DocketNumber： 86-3643
Judges： Anderson, Edmondson, Fay, Per Curiam
Filed Date： 11/30/1987
Status： Precedential
Modified Date： 10/19/2024
This appeal challenges a denial of a Petition for Writ of Habeas Corpus. Ian Lightboume, (hereinafter petitioner), was found guilty of premeditated murder and felony murder in the perpetration of burglary and sexual battery in Marion County, Florida. Petitioner is incarcerated in a Florida correctional facility awaiting execution. The United States District Court for the Middle District of Florida denied petitioner’s claims for relief under 28 U.S.C. § 2254 (1982). Because we conclude that petitioner has failed to establish that either his conviction or sentence are violative of the Constitution and laws of the United States, we affirm.
I. BACKGROUND
A. Facts
Nancy Alberta O’Farrell was the daughter of a thoroughbred horse breeder in Ocala, Florida. On January 16, 1981, the O’Farrell family, with the exception of Nancy, attended an awards dinner in Hialeah, Florida. Nancy stayed behind in her cottage located at the edge of the stud farm in order to address some brochures for a horse sale scheduled for Sunday, January 18, 1981. Nancy was last seen alive at approximately 5:30 p.m. on Friday, January 16,1981. Sometime during Friday evening, Nancy was sexually assaulted and fatally wounded with a gun.
On Saturday, January 17, 1981, Nancy’s sister, Mrs. Mary Lewis, and her husband arrived at Nancy’s cottage to pick up some furniture. Mr. and Mrs. Lewis discovered a broken window and entered the residence
A pillow was found by Nancy’s head and a pool of blood was discovered under her body. The source of the blood was traced to a gunshot wound just inside the hairline near the left temple. When Nancy’s body was removed from her bed, a .25 caliber shell casing was detected. The bedspread on which Nancy was lying was taken to headquarters and examined for the presence of hairs and fibers.
On January 18, 1981, an autopsy was performed on Nancy’s body. An X-ray showed the existence of a bullet in the right posterior portion of Nancy’s head. The bullet was retrieved, evidence of rape was preserved, and blood and hair samples were taken.
On January 24, 1981, petitioner was arrested in Ocala for carrying a concealed weapon. Petitioner, a twenty-one year old native of New Providence, Nassau, was found sleeping in his car in the possession of an RG .25 caliber semi-automatic pistol with black tape wrapped around the handle. Petitioner was seen by the Ocala police with this gun on January 15, 1981, the day before Nancy died.
While petitioner was detained pending the concealed weapon charge, he made some incriminating statements to his cellmates. These statements were reported to the authorities. On February 3, 1981, when petitioner was questioned by officials from the Marion County Sheriff’s Department, he admitted that he owned the .25 caliber pistol found on his person and that he owned a rose shaped pendant bearing three Greek letters attached to a fine gold chain. Petitioner was charged with murder after a ballistics report connected petitioner’s gun to the homicide. An indictment was filed on February 18,1981. The indictment accused petitioner of premeditated murder and felony murder in the perpetration of either burglary, sexual battery, or both.
Petitioner was tried in the Circuit Court of the Fifth Judicial Circuit in Marion County, Florida. At trial, Dr. Gertrude Warner, an Associate Medical Examiner for Marion County, testified that she was the pathologist who performed the autopsy. According to Dr. Warner, the cause of Nancy’s death was a brain hemorrhage precipitated by the gunshot wound. Dr. Warner further testified that an analysis of bodily fluids revealed that Nancy had engaged in sexual relations within forty-eight hours of the examination.
Keith R. Paul, a forensic serologist from the Florida State Crime Laboratory, testified about tests performed on Nancy’s clothing. A blood and semen analysis revealed the presence of type B blood factors and phosphoglucomutase (PGM) enzyme type 2-1. Both of these blood factors matched the results of tests performed on samples of petitioner’s blood. Nancy had type 0 blood and PGM type 1.
Charles R. Meyers, a laboratory analyst and specialist in forensic ballistics testified that he examined the pillow found next to Nancy’s head and detected a bullet hole passing through it. According to Meyers, residue found on the pillow indicated that a
Mary Ann Mayer, a microanalyst employed by the Florida Department of Law Enforcement, testified that she performed examinations of hairs collected from Nancy’s bedspread. After comparing one hair to samples taken from petitioner, Mayer found that the hair recovered from Nancy’s residence was microscopically identical to petitioner’s pubic hair. Mayer stated that it was extremely rare for individuals to have hair with precisely the same characteristics.
