot be ineffective for failing to raise claims which were not preserved due
to trial counsel’s failure to object.”). An exception to this rule is where the
alleged error rises to the level of fundamental error. See Owen v. Crosby, 854
So.2d 182, 188 (Fla. 2003). Fundamental error is error that reaches “down into
the validity of the trial itself to the extent that a verdict of guilty could not have
been obtained without the assistance of the alleged error.” Spencer v. State,
842 So.2d 52, 74 (Fla. 2003)(quoting Brown v. State, 124 So.2d 481, 484 (Fla.
1960)). To constitute fundamental error, improper comments “must be so
prejudicial as to taint the jury’s recommended sentence.” Fennie v. State, 855
So.2d 597, 609 (Fla. 2003)(quoting Thomas v. State, 748 So.2d 970, 985 n. 10
(Fla. 1999)).
In the present case, trial counsel voiced no objection to most of
the prosecutor’s comments underlying this claim. None of those
comments rise to the level of fundamental error, and appellate counsel
cannot be deemed ineffective for failing to raise them on appeal. See
Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000)(“If a legal issue
‘would in all probability have been found to be without merit’ had counsel
raised the issue on direct appeal, the failure of appellate counsel to raise
the meritless issue will not render appellate counsel’s performance
ineffective.”). As to those comments to which counsel did object, to the
extent that any of those comments were improper, none was of such a
nature as to undermine confidence in the correctness of the result, and
appellate counsel cannot be deemed ineffective for failing to raise those
comments on appeal.
Pittman, 90 So.3d 794, 819-820 (e.s.).
In this case, state appellate counsel filed a 98-page initial brief raising ten separate
allegations of error. The Florida Supreme Court’s decision -- which included the decision that
appellate counsel was not ineffective where none of the prosecutor’s unobjected-to
comments constituted fundamental error; and even if any of the objected-to comments were
improper, “none was of such a nature as to undermine confidence in the correctness of the
result” -- was not contrary to, or an unreasonable application of, clearly established Federal
law.
99
Pittman again has argued that the State allegedly made improper comments on
several occasions. The comments Pittman complained of either were not objected to, or if
objected to, were proper. As a general rule in Florida, failure to lodge a contemporaneous
objection bars review of a claim on appeal. McDonald v. State, 743 So. 2d 501, 505 (Fla.
1999). The sole exception to this rule is where the comments rise to the level of fundamental
error. McDonald, 743 So. 2d at 505.
Pittman argues that the prosecutor impermissibly made an improper “Golden Rule”
argument. (Doc. 14 at 68). In his state habeas petition, Pittman cited to the following
comments made without objection:
But what does that allow you to consider in deciding whether the crime
is heinous, atrocious or cruel? Well, the law allows you to consider such things
as the fear and emotional strain on the victims at time of and prior to their
death. In other words, what sort of fear do you feel that Barbara Knowles
experienced when she was coming down the hallway that night and met David
Pittman coming out of Bonnie Knowles’ room with a knife in his hand? What
sort of fear do you feel she experienced when he raised the knife and started
bringing it down towards her chest to stab her three times?
The emotional fear and strain put on the person who was killed is a valid
consideration.
What sort of fear do you feel Clarence Knowles experienced as he
picked up the telephone to probably what he was doing was calling for help or
starting to call for help, not knowing that the phone wires had been cut. When
he saw Pittman approaching him, as he is standing there with that telephone
and he sees Pittman approaching him with that knife in his hand after having
already killed two people, what sort of fear and emotional strain was going
through Clarence Knowles as that knife came up and started coming down
towards him?
Dr. Melamud told you that the victims would not necessarily have all
died instantly. What sort of suffering did they feel or did they experience after
the knife went in their body the first time and the knife was withdrawn and it
went in again and it was withdrawn and it went in again?
For Bonnie Knowles eight times, for Barbara Knowles three times, and
100
for Clarence Knowles five times. (DA-R/4546-48).
Appellate counsel was not ineffective for failing to raise comments made without any
objection. Further, such comments were proper in the context of the instant case and did not
rise to the level of fundamental error. The comments did not reach down into the validity of
the jury’s recommendation of death to the extent the death recommendation could not have
been obtained without the assistance of the alleged error.
Prosecutors are permitted to review evidence and fairly discuss and comment upon
properly admitted evidence and logical inferences from that evidence. As the trial court found,
where Pittman first raised this argument in his 3.851 motion, “[i]n this case, the prosecutor’s
argument, addressing the ‘HAC’ aggravator, did not extend beyond the evidence and did not
‘unduly create, arouse and inflame the sympathy, prejudice and passions of [the] jury to the
detriment of the accused.’” (D22/3334). Indeed, these comments were proper. First, the
comments were directly relevant to the HAC aggravator. The trial court instructed the jury on
the HAC aggravator (DA-R/4613).15 A victim's suffering and awareness of his or her
impending death certainly supports the finding of the heinous, atrocious, or cruel aggravating
circumstance. Moreover, the Florida Supreme Court upheld the HAC aggravator:
Pittman also argues that the heinous, atrocious, or cruel aggravating
factor is not applicable under the facts of this case. The record reflects that
each victim was stabbed numerous times and bled to death. In addition,
Bonnie Knowles' throat was cut. We have previously held that numerous stab
wounds will support a finding of this aggravator. We find no error in the
application of this aggravator under the facts of this case.
