Andrew Richard Lukehart v. Secretary, Florida Department of Corrections

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10099
____________________
ANDREW RICHARD LUKEHART,
Petitioner-Appellant,
versus
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. 3:12-cv-00585-TJC-PDB
____________________
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Before GRANT, LAGOA, and BRASHER, Circuit Judges.
GRANT, Circuit Judge:
Andrew Lukehart was sentenced to death by a Florida court
for the murder of a five-month-old baby. After an unsuccessful
direct appeal and two rounds of state collateral proceedings, he
sought habeas corpus relief in federal court. In this appeal from the
denial of his federal petition, we consider Lukehart’s claims that the
state trial court violated his right against self-incrimination under
the Fifth Amendment when it admitted his confessions and other
statements he made to the police into evidence at his trial, and that
his trial attorney provided ineffective assistance at the penalty
phase in violation of the Sixth Amendment.
I.
A.
At the time of the murder, Lukehart lived with his girlfriend,
Misty Rhue; Rhue’s two daughters, two-year-old Ashley and five-
month-old Gabrielle; and Rhue’s father and uncle. At around 5:00
in the evening on February 25, 1996, after Lukehart, Rhue, and the
children returned from running errands, Rhue took Ashley into the
bedroom for a nap while Lukehart took care of Gabrielle in another
room. Rhue heard Gabrielle laughing and Lukehart did “some
baby talk with her.” At one point, Lukehart came into the
bedroom to get a clean diaper for the baby.
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At about 5:15 p.m., Rhue heard her car starting in the
driveway. She looked out the window and saw Lukehart getting
ready to leave in her car. Rhue searched the house for the baby
and could not find her. Half an hour later, Lukehart called Rhue
from a convenience store and told her that someone in a blue
Chevrolet Blazer had kidnapped Gabrielle from the house.
Lukehart said that he had chased the Blazer in Rhue’s car but had
not been able to catch the kidnapper.
Lukehart showed up next in a rural area of nearby Clay
County at the home of a Florida Highway Patrol trooper, Richard
E. Davis. Trooper Davis’s marked patrol car was parked in the
driveway. A police helicopter was circling overhead. Davis, who
had just learned that the helicopter was searching for a white male
in connection with the possible kidnapping of a five-month-old
baby, went outside and saw Lukehart (a white male) walking
toward him. Lukehart raised his hands and said, “I’m the one
they’re looking for.”
Trooper Davis handcuffed Lukehart and asked him where
the baby was. Lukehart responded “I don’t know what the hell you
[sic] talking about, read me my rights.” Davis did not read
Lukehart his rights, but he didn’t ask him any more questions,
either. He called the police, and a Clay County Sheriff’s deputy
responded in less than a minute.
The deputy, Jeff Gardner, was close by because he had been
called to investigate a vehicle accident a block from Trooper
Davis’s house. Rhue’s car had been driven off the road and left in
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the woods with the key in the ignition and the transmission in
drive. After finding the car, Gardner called in the license plate and
was told that it belonged to Lukehart and may have been involved
in an abduction. The police dispatcher told Gardner that Lukehart
had turned up in Trooper Davis’s yard, and Gardner immediately
drove the short distance to Trooper Davis’s house.
When he arrived at Trooper Davis’s house, Gardner saw
Lukehart standing in the yard with his hands cuffed behind his back
and Trooper Davis standing right behind him. Gardner walked up
to Lukehart and asked him what was going on. Lukehart
responded, “I don’t want to speak to anybody until I see a lawyer.”
Gardner asked again what was going on, and Lukehart responded
that he had just tried to hang himself from a tree with his t-shirt.
Gardner asked Lukehart if he would accompany him back to the
area where he had abandoned Rhue’s car, and Lukehart agreed.
Gardner removed Trooper Davis’s handcuffs and replaced
them with his own. He then put Lukehart in the back of his
marked police car and drove him to the wooded area where
Lukehart had left Rhue’s car. During the quarter-mile drive,
Gardner did not ask Lukehart any questions, but Lukehart
indicated a tree and volunteered that that was where he had tried
to hang himself. By the time Gardner and Lukehart reached Rhue’s
car, several other officers had arrived and were searching the
woods for the missing baby. Gardner and a Jacksonville Sheriff’s
officer, Richard G. Davis, stood with Lukehart near Gardner’s
patrol car while the search continued.
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Officer Davis initially tried to question Lukehart about
where the baby was and what had happened during the supposed
abduction. Lukehart responded by asking again for a lawyer, and
Davis stopped questioning him.
