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Pittman v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

September 22, 2017

DAVID JOSEPH PITTMAN, Petitioner - Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents - Appellees.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:12-cv-01600-EAK-EAJ

          Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.

          MARCUS, CIRCUIT JUDGE.

         In this capital case, David Joseph Pittman, a state prisoner in Florida convicted of the 1990 murder of Barbara, Clarence, and Bonnie Knowles, seeks federal habeas relief pursuant to 28 U.S.C. § 2254. Following a 9-3 recommendation by the jury in favor of death, the state trial court sentenced Pittman to death for each of the three murders. The judgment was upheld by the Florida Supreme Court on direct appeal and again on collateral review. Pittman v. State, 646 So.2d 167, 168 (Fla. 1994) (Pittman I); Pittman v. State, 90 So.3d 794, 799 (Fla. 2011) (Pittman II). Pittman now claims that the state trial court erred in excluding evidence related to an alternative perpetrator for the killings in violation of his right to present a meaningful defense as explicated by the Supreme Court in Chambers v. Mississippi, 410 U.S. 284 (1973), and that his counsel was ineffective during the penalty phase of the trial in violation of Strickland v. Washington, 466 U.S. 668 (1984). The district court issued a comprehensive opinion denying all relief. After carefully reviewing the record and with the benefit of oral argument, we affirm.

         I.

         A.

         The essential facts as drawn by the Florida Supreme Court on direct appeal are these: Just after 3 a.m. on May 15, 1990, a newspaper deliveryman in Mulberry, Florida, reported that he had seen a burst of flame on the horizon. When the authorities arrived they found the home of Clarence and Barbara Knowles engulfed in flame. After the fire had been extinguished, the police entered the house and found the bodies of Clarence and Barbara Knowles along with the body of their twenty-year-old daughter, Bonnie. A medical examiner determined that the Knowles family had died not from the fire but from massive bleeding resulting from multiple stab wounds. Bonnie Knowles' throat had been cut. An investigator also determined 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.

         At 6:30 a.m. on the morning after the fire, a construction worker noticed a brown Toyota in a ditch on the side of the road near his job site about one-half mile from the Knowles residence. A few minutes later, the worker saw a homemade wrecker -- which he later identified as belonging to Pittman -- pull up to the Toyota and, shortly thereafter, a cloud of smoke arose from the vehicle. Another witness who lived near the construction site saw a man running away from the burning car. She identified Pittman from a photo array as the man she saw that morning.

         Pittman knew the Knowles well. At the time of the murders, another of the Knowles' daughters, Marie, was going through a contentious divorce with Pittman. During the process, Pittman had made several threats against Marie and her family. Adding to the strain, Pittman had recently discovered that Bonnie Knowles was attempting to press criminal charges against him for an alleged rape that had occurred five years earlier.

         Carl Hughes, a jailhouse informant, testified that Pittman had confessed to him that he committed the murders. As Pittman told it, he went to the Knowles' house intending to speak with Bonnie Knowles. She let Pittman in and they talked, but when Bonnie resisted his sexual advances, he killed her in order to stop her cries for help. Pittman then murdered Bonnie's mother, Barbara Knowles, in the hallway outside Bonnie's bedroom and then killed Clarence Knowles as the father tried to use the phone to call for help. Hughes said that Pittman also admitted to burning down the house and stealing the Toyota before setting it aflame. Pittman I, 646 So.2d at 168.

         David Pittman was charged with the murders of Clarence, Barbara, and Bonnie Knowles, grand theft, burglary, and arson. He was represented by Robert Norgard and Robert Trogolo of the public defender's office and proceeded to trial. As relevant here, midway through the state's case in chief, defense counsel brought to the trial court's attention a letter that had been sent to the prosecutor on the case. In the letter, a prisoner named George Hodges claimed that his stepson, Jessie Watson, sent him a letter -- which Hodges had since destroyed -- in which Watson confessed to murdering three people in a house in Mulberry along with his cousin, Aaron Gibbons. At the time of Pittman's trial, Hodges was on death row for the murder of a convenience store clerk in Plant City, Florida. Watson had initially served as an alibi witness for Hodges, but at trial he changed his story and became a key witness for the prosecution. Watson testified that not only was Hodges lying about the alibi, Hodges had also confessed to Watson that Hodges had committed the murder. Notably, Hodges explained that he destroyed the letter on the advice of another inmate because he thought it was just a joke and it would only cause him trouble.