Pittman, 646 So. 2d at 172-73 (citations omitted).
15
Trial counsel conceded that the State could properly argue the HAC aggravator
(DA-R/4505).
101
The prosecutor’s comments were directly related to an aggravator upon which the jury
was instructed. The jury was not asked to place themselves in the victims’ positions. In
Reese v. Sec’y, Fla. Dept. of Corr., 675 F.3d 1277, 1292-1293 (11th Cir. 2012), the Eleventh
Circuit rejected a substantive due process claim, noting that even under de novo review:
We agree with the Supreme Court of Florida that the prosecutor did not
impermissibly invite “the jury to place themselves in the victim's shoes.” Reese
I, 694 So.2d at 685. The prosecutor instead legitimately urged the jury to
consider the victim's experience to determine whether the offense was
“especially heinous, atrocious, or cruel” under Florida law. To prove that
statutory aggravating factor, the State had to prove, beyond a reasonable
doubt, that Reese's murder of Austin was “extremely wicked or shockingly evil”;
“outrageously wicked and vile”; or effected by means “designed to inflict a high
degree of pain with utter indifference to, or even enjoyment of, the suffering of
others.” State v. Dixon, 283 So.2d 1, 9 (Fla. 1973). The victim's fear, pain, and
emotional strain before her death are all relevant to the heinous nature of a
murder. “The State has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by reminding the sentencer
that just as the murderer should be considered as an individual, so too the
victim is an individual whose death represents a unique loss to society and in
particular to his family.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct.
2597, 2608, 115 L.Ed.2d 720 (1991)(internal quotation marks omitted).
Reese, 675 F.3d 1277, 1292-1293.
In his state habeas petition (D50 at page 40) and as he repeats here (Doc. 14 at page
68), Pittman presented a single sentence claiming the following as error:
The State next argued the premeditated nature of the crime as
nonstatutory aggravation. Defense counsel objected to the State’s remarks but
the trial court overruled it.
Pittman offered no argument why relief should be granted on this ground. As such,
this issue was waived. Bryant v. State, 901 So. 2d 810, 827-28 (Fla. 2005) (cursory argument
insufficient to preserve issue for review).
Furthermore, the comment Pittman complained of was proper. The prosecutor
commented:
102
David Pittman did not have to kill Bonnie Knowles. David Pittman did not
have to kill Barbara Knowles. And David Pittman did not have to kill Clarence
Knowles. He made a voluntary choice. When he came out of Bonnie Knowles’
room and saw Barbara Knowles there in the hallway, David Pittman had two
choices. He could choose to turn and run and flee the house, or he could
choose to kill. (DA-R/4548-49).
The objected-to comments were a proper response to Pittman’s mitigation expert, Dr.
Dee, who opined that Pittman could not control his behavior and opined that Pittman’s ability
to conform his conduct to the requirements of the law was substantially impaired (DA-R/4451,
4455, 4457, 4467, 4475-76, 4491-93).16 The prosecutor put his argument in “perspective” for
the jury explaining the fact that Pittman had clear choices to make during the murders
showed the “fallaciousness of Dr. Dee’s arguments” (DA-R/4550-51).
Pittman next urged that the prosecutor argued facts outside the record and injected an
improper element of emotion into the jury’s deliberations. An objection was lodged to the
following:
Well, there’s such a thing as punishment. There is such a thing as
punishment fitting the crime. If you give David Pittman a life sentence, David
Pittman may be in state prison but David Pittman is still alive. David Pittman
can still talk, walk, watch television, read books, eat, have visitors, see friends.
Even though he’s sitting in state prison he’s breathing and he’s still alive.
Bonnie and Clarence and Barbara Knowles are dead. As I said, a life
sentence, even three life sentences in this case, does not fit the crime. Except
for Marie Pridgen, who is still alive, David Pittman literally wiped out an entire
family. Three of the four members of a family are dead because of his acts and
his actions. (DA-R/4552).
The comments pointed out Pittman murdered most members of the Knowles family
and that the punishment should fit the crime. The prosecutor’s comments were brief, and if
16
This mitigation claim by the defense was presented in counsel’s opening
statement and argued in his closing (DA-R/4267-71, 4600-06).
103
any error existed, it was harmless in this triple murder case. Prior violent felony and HAC
aggravators were established. See Brecht.
Pittman next argues:
The prosecutor also improperly denigrated the proper statutory and non
statutory mitigating factors, literally arguing on several occasions, “So what?”
(Doc. 14 at 69).
