Thompson v. Nagle

United States Court of Appeals,

Eleventh Circuit.

No. 96-6752.

Steven A. THOMPSON, Petitioner-Appellant,

v.

John Eddy NAGLE, Respondent-Appellee.

July 30, 1997.

Appeal from the United States District Court for the Northern District of Alabama. (No. 94-PT-
1674-S), Robert B. Propst, Judge.

Before HATCHETT, Chief Judge, and DUBINA and BLACK, Circuit Judges.

DUBINA, Circuit Judge:

Appellant Steven Allen Thompson ("Thompson" or "defendant") appeals the district court's

judgment denying his petition for habeas corpus relief from his convictions and sentence of death.

For the reasons that follow, we affirm.

I. STATEMENT OF THE CASE

A. FACTS

The Alabama Court of Criminal Appeals repeated the facts as stated by the trial judge in his

sentencing order.

The victim, Robin Balarzs, was engaged to marry David Roberts, a long-time friend
of the defendant. On May 11, 1984, David Roberts was absent from Huntsville due to
military service. Defendant was aware of this absence. On that day defendant went to the
home in Huntsville where Robin Balarz [sic] resided with her parents and her young child.
The parents and the child were also out of town. Robin and her friend Cindy McElroy were
at the residence. Defendant, Robin and Cindy engaged in normal conversation and
defendant slept on a sofa while the girls retired to separate bedrooms. Early on the morning
of May 12th defendant left the residence. Cindy McElroy left at a later time. Cindy noticed
no unusual behavior on the part of the defendant.

Defendant was absent without leave from the Navy and had need for money and
goods which he could convert to cash. He planned to return to the Balarzs household to
feloniously take money, gold or silver. In his planning defendant bought tape, bandages and
other items with which to bind Robin. On his arrival in the night of May 12, 1984, defendant
entered the household on invitation of his friend and followed a course of conduct which can
be described as beyond human comprehension in its vileness. Defendant bound and gagged
Robin with a sock, bandage, rope and tape he had brought into her home with premeditated
design. He cut her clothes from her person and beat her with his fists. He took a meager
$1.00 bill from her purse (although at some point he also took her engagement ring). He
 stuffed a sock in her mouth. He cut her with a knife. He positioned his rental vehicle near
the garage to facilitate her removal from the residence. He made some effort to conceal the
blood and physical tracings of his acts of brutality, placed Robin, still alive, in the vehicle,
left the home and drove to secluded Green Mountain, a rugged area in Huntsville, Madison
County. There, he proceeded to brutalize Robin Balarzs in a manner almost unspeakable in
its nature, character and extent. Defendant had sexual intercourse upon her, shoved a large
knife into what he thought to be her vagina, bound her breasts with a rope, tied her to the
vehicle and dragged her through mud, over rocks and on pavement for a distance in excess
of 3000 feet. At some point he pulled and shaved her hair with a razor especially purchased.
He stabbed her about her breasts and cut her with the knife.

Robin Balarzs died during her ordeal. Some of the atrocities were against her corpse.

The defendant realized that left in the Balarzs home were items which would reveal
his crimes, if not his identity. He returned to the residence for the purpose of securing these
items, leaving Robin Balarzs on Green Mountain.

While defendant was attempting to re-enter the Balarzs home David Roberts
returned. Seeing David drive up to the residence, defendant evaded detection and drove
away to spend the rest of the night in his vehicle.

David Roberts entered the home and noticed signs of the defendant's depravity. He
contacted neighbors and friends of Robin, called hospitals and tried to locate her. Finally,
David Roberts called Huntsville Police Department and investigation into the case began.
David recalled seeing defendant's vehicle parked near the residence and an alert was
dispatched on defendant by radio. At that time it was in connection with a missing person
report. In the early morning of May 13, 1984, two uniformed officers saw defendant in his
vehicle and stopped him. Defendant's vehicle was dirty and damaged and defendant had
what appeared to be blood and mud about his person. Defendant was properly advised of
his constitutional rights, taken into custody, removed to police headquarters and questioned.
After first denying knowledge of the fate of Robin Balarzs, defendant made statements
admitting his activities and led an officer to the scene atop Green Mountain. Robin's
battered body was found. Her parents and David Roberts were advised that she was dead.

