Gregory Alan Kokal v. Secretary, DOC ( 2010 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 18, 2010
No. 08-11722
JOHN LEY
________________________ CLERK
D. C. Docket No. 05-00173-CV-VMC
GREGORY ALAN KOKAL,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 18, 2010)
Before TJOFLAT, BLACK and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In this capital case, Gregory Alan Kokal claims that he was denied the
effective assistance of counsel in violation of the Sixth Amendment. Kokal was
sentenced to die by a Florida state court for the first degree murder of Jeffrey
Russell, a sailor in the United States Navy. During post-conviction proceedings,
the Florida Supreme Court concluded that Kokal’s trial counsel was not
constitutionally ineffective in preparing for the sentencing phase of his trial. Kokal
again raised a Strickland claim in this federal habeas corpus petition alleging that
his trial counsel failed to investigate mitigating mental health evidence. The
federal district court likewise denied this § 2254 petition in full. Kokal now
appeals that judgment in our Court. After thorough review, we too conclude that
the state court’s determination was neither contrary to nor an unreasonable
application of clearly established federal law. Accordingly, we affirm the district
court’s decision and deny the petition.
I. Facts and Procedural History
A. The Guilt Phase of the Trial
The awful facts of the murder, as elicited at trial, are these. At 7:15 a.m. on
the morning of September 30, 1983, navy diver Robert Garon was jogging at the
Hanna Park Recreational Facility near Jacksonville, Florida, when he discovered a
2
body lying on the beach. There was a pool of blood under the victim’s head, and a
broken cue stick lay near the body. After police were called to the scene, they
discovered, on the park exit road, a wallet and a Naval Identification Card,
identifying the victim as Jeffrey Russell, a sailor stationed at Mayport, a Naval
base outside of Jacksonville.
The police initially believed that Russell had been beaten to death. An
autopsy later revealed, however, that a gunshot was the cause of death, but this
information was intentionally restricted to the doctor performing the autopsy and to
investigating personnel. The autopsy further revealed that Russell had suffered
multiple blunt impacts to the head. The victim also suffered multiple welt marks
on the back of his forearm, multiple abrasions and contusions on his knuckles, a
dislocated right ring finger, and multiple abrasions on his back. The medical
examiner testified that based on these wounds, Russell was alive and tried to
defend himself at the time they were inflicted.
As fate would have it, on the morning Russell’s body was discovered,
Jacksonville police officer David Mahn stopped a 1975 Ford pickup truck with
Arizona tags because the driver had driven away from a gas station without paying
for the gas. Petitioner Kokal was the only occupant of the truck. When asked for
identification, Kokal produced his own Florida driver’s license, a Colorado
3
driver’s license belonging to William O’Kelly, and a New York driver’s license
belonging to the victim, Jeffrey Russell. Inside the truck the officer found a
Reuger .357 revolver, which was later determined to have Kokal’s fingerprints on
it and identified as the weapon used to murder Russell. At the time of Kokal’s
traffic stop, however, Officer Mahn did not make any connection between Kokal
and Jeffrey Russell’s murder. As a result, after Officer Mahn arrested Kokal for
petit theft of the gasoline, Kokal was released on his own recognizance.
That evening, Kokal was visited by a friend, Eugene Mosley, while Kokal
was packing his truck to leave town. Kokal told Mosley that he and his
companion, William O’Kelly, were going to Canada because Kokal had killed a
man. Kokal explained that he and O’Kelly had beaten Russell with a pool cue, and
both had beaten and kicked Russell after he was lying on the beach, but that Kokal
had actually shot Russell in the head. In describing the murder to Mosley, Kokal
said that the “guy wouldn’t . . . hardly go down,” and at one point, the victim was
on his knees and pleaded for his life, saying “please don’t kill me, don’t kill me.”
Nevertheless, they “just kept beating him” and “finally got him on the ground and
they continued to kick him and beat on him.” Then Kokal “just . . . took a gun and
held it to [the victim’s] head and shot him.”
4
Kokal told Mosley that “he wasn’t worried about [fingerprints being found
on the pool cue] because there was enough sand there and that sand will keep them
from getting any fingerprints on any object.” Kokal further surmised that “he was
so close [when he shot Russell] and the bullet would have gone straight through his
head and into the sand.” According to Mosley, Kokal “didn’t seem like it really
bothered him that he did it.” Indeed, when Mosley asked Kokal why he had shot
the victim, Kokal offered this explanation: “dead men can’t tell lies.” Kokal
admitted that the purpose of the attack had been to rob the victim, and that he had
“wasted a guy . . . over a dollar.” Kokal also told Mosley that “he was going to go
get another Sailor before he left town so that they would have money to leave town
on.”
On October 5, 1983, Eugene Mosley called the police to report that he had
information about someone having been shot in the head at the beach. The police
determined that they needed to talk to Mosley since “nobody” would have known
that Russell was shot in the head “but the person who did it.” After speaking to
Mosley, the police obtained an arrest warrant for Kokal and arrested him.
On October 20, 1983, Kokal was indicted and charged with the first degree
murder of Jeffrey Russell. Kokal’s testimony at trial was largely consistent with
the facts of the murder detailed by Mosley -- that Kokal and O’Kelly had picked up
5
a hitchhiker, Russell, who was struck with a pistol and Kokal’s pool cue, robbed,
marched down a beach where he was again beaten with the pool cue, and then
killed with a single shot from a .357 revolver. However, Kokal testified that it was
his companion, O’Kelly, who actually beat, robbed, and shot the victim. Kokal
admitted to being present during the murder, but denied any involvement in the
homicide.
O’Kelly, on behalf of the government, also testified.1 O’Kelly said that he
had been with Kokal on the night of the murder, and that after they picked up
Russell, the three of them had stopped to smoke marijuana, and then drove into
Hanna Park. Once they were at the park, O’Kelly left to use the restroom, and
upon his return, he saw Kokal hit Russell over the head with a pistol, and heard
Kokal instruct Russell to hand over his wallet. O’Kelly then told Russell to give
Kokal the wallet, so that “he would be on his way and we would be on our way.”
Instead, O’Kelly watched as Kokal made Russell walk down the beach, and a few
minutes later, as Kokal beat Russell over the head with a cue stick. O’Kelly told
Kokal that “there ain’t no need for that” and that he was leaving. After he started
to walk away, O’Kelly heard a gunshot, turned around, and saw that Kokal had a
1
About six months before Kokal’s trial, O’Kelly pleaded to the lesser included offense of
Second Degree Murder with the understanding that prosecutors would recommend a sentence “in
accordance with the [Florida] sentencing guidelines” range of 12 to 17 years. In exchange for
the plea, the State of Florida required that O’Kelly “testify truthfully” against Kokal.
6
pistol in his hand. Next, O’Kelly and Kokal ran to the truck and left. O’Kelly
further testified that Kokal had brought up the subject of robbery three or four
times before the night of the murder.2 On October 4, 1984, the jury found
petitioner Kokal guilty of first degree murder.