         At the time defense counsel raised the Hodges issue, Marie Pridgeon --Pittman's ex-wife and a potential alternative perpetrator under the defense's theory of the case -- was on the stand. Defense counsel asked for time to investigate the allegations in the letter before moving forward with the cross examination so the defense would not be put in the position of presenting inconsistent defense theories were the investigation to reveal evidence to substantiate Watson's involvement. The court, the prosecutor, and defense counsel all agreed that the best course of action was to put off further examination of Pridgeon until the following Monday in order to give investigators from the public defender's office time to follow up on any leads and allow the attorneys to participate in the investigation over the weekend.

         When defense counsel reported back to the court, the defense had identified both Watson and Gibbons and confirmed they used crack cocaine together and lived less than a mile from where witnesses had seen the wrecker at issue in the case. Gibbons's grandmother, who Gibbons was known to stay with, lived near the site of the murders. From pictures of Gibbons, defense counsel learned that he had very bad acne, which aligned with a witness description of the man running away from Bonnie's burning car. Defense counsel also discovered that Gibbons knew Bonnie Knowles and there were rumors that he had dated her and used to sneak into her bedroom at night to see her. Gibbons reported that he was at home on the night of the murder, but had no independent verification of his alibi. Defense counsel asked the court to give them until Wednesday, April 10 to follow up on these leads and for the court to have the state transport Michael Bedford, another inmate who claimed to have seen the letter from Watson, so that he could be questioned. Again, the court granted the defendant's requests.

         When they returned on Wednesday, defense counsel reported that they had uncovered additional information that undercut Gibbons's credibility. Gibbons had denied being involved in a burglary with Hodges and Watson when interviewed by the police, but at his later deposition he admitted that this was a lie. Gibbons also admitted to being involved in the theft of a boat motor after which he burned the boat to cover any fingerprints. Bedford had also confirmed Hodges's story about the letter. Based on these additional pieces of information, the defendant asked for and was granted a further continuance until Friday, April 12.

         On Monday, April 15, the court heard arguments on whether to allow Hodges to testify as to the content of the now-destroyed letter from Watson. The state argued that Hodges's testimony about the contents of the letter was hearsay which did not fall under any exception and that the testimony had insufficient indicia of trustworthiness and reliability. In addition to the inherent shakiness of the defense evidence, the prosecution pointed to Watson's unequivocal denial that he had written the letter and evidence that Watson had been at work at 7 a.m. on the morning after the murder, when there was testimony that the car was burned some distance away at 6:40 a.m.

         The defendant, in turn, argued that Chambers v. Mississippi, 410 U.S. 284, 302 (1973), required allowing the testimony notwithstanding any Florida evidentiary rule to the contrary because the information they had found in their investigation sufficiently corroborated the letter so that Hodges should be able to testify about its contents. Ultimately, the trial court excluded Hodges' testimony. The trial court read Chambers as prohibiting the exclusion of critical defense evidence only when there was "considerable assurance of [the evidence's] reliability." And because the court found that the evidence lacked this sort of corroboration or any other indicia of trustworthiness, the testimony was inadmissible.

         After the close of the evidence, the jury returned a verdict of guilty as to each of the three counts of first-degree murder, two counts of arson, and one count of grand theft. The trial court then moved straight into the penalty phase.

         B.

         At sentencing, the State offered as statutory aggravators under Florida law that Pittman had a prior conviction for a felony involving a threat of violence, that the murders of Clarence and Barbara Knowles were committed for the purpose of avoiding lawful arrest, and that each of the murders were heinous, atrocious, and cruel. The State primarily relied on its guilt phase evidence to support these aggravators, but did call one witness to substantiate Pittman's prior conviction for a crime involving a threat of violence.

         Defense counsel presented an elaborate and substantial body of mitigation testimony from seven family members -- Freddy Joe Farmer, Bill Pittman, Nina Jane Farmer, Barbara Ann Farmer, Eugene Pittman, Bobbi Jo Pittman, and Francis Marie Pittman. Among other things, the family members testified that Pittman had difficulty at school and was a slow learner. Indeed, Pittman was never able to succeed in school -- his normal grade was an F and a high grade for him would be a D. Despite these grades, he was socially promoted each year until he reached the ninth grade. Moreover, Pittman was hyperactive and impulsive. Pittman's stepfather testified that he was called to pick up Pittman on the first day of first grade because he was disrupting the class. His mother described him as "[a] very rambunctious little boy, " "a child most women would not want to have to raise."