Thompson v. State, 542 So.2d 1286, 1288-89 (Ala.Crim.App.1988).

After his arrest, Thompson made two statements to police. On the day of his arrest,

Thompson described the events that occurred at Balarzs' house. Ex.-1, Vol. V at 920-21. He also

described dragging Balarzs to his car, putting her in the backseat, placing a sleeping bag over her,

and driving her to Green Mountain. Thompson told the police that Balarzs "moaned and groaned"

during the drive to Green Mountain. Id. at 922. The next morning, Thompson gave police another

statement. Id. at 949. Thompson described in more detail the events at Balarzs' home. Id. at 952-

54. Thompson told police that Balarzs was bleeding and vomit was coming out of her mouth when

he took her out of the car on Green Mountain. Id. at 954. Thompson told police he had sexual

intercourse with Balarzs and then described thrusting a butcher knife into her vaginal area, tying her
to his car, and dragging her body. Id. at 955.

B. PROCEDURAL HISTORY

On August 9, 1985, a jury convicted Thompson of (1) robbery-murder under ALA.CODE §

13A-5-40(a)(2) (1975), (2) kidnapping-murder under ALA.CODE § 13A-5-40(a)(1) (1975), and (3)

rape-murder under ALA.CODE § 13A-5-40(a)(3) (1975). By an eight to four vote, the jury

recommended a sentence of life imprisonment without the possibility of parole. The trial court held

a sentencing hearing. After reviewing the aggravating and mitigating factors, the trial court

overrode the jury's recommendation and sentenced Thompson to death by electrocution.

The Alabama courts affirmed Thompson's convictions and sentence on direct appeal. See

Thompson v. State, 542 So.2d 1286 (Ala.Crim.App.1988), aff'd, 542 So.2d 1300 (Ala.1989). The

United States Supreme Court denied certiorari and Thompson's petition for rehearing. Thompson

v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989); Thompson v. Alabama, 493 U.S.

986, 110 S.Ct. 528, 107 L.Ed.2d 527 (1989).

Thompson then filed a petition for post-conviction relief under Temporary Rule 20 of the

Alabama Rules of Criminal Procedure in the Circuit Court of Madison County.1 The court held an

evidentiary hearing on Thompson's petition. The trial court denied the petition and the Alabama

Court of Criminal Appeals affirmed. Thompson v. State, 615 So.2d 129 (Ala.Crim.App.1992). The

Alabama Supreme Court denied certiorari, Thompson v. State, No. 1920696 (March 19, 1993), as
did the United States Supreme Court. Thompson v. Alabama, 510 U.S. 976, 114 S.Ct. 467, 126

L.Ed.2d 418 (1993).

Thompson then filed the present habeas corpus petition in the United States District Court

for the Northern District of Alabama. A magistrate judge entered a 74-page report and

recommendation that the district court deny the petition. The district court adopted the magistrate's

report and denied Thompson's habeas corpus petition.

The district court denied Thompson's motion for a certificate of appealability but this court

granted it. We then heard oral argument.

1
Temporary Rule 20 of the Alabama Rules of Criminal Procedure is now Rule 32.
 II. ISSUES

A. Whether the evidence was sufficient to support Thompson's rape conviction.

B. Whether the Alabama Court of Criminal Appeals violated the Ex Post Facto Clause.

C. Whether the State proved beyond a reasonable doubt that Thompson formed the specific intent
to kill Balarzs.

D. Whether trial counsel were ineffective.

1. Whether trial counsel's failure to show that no rape occurred constitutes ineffectiveness.

2. Whether trial counsel's failure to show that Thompson did not intend to kill constitutes
ineffectiveness.

3. Whether trial counsel's failure to present a mental health defense constitutes ineffectiveness.

4. Whether trial counsel's failure to prevent the introduction of inadmissible evidence constitutes
ineffectiveness.

5. Whether trial counsel's failure to call character witnesses constitutes ineffectiveness.

E. Whether a prejudicial variance existed between the evidence and the indictment.

III. STANDARDS OF REVIEW

We review the district court's findings of fact for clear error, even when the district court's

findings are drawn solely from documents, records, or inferences from other facts. Medina v.