B. The Penalty Phase and Direct Appeal
On October 12, 1984, the penalty phase began. The state presented the
testimony of the medical examiner, who gave further detail regarding the wounds
inflicted on the victim, including the defensive wounds on the victim’s forearm and
hand. The pathologist emphasized the seriousness of the beating that fractured the
victim’s skull, which included “two impacts to the back of the head, one with
lacerations or tearing of the skull, the other one with an abrasion and bruise.” He
also described the very close range from which the victim was shot in the head, and
noted that the beating “happened prior to the shooting” because “there was
bleeding and reddening of the area suggesting that the man was alive when those
injuries were inflicted.”
2
O’Kelly was cross-examined at considerable length about a letter he had written to
Kokal in November 1983, in which he wrote that it was he, O’Kelly, who had fired the weapon
that night and had accidentally shot the victim in the head. O’Kelly testified that at the time he
wrote the letter, he was attempting to establish an explanation that would exonerate both him and
Kokal of the crime. He explained that he wanted to help Kokal, who was his friend. O’Kelly
also noted that on the night of his arrest, which was shortly after the murder, he told the police
that Kokal had shot Russell, despite what he wrote in the letter.
7
Defense counsel in turn presented the testimony of Kokal’s mother, Deanne
Kokal. Mrs. Kokal testified that Kokal’s father had physically abused Kokal as a
child. She described an instance when the father had struck Kokal with a tennis
racket, causing “severe gashes in his head.” She also said that, when Kokal was
around age eight, nine, or ten, on one occasion, his father chained him to the foot
of his bed, “locked [him] in his room for one week without having anything to eat
except sweet potatoes,” and did not allow him to “use the bathroom.”
Mrs. Kokal explained that petitioner’s father would severely punish Kokal
“every time he would do something”; these instances were frequent and included
beatings. As the beatings increased in their severity and frequency, Kokal “kept
getting into more and more trouble.” She sought counseling for her son. The
physical abuse of Kokal ended in 1977. Mrs. Kokal also recounted that her
husband physically abused her as well, and this included striking her with his fist,
although not as frequently as he abused Kokal. She added that a divorce ensued
when Kokal was thirteen or fourteen years old.
Mrs. Kokal pleaded with the jury that Kokal had “love, compassion and . . .
a lot to offer,” including “his loyalty to me.” She added that the murder was
wholly inconsistent with “the man that [she had] . . . raised and known for all his
life.” She recognized that when Kokal returned from Arizona in July 1983 with
8
O’Kelly, his lifestyle had become one of daily alcohol abuse. “[H]e mostly would
do what he wanted to.” But she said she had not given up on her son, and begged
the jury to let him live. She explained that Kokal loved the outdoors, and that a life
sentence would be a “tremendous penalty” for him.
Following the testimony and arguments, the judge instructed the jury on the
potential aggravating and mitigating circumstances. The aggravating
circumstances included whether: (1) the capital felony was committed while the
defendant was engaged in the commission of a robbery, Fla. Stat. § 921.141(5)(d);
(2) the capital felony was committed for the purpose of avoiding or preventing a
lawful arrest, Fla. Stat. § 921.141(5)(e); (3) the capital felony was especially
heinous, atrocious or cruel, Fla. Stat. § 921.141(5)(h); and (4) the capital felony
was committed in a cold, calculated and premeditated manner without any pretense
of moral or legal justification. Fla. Stat. § 921.141(5)(i). The mitigators in turn
included these considerations: (1) Kokal’s capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law, Fla. Stat. §
921.141(6)(f); (2) Kokal’s age at the time of the murder, Fla. Stat. § 921.141(6)(g);
and (3) his character. Fla. Stat. § 921.141(6)(h).
After deliberating, the jury unanimously recommended death. It also found
that “the defendant, Gregory Kokal did actually kill Jeffrey Russell.”
9
On November 14, 1984, the state trial court conducted a motion and
sentencing hearing of its own, pursuant to Fla. Stat. § 921.141(3), which requires
trial judges to independently review the evidence and make detailed written
findings regarding aggravating and mitigating circumstances before imposing the
death penalty. In this hearing, the trial court weighed the fact that the jury had
found Kokal actually killed the victim, and reviewed all of the potential statutory
and non-statutory mitigating circumstances. Finding no mitigators and all four
aggravating circumstances, the trial court sentenced Kokal to death.
The trial court also issued a written judgment and sentence, explaining its
decision at some length. The court began by outlining the essential facts of the
murder, including how Kokal “savagely” beat the victim, shot Russell in the head
after the victim “begged his life be spared,” and bragged to his friend that he
“wasted a sailor for a dollar.”
The order further provided that the trial court had “closely examined,
weighed and considered” the aggravating and mitigating circumstances. In so
doing, the trial court expressly addressed the aggravating circumstances argued by
the state, as well as all of the potential mitigating circumstances available in the
statute. The trial court then reached the following pertinent conclusions:
• In rejecting the “extreme mental and emotional disturbance”
mitigating circumstance, Fla. Stat. § 921.141(6)(b), the judge
10
found that “the defendant was at all material times in complete
control of his mental and emotional faculties acting deliberately
and with pre-meditation.”
• In rejecting the “substantially impaired” capacity mitigating
circumstance, Fla. Stat. § 921.141(6)(f), the judge recognized
that the defendant had “testified that during the evening prior to
the death of Russell . . . he had consumed a large quantity of
alcohol[,] . . . smoked a number of marijuana cigarettes[, and] . .
. was highly intoxicated.” The judge also found, however, that
“[t]he defendant’s statement to his friend, [Mosley], contained
no evidence of intoxication [and] . . . was in great detail
including his thought process at the time of the killing of
Russell”; “[t]he testimony of the co-participant, [O’Kelly], does
not support intoxication of the defendant by either alcohol or
drugs [and showed] . . . deliberate, calculated acts and conduct
by the defendant during the course of the robbery and murder of
Russell”; and “the defendant proved to this Court, by his
statements and his acts, as well as his demeanor on the witness
stand, that he is an individual of above average intelligence,
knowledge, and well oriented as to time, space and
relationships and well able but unwilling to conform his
conduct to the requirements of law and with an ability to
appreciate the criminality of his conduct.”
• In finding the “capital felony [during] . . . the commission of . .
. a robbery” aggravating circumstance, Fla. Stat. §
921.141(5)(d), the judge found that the evidence “proves
beyond a reasonable doubt that the death of Jeffrey Russell took
place during the commission of the robbery of” Russell; and
that Kokal knowingly participated in the robbery and “actually
committed the murder.”
• In finding the “capital felony [to] avoid[] . . . arrest”
aggravating circumstance, Fla. Stat. § 921.141(5)(e), the judge
found that Russell “was beaten severely about the head and
shoulders during the robbery” and “[a]t the time of the murder, .
. . lay prone upon the ground and was begging for his life”;
11
“Russell’s shooting was not necessary for escape from the
scene of the robbery, and . . . eliminated the victim’s
identification and testimony at trial”; and Kokal told Mosley
“that he had shot Russell because, ‘dead men tell no lies.’”
• In finding the “heinous, atrocious, and cruel” aggravating
circumstance, Fla. Stat. § 921.141(5)(h), the judge found that
“the victim was severely beaten about the head and neck[,] . . .
suffered great pain from the blows[,] . . . was forced to change
his location before he was finally struck down and murdered”;
“[t]he march was a ‘death march’ filling Russell’s mind with
fear and anguish”; and “[a]t the end of the ‘death march,’
Russell was beaten again and as he begged for his life, the
murder took place.”