The necklace found in petitioner’s possession was identified as Nancy’s Alpha Omega Pi sorority lavaliere. Nancy’s relatives testified that the necklace was unique and easily identifiable because Nancy had attached a Madonna cameo to the back of the pendant. Nancy's financial records reflect that she cashed a check for $150 on January 14, 1981. Nancy’s relatives testified that only $2.00 was recovered from Nancy’s residence after her death.
Theodore Chavers, a cellmate in the Marion County Jail testified that petitioner “knew too much”
On April 25, 1981, the jury returned a guilty verdict and a judgment of conviction was entered by the circuit court for premeditated murder and felony murder in the perpetration of burglary and sexual battery. On May 1, 1981, the jury recommended the death penalty. After considering the pre-sentence investigation report and weighing the aggravating and mitigating circumstances, the circuit court imposed the sentence of death.
B. Procedural History
Petitioner’s conviction and sentence were affirmed on direct appeal. Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert, denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The Governor of Florida heard argument in favor of clemency on May 10, 1984. Approximately one year later, the Governor determined that executive clemency was not warranted and signed a death warrant authorizing petitioner’s execution on June 4, 1985. Petitioner filed an emergency application for a stay of execution on May 31, 1985. The state circuit court construed the application as a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The circuit court denied both the stay and the rule 3.850 motion. The Florida Supreme Court affirmed. Lightbourne v. State, 471 So.2d 27 (Fla.1985).
A Petition for a Writ of Habeas Corpus was filed on June 3,1985, in federal district court. The district court reviewed as much of the record as possible on the eve of petitioner’s scheduled execution and en
II. DISCUSSION
A. Self Incrimination
Petitioner argues that police interrogators violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), in the course of obtaining incriminating statements during custodial interrogation. The record reflects that on February 3, 1981, Investigator LaTorre advised petitioner of his Miranda rights and questioned him after petitioner responded that he understood these rights and “had nothing to hide.” At some point during the interview, petitioner asked whether he had to continue with the interrogation. LaTorre asked petitioner what he meant by that question and whether he wanted to take a break. At that point, and apparently without elaboration or indication that petitioner desired a respite,
In Miranda, the Supreme Court established procedural safeguards to secure the privilege against self-incrimination. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In order to combat the evils associated with the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” Miranda, 384 U.S. at 467, 86 S.Ct. at 1624, accused individuals must be informed that statements made may be used as evidence against them, that they have a right to the presence of counsel, and that they have a right to remain silent. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. An individual may effectively waive these rights “provided the waiver is made voluntarily, knowingly and intelligently.” Id.
Once informed of Miranda rights, an accused has the burden of indicating in some manner his wish to remain silent. United States v. Alegria, 721 F.2d 758, 761 (11th Cir.1983); United States v. Bosby, 675 F.2d 1174, 1182 n. 13 (11th Cir.1982); see Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627. Petitioner contends that he unequivocally indicated his desire to assert his privilege against self-incrimination by asking whether he had to continue with the questioning. This contention was raised in a motion to suppress.
The state circuit court conducted a hearing on April 14, 1981 and considered the testimony of Officer LaTorre and petitioner. In addition, the court reviewed a twenty minute videotape of the interrogation in question.
On direct appeal, the Florida Supreme Court concurred with the circuit court’s determination of voluntariness. Lightboume, 438 So.2d at 389. The supreme court concluded that petitioner’s “mid-interview inquiry” after the government officials complied with the Miranda requirements “did not rise to the level of a reassertion of his Miranda rights requiring a second waiver of those rights.” Ligktboume, 438 So.2d at 389. In the alternative, the court ruled that even if petitioner’s question constituted an attempt to invoke the right to remain silent, petitioner’s “subsequent actions evidenced a second knowing waiver after such attempt.” Id.
In accordance with the Supreme Court’s decision in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the district court made an independent determination of voluntariness in petitioner’s federal habeas corpus proceeding. The district court, emphasizing the facts that petitioner’s inquiry was equivocal, that the government responded by attempting to clarify the question, and that petitioner clearly demonstrated the ability to discontinue the statements in question, concluded that petitioner did not reassert his right to remain silent after waiving it. After a de novo review of the record and plenary consideration of the voluntariness issue, we affirm.
As this court has acknowledged, “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Martin v. Wainwright, 770 F.2d 918, 923 (11th Cir.1985) modified on other grounds, 781 F.2d 185 (11th Cir.), cert, denied, — U.S.-, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986) (emphasis in original) (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627). Nevertheless, when a purported invocation of a Fifth Amendment privilege is ambiguous, the police may question the accused for the narrow purpose of “clarifying [the] equivocal request.” Martin, 770 F.2d at 924 (quoting Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979). Once it is clear that an accused wishes to remain silent, the desire to discontinue the interrogation must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975); see United States v. Hernandez, 574 F.2d 1362, 1369 (5th Cir. 1978).
