PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-6752
D. C. Docket No. CV-94-PT-1674
STEVEN A. THOMPSON,
Petitioner-Appellant,
versus
JOHN EDDY NAGLE,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Alabama
(July 30, 1997)
Before HATCHETT, Chief Judge, DUBINA and BLACK, Circuit Judges.
DUBINA, Circuit Judge: Appellant Steven Allen Thompson (“Thompson” or “defendant”)
appeals the district court’s judgment denying his petition for
habeas corpus relief from his convictions and sentence of death.
For the reasons that follow, we affirm.
I. STATEMENT OF THE CASE
A. FACTS
The Alabama Court of Criminal Appeals repeated the facts as
stated by the trial judge in his sentencing order.
The victim, Robin Balarzs, was engaged to marry David Roberts, a long-time friend of the defendant. On May 11, 1984, David Roberts was absent from Huntsville due to military service. Defendant was aware of this absence. On that day defendant went to the home in Huntsville where Robin Balarz [sic] resided with her parents and her young child. The parents and the child were also out of town. Robin and her friend Cindy McElroy were at the residence. Defendant, Robin and Cindy engaged in normal conversation and defendant slept on a sofa while the girls retired to separate bedrooms. Early on the morning of May 12th defendant left the residence. Cindy McElroy left at a later time. Cindy noticed no unusual behavior on the part of the defendant.
Defendant was absent without leave from the Navy and had need for money and goods which he could convert to cash. He planned to return to the Balarzs household to feloniously take money, gold or silver. In his planning defendant bought tape, bandages and other items with which to bind Robin. On his arrival in the night of May 12, 1984, defendant entered the household on invitation of his friend and followed a course of conduct which can be described as beyond human comprehension in its vileness. Defendant bound and gagged Robin with a sock, bandage, rope and tape he had brought into her home with premeditated design. He cut her clothes from her person and beat her with his fists. He took a meager $1.00 bill from her purse (although at some point he also took her engagement ring). He stuffed a sock in her mouth. He cut her with a knife. He positioned his rental vehicle near the garage to facilitate her removal from the residence. He made some effort to conceal the blood and physical tracings of his acts of brutality, placed Robin,
2 still alive, in the vehicle, left the home and drove to secluded Green Mountain, a rugged area in Huntsville, Madison County. There, he proceeded to brutalize Robin Balarzs in a manner almost unspeakable in its nature, character and extent. Defendant had sexual intercourse upon her, shoved a large knife into what he thought to be her vagina, bound her breasts with a rope, tied her to the vehicle and dragged her through mud, over rocks and on pavement for a distance in excess of 3000 feet. At some point he pulled and shaved her hair with a razor especially purchased. He stabbed her about her breasts and cut her with the knife.
Robin Balarzs died during her ordeal. Some of the atrocities were against her corpse.
The defendant realized that left in the Balarzs home were items which would reveal his crimes, if not his identity. He returned to the residence for the purpose of securing these items, leaving Robin Balarzs on Green Mountain.
While defendant was attempting to re-enter the Balarzs home David Roberts returned. Seeing David drive up to the residence, defendant evaded detection and drove away to spend the rest of the night in his vehicle.
David Roberts entered the home and noticed signs of the defendant's depravity. He contacted neighbors and friends of Robin, called hospitals and tried to locate her. Finally, David Roberts called Huntsville Police Department and investigation into the case began. David recalled seeing defendant's vehicle parked near the residence and an alert was dispatched on defendant by radio. At that time it was in connection with a missing person report. In the early morning of May 13, 1984, two uniformed officers saw defendant in his vehicle and stopped him. Defendant's vehicle was dirty and damaged and defendant had what appeared to be blood and mud about his person. Defendant was properly advised of his constitutional rights, taken into custody, removed to police headquarters and questioned. After first denying knowledge of the fate of Robin Balarzs, defendant made statements admitting his activities and led an officer to the scene atop Green Mountain. Robin's battered body was found. Her parents and David Roberts were advised that she was dead.
Thompson v. State, 542 So.2d 1286, 1288-89 (Ala. Crim. App. 1988).
3 After his arrest, Thompson made two statements to police. On
the day of his arrest, Thompson described the events that occurred
at Balarzs’ house. Ex.-1, Vol. V at 920-21. He also described
dragging Balarzs to his car, putting her in the backseat, placing
a sleeping bag over her, and driving her to Green Mountain.