• And in finding the “cold, calculated, and premeditated”
aggravating circumstance, Fla. Stat. § 921.141(5)(i), the judge
found that “Russell was assaulted and battered after he alighted
from the truck upon arrival from the beach[,] . . . was forced by
the defendant to move farther down the beach away from the
truck[,] . . . was completely subdued and presented no threat to
the defendant[,] . . . was struck repeatedly by the defendant
until he fell to the ground[,] . . . [and] offered no threat to the
defendant and, to the contrary, begged for his own life”; and
“[t]he murder of Russell was in the nature of an assassination.
He was forced into the ‘death march’ and, at its conclusion, was
assassinated as he begged for his life. He constituted no threat
to the defendant nor bar to his escape. At no time, did Russell
ever present legal or moral cause to the defendant or his
companion, O’Kelly, to justify Russell’s death.”
Having explained that the state had proven the four aggravating
circumstances beyond a reasonable doubt, and that the defendant had not proven
any statutory or non-statutory mitigating circumstances, the order concluded that
Kokal should be sentenced to die. On July 17, 1986, the Florida Supreme Court
12
affirmed the petitioner’s conviction and death sentence. Kokal v. State, 492 So. 2d
1317 (Fla. 1986).
In its affirmance, the Florida Supreme Court expressly rejected Kokal’s
attempts to rebut three of the aggravating circumstances:
The victim was beaten unconscious and posed no threat to Kokal’s
escape, but he did pose a threat to later identification of the robber(s).
Kokal’s own statement to his friend to the effect that dead men can’t
talk confirms that the murder was committed to avoid or prevent
arrest. We have found this aggravating circumstance present in similar
cases.
Appellant’s argument that the murder was not especially heinous,
atrocious or cruel because death was instantaneous overlooks the
events preceding death. The murder was preceded by a violent
robbery, a march at gunpoint to the murder site, and a vicious and
painful beating during which the victim, in anticipation of his fate,
unsuccessfully pleaded for his life. The facts surrounding the murder
also show beyond a reasonable doubt the heightened premeditation
necessary for a finding of cold, calculated and premeditated. The high
level of visceral viciousness with which the murder was carried out is
not inconsistent with the coldly calculated decision to eliminate the
witness by beating him into unconsciousness prior to the
execution-type killing.
Id. at 1319 (internal citations omitted).
The Florida Supreme Court also upheld the state trial court’s rejection of
mitigating circumstances in these terms:
Appellant also argues that the trial court erred in not finding certain
mitigating factors: his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
impaired and his age of twenty years. The trial court heard testimony
13
from appellant and his mother that he abused alcohol and drugs up to
and during the night of the murder. The specificity with which Kokal
recounted the details of the robbery and murder to his friend
contradicts the notion that he did not know what he was doing, as does
the testimony of his companion. There was no abuse of discretion in
not giving significant weight to this evidence in mitigation. . . . For
the same reason we see no merit in the claim that the trial court erred
in not finding as mitigation that appellant was only twenty years of
age and immature.
Id. (internal citations omitted).
The Florida Supreme Court denied rehearing in Kokal’s direct appeal on
September 17, 1986. See Ex. 14.3
C. Kokal’s Ineffective Assistance Claim In the State Post-Conviction Courts
Following the resolution of Kokal’s direct appeal, Kokal filed a post-
conviction motion in state court raising, among other things, the claim that his
counsel was ineffective at the penalty phase of his trial because counsel failed to
investigate and present mitigating evidence concerning Kokal’s mental health at
the time of the crime. In February 1997, an evidentiary hearing was held on
Kokal’s post-conviction claims (“the Rule 3.850 hearing”).
Dr. Barry Crown, a neuropsychologist, testified as a witness for Kokal. In
Crown’s opinion, Kokal had sustained organic brain damage, primarily of a frontal
lobe bilateral variety, prior to the crime. Crown noted that Kokal had been in a car
3
We refer to the Respondent’s exhibits in the district court record as “Ex. __,” and we
refer to the docket entries in the district court as “Doc. __.”
14
accident in 1983, which had resulted in concussions, and had an earlier near-
drowning experience, which had deprived his brain of oxygen.4 According to Dr.
Crown, the brain damage Kokal suffered rose to a level that would have affected
Kokal’s cognitive abilities, and affected Kokal’s concentration, attention,
reasoning, judgment, auditory selective attention,5 and basic verbal and nonverbal
memory process. Crown further offered that alcohol and drugs “have a greater
effect on an individual who has recently sustained a head injury than they would
have on the normal individual. A smaller amount of substance creates a greater
effect.” Dr. Crown thus opined that Kokal’s consumption of a large quantity of
alcohol on the evening of the murder, in combination with his brain damage, would
have greatly affected his cognitive abilities.
In short, in Dr. Crown’s opinion, Kokal was suffering from two statutory
mitigating factors at the time of the crime: Kokal was under the influence of an
extreme mental and emotional disturbance, Fla. Stat. § 921.141(6)(b), and Kokal’s
capacity was diminished to appreciate the criminality of his conduct or to conform
4
Crown conceded, however, that Kokal underwent a physical examination and x-rays
after the near-drowning experience, but nothing unusual -- like aspiration pneumonitis, acidosis,
or a skull fracture -- was found. He further acknowledged that hospital records following the car
accident ruled out a significant head injury, indicated that Kokal’s condition was due to alcohol
consumption, not head injury, and reported that Kokal was doing well when discharged. Indeed,
it is undisputed that in the car accident, Kokal had been driving under the influence of alcohol.
5
This signifies that Kokal may be attentive to some details and inattentive to others,
particularly when there are distractions.
15
his conduct to the requirements of the law, Fla. Stat. § 921.141(6)(f). Crown
admitted on cross-examination, however, that Kokal’s brain damage was not
severe enough standing alone to have impaired him at the time of the crime. He
further conceded that Kokal was not insane at the time of the offense.
Dr. Joseph Virzi, a psychiatrist who had examined Kokal pre-trial in 1984,
also testified on behalf of Kokal at the Rule 3.850 hearing. Virzi had been retained
before trial by Kokal’s counsel, Dale Westling, to evaluate whether Kokal was
insane at the time of the crime, but Virzi was not called to testify at the penalty
phase. Following the pre-trial examination, Dr. Virzi had given Kokal’s counsel a
report saying the following about Kokal’s “mental status”:
This twenty-one year old white male was oriented to time, person, and
place. Intelligence was not impaired. Recent and remote memory
were clear. The patient had a clear idea of what had happened prior to
the above incident and during the above incident. He understands the
consequences of his behavior. He knows the difference between right
and wrong. The patient has no delusions, no homicidal ideas. His
[blank] is clear.
The report opined that Kokal suffered from “[a]cute situational adult/adolescent
problems [and c]hronic alcoholism and drug abuse.” 6
6
The report also said:
The patient does not meet the criteria for McNaughton Rule of insanity. The
patient appeared cooperative, and it appeared that the above history is valid. I
have no suspicion that the patient is lying. However, I would like to corroborate
my history with the Minnesota Multi-Phase Personality Inventory [(“MMPI”)]
test, which could pick up malingering and lying.