In federal habeas court, a statutory presumption of correctness applies to “subsidiary factual questions” resolved in state court proceedings. Agee v. White, 809 F.2d 1487, 1493 (11th Cir.1987); see 28 U.S.C. § 2254(d). Thus, the state court finding that petitioner merely asked “whether he had to continue” before making the incriminating statements will be presumed correct. See Lightboume, 438 So.2d at 389. Although the Florida Supreme Court’s determination that the statements made after this question was asked were voluntarily given is not binding on
B. The Jailhouse Informant and the Right to Counsel
Petitioner argues that he was denied the right to the assistance of counsel in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny, by the admission of incriminating statements made to cellmate Chavers. The record reflects the petitioner was placed in a cell with Chavers on January 29, 1981. Approximately three days later, Chavers contacted Investigator LaTorre and informed LaTorre that he suspected that petitioner was involved with the O’Farrell homicide. LaTorre told Chavers to “go back to the cell and keep your ears open.” Petitioner was formally charged with the murder on February 3, 1981. According to Chavers, petitioner made several incriminating statements after becoming the subject of official investigation. Petitioner purportedly admitted entering Nancy’s house and sexually assaulting her. Chavers was released from custody on February 10, 1981, and received a $200 reward offered by the sheriff’s department for supplying the information.
Petitioner filed a motion to suppress Chavers’s testimony on March 31, 1981. The circuit court held an evidentiary hearing on April 9, 1981. Investigator LaTorre testified that he never promised that Chavers would receive any money or other consideration in exchange for any information. LaTorre stated that he did, however, assist Chavers in obtaining bail. After hearing LaTorre’s testimony and the arguments of counsel, the circuit court found that Chavers did not take actions deliberately designed to elicit incriminating statements and denied the motion to suppress.
On direct appeal, the Florida Supreme Court affirmed. In the words of that court:
there is nothing in the record establishing that the informant Chavers had any prearranged guarantee of money in return for information, and it appears that the two hundred dollars that he did receive from the Marion County Sheriff’s Department was drawn from a general reward fund and not given as an inducement to elicit information.
Similarly, Investigator LaTorre’s advice to the informant Chavers to keep his ears open does not constitute an attempt by the state to deliberately elicit incriminating statements. Without some promise or guarantee of compensation, some overt scheme in which the state took part, or some other evidence of prearrangement aimed at discovering incriminating information we are unwilling to elevate the state’s actions in this case to an agency relationship with the informant Chavers.
Lightboume, 438 So.2d at 386.
In Massiah, the Supreme Court ruled that the Sixth Amendment prohibits law enforcement officers from deliberately eliciting incriminating information from a defendant in the absence of counsel after a
In evaluating the conduct of both Chavers and LaTorre we should keep in mind the duty that is imposed upon all citizens to report criminal activity to the appropriate authorities. This duty to advise the law enforcement officials was an established tenet of Anglo-Saxon law at least as early as the 13th century. “ ‘This deeply rooted social obligation is not diminished when the witness ... is involved in illicit activities himself____ [T]he criminal defendant no less than any other citizen is obliged to assist the authorities.' ” Jenkins v. Anderson, 447 U.S. 231, 243-44 n. 5, 100 S.Ct. 2124, 2132 n. 5, 65 L.Ed.2d 86, 98 n. 5 (1980) (Stevens, J., concurring) (footnote omitted). Courts should be slow to discourage disclosures or to make them useless. Although the Supreme Court, to advance certain constitutional safeguards, has carved out exceptions, to the extent of excluding some disclosures about crime from evidence at trial, we recall that these are, indeed, exceptions and not the rule. Unless evidence of crime is plainly excludable, it can be allowed. The testimony of Chavers is not plainly excludable.