But Lukehart did not stop talking. Over the next hour, while
Davis and Gardner waited for detectives to arrive and decide what
should be done with Lukehart, he stood next to the patrol car
smoking cigarettes and periodically making unsolicited remarks.
At one point, Lukehart looked at the ground, shook his head, and
said he wished “she hadn’t shit in her diaper.” Later, he said the
situation was “not going to look good on” him. Gardner asked him
what he meant, and he said that he had been arrested for child
abuse before but that he “didn’t do it.” He also said that he had
tried to hit a telephone pole with the car, but missed, and that his
girlfriend was going to be mad and not let him live with her
anymore because “they” had “gotten away.”
Lukehart also said several times during this waiting period
that he wanted to tell his “side of the story.” Officer Davis told him
that detectives were coming from Jacksonville, and he could talk
to them if he wanted to. Lukehart said that he did want to talk to
the detectives.
When Jacksonville Sheriff’s Office Detective L. H. Goff
arrived, one of the officers informed him of Lukehart’s request to
talk. Goff found Lukehart sitting (still handcuffed) in the back of a
patrol car. He told Lukehart that he understood that Lukehart had
asked to speak to a detective, but that he had also asked for a
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lawyer. Lukehart said that he had asked for a lawyer because he
heard the officers talking about prior arrests. Goff asked if
Lukehart wanted to talk to him, and Lukehart said that he did.
Goff responded that since Lukehart had asked for a lawyer,
he wanted to go through Lukehart’s constitutional rights with him
first. He read Lukehart his Miranda rights from a printed card.
Lukehart interrupted to say that he understood his rights, but Goff
continued, reading each warning word for word from the card. He
then asked Lukehart if he understood his rights and still wanted to
talk with him, and Lukehart said that he did. Lukehart told Goff
the same story that he had told Rhue; that is, that someone in a
blue Blazer had abducted Gabrielle from Rhue’s house in
Jacksonville, and Lukehart had chased the kidnapper before
stopping at a convenience store to call Rhue.
Over the next 18 hours, Lukehart made several more
statements to police officers and waived his Miranda rights several
more times. Soon after Lukehart spoke with Detective Goff, he
was interviewed by Detective Aaron Reddish of the Jacksonville
Sheriff’s Office. Before interviewing him, Detective Reddish read
Lukehart his Miranda rights again, and Lukehart said again that he
understood his rights and wished to talk. Lukehart stuck with his
abduction story, though he changed some of the details.
Officers drove Lukehart back to Rhue’s house and then to
the Jacksonville Sheriff’s Office, where they kept him in an
interview room all night. At Detective Reddish’s request, Lukehart
waived his Miranda rights again at the Sheriff’s Office, this time by
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signing a written waiver-of-rights form. At some point during the
night, the officers removed Lukehart’s handcuffs.
Early the next morning, Lukehart agreed to show Detective
Reddish the route he traveled when chasing the fictional
kidnapper. Lukehart directed Reddish from Rhue’s house first to
the convenience store where he had called Rhue and then to the
wooded area in Clay County where Lukehart had run off the road
in Rhue’s car. On the way, they stopped for breakfast and to buy
Lukehart some clothes.
By the time they arrived at the end of Lukehart’s route, the
site where he had left Rhue’s car had become a “command post”
where Clay County officers coordinated the search for Gabrielle.
The area swarmed with police officers searching on foot, on four-
wheelers, by car, and by helicopter. A police dive team had been
called in to search nearby ponds. Detective Reddish left Lukehart
sitting in the front seat of his unmarked police car near the
command post while he went up in the helicopter to show his
colleagues the route that Lukehart had explained to him.
One of the Clay County Sheriff’s officers, Lieutenant Jimm
Redmond, joined Lukehart in Reddish’s car and asked him to go
over his story again. As they sat talking, someone handed
Redmond a picture of Gabrielle. The picture upset Lukehart; he
told Redmond he did not want to look at it. Redmond told
Lukehart that he didn’t believe his abduction story and he
encouraged Lukehart to help him find the baby—to get her out of
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the hot sun if she was still alive, or to give her a decent burial and
to give the family closure if she was dead.
Lukehart confessed to Redmond that the abduction story
was not true and that he was responsible for Gabrielle’s death. He
said that he had been holding the baby and changing her diaper
when she squirmed and he accidentally dropped her on her head.