16
At the Rule 3.850 hearing, Virzi testified that his pre-trial examination of
Kokal had lasted about forty-five minutes, and that he had not received any
background information on Kokal prior to the examination. Since that time, and
prior to the Rule 3.850 hearing, Dr. Virzi had received Kokal’s records, and was
made aware of Kokal’s near-drowning and severe automobile accident. Virzi
added that, based on the records supplied to him in post-conviction, he found the
presence of at least one statutory mental health mitigator at the time of the crime,
Fla. Stat. § 921.141(6)(b).
Specifically, when Virzi was asked whether he had an opinion based upon a
reasonable degree of medical probability as to whether Kokal suffered from a
diminished capacity at the time of the crime, he answered that the information on
Kokal’s accidents “would raise my level of awareness that he may have diminished
capacity, cognitively, at the time of the crime.” And when asked if he had an
opinion, within a reasonable degree of medical probability, as to whether the
substance and alcohol abuse diminished Kokal’s capacity or disturbed him
On cross-examination, Dr. Virzi admitted that he vaguely recalled trying to give the MMPI test
to Kokal in the waiting room the day he met with him, but did not believe that Kokal ended up
taking the test. Notably, this statement conflicted with Dr. Virzi’s earlier deposition where he
said that he believed he had given Kokal the MMPI test in the waiting room.
17
emotionally at the time of the crime, Dr. Virzi’s opinion was that “the alcoholism,
drug abuse disturbed him emotionally at the time of the crime.”
Dr. Virzi acknowledged on cross-examination that he had examined Kokal
in 1984 at counsel Westling’s request for possible mitigation as well as for sanity.
In fact, his written report provided the following details about Kokal’s substance
abuse:
The patient [Kokal] states that the relationship [with his father] is not
the greatest. He stated that the relationship deteriorated with the
patient’s drinking. He stated that he greatly disappointed his father,
but his father did not give him much support during his turbulent
adolescent development . . . . The patient said his alcohol history
started in junior high school around the eighth grade. He stated he
originally drank not to stay drunk, but it gradually moved into that
area, with difficulty controlling his drinking and resulting belligerent
fighting behavior. He stated he drinks mostly beer, approximately a
six-pack a day, but denies any blackouts or D.T.’s, but he does admit
to one DWI. . . . He said he had no formal treatment for psychiatric or
drug and alcohol problems. . . . He . . . continues to take drugs and pot
irregularly.
Virzi thought he had “implied” in his report that Kokal was incapacitated from
drugs and alcohol at the time of the crime.
In addition, Virzi still agreed with what he found in his report -- that Kokal
suffered from chronic alcoholism and drug abuse -- and there was no change in his
original diagnosis. Dr. Virzi further conceded that when he examined Kokal in
1984 he found no evidence of organic brain disorder. However, when Dr. Virzi
18
was asked whether he continued to believe Kokal had a clear and precise memory
of what happened, he said that based on what Kokal’s post-conviction lawyers had
told him, he now “question[ed] whether that was correct memory or not.”
Kokal also called his trial counsel, Dale Westling, to testify at the Rule
3.850 hearing. Westling testified that during his many discussions with Kokal, the
petitioner had given him a detailed account of how he had beaten the victim with a
pool cue and then shot him in the head. When asked why he did it, Kokal told
Westling, “Dead men tell no lies. That’s why I did it,” and then added, “and you
know what, the mother fucker only had a dollar.” Westling said that the account
was “chilling,” since “there was no emotion whatsoever, no remorse.”
As for Kokal’s allegeded alcohol and drug impairments at the time of the
crime, Westling believed that Kokal “knew every step that occurred that evening
with great specificity.” Westling explained that, during all of his interactions with
Kokal, “[t]here was never the slightest indication that [Kokal] was in any way
impaired.” “He knew exactly what had happened and he did it to steal money.”
Westling had asked Kokal at the outset if he had any physical or mental
disabilities or handicaps and Kokal had told him no. Westling “spent a lot of time
with Mrs. Kokal.” He added that the father was not helpful. Neither Kokal, his
mother, nor his father told Westling about the near-drowning in 1977 nor the car
19
accident in 1983. Westling said he never had “the slightest indication” that Kokal
was incompetent or suffering from some mental incapacity.
Nonetheless, Westling had requested that the court appoint an expert to
perform a psychiatric examination of Kokal because it was “common sense . . . to
every defense attorney that defends a murder at least to have [the client] examined
by a psychiatrist.” According to Westling, after receiving Dr. Virzi’s report,
Westling phoned Virzi to ask if he had anything at all that could help in the defense
and Virzi “got a little snotty” and said no.7
Westling opined that if called, Dr. Virzi “would have been a devastating
witness” against the defense, since Virzi’s report would have been discoverable
and would have provided grounds for “three or four aggravating circumstances in
and of itself.” He continued: “I didn’t want [the jury] to know that Dr. Virzi
thought [Kokal] had a clear idea of what had happened prior to the [murder] and
during the [murder].”
Westling also considered the child abuse Kokal had suffered at the hands of
his father as one possible non-statutory mitigating circumstance, and looked for
others. Westling and Kokal decided “to present [Kokal’s] mother with the
7
According to counsel, Westling “knew [Kokal] was lying to [Dr. Virzi],” because Kokal
had told Dr. Virzi that he had not killed Russell. As a result, Westling “wasn’t overly impressed
with the need to do [the MMPI test],” but regardless, Westling “think[s] he may have done it.”
20
evidence that we had about the abuse, his age and try to present to the jury some
reason . . . not to give him the death penalty.” Westling explained: “All we wanted
to do was talk about [Kokal]’s past, and what it comes down to is to evoke
sympathy.” But Westling and Kokal did not want to open the door to Kokal’s
criminal history or misbehavior as a child through his mother’s testimony.
Westling also expressed concern about “the inconsistencies [they] might create by
arguing [Kokal] did it but there are excuses for it.” He said: “You can’t take the
position at trial I didn’t do it and then in mitigation try to explain why you did it.”
Westling described Kokal as “very astute throughout the whole case[,]
wanting copies of everything and question[ing] me about the practices and policies
we were going to follow,” and “incredibly bright, responsive, always appropriate in
his remarks and responsive in responses, interested in the case.” However, by “21
Greg was an accomplished criminal.”
Finally, Kokal’s mother, Deanne Kokal, testified at the Rule 3.850 hearing,
recalling that she had told trial counsel about Kokal’s alcohol and drug abuse
problems. She remembered Kokal’s near-drowning incident in 1977, but did not
know whether she told Westling about it. She also recalled the 1983 car accident,
but again did not think she had discussed it with Westling because “I guess I didn’t
21
realize that it actually -- you know, he could have been damaged.” Mrs. Kokal said
it was a miracle that her son lived because it was very severe.
Following this testimony, the state trial court issued a written decision
rejecting all of Kokal’s post-conviction claims. Ex. 20. Addressing what it
considered to be Kokal’s “most serious” claim -- whether counsel’s penalty-phase
investigation into Kokal’s mental health was deficient under Strickland v.