         His parents knew about these problems but were simply too poor and dysfunctional to deal with them effectively. Thus, for example, they took Pittman to a psychiatrist when he was ten or eleven years old. Pittman saw the psychiatrist four or five times, but the family had to discontinue both the visits and the Ritalin the psychiatrist prescribed because they didn't have the money to pay for them. Pittman's parents also offered testimony at the penalty phase about head injuries Pittman had suffered as a child that may have compounded his problems. Both parents recalled Pittman being hit in the head with either a brick or a rock. His mother also testified regarding an incident when Pittman was six years old and passed out while trying to syphon gasoline out of an old car with a hose.

         Defense counsel also established from multiple witnesses, including Pittman's mother and father, his aunt and uncle, his stepbrother, and his sister, that Pittman's mother was physically and verbally abusive with her children, and the witnesses generally agreed that Pittman got it worse than his siblings. In fact, his mother admitted to whipping him with a belt starting when he was 4 years old. She recalled that she had spanked him "every day, every other day" and that she "beat the shit out of him" with a belt. She testified that she also used broom handles to inflict punishment on the petitioner. Her husband told her at one point that she "was going to have to quit breaking the brooms because he was having to buy one a week." She also said that she whipped her children with hot wheel tracks because "[y]ou can take a little hot wheels track and it will never blister, never bruise, " and wouldn't leave any marks. She used other forms of discipline as well. After Pittman admitted to spilling a can of oak stain in a newly redone room, his mother made him remain on a bench in a corner of the kitchen for seven days straight, leaving only to use the rest room. Indeed, when asked whether she ever worried about child services being called, she gave this chilling response:

I would give them their little whippings and I'd sit the phone right in the middle of the floor and say, "If you want to call them, call them. They may put me in jail and I may have to spend the night, but sooner or later they're going to let me out. And when they let me out you're going to the hospital. If you want to put me in jail, fine."

         The remainder of defense counsel's extensive penalty phase presentation came from Dr. Henry Dee, a clinical psychologist who specialized in clinical neuropsychology and child psychology. He held a master's degree in physiological psychology and a doctorate in clinical neuropsychology, both from the University of Iowa. After completing his doctorate, Dr. Dee remained at the University of Iowa for five years of residency and a professorship. He had also been a senior consultant on head injuries for the Veteran's Administration during the Vietnam War. After leaving the University of Iowa and returning to Florida he worked in private practice as a psychologist and consulted with child protective services in the area. At the time of the Pittman trial, he had testified as an expert in over 1000 cases.

         Dr. Dee opined that Pittman suffered from a severe form of attention deficit disorder with hyperactivity. He explained that this meant Pittman was overactive as a child, was easily distracted, had an extreme need for attention, and had difficulties with inhibition. These qualities caused him to encounter difficulty when dealing with authority figures and resulted in him acting out to receive attention. These problems, combined with Pittman's reading disability, led the family to mistakenly conclude that he was "simply a disruptive child who wasn't very bright, " when in reality he was a child with "normal intellectual endowment" suffering from a combination of a severe psychological disorder and a learning disability.

         Dr. Dee concluded Pittman's conduct was symptomatic of organic brain damage. The testimony from Pittman's mother and father that the petitioner reached developmental milestones at a late age (e.g. learning to talk at age 4) led Dr. Dee to conclude that the damage was at least partly congenital. Dr. Dee offered that this congenital brain damage was worsened by significant head injuries as a child and ingestion of toxic substances.

         Pittman's psychological assessment scores also suggested the presence of organic brain damage. For example, while he had a full scale IQ of 95 -- only slightly below average -- he had a full scale memory quotient of 65 -- which was below 99 percent of the population. Similarly, while Pittman performed adequately on a general test of verbal function, he performed in the second percentile on a test that asked him to give all the words he could think of that began with a particular letter of the alphabet. Dr. Dee explained that these dramatic inconsistencies were indicative of organic brain damage.

         He added that Pittman's brain damage manifested itself later in life in mood instability evincing moods that swung wildly and were "frequently all out of proportion to what is going on, " severe paranoid ideation, and recurrent episodes of extreme aggression and rage. Pittman also displayed symptoms of severe apathy and indifference and impaired social judgment. The brain damage and abuse was particularly troubling because of the mental health problems found in Pittman's family. Pittman's biological father had been diagnosed as a paranoid schizophrenic and died in a mental institution, and he had another son -- Pittman's half-brother -- who was a paranoid schizophrenic as well. Further testing indicated that Pittman was addicted to alcohol or some other major psychoactive substance.