Thompson told the police that Balarzs “moaned and groaned” during
the drive to Green Mountain. Id. at 922. The next morning,
Thompson gave police another statement. Id. at 949. Thompson
described in more detail the events at Balarzs’ home. Id. at 952-
54. Thompson told police that Balarzs was bleeding and vomit was
coming out of her mouth when he took her out of the car on Green
Mountain. Id. at 954. Thompson told police he had sexual
intercourse with Balarzs and then described thrusting a butcher
knife into her vaginal area, tying her to his car, and dragging her
body. Id. at 955.
B. PROCEDURAL HISTORY
On August 9, 1985, a jury convicted Thompson of (1) robbery-
murder under ALA. CODE § 13A-5-40(a)(2) (1975), (2) kidnapping-
murder under ALA. CODE § 13A-5-40(a)(1) (1975), and (3) rape-murder under ALA. CODE § 13A-5-40(a)(3) (1975). By an eight to four vote,
the jury recommended a sentence of life imprisonment without the
possibility of parole. The trial court held a sentencing hearing.
After reviewing the aggravating and mitigating factors, the trial
court overrode the jury’s recommendation and sentenced Thompson to
death by electrocution.
4 The Alabama courts affirmed Thompson’s convictions and
sentence on direct appeal. See Thompson v. State, 542 So.2d 1286
(Ala. Crim. App. 1988), aff’d, 542 So.2d 1300 (Ala. 1989). The
United States Supreme Court denied certiorari and Thompson’s
petition for rehearing. Thompson v. Alabama, 493 U.S. 874 (1989);
Thompson v. Alabama, 493 U.S. 986 (1989).
Thompson then filed a petition for post-conviction relief
under Temporary Rule 20 of the Alabama Rules of Criminal Procedure
in the Circuit Court of Madison County.1 The court held an
evidentiary hearing on Thompson’s petition. The trial court denied
the petition and the Alabama Court of Criminal Appeals affirmed.
Thompson v. State , 615 So.2d 129 (Ala. Crim. App. 1992). The
Alabama Supreme Court denied certiorari, Thompson v. State, No.
1920696 (March 19, 1993), as did the United States Supreme Court.
Thompson v. Alabama, 510 U.S. 976 (1993).
Thompson then filed the present habeas corpus petition in the
United States District Court for the Northern District of Alabama.
A magistrate judge entered a 74-page report and recommendation that
the district court deny the petition. The district court adopted
the magistrate’s report and denied Thompson’s habeas corpus
petition.
The district court denied Thompson’s motion for a certificate
of appealability but this court granted it. We then heard oral
argument.
1 Temporary Rule 20 of the Alabama Rules of Criminal Procedure is now Rule 32.
5 II. ISSUES
A. Whether the evidence was sufficient to support Thompson’s rape conviction.
B. Whether the Alabama Court of Criminal Appeals violated the Ex Post Facto Clause.
C. Whether the State proved beyond a reasonable doubt that Thompson formed the specific intent to kill Balarzs.
D. Whether trial counsel were ineffective.
1. Whether trial counsel’s failure to show that no rape occurred constitutes ineffectiveness.
2. Whether trial counsel’s failure to show that Thompson did not intend to kill constitutes ineffectiveness.
3. Whether trial counsel’s failure to present a mental health defense constitutes ineffectiveness.
4. Whether trial counsel’s failure to prevent the introduction of inadmissible evidence constitutes ineffectiveness.
5. Whether trial counsel’s failure to call character witnesses constitutes ineffectiveness.
E. Whether a prejudicial variance existed between the evidence and the indictment.
III. STANDARDS OF REVIEW
We review the district court’s findings of fact for clear
error, even when the district court’s findings are drawn solely
from documents, records, or inferences from other facts. Medina v. Singletary, 59 F.3d 1095, 1101 (11th Cir. 1995), cert. denied, 116
S.Ct. 2505 (1996); Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th
Cir. 1994). Whether the evidence was sufficient to allow a
reasonable jury to find beyond a reasonable doubt that the
defendant committed each element of the crime charged is subject to
6 plenary review. Huynh v. King, 95 F.3d 1052, 1059 (11th Cir.
1996). We also review de novo the Alabama Court of Criminal
Appeals’ determination that its construction of Alabama’s rape laws
during Thompson’s appeal does not violate the Ex Post Facto Clause.