Washington, 466 U.S. 668 (1984) -- the trial court observed that Kokal “failed to
demonstrate how his trial counsel could have hoped to have developed mitigating
evidence associated with actual brain damage,” and “failed to establish with regard
to trial counsel’s use of the psychiatrist ‘that the approach taken by defense counsel
would not have been used by professionally competent counsel.’” Ex. 20 at 9, 11
(quotations omitted). Nonetheless, the trial court found that “the defense lawyer’s
over-all preparation for the penalty phase of the trial may have fallen below that
expected of reasonably competent counsel [since t]he lawyer did little more than
simply think about the penalty phase until after the guilt phase was completed.”
Ex. 20 at 9. The trial court continued: “Questions regarding any deficiency in Mr.
Westling’s preparation are irrelevant, though, if the Defendant cannot prove the
existence of the second prong of the Strickland v. Washington test for
ineffectiveness of counsel.” Id.
22
Turning to Strickland’s prejudice prong -- requiring Kokal to “show that
[he] was prejudiced by any failure to prepare” -- the trial court found the
following: (1) Dr. Virzi’s opinion -- that, based on his history of alcohol and drug
abuse, Kokal had some generally diminished mental capacity -- had not changed,
despite what Dr. Virzi had recently learned about Kokal’s brain damage; (2)
Kokal’s apparent ability to vividly recall the events of the murder, combined with
his ability to function in terms of walking, talking, and driving a car, militated
against any concept of specific diminished mental capacity with regard to his
crime; (3) Kokal’s history of alcohol and drug abuse was presented during the
penalty phase of the trial, although not through the psychiatrist; and (4) Dr. Virzi
was not called to testify at trial for strategic reasons, since had he testified, he
could have been effectively cross-examined, and his report indicated his belief that
Kokal understood the consequences of his actions. Ex. 20 at 9-10. The trial court
concluded that Kokal
failed to show how he was prejudiced by any alleged failure of trial
counsel to have made better use of his psychiatrist. As the Supreme
Court noted in affirming this conviction on direct appeal, the
Defendant’s detailed memory about the crime “contradicts the notion
that he did not know what he was doing.”
Likewise, the Defendant has failed to adduce any other evidence as to
how he may have been prejudiced by any supposed deficiency in
preparation for the penalty phase.
23
Ex. 20 at 11 (citations omitted).
In short, there is no square finding from the trial court about whether counsel
satisfied Strickland performance. The most we can say is that it raised the
question, but then disposed of Kokal’s claim by finding that he failed to establish
Strickland prejudice.
Kokal appealed to the Florida Supreme Court, which after making a detailed
and independent examination of the record, affirmed the trial court’s decision. See
Kokal v. Dugger, 718 So. 2d 138, 139 (Fla. 1998). The Florida Supreme Court
recited the evidence it considered relevant to Kokal’s ineffective assistance claim.
It began by laying out the facts of the murder, including that Kokal and O’Kelly
had picked up, and then beaten, shot, and robbed a hitchhiker, who Kokal had
deliberately shot in the head because “dead men can’t tell lies.” Id. The Florida
Supreme Court observed that the trial court had found no mitigating circumstances,
but had found four statutory aggravators: (1) the murder was committed during the
course of a robbery; (2) the murder was committed to avoid arrest; (3) the murder
was especially heinous, atrocious, or cruel; and (4) the murder was committed in a
cold, calculated, and premeditated manner. Id. at 139 & n.1. It also recognized
that Kokal’s mother had testified during the penalty phase that his father had badly
mistreated and abused him as a child. Id. at 139.
24
The Florida Supreme Court then summarized the testimony from Kokal’s
post-conviction hearing of Crown and Virzi this way:
Kokal called as a witness Dr. Crown, a neuropsychologist who
examined him in prison in 1996, and who testified that in his opinion
Kokal sustained brain damage in a 1983 car wreck, and that on the
night of the killing the combination of brain damage and alcohol
consumption rendered him extremely disturbed and also impaired his
capacity to appreciate the criminality of his conduct. This testimony
was controverted by the State on cross-examination.FN2 Kokal also
called Dr. Virzi, a psychiatrist, who testified that he had examined
Kokal pre-trial in 1984 to evaluate his sanity and competence. Dr.
Virzi now believes that Kokal’s drug and alcohol abuse caused him to
be emotionally disturbed and to have diminished capacity at the time
of the crime. This testimony also was controverted by the State.FN3
FN2. Dr. Crown admitted on cross-examination that he
did not prepare a written report on Kokal -- that CCR did
not ask him to -- and thus no report was given to the State
prior to the evidentiary hearing. He testified that Kokal’s
brain damage is not severe enough standing alone to have
impaired him at the time of the crime and that the only
evidence of alcohol consumption came from Kokal
himself. Dr. Crown acknowledged that Kokal had
successfully completed both his G.E.D. and a number of
college courses. Dr. Crown did not know that Kokal had
in fact feigned illness in order to obtain favored treatment
in jail. Dr. Crown attributed no significance to the fact
that hospital records following the 1983 auto accident:
ruled out significant head injury, indicated that Kokal’s
condition was due to alcohol consumption, not head
injury, and reported that Kokal was doing well when
discharged. Nor did Dr. Crown attach significance to the
fact that prison evaluations showed that Kokal was not
suffering from any mental disorders and did not need
counseling.
25
FN3. Dr. Virzi acknowledged on cross-examination that
he had examined Kokal in 1984 at the request of Dale
Westling, defense counsel, and that he had evaluated
Kokal for possible mitigation as well as for sanity and
competence. Dr. Virzi knew of Kokal’s history of drug
and alcohol abuse at the time. He still agrees with
everything he found in his original report and he
concedes that when he examined Kokal in 1984 he found
no evidence of organic brain disorder -- that Kokal was
functioning normally.
Id. The state high court also detailed the testimony of counsel Westling concerning
his own prior experience in trying criminal cases, Kokal’s admission of the crime
to him, Westling’s preparation of the case and his trial strategy, and Kokal’s
demeanor as a defendant. Id. at 139-40.
In affirming the denial of Kokal’s post-conviction motion, the Florida
Supreme Court said: “Our review of the record shows that the trial court did not
err in denying Kokal’s claim of ineffectiveness in the guilt phase or in the penalty
phase. The record contains extensive evidence to support its ruling and we find no
legal error.” Id. at 140-42 (footnotes omitted). In the accompanying footnotes, the
Florida Supreme Court quoted at length from Strickland v. Washington, which
established the Supreme Court’s ineffective assistance standard,8 as well as from
8
The Florida Supreme Court said the following:
The United States Supreme Court in Strickland set forth the following standard
for ineffectiveness:
A convicted defendant’s claim that counsel’s assistance was so
26
the lower court’s findings on Kokal’s ineffective assistance claim. Id. at 140-41
nn.11&13.
D. District Court Post-Conviction Proceedings
On February 22, 2005, Kokal filed the instant petition for writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle
District of Florida. He filed an amended petition on March 10, 2005, raising nine
issues.9 On February 11, 2008, the district court denied relief on all nine.
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that
counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
[Strickland,] 466 U.S. at 687 . . . . The federal Court further expounded on the
second prong, i.e., the prejudice prong, of this standard:
The defendant must show that there is 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.