In order to establish a violation of the Sixth Amendment in a jailhouse informant case, the accused must show (1) that a fellow inmate was a government agent; and (2) that the inmate deliberately elicited incriminating statements from the accused. Henry, 477 U.S. at 270, 100 S.Ct. at 2186; see United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986). Regarding the threshold agency inquiry, no “bright line test for determining whether an individual is a Government agent for purposes of the Sixth Amendment” has emerged. Taylor, 800 F.2d at 1015. Nevertheless, other circuits have observed that the creation of an agency depends upon the existence of an agreement between the state and the informant at the time that the elicitation takes place. See Taylor, 800 F.2d at 1015; Thomas v. Cox, 708 F.2d 132,136 (4th Cir.), cert, denied, 464 U.S. 918,104 S.Ct. 284, 78 L.Ed.2d 262 (1983); United States v. Metcalfe, 698 F.2d 877, 882-83 (7th Cir.), cert, denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983); United States v. Calder, 641 F.2d 76, 78-79 (2d Cir.), cert, denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981). After analyzing the facts and circumstances of this case, the state circuit court and the Florida supreme Court concluded that no agency was created because no agreement had been entered into between LaTorre and Chavers when petitioner made the incriminating remarks.
Chavers had no history of acting as a paid informant. Furthermore, the record reflects that LaTorre did not initiate contact with Chavers, solicit Chavers to be a paid informant, encourage the elicitation of incriminating statements, or promise or suggest that Chavers would be compensated or rewarded in the event that Chavers reported incriminating statements to the authorities. LaTorre merely advised Chavers to listen. See Thomas, 708 F.2d at 133. LaTorre’s statement that he would assist Chavers in obtaining bail was not made until after petitioner admitted to Chavers’s
We must not confuse speculation about Chavers’s motives for assisting the police for evidence that the police promised Chavers consideration for his help or, otherwise, bargained for his active assistance. Chavers’s motives alone cannot make him an agent of the police even if the police knew and understood that his motives probably were self-serving and related to getting police cooperation in his own case. After reviewing the record, we find insufficient evidence to rebut the presumption of correctness under 28 U.S.C. sec. 2254(d) applicable to the state court’s assessment of the facts and conclude that there is no basis upon which an agency can be established.
Regarding the “deliberately elicited” inquiry, the Supreme Court has recently stated:
the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since ‘the Sixth Amendment is not violated whenever — by luck or happenstance— the State obtains incriminating statements from the accused after the right to counsel has attached,’ [quoting Moulton, 106 S.Ct. at 487 (citation omitted) ] a defendant does not make out a violation of [the right to counsel] simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that he police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (emphasis added); see United States v. Hicks, 798 F.2d 446, 449 (11th Cir.1986), cert, denied, — U.S. -, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987). When a state trial court has made a factual determination regarding this issue after a hearing on the merits, the trial court’s findings are entitled to a presumption of correctness under 28 U.S.C. sec. 2254(d). Kuhlmann, 106 S.Ct. at 2630.
In this case, the district court applied the presumption of correctness with respect to the state court’s findings that Chavers did not stimulate conversation with petitioner. After reviewing the record, the district court found “no basis for concluding that Chavers did anything but listen to Petitioner’s voluntary comments.” Lightbourne v. Wainwright, No. 85-136-Civ-OC-16, slip op. at 9 (M.D.Fla. Aug. 20, 1986). The Sixth and Fourteenth Amendments are not violated when law enforcement officers, either through “luck or happenstance,” obtain “spontaneous” and “unsolicited” incriminating statements. Kuhlmann, 106 S.Ct. at 2630; see Hicks, 798 F.2d at 449. After a plenary review of the record, we find insufficient evidence to rebut the presumption of correctness applicable to the state court determination and conclude that Chavers took no actions to stimulate the incriminating remarks and, more importantly, neither did LaTorre. Accordingly, the district court properly ruled that no agency existed and that petitioner’s incriminating statements were not deliberately elicited in violation of Kuhlmann,
Petitioner advances several grounds for relief based on violations of the constitutional right to effective assistance of counsel. Specifically, petitioner has identified three acts or omissions on the part of trial counsel which allegedly fell below the threshold level of competence. In order to state a claim of ineffective assistance of counsel sufficient to reverse a conviction or set aside a sentence, a claimant must show that “counsel’s performance was seriously deficient and that [the claimant] was prejudiced by the deficiency.” Sinclair v. Wainwright, 814 F.2d 1516,1519 (11th Cir. 1987); see Messer v. Kemp, 760 F.2d 1080, 1088 (11th Cir.1985), cert, denied, 474 U.S. 1088, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). In order to satisfy the first requirement, a petitioner must convince the court that “in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance.” Harich v. Wainwright, 813 F.2d 1082, 1088 (11th Cir.1987) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). When assessing the merits of a defendant’s claim, “an attorney’s actions are strongly presumed to have fallen within that range, and a court must examine counsel’s conduct without the use of judicial hindsight.” Messer, 760 F.2d at 1088. As this court has acknowledged, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Sinclair, 814 F.2d at 1519 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Regarding the second requirement, 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.” Harich, 813 F.2d at 1088; Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
When challenging the effectiveness of counsel during the guilt/innocence phase, the “defendant must show that, but for the ineffective assistance, the jury would have had a reasonable doubt as to his guilt.” Harich, 813 F.2d at 1089. When challenging the imposition of capital punishment, a defendant must “show that without the error there is a reasonable probability that ‘the balance of aggravating and mitigating circumstances did not warrant death.’ ” Messer, 760 F.2d at 1091 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2069).
