Bennie E. Demps v. Louie L. Wainwright, Secretary, Florida Department of Corrections, and Jim Smith, Attorney General, State of Florida

805 F.2d 1426, 1986 U.S. App. LEXIS 34899
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 2, 1986
Docket85-3985
StatusPublished
Cited by36 cases

This text of 805 F.2d 1426 (Bennie E. Demps v. Louie L. Wainwright, Secretary, Florida Department of Corrections, and Jim Smith, Attorney General, State of Florida) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennie E. Demps v. Louie L. Wainwright, Secretary, Florida Department of Corrections, and Jim Smith, Attorney General, State of Florida, 805 F.2d 1426, 1986 U.S. App. LEXIS 34899 (11th Cir. 1986).

Opinion

PER CURIAM.

Bennie E. Demps, (hereinafter petitioner), appeals from a denial of his petition for habeas corpus on the following grounds: (1) that the district court erred in dismissing petitioner’s claim that the state failed to reveal a deal with its key witness, (2) that the district court erred in dismissing petitioner’s claim that the trial court unconstitutionally limited the cross examination of the state’s key witness, and (3) that the district court erred in refusing to grant an evidentiary hearing on petitioner’s claim that the state substantially interfered with a defense witness. We affirm the denial of petitioner’s claim that the state failed to reveal a deal with its key witness, but for reasons other than those advanced by the district court. We also affirm the district court with respect to the cross examination and witness interference claims.

FACTS

On September 6, 1976, personnel at the Florida State Prison (hereinafter FSP) found Alfred Sturgis, a prisoner, in his cell bleeding from stab wounds. En route to the hospital where he would later die, Stur-gis gave a dying declaration naming his three assailants: Harry Mungin, James Jackson and petitioner, all fellow inmates. 1 At the time of the crime, petitioner was at FSP serving sentences for two prior first degree murder convictions and for convictions from various other crimes. Petitioner had in fact been sentenced to death in connection with his two previous murder convictions, however, this sentence was later reduced pursuant to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In addition to the dying declaration of Sturgis, the state’s case against the three defendants included the testimony of the sole eyewitness to the crime, inmate Larry Hathaway. Hathaway corroborated Stur-gis’ dying declaration by testifying at trial that, as he passed along a corridor at FSP, he witnessed Mungin standing in a cell doorway, apparently acting as a lookout. As Hathaway walked past Mungin, he noticed petitioner was holding Sturgis as Jackson stabbed him. Fearing that other inmates would retaliate (Sturgis was apparently killed for being a “snitch”), Hathaway first informed investigators he knew nothing of the Sturgis killing. Prior to trial, another inmate, Michael Squires, informed petitioner’s co-defendant, Mungin, that he had evidence impeaching Hathaway's testimony. According to Squires, Hathaway had confided he was not a witness to the killing and knew nothing about the incident. Subsequently, Squires was listed as a defense witness for petitioner and his co-defendants. The record reveals, however, that neither petitioner or his co-defendants made any attempt to have Squires testify at trial.

During the trial, Hathaway was called as a witness by the state to give his eye *1429 witness testimony. Prior to Hathaway's testimony, the trial court conducted an in-chambers hearing to determine the scope of permissible cross-examination of Hathaway by defense counsel. Counsel for petitioner argued the state had promised Hathaway a transfer with his homosexual lover, Robert Zeigler, 2 to another correctional institution in exchange for Hathaway’s testifying on behalf of the state. The trial court allowed cross-examination of Hathaway with respect to petitioner’s claim that Hathaway was to be transferred with Zeig-ler in exchange for Hathaway’s testimony. The trial court denied the petitioner's request to raise the homosexuality issue finding it inflammatory and irrelevant, but allowed petitioner to establish that Hathaway and Zeigler were “very close friends.”

On March 16, 1978, petitioner and his co-defendants were convicted of the first-degree murder of Sturgis. The jury recommended the death penalty for petitioner, and on April 17, 1978, the trial court sentenced petitioner to death by electrocution. The Florida Supreme Court affirmed on appeal. Demps v. State, 395 So.2d 501 (Fla.1981). The United States Supreme Court denied certiorari on October 13, 1981. Demps v. Florida, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

Petitioner initiated post-conviction proceedings pursuant to Fla.R.Crim.P. 3.850, 3 arguing, inter alia, that there was improper inducement of Hathaway’s testimony by state officials and that the state through the Department of Corrections interfered with a defense witness, Michael Squires. This was the first time petitioner raised the claim of state interference with Squires’ decision to testify. The trial court denied petitioner’s motion without a hearing. The Florida Supreme Court reviewed the trial court’s summary rejection and affirmed the trial court on all of petitioner’s claims except the claim of state interference with defense witness, Squires. Demps v. State, 416 So.2d 808, 809 (Fla.1982), The case was remanded for an evidentiary hearing on petitioner’s claim of state interference with Squires. Id. at 810. After the eviden-tiary hearing, the trial court found petitioner had failed to prove his claim of state interference with Squire’s testimony "by any believable evidence.” This decision was affirmed on appeal. Demps v. State, 462 So.2d 1074 (Fla.1984). Petitioner then filed for a writ of habeas corpus in the United States District Court for the Middle District of Florida alleging: (1) that the state failed to reveal a deal with Hathaway, (2) the trial court erred in limiting the cross-examination of Hathaway and, (3) that the state interfered with defense witness Squires. After oral argument, the district court denied relief. Subsequently, petitioner appealed to this court.

ISSUES

I. EXCLUSION OF HATHAWAY’S HOMOSEXUAL RELATIONSHIP

In the district court, petitioner again argued the trial court erred in disallowing any reference to Hathaway’s homosexual relationship with Zeigler. Petitioner’s position is that the state transferred Hathaway and Zeigler in exchange for Hathaway’s testimony. This claim was first raised during the state trial in an in-chambers conference prior to petitioner’s cross-examination of Hathaway. During this conference, the following colloquy occurred between the court and counsel.

*1430 Mr. Carroll (counsel for petitioner): .. what we’re saying is that they have bought their testimony by getting a transfer and that the testimony that they are giving ...
The Court: Well you can talk about getting transferred, I’m not going to prohibit you from asking about that.
Mr. Carroll: The reason we need to get into their relationship is because that is the bottom line of their transfer, that is why they wanted a transfer.
Mr. Elwell (counsel for the state): Where is that supported other than your statement?
The Court: ... I’m not going to permit the testimony regarding the homosexual relationship between Zeigler and Hathaway. I will permit your examining these individuals, as any others, regarding a transfer for their testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
805 F.2d 1426, 1986 U.S. App. LEXIS 34899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennie-e-demps-v-louie-l-wainwright-secretary-florida-department-of-ca11-1986.