Id. 466 U.S. at 694 . . . .
Kokal, 718 So. 2d at 140 n.11.
9
Kokal raised the following claims in his federal petition: (1) ineffective assistance of
counsel at the penalty phase; (2) ineffective assistance of counsel at the guilt phase; (3) the trial
court’s failure to excuse certain jurors for cause; (4) the trial court’s exclusion of certain jurors
for cause; (5) the trial court’s refusal to excuse, and exclusion of, certain jurors based on race;
(6) prosecutorial misconduct; (7) the denial of his right to a full and fair post-conviction process;
(8) the denial of his newly discovered evidence claim in violation of the Eighth Amendment; and
27
As for Kokal’s claim that he received ineffective assistance of counsel at the
penalty phase of his trial, the district court determined that the state courts’
findings were neither contrary to nor an unreasonable application of clearly
established federal law. It first determined that Westling had “reasonably decided
not to further pursue any mental health matters.” Doc. 18 at 31. The court further
held that Kokal “was not prejudiced by counsel’s alleged errors,” explaining that:
Even if the mental health evidence had been presented, there is no
reasonable probability that it would have established sufficient
mitigating factors to outweigh the four statutory aggravating factors.
There is simply no reasonable probability that the result of the penalty
proceeding would have been different if counsel had presented such
evidence.
Doc. 18 at 31.
The district court issued a certificate of appealability on one issue: “(1) did
the state courts’ adjudications of Petitioner’s ineffective assistance of counsel
claim in ground one (that Petitioner was denied the effective assistance of counsel
at the penalty phase of his capital trial) result in decisions that were contrary to
clearly established federal law, involved an unreasonable application of clearly
established federal law, and/or were based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings; and, if so, (2)
(9) the unconstitutionality of Florida’s capital sentencing statute.
28
did this Court err in finding Petitioner’s ineffective assistance of counsel claim in
ground one to be without merit?” Doc. 27. This appeal followed.
II. Standard of Review
Because Kokal filed his federal habeas petition after April 24, 1996, Section
2254(d) governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209,
1210 (11th Cir. 1998). Accordingly, a court may grant habeas relief only where
the state court decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States”; or (2) “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). A state court decision is “contrary to” clearly established law if the court
arrived at a conclusion opposite to that reached by the Supreme Court on a
question of law, or the state court confronted facts that are “materially
indistinguishable from a relevant Supreme Court precedent” but arrived at a
different result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court
decision is an “unreasonable application” of clearly established law if the state
court unreasonably extends or fails to extend a clearly established legal principle to
a new context. Id. at 407.
29
A state court’s factual findings are presumed correct unless rebutted by the
petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “This
presumption of correctness applies equally to factual determinations made by state
trial and appellate courts.” Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
III. Analysis
Kokal’s claim boils down to this: his trial attorney was constitutionally
ineffective during the penalty phase because counsel failed to conduct a reasonable
investigation that would have revealed organic brain damage. To establish
ineffective assistance, a petitioner must show both incompetence and prejudice: (1)
he must show that “counsel’s representation fell below an objective standard of
reasonableness,” and (2) he must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 687-88, 694; accord Wiggins v. Smith, 539
U.S. 510, 521-522 (2003); Williams, 529 U.S. at 390-91; Darden v. Wainwright,
477 U.S. 168, 185-87 (1986).
Because a petitioner’s failure to show either deficient performance or
prejudice is fatal to a Strickland claim, a court need not address both Strickland
prongs if the petitioner fails to satisfy either of them. See Windom v. Sec’y, Dep’t
30
of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (quoting Strickland, 466 U.S. at
697). As a result, a court may resolve whether the petitioner established prejudice
as a result of counsel’s errors without first considering the adequacy of his
counsel’s performance. Id.; see also McClain v. Hall, 552 F.3d 1245, 1251 (11th
Cir. 2008) (“We may decline to decide whether the performance of counsel was
deficient if we are convinced that [the petitioner] was not prejudiced”). Since the
Florida Supreme Court’s determination that Kokal failed to establish Strickland
prejudice was not contrary to nor an unreasonable application of clearly established
law, we only address prejudice.
To establish prejudice, Kokal must show
that, but for counsel’s unprofessional performance, there is a
reasonable probability the result of the proceeding would have been
different. See Strickland, 466 U.S. at 694 . . . . “It is not enough for
the [petitioner] to show the errors had some conceivable effect on the
outcome of the proceeding . . . ,” because “[v]irtually every act or
omission of counsel would meet that test.” Id. at 693 . . . .
Nevertheless, a petitioner “need not show that counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at
693 . . . . Rather, where, as here, a petitioner challenges a death
sentence, “the question is whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695 . . . .
Putman v. Head, 268 F.3d 1223, 1248 (11th Cir. 2001). Thus, “[i]n assessing
prejudice, we reweigh the evidence in aggravation against the totality of available
31
mitigating evidence.” Wiggins, 539 U.S. at 534. “In that process, what matters is
not merely the number of aggravating or mitigating factors, but their weight.”
Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1240-41 (11th Cir. 2010). In
addition, we presume “a reasonable sentencer.” See Williams v. Allen, 542 F.3d
1326, 1342 (11th Cir. 2008) (citing Strickland, 466 U.S. at 695 (“[T]he
idiosyncracies of the particular decisionmaker, such as unusual propensities toward
harshness or leniency[,] . . . are irrelevant to the prejudice inquiry.”)).
We review the highest state court decision reaching the merits of the
petitioner’s claim. See Shere v. Sec’y, Fla. Dep’t of Corrs., 537 F.3d 1304, 1310
(11th Cir. 2008) (“[O]ur review is limited to examining whether the highest state
court’s resolution of a petitioner’s claim is contrary to, or an unreasonable
application of, clearly established law, as set forth by the United States Supreme
Court.”); see also Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008) (“[T]he
highest state court decision reaching the merits of a habeas petitioner’s claim is the
relevant state court decision.”).
Here, the Florida Supreme Court’s ruling on Kokal’s Rule 3.850 motion is
the highest state court decision reaching the merits of Kokal’s ineffective
assistance of counsel claim. The Florida Supreme Court opinion independently
reviewed and recited the facts surrounding Kokal’s ineffectiveness claim at length.
32
In so doing, the Florida Supreme Court actually appears to have disagreed with the
trial court about whether the psychiatrist had changed his mind since 1984. The
trial court suggested that Dr. Virzi continued to reach the same conclusions, see
Ex. 20 at 10, while the Florida Supreme Court found that Dr. Virzi “now believes
that Kokal’s drug and alcohol abuse caused him to be emotionally disturbed and to
have diminished capacity at the time of the crime,” Kokal, 718 So. 2d at 139
(emphasis added). Moreover, the Florida Supreme Court discussed in detail the
evidence that undermined the “new” mitigating evidence provided by Drs. Crown
and Virzi, including the testimony of Kokal’s counsel -- none of which had been
detailed by the lower court. Compare id. at 139-40 nn. 2, 3, 6, 8, with Ex. 20 at 7-
11. After explicating the facts, the Florida Supreme Court quoted at length from
Strickland, observed that the record “contain[ed] extensive evidence” to support
the trial court’s decision denying Kokal relief, id. at 141-42, and concluded that
Kokal had failed to establish a Strickland violation.