(1) Conflict of Interest
The right to effective assistance of counsel encompasses the right to representation free from actual conflict on the part of defense counsel. See Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir.) cert, denied, — U.S.-, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986); Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir. 1985), cert, denied, 475 U.S. 1089,106 S.Ct. 1476, 89 L.Ed.2d 731 (1986); Ruffin v. Kemp, 767 F.2d 748, 750 (11th Cir.1985). Petitioner argues that an actual conflict of interest adversely affected his lawyer’s representation.
Petitioner was represented by Ron Fox and James Burke, also employed by the Public Defender’s Office for the Fifth Judicial Circuit. Petitioner asserts that an actual conflict arose when Carson, a former cellmate of petitioner and a former client of the public defender’s office, testified on
Questions involving conflicts of interest are mixed determinations of law and fact. Oliver, 782 F.2d at 1524. This issue was not addressed by any state court.
In order to establish an effective assistance of counsel claim arising from an alleged conflict of interest, a defendant “must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Oliver, 782 F.2d at 1524; Ruffin, 767 F.2d at 750 (quoting Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718); see Stevenson, 774 F.2d at 1562. A possible, speculative or merely hypothetical conflict does not suffice. Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719; Oliver, 782 F.2d at 1525. “[Ujntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. If a defendant can successfully demonstrate the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer’s representation. Stevenson, 774 F.2d at 1562; see Strickland, 466 U.S. at 692, 104 S.Ct. 2067; Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. Once a defendant satisfies both prongs of the Cuyler test, prejudice is presumed and the defendant is entitled to relief. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Cuyler, 446 U.S. at 349-50,100 S.Ct. at 1719.
Petitioner has articulated a potential conflict of interest. An attorney who cross-examines a former client inherently encounters divided loyalties. See Porter v. Wainwright, 805 F.2d 930, 939 (11th Cir. 1986); Stephens v. United States, 595 F.2d 1066, 1070 (5th Cir.1979). Whether or not an actual conflict arose when Assistant Public Defender Fox cross-examined a client formerly represented by Assistant Public Defender Bradley presents a substantial question.
The record reflects that Carson testified during direct examination that he was incarcerated for accessory to grand theft and that he was released because of a deal worked out with the state. During an extensive cross-examination, counsel for petitioner questioned Carson about his relationship with petitioner, contradictions in the sequence of events, potential independent sources of knowledge of the O’Farrell homicide, Carson’s use of an alias, and the lack of specifics with regard to petitioner’s alleged statements, including what was taken, where the gun came from, and how the events transpired. In addition, counsel for petitioner thoroughly inquired about the details of Carson’s plea agreement and elicited the facts that Carson pled nolo contendere to the charges and received a sentence of time served consisting of approximately 100 days. Given this testimony, we discern no adverse effect upon petitioner’s representation. Counsel for petitioner fully and fairly cross-examined Carson with respect to his “deal” with the state in order to show the possibility of bias or prejudice. In addition, petitioner’s counsel attempted to impeach Carson’s credibility through a variety of methods. Any conflict of interest which may have existed by virtue of the fact that Assistant Public Defender Fox happened to cross-examine a client formerly represented by the same public defender’s office had, at best, a de minimus effect upon petitioner’s representation. Accordingly, we find no merit to petitioner’s claim that an actual conflict adversely affected petitioner’s assistance of counsel.
(2) Failure to Investigate
Petitioner contends that his sentencing was improper and that the state should be required to do it again. See Hitchcock v. Dugger, — U.S.-, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). Specifically, petitioner alleges that trial counsel was ineffective by the failure to adequately investigate petitioner’s background and offer additional evidence of mitigating circumstances at the sentencing phase. The record reveals that petitioner was called as a witness and testified about his age, his citizenship, his lack of a significant criminal record, his education and his children. Petitioner asserts that counsel could have, but failed to present evidence of other mitigating circumstances through the testimony of petitioner’s friends and family. In support of this contention, petitioner has offered the affidavits of twenty-seven relatives and acquaintances. According to the affiants, petitioner was one of ten illegitimate children raised in a very modest environment. Despite the fact that petitioner was allegedly subjected to severe physical and psychological abuse by an older brother, petitioner was perceived as a happy, well-behaved and popular person. Regardless of the economic hardships and social disadvantages associated with his home environment, petitioner was purported to be a good student, an excellent athlete and a devoted Catholic. Petitioner alleges that had the judge and jury been apprised of these facts, a reasonable probability exists that the result of the sentencing proceeding would have been different.