Missouri v. Hunter, 459 U.S. 359, 368 (1983). We review Thompson’s
ineffective assistance of counsel claims de novo. Weeks v. Jones,
26 F.3d 1030, 1034 (11th Cir. 1994). Finally, whether there was an
unconstitutional variance between the indictment and the proof at
trial requires two inquiries. United States v. Prince, 883 F.2d
953, 959 (11th Cir. 1989). First, we determine whether a material
variance did indeed occur. Id. Second, we determine whether
Thompson suffered substantial prejudice as a result. Id.
IV. DISCUSSION
A. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THOMPSON’S RAPE CONVICTION
Thompson argues that the evidence was insufficient to prove
beyond a reasonable doubt that rape occurred because the evidence
showed that Balarzs was dead at the time of intercourse. Under
Alabama law, a male commits rape if he “engages in sexual
intercourse with a female by forcible compulsion.” ALA. CODE § 13A- 6-61(a) (1975). Forcible compulsion is defined as “[p]hysical
force that overcomes earnest resistance or a threat, express or
implied, that places a person in fear of immediate death or serious
physical injury to himself or another person.” A LA. CODE § 13A-6-
60(8) (1975). Thompson contends that the State cannot prove
7 “forcible compulsion” if the evidence shows that the victim was
dead at the time sexual intercourse occurred. Consequently,
Thompson argues that the jury could not reasonably convict him of
rape because, according to him, the evidence shows that Balarzs
died before sexual intercourse took place. Thompson further claims
that any post-mortem acts are irrelevant to the charge of rape. He
contends that any acts against Balarzs’ body after her death may 2 constitute “abuse of a corpse” under Alabama law, but not rape.
In addition, Thompson claims that rape could not be used as an
aggravating circumstance for sentencing purposes because the State
is required to prove all aggravating circumstances beyond a
reasonable doubt. See ALA. CODE § 13A-5-45(e). The State argues
that it produced evidence at trial from which the jury reasonably
could conclude that Balarzs was alive at the time intercourse
occurred.
The State’s forensic pathologist, Dr. Embry, performed the
autopsy on Balarzs’ body. Dr. Embry testified at trial that he
could not determine whether the act of intercourse took place
before or after Balarzs died. Ex.-1, Vol. IV at 749, 752. He did
testify that Balarzs aspirated vomit into her lungs and that this
caused her death. Id. at 744. In Dr. Embry’s opinion, strangling
or gagging Balarzs caused her to aspirate. Id.
2 Alabama law provides that “[a] person commits the crime of abuse of a corpse if, except as otherwise authorized by law, he knowingly treats a human corpse in a way that would outrage ordinary family sensibilities.” ALA. CODE 13A-11-13(a) (1975).
8 According to Thompson, the State’s own testimony proves that
Balarzs was dead when intercourse occurred. Thompson points out
that Dr. Embry testified that many of the cuts and wounds on
Balarzs’ body were inflicted after her death. Id. at 734.
Thompson told police that he had sexual intercourse with Balarzs
after he cut her and stabbed her. Ex.-1, Vol. V at 955. According
to Thompson, this establishes that the act of intercourse took
place after Balarzs’ death.
The State contends that Thompson’s own statements to Police
Officer Renfroe (“Renfroe”) prove that Balarzs was alive when the
act of intercourse occurred. First, Thompson stated that after he
tied her up and gagged her with a sock, he asked her if there was
any gold or silver in the house. Id. at 953. Thompson stated that
she shook her head to indicate no and then he cut the binding from
her face and removed the sock from her mouth. Id. As this
occurred at virtually the same time, the State contends that
Balarzs was alive when Thompson removed the sock from her mouth.
Second, when asked by Renfroe if Balarzs was alive on the way to
Green Mountain, Thompson replied that “she was moaning and
groaning” during the drive. Id. at 922. Third, Thompson told
Renfroe that Balarzs was bleeding and vomit was coming from her
mouth when he removed her from the car upon arriving at Green
Mountain. Id. at 954. Thompson stated that he wiped the vomit and
blood from Balarzs’ face with a towel but that she continued to
bleed from her nose until he wiped it several times. Id. Finally,
9 Thompson described having intercourse with Balarzs, tying her to
his car, and dragging the body. Id.
Thompson relies heavily on the testimony of his expert at the
Rule 20 hearing to support his claim that the act of intercourse
occurred after Balarzs died. The medical evidence produced at the
Rule 20 hearing may bear on other claims, such as ineffectiveness
of counsel, but is irrelevant to whether the jury, at trial, had
sufficient evidence to find Thompson guilty of rape.