We are also obliged to afford AEDPA deference to the Florida Supreme
Court’s decision. Although the petitioner has argued loosely that the state courts
failed to weigh the aggravators and mitigators as required by clearly established
law, we remain unpersuaded.
33
We cannot say that the Florida Supreme Court failed to weigh the available
mitigating and aggravating circumstances simply because it did not expressly say
that it had. A review of its thorough opinion reveals quite the contrary. To begin
with, the Florida Supreme Court properly quoted from the Strickland prejudice
standard. See Kokal, 718 So. 2d at 140 n.11 (quoting Strickland, 466 U.S. at 694).
In applying Strickland, the Florida Supreme Court then summarized the “new”
mitigating evidence that Kokal had introduced at his Rule 3.850 hearing, and
pointed out how the state had undermined the evidence proffered by Drs. Crown
and Virzi. It also reviewed Westling’s testimony, which added the opinion that
Virzi would have been a devastating witness against Kokal, and that Kokal had
always appeared to be astute and bright. Id. at 140 nn. 6, 8.
The Florida Supreme Court further considered the mitigating evidence that
had been presented at the original sentencing phase -- that Kokal had been
physically abused as a child. Id. at 139 (“During the penalty phase, his mother
testified that he had been mistreated as a child.”). It then recounted the egregious
circumstances surrounding the murder, and discussed the statutory aggravators
found by the trial court. Id. at 139 & n.1.
There is no way to read the Florida Supreme Court’s detailed opinion
without fairly concluding that it had “reweigh[ed] the evidence in aggravation
34
against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.
Indeed, “[w]e will not presume that a state court misapplied federal law, and absent
indication to the contrary will assume that state courts do understand clearly
established Federal law . . . as determined by the Supreme Court of the United
States.” Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 n.3 (11th Cir.
2002) (quotation marks and citation omitted). Accordingly, we afford it AEDPA
deference. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007); see also Suggs v.
McNeil, 609 F.3d 1218, 1228 (11th Cir. 2010) (affording deference to state court
decision that said it had “evaluated the penalty phase of Suggs’ trial as a whole,”
despite petitioner’s claim that the court had “compartmentalize[d] the specific
components and address[ed] the prejudice from counsel’s deficiencies separately”)
(emphasis and quotation marks omitted).10
Our task, then, is to ask whether the Florida Supreme Court unreasonably
weighed the aggravating evidence against the totality of evidence in mitigation.
On the record before us, we hold that it did not.
10
Kokal’s claim that the Florida trial court’s prejudice determination failed to weigh the
totality of mitigating evidence against the aggravating evidence (in violation of Strickland) --
and instead focused on whether Kokal changed the opinion of his competency/sanity expert -- is
not relevant, since the Florida Supreme Court’s decision is controlling, even if the lower state
court decision had been incorrect. Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997) (“Of
course, the latest holding of a state supreme court trumps any prior contrary holdings of lower
state courts.”) (citing Blue Cross and Blue Shield v. Nielsen, 116 F.3d 1406 (11th Cir. 1997)
(“The final arbiter of state law is the state supreme court . . . .”)).
35
To begin with, and as the state courts have repeatedly recognized, the
aggravating circumstances in the murder of Jeffrey Russell are especially powerful.
“[T]his is not a case where the weight of the aggravating circumstances or the
evidence supporting them was weak.” Suggs, 609 F.3d at 1232 (quotation marks
omitted). To the contrary, the trial court found four aggravating circumstances --
that (1) the capital felony was committed while the defendant was engaged in the
commission of a robbery; (2) the capital felony was committed for the purpose of
avoiding or preventing a lawful arrest; (3) the capital felony was especially
heinous, atrocious or cruel; and (4) the capital felony was committed in a cold,
calculated and premeditated manner without any pretense of moral or legal
justification.
In justifying these findings, the trial court recounted that the victim was
“severely beaten” in the neck and head, “suffered great pain from the blows,”
endured a “‘death march’ filling Russell’s mind with fear and anguish,” pleaded to
live while lying prone on the ground, and in the end was murdered even though he
presented no physical threat to the defendant; that Kokal had bragged to his friend
that he had shot Russell to eliminate a witness since “dead men tell no lies,” had
“wasted a sailor for a dollar,” and had decided to go “get another sailor”; and that
the jury had found “that the defendant had actually committed the murder.” On
36
direct appeal (and again referenced in its post-conviction decision), the Florida
Supreme Court reiterated the terrible circumstances of this “execution-type
killing,” which “was preceded by a violent robbery, a march at gunpoint to the
murder site, and a vicious and painful beating during which the victim, in
anticipation of his fate, unsuccessfully pleaded for his life.” Kokal, 492 So. 2d at
1319. In short, the trial testimony detailed a calculated, heartless, and gruesome
murder that involved robbery, torture, and, finally, a painful and senseless
assassination.11
Furthermore, the mitigating evidence regarding Kokal’s mental health was
not compelling. Dr. Crown admitted on cross-examination that Kokal’s brain
damage was not severe enough standing alone to have impaired him at the time of
the crime; rather, his mental capacity was impaired only when his brain damage
was combined with his drug and alcohol use. Likewise, Dr. Virzi admitted on
11
We note in passing that with crimes like this one, that are “carefully planned, or
accompanied by torture, rape or kidnapping,” we have often observed “that the aggravating
circumstances of the crime outweigh any prejudice caused when a lawyer fails to present
mitigating evidence.” Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998) (citations and
quotation marks omitted); see also Hall v. Head, 310 F.3d 683, 704-05 (11th Cir. 2002) (finding
no prejudice where the psychologists’ testimony regarding defendant’s behavior was speculative
and the evidence in aggravation was strong); Thompson v. Wainwright, 787 F.2d 1447, 1453
(11th Cir. 1986) (finding no prejudice where evidence of defendant’s “troubled” childhood and
“mild[]” retardation had not been introduced at sentencing, since the sentence “was strongly
supported by the aggravating circumstances introduced in the record”); Francis v. Dugger, 908
F.2d 696, 702-04 (11th Cir. 1990) (finding that failure to present additional mitigating evidence
of an “impoverished, abused, and socio-economically limited childhood, and . . . of his brain
dysfunction, diagnosed by his expert as fetal alcohol syndrome,” did not prejudice defendant
convicted of torture-murder of government informant).
37
cross-examination that he still agreed with what he found in his original report --
that Kokal suffers from chronic alcoholism and drug abuse -- and there was no
change in his original diagnosis. The experts also confirmed that Kokal was not
insane at the time of the murder, and was not completely out of control.12
What’s more, other parts of the record undermined the conclusion that Kokal
had brain damage in 1984. Thus, for example, Dr. Virzi -- who knew about
Kokal’s substance abuse problems -- concluded in his 1984 report that Kokal was
“oriented to time, person, and place”; his “[i]ntelligence was not impaired”; his
“[r]ecent and remote memory were clear”; he “had a clear idea of what had
happened prior to the above incident and during the above incident”; he
“underst[oo]d[] the consequences of his behavior”; he knew “the difference
between right and wrong”; and he had “no delusions, no homicidal ideas.” Virzi
even conceded at the post-conviction hearing that when he examined Kokal in
1984 -- after the 1977 near-drowning and 1983 car accident -- he found no
evidence of organic brain disorder, and Kokal was functioning normally in terms
of his ability to interact and understand.