He said that he snatched the baby up and shook her hard, trying to
revive her. He tried mouth-to-mouth resuscitation, without
success. He put the baby in the car, drove her a few miles away to
the end of a lime-rock road, and threw her body into a shallow
pond.
Lukehart led the police to the pond where he had left
Gabrielle, and they soon recovered her body. She was still wearing
her soiled diaper. Redmond asked Lukehart to provide a written
account of Gabrielle’s death, and Lukehart did so after being read
his Miranda rights again and signing another waiver-of-rights form.
B.
Lukehart was indicted on one count of first-degree murder
and one count of aggravated child abuse. Before trial, he moved to
suppress the statements he had made to the police, including his
initial lies and his ultimate confessions. The trial court denied the
motion, and the State relied heavily on Lukehart’s statements at
trial.
The State also called the medical examiner, who testified
that Gabrielle’s injuries were inconsistent with Lukehart’s story
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that he had accidentally dropped her on her head. The baby
sustained not just one but five separate impacts to the head, two of
which caused skull fractures and were independently fatal. The
skull fractures could have been caused by hard blows with a closed
fist; they could not have been caused by accidentally dropping the
baby on her head from a height of only four or five feet.
Lukehart testified during the guilt phase of trial. He
admitted that he had lied when he told police that he had dropped
the baby on her head. He said that he had been trying to change
Gabrielle’s diaper while she lay on the floor at Rhue’s house, but
she kept pushing up on her elbows. He repeatedly pushed her head
and neck back down on the floor, he said, using “quite a bit” of
force. The last time he did it, she stopped moving. Lukehart
testified that he tried mouth-to-mouth resuscitation, but he was
unable to revive her.
The jury found Lukehart guilty of first-degree murder and
aggravated child abuse, as charged.
During the penalty phase, the State presented evidence that
less than two years before Gabrielle’s murder, another child in
Lukehart’s care—an eight-month-old girl named J.F.—was
hospitalized with a severe head injury, retinal hemorrhages,
broken ribs, and older unhealed injuries including broken bones in
her arm and leg. A social services case worker reported the baby’s
injuries to police. The investigating officer interviewed Lukehart,
who had accompanied J.F. to the hospital. Lukehart said that he
had left J.F. alone in the bathtub for several minutes and returned
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to find her apparently lifeless on her back in the tub. He said that
he performed CPR until the baby revived and then told another
child in the house to call 911.
When the officer asked about the baby’s broken ribs,
Lukehart said that he could have broken the ribs when he
performed CPR. When asked about her broken arm and leg,
Lukehart told three different stories. First he said that the bones
were broken a few days earlier when he had fallen down while
holding the baby. Then he said that he had lied and the baby’s
mother might have broken the baby’s bones. Last, he said that he
might have broken the baby’s arm and leg when he yanked her out
of the tub.
But Lukehart’s story was inconsistent with the opinion of
J.F.’s attending physician, who told the officer that he found no
indication of drowning and that the baby’s injuries were caused by
physical abuse. One of J.F.’s treating physicians testified that the
baby’s head injury was likely caused by being struck in the head
with “a fair amount of force,” and that the retinal hemorrhages
indicated that J.F had been “shaken around a lot, very recently.”
The doctor did not give an opinion as to the cause of the baby’s
broken bones; she testified that the baby’s right arm was broken in
two places and her left leg was broken, and that these injuries
appeared to be somewhat older than her acute head injury. The
head injury caused J.F. to have a seizure while she was in the
hospital, and she had visual deficits from the retinal hemorrhages.
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Lukehart was arrested at the hospital for aggravated child
abuse in connection with J.F.’s injuries. He entered a negotiated
guilty plea to felony child abuse and was sentenced to ten months
in prison and four years of probation. As special conditions of his
probation, Lukehart was required to complete parenting and
anger-management courses, to have no contact with minor
children until he completed those courses, and to have no further
contact with J.F.
Lukehart’s probation officer testified that Lukehart
completed the required classes before he moved in with Gabrielle’s
mother. The probation officer conducted at least one home visit
while Lukehart lived with Rhue and her children and did not
observe any violations of his probation. He was still on probation
for the felony child-abuse offense at the time of his arrest for
Gabrielle’s murder.
Lukehart also called witnesses to testify during the penalty
phase. His defense attorney from the felony child-abuse case
testified that while Lukehart was in jail awaiting trial for the prior
offense, Lukehart told her that he was “ready to snap and possibly
hit somebody” and that he wanted to make a plea deal for time
served so that he could get out of jail. He also told her that he had
“some problems upstairs” (meaning psychological problems),
including paranoia, and that he wanted to get inpatient treatment
rather than be in jail. The attorney referred Lukehart to a
psychologist, Dr. Harry Krop, for an evaluation.