The sufficiency of the evidence claim advanced by Thompson in
this appeal is based on the Due Process Clause of the Fourteenth
Amendment, which requires the State to prove beyond a reasonable
doubt each element of the offense charged. Jackson v. Virginia,
443 U.S. 307, 314 (1979); In re Winship, 397 U.S. 358, 364 (1970);
Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir. 1987). Under
Alabama law, a conviction for rape requires evidence that the
victim was alive at the time of intercourse. Padgett v. State, 668
So.2d 78, 84 (Ala. Crim. App. 1995). In this case, the medical
evidence produced at trial was inconclusive as to whether the act
of intercourse occurred before or after Balarzs’ death. Therefore,
this court must presume that conflicting inferences to be drawn
from the evidence were resolved by the jury in favor of the State.
See Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985). The relevant question is whether any rational jury, after viewing
the evidence in the light most favorable to the prosecution, could
have found the essential elements of rape beyond a reasonable
doubt. See Felker v. Thomas, 52 F.3d 907, 909 (11th Cir.) (citing
10 Jackson, 443 U.S. at 319), opinion supplemented on denial of
rehearing by 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S.Ct.
956 (1996). A rational jury could conclude, based on Thompson’s
own statements, that Balarzs was alive at the time intercourse
occurred. Thus, the evidence supports Thompson’s conviction for
rape, and the district court correctly denied Thompson’s claim on
this ground.3
B. WHETHER THE ALABAMA COURT OF CRIMINAL APPEALS VIOLATED THE EX POST FACTO CLAUSE
3 Even if the evidence were insufficient to support Thompson’s rape conviction, that would not affect the sentence of death in this case. The jury convicted Thompson of three capital offenses: rape-murder, kidnapping-murder, and robbery-murder. The sentencing judge found two aggravating circumstances. First, the judge found the commission of murder during the course of each of these felonies to be an aggravating circumstance. Ex.-1, Vol. VII at 1322; ALA. CODE § 13A-5-49(4) (1975). Second, the judge found that each of the three capital offenses were especially heinous, atrocious, and cruel compared to other capital offenses. Id.; ALA. CODE § 13A-5-49(8) (1975). The judge found Thompson’s lack of adult criminal activity to be a mitigating circumstance. Id. at 1324; ALA. CODE § 13A-5-51(1) (1975). Thus, even without rape, the kidnapping and robbery convictions amply support the aggravating circumstance of felony-murder and no rational sentencer would have failed to find it. See Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (“[I]n determining whether a state court’s application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation, we think the more appropriate standard of review is the ‘rational factfinder’ standard established in Jackson v. Virginia.”); see also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (“[H]abeas 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.’”). Moreover, the aggravating circumstance of “heinous, attrocious, and cruel” remains. Our conclusion is buttressed by the fact that this is an override case. The jury recommended life without parole but the sentencing judge imposed the death penalty.
11 The Due Process Clause prevents courts from taking actions
which, if taken by a legislature, would violate the Ex Post Facto
Clause. See, e.g., Marks v. United States , 430 U.S. 188, 191-92 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964);
Rubino v. Lynaugh, 845 F.2d 1266, 1271 (5th Cir. 1988). The Ex
Post Facto Clause prohibits criminal prosecution of a defendant for
an act which was not a criminal offense at the time the act took
place. Collins v. Youngblood, 497 U.S. 37, 42 (1990); Rubino, 845
F.2d at 1273. Thompson argues that the Alabama Court of Criminal
Appeals violated the Ex Post Facto Clause when it stated, in an
opinion denying post-conviction relief to Thompson, that sexual
intercourse after a victim’s death could constitute rape under
Alabama law.
This court has held that if an accused had the intent to commit the underlying offense at the time he murdered and the offense is committed immediately after the murder, he is guilty of murder while committing the underlying offense, and the capital murder statute still applies. It seems to be generally understood that it is impossible to say with certainty whether intercourse immediately preceded or immediately followed the murder of a female victim.
Thompson v. State, 615 So.2d 129, 133 (Ala. Crim. App. 1993)
(citations omitted). Because we hold that there was sufficient
evidence to support Thompson’s rape conviction, we need not reach
the Ex Post Facto issue.
Were we to reach the issue, however, Thompson would not
prevail. The Alabama Court of Criminal Appeals’ decision did not
alter the meaning of ALA. CODE § 13A-5-40(a)(3) under which Thompson was convicted. The court merely clarified that when the death and
12 the underlying felony occur contemporaneously, the Alabama capital
murder statute can apply even if the death preceded the felony.