Beyond this single sentence in his state habeas petition, Pittman offered no
explanation as to why relief should be granted. (D50 at 41). Therefore, this issue was
waived. Further, there was no objection. Appellate counsel is not ineffective for failing to raise
unpreserved issues. Furthermore, the prosecutor’s comments of “So what?” were in
response to Dr. Dee’s testimony and were proper in the context of rebutting mitigation. (DAR/4556). The comments were fair rebuttal and, even if error, did not rise to the level of
fundamental error.
Pittman next urged relief for another unpreserved claim. He claims the prosecutor
improperly argued that the right to present mitigation should be considered as non-statutory
aggravation. Again, there was no objection. Thus, appellate counsel was not ineffective for
failing to raise this unpreserved issue. Further, the comments were not error:
The testimony that you heard yesterday, I’m not sure if the purpose is
to make it appear that there are other people or other places or other things
that are to some extent at fault in this case besides Mr.Pittman. Is it the school
system that’s at fault because they didn’t teach him to read and write correctly,
or is it the parents at fault because they abused him and didn’t bring him up
correctly? Or is someone else at fault in this case besides Pittman?
The only person on trial is David Pittman. The person who committed
these crimes is David Pittman. Not his mother, not his father, not his sister, not
the school system, and not society. David Pittman is the one who went in that
house and killed three people. Not anyone else, not any other system or group
of people. Let me close by asking you one question. Why are we here today?
Are we here today because David Pittman has problems? No.
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We’re here today in a penalty phase of a first degree murder case
because David Pittman killed three people. And please don’t forget that fact.
Don’t get caught up in all this peripheral stuff about his “problems” that you
forget why we’re even here, what caused us to be involved in this particular
phase of the trial to begin with. (DA-R/4559-60).
Attorneys are permitted wide latitude in their closing arguments. Counsel may
advance any legitimate argument. The prosecutor’s explanation of why the jury should reject
the mitigation offered in this case was not presented in a derogatory manner or with
inflammatory labels; it was a proper argument as to why the jury should not be swayed by
the defense witnesses in light of the nature of the crimes. The comments did not suggest that
Pittman’s upbringing should be considered or weighed as an aggravating circumstance. The
prosecutor was not arguing aggravating circumstances at this point in the closing argument,
but was addressing the weight of the mitigation. An argument that jurors should reject
mitigation based on the evidence is not the same as an argument that non-statutory
aggravating factors existed. See, Perez v. State, 919 So. 2d 347, 375 (Fla. 2005).
Last, Pittman relied on yet another comment made without any objection. At the end
of his argument, the prosecutor shortly remarked:
This man murdered three people. If we’re going to have a death penalty in the
State of Florida, let’s enforce it. (DA-R/4560).
Relief was not warranted as this comment did not constitute any error, much less
fundamental error, in this triple murder case. This comment did not reach down into the
validity of the verdict itself to the extent that the jury recommendation of death could not have
been obtained without the assistance of the alleged error. This is especially so here, as there
was less than a unanimous death recommendation. The comments were brief and made at
the end of the prosecutor’s argument and did not otherwise permeate the State’s closing
105
argument. Thus, it could not and did not invalidate the entire trial. Further, the comments did
not appeal to the fears or emotions of the jurors nor can it be said it inflamed their passions
or prejudices.
To establish prejudice, the petitioner has the burden to show more than that the error
had “some conceivable effect on the outcome of the proceeding.” Marquard v. Sec’y, Fla.
Dept. of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation omitted). “Rather, the
petitioner must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. (quotation
omitted). Because the omitted argument would not have succeeded, appellate counsel was
not ineffective for failing to raise that non-meritorious argument. See, Owen v. Sec’y, Fla.
Dept. of Corr., 568 F.3d 894, 915 (11th Cir. 2009). Error, if any, was harmless. See, Brecht.
Petitioner has not established that the state court’s adjudication of this claim either (1)
“resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States”
or (2) “resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Ground six does not warrant habeas corpus relief.
GROUND VII
THE TRIAL COURT ERRED BY FAILING TO FIND UNREBUTTED
NONSTATUTORY MITIGATION WHICH WAS CLEARLY ESTABLISHED BY
THE EVIDENCE.
Pittman alleges that the trial court erred by rejecting Pittman’s “unrebutted nonstatutory mitigation.” (Petition, Doc. 14 at 71; Memorandum, Doc. 15 at 44-46).
On direct appeal, Pittman argued that the trial court erred in allegedly “failing to weigh
106
Pittman’s abusive and traumatic childhood.” See, Initial Brief, Case No. SC78605, Issue IX
(A32/89-93, at page 93). The Florida Supreme Court found no error on the part of the trial
court and explained:
In his fifth and sixth penalty phase issues, Pittman contends that the trial
court erred in refusing to find the two statutory mitigating circumstances
presented and for failing to consider and weigh several nonstatutory mitigators.
After a review of the record, we find no error on the part of the trial judge.