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Dr. Krop testified that he evaluated Lukehart in 1994 in
connection with the felony child-abuse case and found him to be
“a very seriously disturbed individual.” He explained that Lukehart
had been sexually abused as a child and that he had struggled with
depression, anger, and poor coping skills throughout his life. Dr.
Krop felt at the time that Lukehart needed long-term psychological
treatment in a residential facility where he could be “off the streets”
while he received help. He further testified that the anger control
and parenting classes that were part of Lukehart’s probation were
inadequate to address his problems.
Dr. Krop reevaluated Lukehart in 1997 after Gabrielle’s
murder and affirmed that he remained a “seriously disturbed
individual.” He diagnosed Lukehart with (1) intermittent
explosive disorder (characterized by “discrete episodes of failure to
resist aggressive impulses that result in serious assaultive acts or
destruction of property” where the degree of aggression is “grossly
out of proportion” to the precipitating stressor); (2) substance
abuse, especially alcohol; (3) post-traumatic stress disorder from
childhood sexual abuse; and (4) personality disorder with
antisocial, immature, and borderline features. Dr. Krop also
testified that Lukehart had an IQ of 79, which was in the borderline
range of intellectual disability. In Dr. Krop’s opinion, Lukehart
exploded on the day of Gabrielle’s death not from her soiled diaper,
but because he could not cope with trying and failing to care for
the child—and whatever he did to stop the child crying just seemed
to escalate the situation.
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Lukehart also presented testimony by several family
members who described the abuse and tragedy that Lukehart
endured as a child and young adult. Their evidence showed that
Lukehart’s father was an alcoholic who physically and emotionally
abused Lukehart and his sister until Lukehart was at least four or
five years old. When Lukehart was about ten years old, an uncle
who was Lukehart’s supporter and confidant died. At around the
same time, another uncle began sexually abusing Lukehart. When
he was 17 or 18 years old, his sister Jennifer died in a car accident,
which distressed Lukehart and made him almost suicidal.
Lukehart began showing signs of mental and emotional
problems when he was still a child. His parents were not aware of
the sexual abuse and did not understand the extent of Lukehart’s
psychological problems. They sent him to counseling, but only
sporadically and never for very long. In ninth grade, one teacher
reported that she was afraid that Lukehart would harm himself.
Counseling records from when Lukehart was 16 years old showed
that he was “clearly a disturbed individual” and that family
dynamics contributed significantly to his emotional issues.
Lukehart was introduced to drugs and alcohol at an early
age. His father first gave him alcohol when he was 4 years old, and
he was drinking heavily by the time he was 13. Lukehart began
using marijuana when he was only 8.
The jury recommended a death sentence for the murder
charge by a vote of nine to three. The court sentenced Lukehart
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to death for first-degree murder and to 15 years in prison for
aggravated child abuse.
Lukehart appealed his convictions and sentences to the
Florida Supreme Court, asserting a laundry list of errors at trial and
sentencing. Chief among his trial claims was his argument that the
court erred in denying his motion to suppress his confession and
other statements to the police. He argued that the admission into
evidence of his statements violated his Fifth Amendment rights
under Miranda v. Arizona and Edwards v. Arizona because the
police did not initially advise him of his Miranda rights and
continued to question him after he asked for a lawyer. Lukehart
also contended that the police later coerced his confession—by
repeatedly advising him of his Miranda rights, by showing him a
picture of Gabrielle, and by telling him that they needed to find the
baby’s body so that she could have a Christian burial. The Florida
Supreme Court rejected his Miranda claims, reasoning that
Lukehart was not in custody until after officers read him his rights
and that after he asked for a lawyer, the police stopped questioning
him until he asked to speak to the detectives and voluntarily
waived his rights. Lukehart v. State, 776 So. 2d 906, 917–20 (Fla.
2000).
Lukehart subsequently filed two motions for state
postconviction relief, arguing (among other things) that he
received constitutionally ineffective assistance of counsel during
the penalty phase of trial. The state circuit court denied both
motions, and the Florida Supreme Court affirmed the denial of the
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motions on appeal. Lukehart v. State, 103 So. 3d 134, 135 (Fla.
2012); Lukehart v. State, 70 So. 3d 503, 508 (Fla. 2011).