See, e.g. Hallford v. State, 548 So.2d 526, 534 (Ala. Crim. App. 1988) (“The intentional murder must occur during the course of the
robbery in question; however, the taking of the property of the
victim need not occur prior to the killing.”); Clements v. State,
370 So.2d 708, 713 (Ala. Crim. App. 1978) (“[T]he fact that the
victim was dead at the time the property was taken would not
militate against a finding of robbery if the intervening time
between the murder and the taking formed a continuous chain of
events.”), aff’d in pertinent part, 370 So.2d 723 (Ala. 1979).
When a court clarifies but does not alter the meaning of a criminal
statute, the Ex Post Facto Clause is not implicated. See Hays v.
State of Alabama, 85 F.3d 1492, 1501-02 (11th Cir. 1996), cert.
denied, 117 S.Ct. 1262 (1997). Thus, Thompson cannot claim that
the Alabama Court of Criminal Appeals’ decision operates against
him ex post facto.
C. WHETHER THE STATE PROVED BEYOND A REASONABLE DOUBT THAT THOMPSON FORMED THE SPECIFIC INTENT TO KILL Alabama law authorizes capital punishment only if the State
proves beyond a reasonable doubt that the defendant had the
specific intent to kill the victim. A LA. CODE § 13A-5-40 (1975).
Thompson argues that the State did not prove that he formed the
specific intent to kill Balarzs. In fact, Thompson argues that the
evidence produced at trial showed that he wanted to frighten and
control Balarzs, not kill her. Thompson points to the testimony of
13 Renfroe, who recounted Thompson’s description of putting the rope
around Balarzs’ neck. According to Renfroe, Thompson confessed
that he “applied enough pressure, to let her know I wasn’t messing
around.” Ex.-1, Vol. IV at 952. In addition, Thompson argues that
any post-mortem acts against Balarzs’ corpse are irrelevant to
whether he formed the specific intent to kill Balarzs.
Thompson procedurally defaulted this claim because he did not
raise it at trial, on direct appeal, or at his Rule 20 hearing in
state court. In Marek v. Singletary , 62 F.3d 1295 (11th Cir.
1995), cert. denied, 117 S.Ct. 113 (1996), we held:
A state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitutional claims in state court, or who attempts to raise claims in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.
Id. at 1301. Thompson cannot show cause and prejudice. He first
attempted to raise this claim in his appeal from the denial of
post-conviction relief. Compare Brief for the Appellant at 36
(appeal from Rule 20 proceeding) with Brief and Argument for
Appellant (direct appeal). The Alabama Court of Criminal Appeals
did not address whether the issue was barred. However, the
district court examined Thompson’s claim that he raised this issue
on both direct appeal and in the Rule 20 proceedings. The district
court concluded that Thompson had not raised an intent claim. See Mem. Op. dated July, 1, 1996 (N.D. Ala.). Thompson has not
addressed the procedural default issue in his brief before this
court. In the district court, Thompson alleged ineffective
assistance of counsel as cause. Constitutionally ineffective
14 assistance can constitute cause. See Part VI.D (discussing
standards governing ineffective assistance of counsel claims).
However, the district court concluded that Thompson’s counsel was
not ineffective in not raising the State’s failure to establish
Thompson’s intent to kill.
Thompson’s claim of cause is meritless. First, Thompson’s
ineffective assistance claim is without factual basis. Renfroe
testified that Thompson told him he went to Balarzs’ home with the
intent to rob her. Ex.-1, Vol. V at 952. Thompson’s counsel
argued to the jury in closing arguments that Thompson did not have
the intent to rob or murder Balarzs. Ex.-1, Vol. VI at 1074-1085.
More importantly, the jury easily could infer, from the gruesome
evidence in this case, that Thompson intended to kill Balarzs.
Because Thompson has not established cause, his intent claim is
procedurally barred. See Marek, 62 F.3d at 1301.
D. WHETHER TRIAL COUNSEL WAS INEFFECTIVE
The Sixth and Fourteenth Amendments entitle a criminal
defendant to the effective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668 (1984); Routly v.
Singletary, 33 F.3d 1279 (11th Cir. 1994). A defendant claiming
ineffective assistance of counsel must show first that counsel’s
performance was “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. Second, a criminal
defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
15 have been different.” Id. at 694. The burden is on the petitioner
to establish both of these elements, Atkins v. Singletary, 965 F.2d
952, 958 (11th Cir. 1992), and the burden is a heavy one. “Counsel
is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 691; see also
Horton v. Zant, 941 F.2d 1449, 1460 (11th Cir. 1991) (Reviewing
courts “should presume effectiveness and should avoid second-
guessing with the benefit of hindsight.”)