Given all the evidence presented at trial, we conclude that the judge
could have reasonably rejected the expert’s testimony concerning
Pittman’s mental and emotional condition. Further, it is clear that the trial
judge did consider the nonstatutory mitigation urged by Pittman but
found it to have little weight as a mitigating factor.
Pittman, 646 So. 2d at 173 (e.s.).
Pittman has not established that the state court’s adjudication of this claim either (1)
“resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States”
or (2) “resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
The Constitution does not require a sentencer to accept, but only to consider, relevant
mitigating circumstances, and a state is not required to ascribe any specific weight to any
particular evidence considered by the sentencer. Harris v. Alabama, 513 U.S. 504, 512, 115
S. Ct. 1031, 1035 (1995); Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078 (1990).
The trial court and jury in this case were not limited in their consideration of potential
mitigating factors. Buchanan v. Angelone, 522 U.S. 269, 277, 118 S. Ct. 757, 762 (1998)
(finding general jury instruction that jury is to consider all the evidence in mitigation
constitutionally permissible because the instruction did not limit or foreclose the jury from
considering any evidence offered in mitigation). The fact the court considered the mitigation
107
is enough.17 The state court was not required to give them particular weight, or, for that
matter, even list them in the sentencing order.
Since it is clear that the trial judge did consider Pittman’s background as mitigating
evidence, his disagreement is simply with the weight assigned to these factors. Federal
courts have rejected such habeas claims even prior to the enactment of the AEDPA. See,
Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir. 1992) (“Acceptance of nonstatutory
mitigating factors is not constitutionally required; the Constitution only requires that the
sentencer consider the factors.”).
In this case, the trial court articulated the concerns about brain damage, hyperactivity,
physical and sexual abuse as a child, and impulsivity with memory problems in paragraphs
(3) and (4) of the mitigating circumstances section of his sentencing order. (DA-R/5180). To
the extent that Pittman urged that these factors should have been found and given the weight
to overcome the aggravating factors found, he simply argued with the trial court’s resolution
that what was proffered was insubstantial. The alleged mental and emotional problems urged
could permissibly be discounted on a weighing analysis by comparison to the “deliberate,
methodical, and efficient manner to such an extent that detection was nearly avoided.” (DAR/5181). Both the jury and judge were permitted to reject as meaningless the view of Dr. Dee
17
Pittman’s reliance upon Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S. Ct.
869, 876-77 (1982) is misplaced. Eddings simply provided that its decision in Lockett also
meant that “a sentencer may not, as a matter of law, refuse to consider proposed mitigating
evidence.” In Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658 (1993), the Court
emphasized that Lockett and its progeny “stand only for the proposition that a State may
not cut off in an absolute manner the presentation of mitigating evidence, either by statute
or judicial instructions or by limiting the inquiries to which it is relevant so severely that the
evidence could never be part of the sentencing decision at all.” Johnson, 509 U.S. at 368.
Pittman was not prevented from presenting any mitigating evidence below, He presented
his background to the jury and trial court.
108
that Pittman was in all of his activities (eating, doing work, etc.) under the influence of
extreme mental or emotional disturbance when Pittman was clever enough to cut the
telephone lines prior to killing the three members of the Knowles family.
The trial court considered the matters presented and disagreed with the weight that
the defense would attribute to them. With respect to Pittman’s alleged sexual abuse as a
child, Dr. Dee relied on Pittman’s admission to him of being raped at age eight or nine. (DAR/4465). Dr. Dee explained that when a male child is homosexually abused “it’s almost as
if he has to demonstrate to himself that he is masculine and not feminine. He feels that he
has been used as a woman.” (DA-R/4465). However, the trial judge considered all this and
found “they have little if any connection to the murders.” (DA-R/5180). Further, “[t]he record
speaks clearly of an individual who went about the killings and the destruction of evidence
in a deliberate, methodical, and efficient manner to such an extent that detection was nearly
avoided.” (DA-R/5180-81). In addition, the trial court could permissibly conclude that conduct
occurring when Pittman was aged eight or nine did not reduce his moral culpability in the
circumstances of this triple homicide. With respect to the alleged physical abuse from
Pittman’s mother, Frances Marie Pittman testified that David Pittman received spankings as
a child; she paddled all her children. (DA-R/4392). She claimed she hit the children “on the
butt.” (DA-R/4394). On one of her children (a seventeen-year-old, six foot four inch teen), she
used a fan belt, but not on Petitioner. (DA-R/4395). Other family members, Freddy Joe
Farmer (DA-R/4293), William Pittman (DA-R/4301), Barbara Farmer (DA-R/4315), Eugene
Pittman (DA-R/4335), and Bobbi Jo Pittman (DA-R/4340-41) all described spankings,
paddlings or being hit on the butt. Barbara Farmer never saw beatings (DA-R/4315).