Lukehart turned to the federal courts, filing a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district
court denied his petition but granted a certificate of appealability
on his Miranda claim. On appeal, we granted his motion to expand
the certificate to include his claim that his trial counsel was
ineffective at the penalty phase for failing to mitigate the State’s
evidence related to his prior conviction for felony child abuse.
II.
Lukehart’s federal habeas petition is governed by 28 U.S.C.
§ 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S.
782, 792 (2001). Under AEDPA, when a state court has adjudicated
the petitioner’s claim on the merits, as the Florida Supreme Court
did in this case, a federal court may not grant habeas relief unless
the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).
The phrase “clearly established Federal law” refers to “the
governing legal principle or principles set forth by the Supreme
Court at the time the state court renders its decision.” Lockyer v.
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Andrade, 538 U.S. 63, 71–72 (2003). A state court decision is
“contrary to” those principles if it contradicts them on a settled
question of law or arrives at a different result than the Supreme
Court did in a case with materially indistinguishable facts. Id. at 73.
A decision involves an “unreasonable application” of Supreme
Court precedent if the state court identifies the correct governing
principle from the Supreme Court’s holdings but unreasonably
applies it to the facts of the petitioner’s case. Id. at 75.
“Unreasonable” in this context means more than just erroneous; a
“state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quotation omitted); see Brown v.
Davenport, 142 S. Ct. 1510, 1525 (2022).
AEDPA’s standard is intentionally difficult to meet. Richter,
562 U.S. at 102. And this demanding statutory standard is not the
only precondition to federal habeas corpus relief—among other
equitable doctrines developed in an effort to return “the Great Writ
closer to its historic office,” the Supreme Court has held that “a
state prisoner should not receive federal ‘habeas relief based on trial
error unless’ he can show the error had a ‘substantial and injurious
effect or influence’ on the verdict.” Davenport, 142 S. Ct. at 1523
(first quoting Edwards v. Vannoy, 141 S. Ct. 1547, 1570 (2021)
(Gorsuch, J., concurring); and then quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). This harmless-error inquiry is separate
from the AEDPA analysis, and “a federal court must deny relief to
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a state habeas petitioner who fails to satisfy either” the Brecht
harmless-error test or AEDPA. Id. at 1524 (emphasis in the
original).
With this background, we turn to the relevant state court
decisions: the Florida Supreme Court’s rejection of Lukehart’s
Miranda claim on direct appeal, and its rejection of his ineffective-
assistance claim during state postconviction relief. Lukehart, 776
So. 2d at 917–20; Lukehart, 70 So. 3d at 512–14.
A.
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. In service of this right, the Supreme Court
held in Miranda v. Arizona that the “prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. 436, 444 (1966). In other
words, a statement made by a suspect in custody in response to
police interrogation is inadmissible against him at trial unless the
police first advised him of his so-called Miranda rights, including
the right to remain silent and the right to an attorney, and he
knowingly and voluntarily waived those rights. Id. at 478–79.
Once a suspect invokes his right to an attorney, police
interrogation must stop “until counsel has been made available to
him, unless the accused himself initiates further communication,
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exchanges, or conversations with the police.” Edwards v. Arizona,
451 U.S. 477, 484–85 (1981).
Lukehart argues that the Florida Supreme Court
unreasonably applied Miranda and Edwards when it affirmed the
trial court’s denial of his motion to suppress the statements he
made to police after he invoked his right to counsel. Specifically,
Lukehart argues that the state court unreasonably determined that
(1) he was neither in police custody nor subjected to interrogation
before detectives read him his Miranda rights, and (2) after initially
invoking his right to counsel, he voluntarily reinitiated the
interrogation process by asking when he would be allowed to tell
his side of the story.
Like the district court, we have concerns about the Florida
Supreme Court’s custody analysis. The state court determined that
Lukehart was not in police custody for the first several hours after
he turned himself in to Trooper Davis—despite being handcuffed
and escorted everywhere by police officers—because the officers
handcuffed him for his own protection after he reported that he
had tried to kill himself. Lukehart, 776 So. 2d at 917. The Supreme
Court has repeatedly explained, however, that police officers’
subjective, undisclosed reasons for detaining a defendant are
irrelevant to the Miranda custody determination. See, e.g.,
Stansbury v. California, 511 U.S. 318, 323 (1994); Berkemer v.
McCarty, 468 U.S. 420, 442 (1984).