Thompson challenges the effectiveness of his trial counsel on
five grounds.
1. Did trial counsel’s failure to show that no rape occurred constitute ineffectiveness?
Thompson argues that “despite the crucial importance at trial
of the time of Balarzs’ death, [] trial counsel did not present
forensic evidence to demonstrate affirmatively that the act of
intercourse occurred after Balarzs died.” Brief for Appellant at
39 (emphasis added). Thompson relies heavily on the testimony of
his forensic expert at the Rule 20 hearing, Dr. Blake, in arguing
that Balarzs was dead when intercourse occurred. Dr. Blake
testified that in his opinion Balarzs died within three to four
minutes after Thompson gagged her with a sock. Ex.-8, Vol. VI at
70. Dr. Blake also concluded that the act of intercourse occurred
after Balarzs’ death. Id. at 63-64 & 81. Dr. Blake based this
conclusion on the absence of semen in Balarzs’ home and the absence
of trace evidence such as the exchange of skin, bodily fluids, or
16 clothing fibers, which typically indicate that a struggle took
place. Id. at 84.
Dr. Stilwell, a forensic expert called by the State at the
Rule 20 hearing, testified that he could not determine whether the
victim was dead or alive when intercourse took place. Id. at 150.
Dr. Stilwell also testified that he could not determine how long
Balarzs lived after Thompson placed the sock in her mouth. Id. at
157-60. Dr. Stilwell disagreed with Dr. Blake’s conclusion that
the absence of trace elements suggested that Balarzs was dead at
the time of intercourse. Id. at 168. In Dr. Stilwell’s view, the
absence of trace elements meant nothing in this case because
Balarzs’ body was dragged behind Thompson’s car through mud and
over rocks for at least 3,000 feet, which could have destroyed such
evidence. Id. at 173.
Drs. Blake and Stilwell agreed that the “moaning and groaning”
of Balarzs that Thompson recalled was not necessarily evidence that
she was alive. Both experts stated that a corpse may emit such
sounds if moved shortly after death. Id. at 80 (Blake) & 154
(Stilwell). Thus, the medical evidence produced at the Rule 20
hearing, like that at the trial, was inconclusive as to Balarzs’
exact time of death.
Because the medical evidence is inconclusive as to whether
intercourse took place before or after Balarzs died, it would have
been impossible for Thompson’s counsel to have shown affirmatively
that rape did not occur. Failure to do the impossible cannot
constitute ineffective assistance of counsel. A reasonable jury
17 could infer, based largely on Thompson’s own statements, that
Balarzs was alive when intercourse took place. The district court
correctly denied Thompson relief on this claim.
2. Did trial counsel’s failure to show that Thompson did not intend to kill constitute ineffectiveness?
As discussed in Part IV.C, Thompson’s counsel argued to the
jury that Thompson did not have the intent to rob or murder
Balarzs. Thus, the factual premise of this claim is false. In
addition, the jury reasonably could infer from the evidence that
Thompson intended to kill Balarzs. This claim is without merit and
the district court properly denied it.
3. Did trial counsel’s failure to present a mental health defense constitute ineffectiveness?
Thompson contends that trial counsel should have presented a
mental health expert as part of the defense because Thompson
entered a plea of not guilty by reason of mental disease or defect.
In addition, Thompson argues that a mental health expert should
have been part of the defense because the Lunacy Commission, which
examined Thompson before trial, could not reach a unanimous
conclusion. Thompson’s trial counsel called only one mental health
expert, Dr. Hopkins, who had never met with Thompson. Dr. Hopkins
explained multiple personality disorder in general terms to the
jury. Ex.-1, Vol. VI at 1046. Thompson contends that the decision
to rest his entire mental health defense on this witness
constituted ineffectiveness.
Thompson’s trial counsel hired Dr. Alan Shealy to examine Thompson. Trial counsel testified at the Rule 20 hearing that no
18 psychologist in Alabama had a better reputation in the criminal
defense bar than Dr. Shealy. Ex.-8, Vol. VII at 380. After
examining Thompson, Dr. Shealy informed trial counsel that his
evaluation was not favorable to Thompson. Id. Dr. Shealy
diagnosed Thompson as antisocial, which, as understood by trial
counsel, basically meant Thompson was mean rather than crazy. Id.