The Florida Supreme Court rejected petitioner’s argument. In the words of that court:
[cjounsel was not ineffective for failing to present mitigating evidence at sentencing. The trial record clearly indicates that the sentencing judge was in fact aware of many of the mitigating factors that counsel on appeal is now presenting to the Court. The lower court was fully aware of the fact that [petitioner] was raised in a ‘lower socioeconomic home environment,’ his educational history and religious background. The additional mitigating factors now presented to the Court are*1025 merely cumulative, now [sic] new. Thus our finding on direct appeal that the strength of the aggravating factors warrant the death sentence is still valid.
Lightboume, 471 So.2d at 28. The district court concurred. Lightboume, No. 85-136-Civ-OC-16 slip op. at 20-21.
Petitioner’s allegations and proffered evidence are inadequate to overcome the strong presumption that the challenged action might be considered sound trial strategy and falls within the wide range of reasonable professional assistance. Strickland v. Washington, [466 U.S. 668] 104 S.Ct. 2052, 2066 [80 L.Ed.2d 674] (1984). Given the circumstances of this case, counsel’s decision to focus on Petitioner’s lack of a significant criminal record and to argue against the wisdom of the death penalty was a reasonable one. ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’ Id. [104 S.Ct.] at 2065.
Most of the evidence that Petitioner claims his counsel should have obtained and introduced at the sentencing phase was considered by the trial judge before Petitioner was sentenced. The presentence investigation report revealed that Petitioner was an illegitimate son, born and raised in a lower socioeconomic home environment, who had almost no relationship with his father because his father separated from the family when Petitioner was a small child. The comprehensive report also set forth Petitioner’s marital and family status, educational background, religious affiliation, interest in riding horses, and employment history. Although the report did not reflect that Petitioner’s friends and neighbors described him as a loving, non-violent individual, it did indicate that Petitioner lacked a significant record of prior criminal activity. Essentially, the only evidence now proffered by Petitioner that was not considered by the trial judge at sentencing is the testimony of family and friends regarding Petitioner’s physical abuse by his older brother and Petitioner’s apparent compassionate character.
Lightboume, No. 85-136-Civ-OC-16, slip op. at 20-21.
A criminal defendant who is charged with a capital offense has the right to present virtually any evidence in mitigation at the penalty phase. See Hitchcock, — U.S. at-, 107 S.Ct. at 1824; Peek v. Kemp, 784 F.2d 1479, 1488 (11th Cir.) (en banc), cert, denied, — U.S.-, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986). Nevertheless, “[c]ounsel has no absolute duty to present mitigating character evidence.” Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985). In order to determine what evidence might be appropriate, defense counsel has the duty to conduct a reasonable investigation. Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir.), cert, denied, — U.S.-, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1986). The failure to conduct any investigation of a defendant’s background may fall outside the scope of reasonable professional assistance. Thompson, 787 F.2d at 1452. After a sufficient investigation, however, “counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.” Mitchell, 762 F.2d at 889 (quoting Stanley v. Zant, 697 F.2d 955, 965 (11th Cir.1983), cert, denied, sub nom. 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)). A lawyer’s election not to present mitigating evidence is a tactical choice accorded a strong presumption of correctness which is “virtually unchallengeable.” Sinclair, 814 F.2d at 1519 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066); see e.g., Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986); Porter, 805 F.2d at 935; Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986); Dobbs v. Kemp, 790 F.2d 1499, 1514 (11th Cir.1986), modified on other grounds, 809 F.2d 750 (1987); Funchess v. Wainwright, 772 F.2d 683, 690 (11th Cir.1985), cert, denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986). This court has specifically ruled that counsel’s decision to rely on the defendant’s testimony rather than offering the testimony of
Petitioner argues that trial counsel’s representation fell below an objective standard of reasonableness because counsel allegedly failed to conduct any investigation with respect to petitioner’s background. After an impartial but critical review of the record, we find petitioner’s characterization of counsel’s efforts clearly erroneous. It is evident that an investigation was conducted and that counsel thereafter elected to put petitioner on the stand. Although no deficiencies with respect to petitioner’s background check are readily apparent, the reasonableness of counsel’s investigation is difficult to assess because the specifics of counsel’s efforts have not been delineated for the record. Nevertheless, even if petitioner’s counsel did not conduct an adequate investigation, we conclude that petitioner has not demonstrated sufficient prejudice which resulted from this alleged deficiency.