But we need not engage in the custody analysis ourselves,
because even if we assume that Lukehart was taken into custody
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as soon as Trooper Davis handcuffed him, custody alone does not
implicate Miranda. Miranda warnings are required only where a
suspect is both in custody and being interrogated. Rhode Island v.
Innis, 446 U.S. 291, 300 (1980). “‘Interrogation,’ as conceptualized
in the Miranda opinion, must reflect a measure of compulsion
above and beyond that inherent in custody itself.” Id. The
“Miranda safeguards come into play whenever a person in custody
is subjected to either express questioning or its functional
equivalent.” Id. at 300–01.
Only two of the pre-Miranda statements that Lukehart
moved to suppress were made in response to direct questioning by
the police. First, in response to Trooper Davis’s question asking
Lukehart where the baby was, Lukehart said that he did not know
what the hell Davis was talking about and demanded that Davis
read him his rights. Second, when Deputy Gardner asked Lukehart
“what’s going on,” Lukehart said that he had just tried to kill
himself. The introduction of these statements at trial, even if their
admission was error under Miranda, does not warrant habeas
corpus relief.
Constitutional trial error does not entitle a federal habeas
petitioner to relief unless the petitioner can establish that the error
resulted in “actual prejudice.” Brecht, 507 U.S. at 637 (quotation
omitted). “Actual prejudice” means that “the error had substantial
and injurious effect or influence in determining the jury’s verdict.”
Id. (quotation omitted). The erroneous admission of evidence is
likely to be harmless under this standard “where there is significant
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corroborating evidence or where other evidence of guilt is
overwhelming.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301,
1313 (11th Cir. 2012) (citations omitted). Such is the case here.
In the context of the numerous other voluntary and
admissible statements Lukehart made, his initial statement denying
knowledge of the baby’s whereabouts and his first report that he
had tried to kill himself likely had no impact at all on the jury’s
verdict or sentencing recommendation. By the time Lukehart
encountered Trooper Davis, he had already denied responsibility
for Gabrielle’s disappearance by telling Rhue that someone had
kidnapped the baby, a story that he repeated several times to police
officers after having waived his Miranda rights. And similarly,
Lukehart made several other voluntary and admissible statements
about having tried to commit suicide, both before and after being
read his Miranda rights.
In fact, the first of many spontaneous statements that
Lukehart made to the police was his remark to Deputy Gardner as
they drove away from Trooper Davis’s house, pointing out the tree
where he said he had tried to hang himself with his t-shirt.
Lukehart does not contend that this statement was in response to
police questioning; Deputy Gardner did not ask him any questions
during the short ride from Trooper Davis’s house to Rhue’s car.
“Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence. The
fundamental import of the privilege while an individual is in
custody is not whether he is allowed to talk to the police without
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21-10099 Opinion of the Court 21
the benefit of warnings and counsel, but whether he can be
interrogated.” Miranda, 384 U.S. at 478. Lukehart’s statement
about the tree was thus indisputably admissible.
The same is true of the other spontaneous remarks that
Lukehart made while he stood next to Gardner’s patrol car
smoking cigarettes and waiting for the detectives to arrive from
Jacksonville. Voluntary and spontaneous statements made by a
suspect are admissible in evidence whether or not the suspect has
previously requested an attorney, as long as the statements are not
made in response to questioning by the police. Cannady v.
Dugger, 931 F.2d 752, 754 (11th Cir. 1991).
Although the admissibility of spontaneous statements is not
affected by a suspect’s prior request for an attorney, statements
made in response to police interrogation are another matter.
Interrogation must stop once such a request is made until an
attorney is provided, unless the suspect himself initiates further
discussions with the police. Edwards, 451 U.S. at 484–85.
Lukehart argues that the Florida Supreme Court’s
determination that his repeated requests to tell his “side of the
story” were sufficient to initiate renewed conversations with the
police was unreasonable because he did not specifically ask to tell
his story to the detectives. But that level of specificity is not
required; police may resume questioning a suspect who has
previously invoked his right to an attorney if the suspect’s
subsequent unsolicited statements show “a willingness and a desire
for a generalized discussion about the investigation.” Oregon v.
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22 Opinion of the Court 21-10099
Bradshaw, 462 U.S. 1039, 1045–46 (1983) (plurality opinion) (no
Edwards violation where suspect initiated further conversation
with police by asking “Well, what is going to happen to me now?”).
If there were any doubt that Lukehart wanted to give a
statement to the police, it was resolved when Detective Goff
referred to his earlier request to speak with an attorney and
Lukehart clarified that he had changed his mind and wanted to talk.