At that point, Thompson’s trial counsel elected to pursue a mental
health defense through the testimony of Thompson’s father and the
hypothetical questions presented to Dr. Hopkins based on Thompson’s
father’s testimony. Id. at 381-82. Thompson’s trial counsel chose
this strategy to avoid the presentation of unfavorable evidence.
Id. at 360-61 & 380-81.
At the Rule 20 hearing, Thompson and the State presented
conflicting testimony by mental health experts. Thompson’s expert,
Dr. Goff, testified that Thompson suffered from a
“depersonalization episode” at the time of the crime. Id. at 450-
51. Dr. McClaren testified for the State and disputed Dr. Goff’s
diagnosis. He testified that Thompson suffered from an adjustment
disorder resulting from a romantic disappointment. Id. at 573.
Dr. McClaren stated that such a disorder is “extremely common.”
Id. at 574. The testimony at the Rule 20 hearing therefore was
inconclusive regarding Thompson’s mental health.
Thompson’s counsel was not ineffective in its presentation of
a mental health defense. They retained Dr. Shealy, one of the best
psychologists known to the Alabama criminal defense bar. Because
Dr. Shealy’s evaluation of Thompson was not favorable to the
19 defense, counsel made a strategic decision to present a mental
health defense based on the testimony of Thompson’s father and Dr.
Hopkins. This choice was well within “the wide range of
professionally competent assistance,” Strickland, 466 U.S. at 690,
particularly considering that defense counsel determined that this
strategy would prevent the admission of damaging testimony at
trial. The district court therefore properly denied Thompson
relief on this claim.
4. Did trial counsel’s failure to prevent the introduction of inadmissible evidence constitute ineffectiveness?
Thompson claims that at the trial the State cross-examined his
father and elicited inadmissible testimony regarding Thompson’s
juvenile proceedings. Thompson claims that counsel’s failure to
prevent the admission of this testimony constituted
ineffectiveness. The State asked Thompson’s father if anyone made
him aware that Thompson had committed a violent act against a
female student. Ex.-1, Vol. VI at 1026. Thompson’s father
answered in the affirmative and stated that his son was fifteen at
the time. Id. The State then asked if this was why he put his son
in Retreat Hospital. He replied that he put Thompson in the
hospital because Thompson needed help. Id. at 1027. This claim is without factual basis. Although Thompson is
correct that testimony regarding a juvenile adjudication is
inadmissible in a criminal proceeding in Alabama, see Oliver v.
State, 440 So.2d 1180, 1181 (Ala. Crim. App. 1983), the testimony
Thompson complains about did not refer to a juvenile adjudication.
As the magistrate judge found, “this testimony said nothing about
20 a ‘juvenile adjudication.’” Rec. Vol. I, Tab #14 at 63.
Furthermore, Thompson’s counsel objected to the admission of this
testimony, and argued to the court, outside the presence of the
jury, that the State was attempting to get into Thompson’s juvenile
record. Ex.-1, Vol. VI at 1025-26. The district court correctly
denied Thompson relief on this claim.
5. Did trial counsel’s failure to call character witnesses constitute ineffectiveness?
Thompson contends that counsel failed to call available
character witnesses at trial and that this failure probably caused
his conviction. Defense counsel believed that character witnesses
could take the stand only if the defendant testified. Ex.-8, Vol.
VII at 358 (McDaniel) & 423 (Sandlin). However, Alabama law allows
good character testimony as part of the defense even if the
defendant does not testify. Thomas v. State , 122 So.2d 731, 734
(Ala. Crim. App. 1960). Defense counsel therefore misunderstood
the law, which is “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Thus, the
court must consider whether “a reasonable probability [exists]
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The burden is
on Thompson to establish that prejudice resulted from counsel’s
error. Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992).
At the Rule 20 hearing, Thompson called five unrelated
character witnesses whom he claimed would have testified for him at
trial. The testimony of these witnesses is discussed in detail in
the Magistrate Judge’s Report. See Rec. Vol. I, Tab #14 at 65-68.
21 We have reviewed the record and conclude that this testimony could
not have affected the outcome of the trial because the testimony
was unbelievable and these witnesses were biased. As stated by the
Rule 20 trial court:
The individuals who were called as purported character witnesses at the Rule 20 proceedings are either not credible witnesses because of their evident bias or lack of knowledge, or they had such weak testimony to offer that the presentation of their testimony would have detracted from the strength of other testimony offered by the defendant at trial.
Thompson v. State, 615 So.2d 129, 134 (Ala. Crim. App. 1992).