At the penalty phase, Dr. Dee described Pittman’s hyperactivity and “being to some
109
extent impulsive.” Pittman’s hyperactivity did not cause him to commit the murders. (DAR/4475). Dr. Dee conceded such people in society can lead lawful, peaceful lives. It is not
that the trial judge refused to consider and weigh the proposed mitigation -- he did. The trial
court simply concluded that other factors were more enlightening as to Pittman’s abilities and
intentions.
In Morris v. Sec’y, Dept. of Corr., 677 F.3d 1117, 1130-1132 (11th Cir. 2012), the
Eleventh Circuit rejected a similar claim under the AEDPA and stated, in pertinent part:
Morris’s next claim is that the state trial court erred in failing to consider
his history of illegal drug use as a nonstatutory mitigating factor in its
sentencing order, in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments. Morris relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,
57 L.Ed.2d 973 (1978), and its progeny for the now well-established
proposition that the sentencer in a capital case must consider any relevant
mitigating evidence. Id. at 608, 98 S.Ct. 2954; Eddings v. Oklahoma, 455 U.S.
104, 113-14, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)(“Just as the State may not by
statute preclude the sentencer from considering any mitigating factor, neither
may the sentencer refuse to consider, as a matter of law, any relevant
mitigating evidence.”); see also Glock v. Moore, 195 F.3d 625, 637 n. 20 (11th
Cir. 1999).
The operative word, however, is “consider.” The Supreme Court
has made clear that the sentencer need not accept or ascribe any specific
weight to the evidence that it considers. “Acceptance of nonstatutory
mitigating factors is not constitutionally required; the Constitution only
requires that the sentencer consider the factors.” Atkins v. Singletary,
965 F.2d 952, 962 (11th Cir. 1992)(citing Blystone v. Pennsylvania, 494
U.S. 299, 308, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990)); accord Harris v.
Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995)
(“[T]he Constitution does not require a State to ascribe any specific weight to
particular factors, either in aggravation or mitigation, to be considered by the
sentencer.”). As the Supreme Court later stated in Johnson v. Texas, 509 U.S.
350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), “Lockett and its progeny stand
only for the proposition that a State may not cut off in an absolute manner the
presentation of mitigating evidence,” Id. at 361, 113 S.Ct. 2658.
Morris was in no way prevented from presenting to both the judge and
jury evidence of his past drug use as potential mitigating evidence, and the
Florida Supreme Court made a factual finding that the trial court did consider
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that evidence. Morris I, 811 So.2d at 667. For us to grant relief on this claim,
Morris would have to provide clear and convincing evidence rebutting the
Florida Supreme Court’s unambiguous factual finding that “the trial court did
find and weigh the prior history of drug abuse and addiction.” Id.; see 28 U.S.C.
§ 2254(e). In addition, the district court made its own factual finding that “[t]his
Court’s review of the record demonstrates that the trial court considered and
weighed Morris’ prior history of drug abuse and addiction, but gave the
mitigating factor little weight.” 2009 WL 3170497, at *29. This factual finding is
itself reviewed for clear error. Spencer, 609 F.3d at 1177.
Morris has not met his substantial burden of rebutting these factual
findings. Indeed, Morris does not even argue that the state trial court failed to
weigh the evidence. He says instead that “it is not clear how the court
considered the nonstatutory mitigation. The court stated that the prior drug use
in the past is not mitigating yet the court weighed the mitigation giving it little
weight.” Morris seems to argue that the state trial court’s confusing language
itself amounted to constitutional error, because it “contributed to the court’s
finding that the mitigation [was] entitled to little weight.” Thus, Morris concedes
that the trial court did consider and weigh his past drug use as mitigating
evidence, but makes the pained argument that the “trial court went into the
analysis with the preconceived notion that the drug use was not mitigation.”
When a trial court considers mitigating evidence during sentencing, as
the trial court did here with respect to Morris’s past drug use, there
simply is no constitutional error of the kind Morris now urges us to
recognize. See Harris, 513 U.S. at 512, 115 S.Ct. 1031; Blystone, 494 U.S.
at 307-08, 110 S.Ct. 1078; Atkins, 965 F.2d at 962. Accordingly, the Florida
Supreme Court’s decision denying relief on this claim was not contrary
to or an unreasonable application of clearly established federal law.
Morris, 677 F.3d 1117, 1130-1132 (e.s.).
Here, as in Morris, Pittman has not established that the state court’s adjudication of
this claim either (1) “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States” or (2) “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d).
Ground seven does not warrant habeas corpus relief.
111
GROUND VIII
MR. PITTMAN’S CONVICTION AND SENTENCE OF DEATH STAND IN
VIOLATION OF DUE PROCESS AND THE EIGHTH AMENDMENT
BECAUSE HE IS ACTUALLY INNOCENT OF THE CRIME.
Pittman alleges that his conviction and sentence stand in violation of Due Process and
the Eighth Amendment because he is “actually innocent” of the crimes. (Petition, Doc. 14 at
72-78; Memorandum, Doc. 15 at 47-49). For the following reasons, Pittman is not entitled to
any relief on his claim of “actual innocence.”