The Edwards rule is meant “to prevent police from badgering a
defendant into waiving his previously asserted Miranda rights”; it
is not intended to prevent a suspect from voluntarily speaking to
the police. Davis v. United States, 512 U.S. 452, 458, 460 (1994)
(quotation omitted).
B.
We turn next to Lukehart’s claim for relief from his death
sentence. Lukehart argues that his attorney provided
constitutionally ineffective assistance at the penalty phase of trial
by failing to thoroughly investigate his prior felony child-abuse
offense and failing to call an available witness to mitigate the effect
of the State’s evidence about that offense.
To succeed on a claim that he received ineffective assistance
of counsel, a defendant must first show that counsel’s performance
was deficient—that is, “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687 (1984). After that, he “must show that the
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21-10099 Opinion of the Court 23
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.” Id.The Strickland standard sets a “high bar.” Richter, 562 U.S.
at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). Even
under de novo review, Strickland requires that we apply “a heavy
measure of deference to counsel’s judgments.” Strickland, 466 U.S.
at 691. When AEDPA applies, the petitioner also carries the heavy
burden of establishing that the state court’s application of
Strickland was unreasonable under § 2254(d). “The standards
created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105 (citations omitted).
In determining whether counsel’s performance was
deficient, the inquiry is “whether counsel’s assistance was
reasonable considering all the circumstances.” Strickland, 466 U.S.
at 688. This is an objective standard; the measure of performance
“remains simply reasonableness under prevailing professional
norms.” Id.; Wiggins v. Smith, 539 U.S. 510, 521 (2003).
Defense counsel’s job at the sentencing phase of a capital
trial is “to counter the State’s evidence of aggravated culpability
with evidence in mitigation.” Rompilla v. Beard, 545 U.S. 374, 380–
81 (2005). Counsel’s “investigations into mitigating evidence
‘should comprise efforts to discover all reasonably available
mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.’” Wiggins, 539
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24 Opinion of the Court 21-10099
U.S. at 524 (emphasis in the original) (quoting ABA Guidelines for
the Appointment and Performance of Counsel in Death Penalty
Cases 11.4.1(C) (1989)). Where counsel knows that the
prosecution will seek to introduce evidence related to a prior
conviction at the penalty phase, counsel must, at a minimum,
obtain and review the available file on the prior conviction. See
Rompilla, 545 U.S. at 383–90.
Lukehart’s trial attorney, Michael Edwards, knew that the
State intended to rely on his prior conviction for child abuse as an
aggravating factor in the penalty phase. He investigated the prior
conviction by obtaining the case file from the public defender’s
office, reviewing it (including the public defender’s notes), and
discussing the case with the former attorney. As part of his review,
Edwards read the deposition of Brenda Page, who lived with
Lukehart, J.F. (the child), and Monica Plummer (the child’s
mother) at the time of the earlier offense.
From these sources, Edwards knew that Lukehart claimed
that he was innocent of the prior crime and that Plummer had
caused J.F.’s injuries. He knew that Lukehart’s former attorney
thought that Lukehart had a good chance of acquittal, based in part
on Page’s deposition, but that Lukehart had decided to plead guilty
as part of a plea deal because he wanted to get out of jail.
Edwards also knew that Page had provided testimony at her
deposition that might have some mitigating value if she were called
at the penalty phase of the capital murder trial: she testified that
Lukehart loved J.F. and held her, fed her, and changed her diapers
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21-10099 Opinion of the Court 25
more than her own mother did. Page also testified that Plummer
was jealous of the attention that Lukehart paid to J.F. A few days
before J.F. was hospitalized with the injuries that formed the basis
for Lukehart’s child-abuse conviction, Page said, Plummer threw
J.F. across the room at Lukehart. Page thought the baby landed on
the bed, but she really didn’t know; she might have landed on the
hardwood floor. If she had landed on the floor, Page would have
expected her to have a head injury.
But Page’s deposition testimony was not all positive for
Lukehart. She testified that Lukehart would yell at the baby when
she cried; he had a very deep, loud voice that sent “shivers down
[Page’s] spine” when he yelled. When asked whether she thought
that Lukehart abused J.F., Page said she thought that “mental
abuse” had occurred because of how much Lukehart yelled at the
baby. Page heard Lukehart slap or spank the baby once for crying,
and she heard both Lukehart and Plummer say that they were
“giving the baby something to cry about.” Page also testified that
she noticed on one occasion that one of the baby’s arms was
“limp.” When Page and her boyfriend asked what had happened
to the baby’s arm, Lukehart said that Plummer had done it, and
Plummer said that Lukehart had done it; after some argument, the
two decided that J.F. must have hurt herself when crawling. Page
offered to take the baby to the hospital, but Lukehart and Plummer
both said no, she would be fine.