Given the overwhelming evidence in this case, Thompson cannot prove
that the testimony of these character witnesses would have resulted
in an acquittal.
It is not clear from the briefs whether Thompson also claims
counsel’s failure to call these character witnesses at the
sentencing hearing constituted ineffectiveness. Counsel called
only Thompson’s father and two sisters at the sentencing hearing.
Counsel believed their pleas for Thompson’s life were persuasive
and that the testimony of the other character witnesses would not
be helpful. Ex.-8, Vol. VII at 358-59 & 392. Obviously, counsel
was correct. The jury, by an eight to four vote, recommended life
imprisonment rather than the death penalty. Given the heinous
nature of the crimes, counsel was anything but ineffective at the
sentencing hearing.
E. WHETHER A PREJUDICIAL VARIANCE EXISTED BETWEEN THE EVIDENCE AND THE INDICTMENT
22 Thompson claims the indictment varied materially from the
proof offered at trial. The indictment stated that Thompson caused
Balarzs’ death by “striking her with his fists and dragging her
behind an automobile, either or both of which acts resulted in the
aspiration of stomach contents and suffocation.” Ex.-1, Vol. VI at
1193. Thompson argues that the State did not prove this, and
instead proved that Balarzs died after Thompson gagged her with
sock.
An accused has a constitutional right to an indictment which
puts him on notice of the case the prosecution will present at
trial. See Kotteakos v. United States, 328 U.S. 750 (1946); United
States v. Peel, 837 F.2d 975, 976-77 (11th Cir. 1988); Ex Parte
Washington, 448 So.2d 404, 408 (Ala. 1984). The rationale behind
the rule prohibiting material variances between indictments and
proof at trial is twofold. Most importantly, the rule insures
“that the accused shall be definitely informed as to the charges
against him, so that he may be enabled to present his defense and
not be taken by surprise by the evidence offered at the trial.”
Berger v. United States , 295 U.S. 78, 82 (1935). Secondly, the
rule protects the accused against subsequent prosecutions for the
same offense. Id. The Eleventh Circuit has established a two-step inquiry when considering allegations of variance between
indictments and proof at trial. “First, we must determine whether
a material variance did indeed occur; and second, whether [the
defendant] suffered substantial prejudice as a result of the
variance.” United States v. Starrett, 55 F.3d 1525, 1553 (11th
23 Cir. 1995) (citations omitted), cert. denied, Sears v. United
States, 116 S.Ct. 1335 (1996).
Neither requirement is met in this case. Regarding the first
requirement, it is undisputed that the cause of Balarzs’ death was
aspiration of stomach contents and suffocation. Ex.-1, Vol. IV at
744. As discussed in Parts IV.A and IV.D-1, however, it is
impossible to determine the exact time of death or which particular
acts by Thompson caused Balarzs to aspirate her stomach contents.
Although the State’s pathologist, Dr. Embry, testified that Balarzs
died as a result of being strangled with a rope or being gagged,
Dr. Embry also testified that lack of oxygen, which results from
trauma or shock, causes nausea and vomiting. Id. at 751-52. The
jury reasonably could have inferred that the struggle at Balarzs’
home, which involved “striking her with his fists” caused Balarzs
trauma and shock, triggering the aspiration of her stomach
contents. The fact is Balarzs suffered injuries from beating,
strangling, gagging, cutting, stabbing, shaving, and dragging at
the hands of Thompson. As the Court of Criminal Appeals concluded,
“it is clear that these acts were part of the same atrocious
transaction.” 542 So.2d at 1290. The State’s inability to pinpoint
which particular part of the “atrocious transaction” caused
Balarzs’ death does not mean that there was a material variance
between the indictment and the proof at trial.
Even assuming a material variance existed, Thompson cannot
satisfy the second requirement of his claim -- that the variance
caused him “substantial prejudice.” Thompson admitted committing
24 these crimes. In fact, his counsel admitted the beating,
strangling, stabbing, cutting, and dragging during opening
statements to the jury. Ex.-1, Vol. III at 410. Thus, Thompson
clearly had notice of the charges against him, was able to prepare
a defense, and was not surprised by the evidence introduced at
trial. See Berger, 295 U.S. at 82. The district court therefore
properly denied Thompson relief on this claim.
V. CONCLUSION
We see no constitutional deficiency in Thompson’s convictions
or sentence. Accordingly, we affirm the district court’s judgment
denying Thompson’s petition for habeas corpus.
AFFIRMED.