As indicated, a defendant challenging the propriety of a death sentence must show that in the absence of counsel’s alleged inadequate performance, a reasonable probability exists that the “balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. Here, the trial judge found the existence of two mitigating
(3) Failure to Object to Inflammatory Statements
When challenging the denial of post-conviction relief in state court, petitioner argued that the trial judge improperly considered prejudicial hearsay statements and accusations relating to non-statutory aggravating circumstances during the sentencing phase. The record reflects that following the guilt/innocence phase of the trial, the court ordered a presentence investigation (PSI). A PSI report, completed on April 30, 1981, provided information relating to the circumstances of the offense, petitioner’s alibi, and personal information, including petitioner's criminal record, social history, marital status, education, religion, interests, activities, health and employment. In addition, a “confidential evaluation” was prepared by the Department of Corrections containing personal statements by several of Miss O’Farrell’s relatives and petitioner’s sister. The O’Farrell family generally expressed the opinion that petitioner was remorseless, beyond rehabilitation, and deserving of the death penalty. Petitioner alleged that the consideration of these inflammatory statements prejudiced
Thereafter, in his Petition for Writ of Habeas Corpus, petitioner recast the claim as an error by trial counsel in failing to object to the trial judge’s consideration of the statements in the PSI report. The jury had no access to the report. The district court assumed that federal review of the claim was not precluded when couched in terms of ineffective assistance of counsel. Nevertheless, the district court found petitioner’s contention meritless because of the absence of a reasonable probability that any deficiency on the part of counsel in failing to object to judicial consideration of the inflammatory statements adversely affected the outcome of petitioner’s sentencing. Lightboume, No. 85-136-Civ-OC-16, slip op. at 22. We agree.
Federal law places few limitations upon the information which a trial judge may consider before determining an appropriate sentence.
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
. On January 15, 1981 at approximately 3:30 a.m., Officer George Clark of the Ocala Police responded to a suspicious vehicle call and found petitioner asleep in a car. Petitioner produced his Florida driver’s license. Officer Clark observed a weapon on the floor of the car in plain view. Upon inspection, Officer Clark noticed that the weapon was a .25 caliber RG semi-automatic pistol with black tape wrapped around the handle. Officer Clark returned the weapon to petitioner because he was not in violation of any state or local laws.
. According to Chavers, petitioner knew that the police would find no fingerprints, knew that the telephone wires had been cut, and knew that Nancy was found lying on her back.
. Although Chavers’s testimony reveals that petitioner never explicitly admitted killing Nancy, Chavers stated that petitioner never denied it and made statements giving rise to the inference that he took her life.
. Also known as James T. Gallman.
. In addition to the claims discussed, petitioner also contends that trial counsel was ineffective in failing to request the sequestration of the jury between conviction and sentencing. Because this issue was not raised in petitioner’s Petition ■ for Writ for Habeas Corpus, this court will not consider the issue. See McGahee v. Massey, 667 F.2d 1357, 1361 n. 10 (11th Cir.), cert, denied, 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982).
. Although the interrogation in question was videotaped, neither that recording nor a transcript of it were made part of the trial record. The court reporter found the audio portion of the recording unintelligible, untranscribable and uncertifiable. Accordingly, a precise review of the dialogue is unfeasible and we must rely on the trial testimony.
. Petitioner alleges that the district court erroneously failed to view the videotape of petitioner’s interrogation. As previously indicated, this untranscribable tape was considered by the state circuit court during the suppression hearing but was not made part of the record. Petitioner had access to the tape at the time of trial. No motion to supplement the record has been filed. In the absence of extraordinary circumstances, a court of appeals cannot consider evidence which does not appear in the record. Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1481 (11th Cir.1984).