First, section 2254(a) permits a federal court to entertain only those applications
alleging that a person is in state custody “in violation of the Constitution or laws or treaties
of the United States.” Pittman has not established that a freestanding claim of actual
innocence exists apart from any claim of constitutional error at trial. “Claims of actual
innocence based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853
(1993); See also, House v. Bell, 547 U.S. 518, 555, 126 S. Ct. 2064, (2006); District
Attorney's Office for Third Judicial Dist. v. Osborne, ––– U.S. ––––, ––––, 129 S. Ct. 2308,
2321–2322 (2009).
Second, Pittman can obtain habeas relief under the AEDPA only if the state court’s
determination was contrary to, or an unreasonable application of, “clearly established Federal
law, as determined by the Supreme Court of the United States.” The “only Supreme Court
decisions against which a state court decision is to be measured are those on the books at
the time the state court decision was issued.” Evans, 2012 WL 5200326 (11th Cir. 2012),
citing Greene v. Fisher, ––– U.S. ––––, 132 S. Ct. 38, 45 (2011). The Supreme Court has
112
not decided whether “actual innocence” constitutes a freestanding federal constitutional
claim. See, Osborne, ––– U.S. ––––, ––––, 129 S. Ct. 2308, 2321–22 (2009) (stating,
“Whether such a federal right exists is an open question. We have struggled with it over the
years, in some cases assuming, arguendo, that it exists while also noting the difficult
questions such a right would pose and the high standard any claimant would have to meet.”)
The state court cannot have contravened or unreasonably applied, “clearly established
Federal law, as determined by the Supreme Court of the United States,” by rejecting a claim
that the Supreme Court has not determined is even cognizable.
Third, Pittman states that he “presented at the postconviction evidentiary hearing
newly discovered evidence which demonstrates his innocence.” (Petition, Doc. 14 at 74).
Again, the state court's denial of Pittman’s newly discovered evidence claim could not be
unreasonable under AEDPA as there is no Supreme Court authority establishing a
freestanding “actual innocence” right. Furthermore, the state courts denied Pittman’s “newly
discovered” claim raised under state law. In addition to failing to exhaust any cognizable
federal constitutional claim, questions of state law do not raise issues of constitutional
dimension for federal habeas corpus purposes. See, Reese v. Sec’y, Fla. Dept. of Corr., 675
F.3d 1277, 1290 (11th Cir. 2012), citing Carrizales v. Wainwright, 699 F.2d 1053, 1054–55
(11th Cir. 1983).
Even assuming that a freestanding “actual innocence” claim were cognizable and fairly
presented, Pittman’s allegations fall far short of the type and quantity of evidence necessary
to establish “a truly persuasive demonstration of ‘actual innocence.’” Herrera, 506 U.S. 390,
417, 113 S. Ct. 853, 869 (1993). On direct appeal, the Florida Supreme Court summarized
the facts adduced at trial and noted:
113
When the authorities investigated they found the home of Clarence and
Barbara Knowles fully engulfed in fire. After the fire was extinguished, the
police entered the house and discovered the bodies of Clarence and Barbara,
as well as the body of their twenty-year-old daughter, Bonnie. ...A subsequent
investigation revealed that the fire was the result of arson, that the phone line
to the house had been cut, and that Bonnie Knowles’ brown Toyota was
missing.
A construction worker testified that, when he arrived at work at 6:30 a.m.
on the morning of the fire, he noticed a brown Toyota in a ditch on the side of
the road near his job site. Other testimony revealed that the location of the
Toyota was about one-half mile from the Knowles’ residence. The worker also
observed a homemade wrecker, which he later identified as belonging to
Pittman, pull up to the Toyota and, shortly thereafter, saw a cloud of smoke
coming from that direction. Another witness who lived near the construction
site also saw the smoke and observed a man running away from a burning car.
This witness later identified Pittman from a photo-pack as the man she saw
that morning. Investigators determined that the car fire, like the earlier house
fire, was the work of an arsonist.
Carl Hughes, a jailhouse informant, testified that Pittman told him that
he had gone to the Knowles’ house on the evening of the murders to speak
with Bonnie Knowles about the problems he was having with her family. Bonnie
let Pittman in the house and, when she refused his sexual advances, he killed
her to stop her cries for help. Pittman then admitted to killing Barbara Knowles
in the hallway outside Bonnie’s bedroom and to killing Clarence in the living
room as Clarence tried to use the phone. Pittman also told Hughes that he
burned the house, stole the Toyota and abandoned it on the side of the road,
and later returned to the Toyota and burned it as well.
Pittman, 646 So. 2d at 168.