         Dr. Dee explained that he thought the family was "almost totally dysfunctional." He said that he had never heard a family member admit to as much physical abuse as Pittman's mother did on the stand, and that he believed there was "much more." Dr. Dee also testified that Pittman said that he had been raped three or four times when he was only eight or nine years old by one man and on two other occasions by another man. Dr. Dee further explained that this sort of abuse was consonant with Pittman's "super macho, nothing can hurt me, take any kind of risk" behavior later in life.

         Connecting these facts to the offense, Dr. Dee opined that Pittman was under great psychological stress at the time of the murders. He was going through a difficult divorce, and he was under federal investigation for large equipment theft. Pittman had come to see himself as persecuted -- "anytime anything went wrong they came looking for David Pittman, no matter what the crime." He also drank at least two to four beers that evening, further compounding his problems with a lack of inhibition. In Dr. Dee's view the combination of these stressors -- the alcohol and the organic brain damage -- would have made Pittman borderline psychotic, to an extent that he lost touch with reality. He added that Pittman's ability to conform his behavior to the law would have been severely impaired.

         Dr. Dee summarized his view of the mitigating evidence this way:

[A]t the time of the commission of the crime Mr. Pittman suffered major mental and emotional disturbance as is evidenced both by impairment in cognitive function, that is, memory impairment, and other scattered findings, and difficulties in emotional control. That would make it much more difficult for him to adequately conform his conduct to the standards of the law. I view as nonstatutory mitigation in this case a childhood replete with abuse, both physical and sexual, mostly physical, but significantly sexual. The failure of his parents and the school system to recognize what was wrong with him and to provide him with a more prosthetic environment, that is, an environment in which . . . to grow so that he could become a useful member of society simply was never provided.

         Finally, Dr. Dee testified that Pittman was not beyond redemption; rather, Dr. Dee believed Pittman's psychological problems could be managed through a combination of medication and psychological counseling.

         Notwithstanding this powerful presentation of mitigating evidence, the jury recommended by a vote of 9-3 that Pittman receive the death penalty for each of the three murders. In its sentencing order, the trial court found as aggravating circumstances that each murder was heinous, atrocious, and cruel, Fla. Stat. § 921.141(6)(h); that Pittman had committed the murders having a previous conviction for a felony involving a threat of violence, Fla. Stat. § 921.141(6)(b); and that the murders were committed after Pittman had committed two previous capital felonies, Fla. Stat. § 921.141(6)(b) -- i.e. the other two murders.[1] Pittman I, 646 So.2d at 169 n.1. As for mitigating circumstances, the trial court determined that they had little if any connection to the homicides and that they were outweighed by the aggravators in the case.[2] Pittman I, 646 So.2d at 169 n.2. Based on these findings, the trial court imposed a sentence of death for each of the three murders. Id. at 169.

         C.

         After conviction, Pittman appealed the judgment to the Florida Supreme Court. In his brief, he again argued that the trial court's exclusion of Hodges's testimony violated his right to due process as set forth in Chambers. The Florida Supreme Court denied his appeal. Pittman I, 646 So.2d at 171-72. Pittman later challenged his convictions and sentences collaterally. He filed a state habeas petition directly with the Florida Supreme Court raising his challenge to the exclusion of the Hodges testimony. He also filed a Rule 3.850 motion raising several claims, including ineffective assistance of counsel, in the postconviction trial court.

         The postconviction trial court granted an evidentiary hearing on Pittman's claim that he was afforded ineffective assistance of counsel during the penalty phase. As for this claim, Pittman put on testimony from several new witnesses, and attempted to elicit additional information from a few witnesses who testified during the trial.

         First, Pittman offered testimony from two of his teachers, Tillie Woody and Jean Wesley, both of whom had been interviewed by Pittman's original trial team but had not been asked to testify at the penalty phase. They observed that Pittman was not successful in school but, notably, did not have any significant behavior problems. Pittman also introduced additional evidence concerning his substance abuse, and the physical and sexual abuse he sustained as a child. For example, Robert Barker, his former boss, testified that he "huffed a lot of gas, " drank gas with milk, and used crack cocaine. Michael Pittman, Pittman's younger brother, testified that he thought Pittman had likely been sexually abused by a group of older neighborhood kids and by a babysitter and that Pittman had used amphetamines and huffed gasoline ...


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