Even if this court disregarded the presumption of correctness attaching to subsidiary factual questions, acquired access to the video tape, and concluded that an opportunity to view the tape might be helpful when reviewing the voluntariness of petitioner’s statements, we hold that an examination of this evidence would not be beneficial to petitioner. Any violation of Miranda which the tape might reveal would, at
. The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. The dissent raises several difficult points and reflects a different interpretation of this record and the controlling authorities. Such sometimes happens and is understandable. What is not easily understood is how the admission of these statements, if error, would be harmful with respect to the sentencing phase of petitioner’s trial. The dissent finds harmless error as to the guilt phase but suggests such is not so as to sentencing. The aggravating factor under the Florida statute is sexual battery. While Chavers was the only witness dealing specifically with oral sexual activity, witness Carson covered the same sort of statements including Lightbourne forcing Nancy to engage in multiple sexual acts prior to her murder. To a very large extent the testimony of both was corroborative and repetitious. If there is a Sixth Amendment violation in this case, it is harmless.
. Petitioner alleges that an actual conflict of interest existed because Carson, a prosecution witness, was formerly represented by an attorney from the same public defender's office that represented petitioner.
. We are somewhat troubled by the fact that petitioner has apparently not exhausted this claim in state court. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Nevertheless, we note that the Supreme Court has ruled that a federal court of appeals may, in its discretion, exercise habeas corpus jurisdiction when the state fails to raise an arguably meritorious defense. Granberry v. Greer, — U.S.-, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In the interests of justice, we will exercise our discretion and address the merits of petitioner's claim.
. At the time of petitioner’s trial, the Code of Professional Responsibility governed the standards of ethical conduct in Florida. (The Code was replaced by the Rules of Professional Conduct effective January 1, 1987. See In re Rules Regulating the Florida Bar, 494 So.2d 977, 977 (Fla.1986); Fla.Stat.Ann.Bar and Judiciary Rules Chapter 4 (West Supp.1987)). An attorney owes a client the duty to avoid conflicts of interest. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Under the Code, an attorney has an obligation to preserve the confidences and secrets of former clients. See EC 4-6. DR 5-105 states in pertinent part: "[a] lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client ... if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure____’’ The Florida Supreme Court has acknowledged that a public defender’s office can constitute a “law firm” within the meaning of Canon 5. See State v. Fitzpatrick, 464 So.2d 1185, 1186 (Fla.1985). Thus, a conflict may arise when a public defender’s office represents clients with adverse interests. When a public defender determines that a conflict of interest exists, the public defender is bound to report the conflict to the court so that independent counsel can be appointed. Fla.Stat.Ann. § 27.53(3) (West 1974). Of course, what constitutes a conflict of interests as a matter of legal ethics or as a matter of state law and what constitutes a conflict of interests for federal constitutional questions may differ. In this case, the record does not reflect that any conflict was reported to the court. The Supreme Court has acknowledged that attorneys are in the best position to determine when a conflict of interest exists. See Cuyler, 446 U.S. at 347, 100 S.Ct. at 1717.
. The trial judge found that petitioner had no significant history of prior criminal activity, see FIa.Stat.Ann. § 921.141(6)(a) (West 1985) and that petitioner was only twenty-one years of age. See Fla.Stat.Ann. § 921.141(6)(g).
. The trial judge found beyond a reasonable doubt that a capital felony was committed while petitioner was engaged in burglary and sexual battery, Fla.Stat.Ann. § 921.141(5)(d), that the ' capital felony was committed for the purpose of avoiding lawful arrest, Fla.Stat.Ann. § 921.-141(5)(e), that the capital felony was committed for pecuniary gain, Fla.Stat.Ann. § 921.-141(5)(f), that the capital felony was especially heinous, atrocious, or cruel, Fla.Stat.Ann. § 921.141(5)(h), and that the capital felony was a homicide committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. Fla.Stat.Ann. § 921.141(5)(i).
. This information was contained in a presentence investigation report which was considered by the judge.
. We note that the Supreme Court recently ruled in Booth v. Maryland, — U.S.-, 107 S.Ct. 2529, 96 L.Ed.2d 440 (U.S. 1987) that a Maryland statute requiring a court or jury to consider a "victim impact statement” when the death penalty is requested violated the Eighth Amendment. Pursuant to Maryland law, Booth elected to have his sentence determined by a jury instead of a judge. Booth, — U.S. at-, 107 S.Ct. at 2529. The Court ruled that the victim impact statement describing the effect of the crime on the victim's family was irrelevant and unduly inflammatory and created a risk of arbitrary and capricious action. Id., at -, 107 S.Ct. at 2535-36. We do not believe that Booth is applicable here because the death sentence imposed by the Florida circuit court was based on the recommendation by the jury. As indicated, only the judge had access to the PSI and the allegedly inflammatory statements. The judge adopted the jury’s recommendation relying solely on the weight of the statutorily authorized aggravating circumstances. Accordingly, we discern no prejudice with respect to petitioner’s sentencing.