Nor did any of Kokal’s pre-1984 medical records suggest any brain damage.
Following the 1977 swimming pool accident, Kokal underwent a physical
12
Dr. Crown did not prepare a written report on Kokal, apparently because post-
conviction counsel had not asked him for one.
38
examination and x-rays, but nothing unusual -- like aspiration pneumonitis,
acidosis, or a skull fracture -- was found. Similarly, hospital records following the
1983 car accident ruled out a significant head injury, indicated that Kokal’s
condition was due to alcohol consumption, not head injury, and reported that
Kokal was doing well when discharged. See Kokal, 718 So. 2d at 139 n.2.
The findings of fact made by the state courts are also inconsistent with the
theory that Kokal suffered from substantial mental deficiencies. Notably, Kokal’s
original trial judge found that “the defendant was at all material times in complete
control of his mental and emotional faculties acting deliberately and with pre-
meditation,” and even though Kokal had testified that “during the evening prior to
the death of Russell . . . he had consumed a large quantity of alcohol [,] . . . smoked
a number of marijuana cigarettes[, and] . . . was highly intoxicated,” “the
defendant’s statement to his friend, [Mosley], contained no evidence of
intoxication [and] . . . was in great detail including his thought process at the time
of the killing of Russell.” The judge additionally found that the “testimony of the
co-participant, [O’Kelly], does not support intoxication of the defendant by either
alcohol or drugs [and showed] deliberate, calculated acts and conduct by the
defendant during the course of the robbery and murder of Russell.” The trial court
concluded that “the defendant proved to this Court, by his statements and his acts,
39
as well as his demeanor on the witness stand, that he is an individual of above
average intelligence, knowledge, and well oriented as to time, space and
relationships and well able but unwilling to conform his conduct to the
requirements of law and with an ability to appreciate the criminality of his
conduct.”
Similarly, the Florida Supreme Court observed on direct appeal that Kokal’s
detailed memory about the crime “contradicts the notion that he did not know what
he was doing.” Kokal, 492 So. 2d at 1319. Thus, as we have said before, “[a]
psychological defense strategy at sentencing is unlikely to succeed where it is
inconsistent with the defendant’s own behavior and conduct.” Tompkins v.
Moore, 193 F.3d 1327, 1338 (11th Cir. 1999) (citing Weeks v. Jones, 26 F.3d
1030, 1042 (11th Cir. 1994); Bush v. Singletary, 988 F.2d 1082, 1093 (11th Cir.
1993)).
Moreover, the psychological examination conducted just weeks after
Kokal’s sentencing by the prison psychologist, Dr. Elaine Pittman, found no
evidence of mental illness or mental disorder. As the Florida Supreme Court aptly
noted, “prison evaluations [completed soon after Kokal’s sentencing] showed that
Kokal was not suffering from any mental disorders and did not need counseling.”
Kokal, 718 So. 2d at 139 n.2. In particular, the report provided that objective
40
testing performed on Kokal had revealed an absence of any neurotic or psychotic
symptomalogy, and that Kokal was “characteristically antisocial.” We cannot
ignore that this evidence would have undermined the new expert testimony.
What’s more, it may have been “potentially aggravating,” because it suggests that
Kokal has antisocial personality disorder, “which is a trait most jurors tend to look
disfavorably upon” and “is not mitigating but damaging.” Suggs, 609 F.3d at 1231
(quotation marks omitted); accord Reed, 593 F.3d at 1248; Cummings v. Sec’y for
Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009); Parker v. Sec’y for Dep’t of
Corr., 331 F.3d 764, 788 (11th Cir. 2003); Weeks v. Jones, 26 F.3d 1030, 1035 n.4
(11th Cir. 1994).
But even if Kokal had been able to establish that he suffered from brain
damage, he would have had to further impress on the jury his substance abuse on
the night of the murder. We have repeatedly observed, however, that evidence of
drug and alcohol abuse is a two-edged sword:
The opinion of a medical expert that a defendant was intoxicated with
alcohol or drugs at the time of the capital offense is unreliable and of
little use as mitigating circumstances evidence when it is predicated
solely upon the defendant’s own self-serving statements, especially
when other evidence is inconsistent with those statements. See Duren
v. Hopper, 161 F.3d 655, 662 (11th Cir. 1998). . . . Moreover, even
when there is a factual basis for it, a showing of alcohol and drug
abuse is a two-edged sword which can harm a capital defendant as
easily as it can help him at sentencing. See Waldrop v. Jones, 77 F.3d
1308, 1313 (11th Cir. 1996).
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Tompkins, 193 F.3d at 1337-38 (footnote omitted). See also Waldrop, 77 F.3d at
1313 (evidence concerning Waldrop’s history of excessive alcohol and drug use
would not constitute evidence in mitigation of the death penalty, since “admission
of some of this evidence might have been harmful to Waldrop’s case”).
And not only would Kokal have had to stress his substance abuse on the
night of the murder, but it also may have been revealed that in the 1983 car
accident -- that allegedly led to his brain damage -- Kokal had been driving under
the influence of alcohol. It is likewise possible that Kokal’s school records,
juvenile records, and criminal records may have been introduced in order to
demonstrate his behavior before the 1983 car accident. These records would
establish, among other things, that “even at 21 Greg was an accomplished
criminal.” Thus, “some of the additional mitigating evidence may have been
harmful and tipped the scales still further in favor of the death penalty.” Boyd v.
Allen, 592 F.3d 1274, 1301 (11th Cir. 2010); accord Marquard v. Sec’y for Dep’t
of Corr., 429 F.3d 1278, 1309 (11th Cir. 2005); see also Robinson v. Moore, 300
F.3d 1320, 1350 (11th Cir. 2002) (noting that additional mitigating evidence would
have allowed evidence of another crime to be admitted).
Finally, it is worth observing that the jury unanimously recommended the
death penalty in this case, and, only after hearing the extensive testimony of each
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of them, it expressly found that Kokal, and not O’Kelly, was the triggerman. Cf.
Harich v. Wainwright, 813 F.2d 1082, 1093 n.8 (11th Cir. 1987) (“Prejudice is
more easily shown in jury override cases because of the deference shown to the
jury recommendation.”), adopted by en banc court, 844 F.2d 1464, 1468-69 (11th
Cir. 1988) (en banc), overruling on other grounds recognized in Davis v.
Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997).
In short, in the face of a unanimous death-penalty recommendation from the
jury, the finding of four statutory aggravators (including that the murder was
especially heinous, atrocious and cruel), the finding that Kokal was the triggerman,
Kokal’s boasting and detailed statement to Mosley, the weaknesses highlighted in
Kokal’s “new” mitigating evidence, especially in light of Kokal’s mental abilities
on the night of the murder, and further aggravating evidence that Kokal’s “new”
mitigating evidence may have revealed, we cannot say that the Florida Supreme
Court unreasonably rejected Kokal’s claim that his counsel was constitutionally
ineffective. Accordingly, we affirm.
AFFIRMED.
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