In rejecting Lukehart’s ineffective-assistance claim, the
Florida Supreme Court correctly identified Strickland as setting out
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26 Opinion of the Court 21-10099
the relevant clearly established federal law. Lukehart, 70 So. 3d at
512; see Cullen v. Pinholster, 563 U.S. 170, 189 (2011). The court
held that Edwards’s performance was not constitutionally
deficient; he conducted a reasonably thorough investigation into
Lukehart’s prior felony conviction and made a reasonable strategic
decision not to present mitigating testimony that could open the
door to damaging evidence. 1 Lukehart, 70 So. 3d at 513–14. This
determination was not an unreasonable application of Strickland.
Lukehart argues that counsel’s investigation into the prior
felony was deficient because he failed to interview Page. But he
does not identify any potentially helpful information that counsel
should have expected Page to provide that was not already
included in her deposition testimony. Although he highlights some
favorable changes in Page’s testimony between her 1994 deposition
and the state evidentiary hearing in 2009, he does not explain why
counsel should have anticipated that she would change her story
to benefit him.
Lukehart also argues that his counsel provided ineffective
assistance by failing to call Page to testify during the penalty phase.
He contends that Page’s testimony would have reduced the weight
of the prior felony aggravator by showing that he had a loving and
1 The state court alsoheld that counsel’s failure to call Page to testify did not
prejudice Lukehart. Lukehart, 70 So. 3d at 514. Because Lukehart cannot
meet the performance prong of the Strickland test, however, we need not
reach the prejudice prong. Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).
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caring relationship with J.F., and that Plummer, not Lukehart, was
responsible for the baby’s injuries. If Edwards had called Page to
testify, however, he would have had to accept the bad things that
Page had to say about Lukehart along with the good.
Instead, counsel chose to focus on evidence that Lukehart
had serious psychological problems at the time of the prior offense
that had not resolved by the time of the murder. He pursued this
strategy by calling Lukehart’s former defense attorney to testify
that Lukehart said he had “problems upstairs” and asked for
residential psychological treatment. Edwards also called the
psychologist who evaluated Lukehart near the time of the prior
conviction and after the murder to testify that Lukehart had not
received the treatment he needed after the prior offense and
remained “seriously disturbed” at the time of the murder. That
strategy of dealing with the prior felony aggravator dovetailed with
the other evidence counsel presented during the penalty phase
regarding Lukehart’s childhood abuse and history of psychological
problems.
Lukehart’s argument that a different strategy would have
been better does not meet his burden under Strickland—“counsel
cannot be adjudged incompetent for performing in a particular way
in a case, as long as the approach taken might be considered sound
trial strategy.” Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010)
(quotation omitted). It “is reasonable—and not ineffective—for
trial counsel to eliminate certain lines of presentation if he has
misgivings about hurtful cross-examination and rebuttal
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28 Opinion of the Court 21-10099
witnesses.” Id. at 1168 (quotation omitted). And more importantly
for our purposes, the state court’s determination that counsel’s
performance was adequate under Strickland was not objectively
unreasonable. See Richter, 562 U.S. at 105.
* * *
No doubt Andrew Lukehart regrets some of the unsolicited
comments he made to the police only hours after he murdered a
five-month-old baby. He may also regret his decision to tell the
police the abduction story he made up to explain her
disappearance, or the story about accidentally dropping the baby
on her head. But—with two exceptions that amount to, at most,
harmless error—the state court’s admission of his statements at
trial did not violate Lukehart’s constitutional rights because he
made those statements either spontaneously or after reinitiating
discussions with police and knowingly and voluntarily waiving his
Miranda rights.
Lukehart also believes that, in hindsight, his trial attorney’s
strategy for dealing with his prior child-abuse conviction was
incompetent at a constitutional level. But a strategic decision not
to call a witness whose testimony is not entirely problem-free and
to focus instead on other available mitigating evidence does not
amount to a deprivation of the Sixth Amendment right to counsel,
and the state court’s decision to that effect was not objectively
unreasonable.
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The district court’s denial of Lukehart’s federal habeas
petition is AFFIRMED.