In addition to construction worker Dennis Waters’ observation of the wrecker and
William Smith’s observations of the wrecker, gas can, and the suspect,18 also identifying
Pittman that critical morning was Barbara Davis. She identified Pittman as the man next to
18
William Smith, who lived near the Majik Market on Highway 60, testified that
between 6:30 and 6:45 a.m., he saw a home-made wrecker come to a stop behind the
store (DA-R/1793). A white male got out of the vehicle and picked up a five gallon gas can,
shook it on the ground and set it back in the truck. (DA-R/1795). Later, on the 6:00 news,
Smith saw Pittman had been arrested and he told his wife that it was the same person that
he had seen earlier. (DA-R/1801).
114
the passenger side of the burning car and who came up the embankment at a “jog-like” pace.
Davis lived in an apartment on Prairie Mine Road next to where the Toyota was abandoned
and burned. (DA-R/1699-1700). At approximately 6:40 a.m. on the morning of the fire, Davis
was outside picking roses when she saw a ball of smoke. (DA-R/1702-03). When she
subsequently approached the location of the fire, she saw a man coming up the embankment
from beside the car. (DA-R/1704-05). The man was right next to the passenger side of the
car - an inch or two away from it. (DA-R/1704). The man went across the parking lot, taking
“big steps at record speed.” (DA-R/1705). Davis saw the right side of the man’s face; she
described him as a white male with acne or indents in his face, a long and pointed nose, and
dirty blonde hair hanging down on his head. (DA-R/1705, 1711-12, 1714). Later that day, the
police took her to Bartow where she identified Pittman’s photo from two separate photopacks; the first group of photos were front view only and the second group were right-side
profile photographs. (DA-R/1714-16, 1720). Davis identified Pittman in court. (DA-R/1719).
Pittman also admitted committing the murders to David Pounds, whom he met while
in state prison. (DA-R/1894). Pounds testified Pittman told him how the victims were killed
and, admitted “Yeah, I did it but there’s no way they can pin it on me. My alibi is too good.”
(DA-R/1895- 97). Pittman spoke to Pounds about the car fire, saying there was no way that
fingerprints could be lifted from the car due to the fire and the water used to extinguish it.
(DA-R/1897-98). Pittman had previously told Marie how you could burn an automobile to get
rid of fingerprints. (DA-R/2548).
Polk County Correctional Officer William Hunter testified that while Pittman was
incarcerated, Pittman complained to him about problems he had with the Knowles family.
(DA-R/2791-92). Pittman felt his in-laws were responsible for keeping Marie from him and
115
he was adamant he would resort to violence to resolve the problem. (DA-R/2792). Pittman
stated if necessary he would “kill them.” (DA-R/2793). Pittman told Hunter that he had a lot
of knowledge about stealing cars and he would burn the car if he was in a rush and that the
fire would take care of any evidence. (DA-R/2794-95). The Fire Marshal’s crime lab analyst
expert Victor Higg uncovered evidence of flammable liquids on Pittman’s shoes and clothing.
(DA-R/2724-25, 2737-39).
In state postconviction, Pittman’s claim of “newly discovered” evidence was based,
first, on Carlos Battles, a former DCF investigator, who related hearsay statements given by
Pittman’s ex-wife, Marie Pridgen, in 1998, concerning her daughter, Cindy Pittman. The
murders were committed in 1990. In 1998, Marie Pittman told Battles that Cindy needed
counseling for sexual abuse and that Cindy had witnessed her grandmother being killed by
her brother-in-law. Cindy was four years old when her grandparents were murdered in 1990
and the statement Marie gave to the DCF investigator was eight years after the murders.
Pittman presented hearsay testimony from Chastity Eagan, who was 13 when she and
her mother lived with Marie and Allen Pridgen and 15 when she dated David Pridgen. David
Pridgen testified in postconviction. David Pridgen denied any involvement in the Knowles’
murders; he’d been in the Gulf War and was stationed at Fort Bragg, North Carolina at the
time of the murders. In addressing the allegation of comments purportedly made to Chastity
years ago, David Pridgen explained that he may have been talking about the war and about
the killing and how it upset him.19
19
On postconviction appeal, Pittman, 90 So. 3d 794, 804, fn. 7, the Florida Supreme
Court noted that the following witnesses testified for the defense regarding the Chastity
Eagan hearsay claim: “Chastity Eagan, whose mother lived with Marie Pridgen for more
than a year, testified that Marie did not act upset that her mother, father and sister had
116
Pittman’s claim of “newly discovered” evidence was raised in his postconviction motion
and on appeal. See, Initial Brief, Case No. SC08-146 (D47/96-97). In affirming the trial court’s
denial of postconviction relief, the Florida Supreme Court stated, in pertinent part:
I. Newly Discovered Evidence Claim
In this claim, Pittman asserts that the postconviction court erred in
denying relief on his newly discovered evidence claim. This Court has held that
two requirements must be met in order for a conviction to be set aside on the
basis of newly discovered evidence: (1) to be considered newly discovered, the
asserted evidence must have been unknown to the trial court, to the party, or
to counsel at the time of trial, and it must appear that the defendant or defense
counsel could not have known of it by the use of due diligence; and (2) the
newly discovered evidence must be of such a nature that it would probably
produce an acquittal on retrial. Jones v. State, 709 So.2d 512, 521 (Fla. 1998).
To reach this latter conclusion, the trial court is required to consider all newly
discovered evidence that would be admissible at trial and then evaluate the
weight of both the newly discovered evidence and the evidence that was
introduced at trial. With respect to a trial court’s ruling on a newly discovered
evidence claim following an evidentiary hearing, as long as the court’s findings
are supported by competent, substantial evidence, a reviewing court will not
“substitute its judgment for that of the trial court on questions of fact, likewise
of the credibility of the witnesses as well as the weight to be given to the
evidence by the trial court,” Blanco v. State, 702 So.2d 1250, 1252 (Fla.
1997)(quoting Demps v. State, 462 So.2d 1074, 1075 (Fla. 1984)), but the
court’s application of law to facts is subject to de novo review. Preston v. State,
970 So.2d 789, 798 (Fla. 2007).
Pittman asserts that newly discovered evidence with respect to investigator Carlos
been killed but rather said she was glad they were dead because they had been working
with a state agency to take her kids from her and that Marie had received some money
after their deaths and had gone on a spending spree and that David Pridgen had said he
killed three people; Rosa Greenbaum, a criminal defense investigator, testified that she had
tried to locate Chastity Eagan before the July 2006 evidentiary hearing but that Ms. Eagan's
probation officer did not know where she could be located; and David Wayne Pridgen
testified that he was at Fort Bragg, North Carolina, when the murders took place and that
he did not recall telling Ms. Eagan that he had killed three people but that he may have
been referring to his tour of duty in the Gulf War.
The following witness testified for the State: John Van Shuman, a friend of David
Pridgen’s, testified that he had never heard David say that he killed three people.”
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Battles shows that Pittman is entitled to a new trial. He asserts that the postconviction court
erred in denying relief on this claim. This issue was addressed at the evidentiary hearing
below and the postconviction court ruled as follows:
The Defendant raises a claim of newly discovered evidence of
innocence with respect to information obtained by Carlos Battles when he was
employed by the Department of Children and Family Services as a child
protection investigator. At the evidentiary hearing the Defense introduced
Battles’ case file of the investigation as Defense Exhibit 1. In the case file,
Battles listed information that Marie Pittman had told him that Cindy Pittman
needs counseling for sexual abuse and that Cindy had witnessed her
grandmother being killed by her brother-in-law. At the evidentiary hearing,
Battles testified that this stood out in his mind that the child had witnessed a
murder. The defense argues that information that Cindy may have witnessed
the murders is inconsistent with the State’s theory of prosecution and
consistent with other theories such as Marie and her husband being involved
in the murder. The defense argues that Defense Exhibit 1 and the testimony
of Battles is newly discovered evidence under Jones.
This claim of newly discovered evidence involves hearsay statements
from Marie Pridgen given to a Battles in 1998. Cindy Pittman was four years
old when her grandparents were murdered in 1990, and the statement Marie
made to DCF investigators was eight years after the murders. Battles testified
that he never questioned Cindy about the allegation, and he had no idea if the
child actually saw a murder. Detective Cosper testified at the evidentiary
hearing that Marie Pittman never told him that Cindy had witnessed the
murders. The Court finds no credible basis that this information meets the
Jones requirements as newly discovered evidence. In particular, the Court
does not find that this evidence is of such a nature that it would probably
produce an acquittal on retrial.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. Specifically, Pittman has
failed to show that the asserted evidence is of such a nature that it would
probably produce an acquittal on retrial. See Jones, 709 So.2d at 521.Under
the above standard of review, Pittman has failed to show that the asserted
evidence meets the Jones standard for newly discovered evidence.
Pittman, 90 So. 3d at 813-15.
Pittman has not presented any freestanding federal constitutional claim that is
cognizable in this proceeding. The state court cannot have contravened or unreasonably
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applied, “clearly established Federal law, as determined by the Supreme Court of the United
States,” by rejecting a claim that the Supreme Court has not determined is even cognizable.
Pittman has not established that the state court’s adjudication of this claim either (1) “resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or (2)
“resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Ground eight does not warrant habeas corpus relief.
PITTMAN’S REPLY
Nothing in Pittman’s reply convinces this Court that Pittman is entitled to habeas
corpus relief.
Accordingly, the Court orders:
That Pittman’s petition is denied. The Clerk is directed to enter judgment against
Pittman and to close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the
Rules Governing Section 2254 Cases in the United States District Courts because Petitioner
has failed to make a substantial showing of the denial of a constitutional right as required by
28 U.S.C. § 2253(c)(2).
Because Petitioner is not entitled to a certificate of appealability, Petitioner is not
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entitled to appeal in forma pauperis.
Petitioner is required to pay the $505.00 appellate filing fee unless the appellate court
grants Petitioner in forma pauperis status on appeal.
ORDERED at Tampa, Florida, on February 20, 2015.
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