Singletary, 59 F.3d 1095, 1101 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2505, 135

L.Ed.2d 195 (1996); Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th Cir.1994). Whether the

evidence was sufficient to allow a reasonable jury to find beyond a reasonable doubt that the

defendant committed each element of the crime charged is subject to plenary review. Huynh v.

King, 95 F.3d 1052, 1059 (11th Cir.1996). We also review de novo the Alabama Court of Criminal

Appeals' determination that its construction of Alabama's rape laws during Thompson's appeal does

not violate the Ex Post Facto Clause. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679,

74 L.Ed.2d 535 (1983). We review Thompson's ineffective assistance of counsel claims de novo.

Weeks v. Jones, 26 F.3d 1030, 1034 (11th Cir.1994). Finally, whether there was an unconstitutional

variance between the indictment and the proof at trial requires two inquiries. United States v.

Prince, 883 F.2d 953, 959 (11th Cir.1989). First, we determine whether a material variance did

indeed occur. Id. Second, we determine whether Thompson suffered substantial prejudice as a
result. Id.

IV. DISCUSSION

A. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THOMPSON'S RAPE
CONVICTION

Thompson argues that the evidence was insufficient to prove beyond a reasonable doubt that

rape occurred because the evidence showed that Balarzs was dead at the time of intercourse. Under

Alabama law, a male commits rape if he "engages in sexual intercourse with a female by forcible

compulsion." ALA.CODE § 13A6-61(a) (1975). Forcible compulsion is defined as "[p]hysical force

that overcomes earnest resistance or a threat, express or implied, that places a person in fear of

immediate death or serious physical injury to himself or another person." ALA.CODE § 13A-6-60(8)

(1975). Thompson contends that the State cannot prove "forcible compulsion" if the evidence shows

that the victim was dead at the time sexual intercourse occurred. Consequently, Thompson argues

that the jury could not reasonably convict him of rape because, according to him, the evidence shows

that Balarzs died before sexual intercourse took place. Thompson further claims that any

post-mortem acts are irrelevant to the charge of rape. He contends that any acts against Balarzs'

body after her death may constitute "abuse of a corpse" under Alabama law, but not rape.2 In

addition, Thompson claims that rape could not be used as an aggravating circumstance for

sentencing purposes because the State is required to prove all aggravating circumstances beyond a

reasonable doubt. See ALA.CODE § 13A-5-45(e). The State argues that it produced evidence at trial
from which the jury reasonably could conclude that Balarzs was alive at the time intercourse

occurred.

The State's forensic pathologist, Dr. Embry, performed the autopsy on Balarzs' body. Dr.

Embry testified at trial that he could not determine whether the act of intercourse took place before

or after Balarzs died. Ex.-1, Vol. IV at 749, 752. He did testify that Balarzs aspirated vomit into

her lungs and that this caused her death. Id. at 744. In Dr. Embry's opinion, strangling or gagging

2
Alabama law provides that "[a] person commits the crime of abuse of a corpse if, except as
otherwise authorized by law, he knowingly treats a human corpse in a way that would outrage
ordinary family sensibilities." ALA.CODE 13A-11-13(a) (1975).
Balarzs caused her to aspirate. Id.

According to Thompson, the State's own testimony proves that Balarzs was dead when

intercourse occurred. Thompson points out that Dr. Embry testified that many of the cuts and

wounds on Balarzs' body were inflicted after her death. Id. at 734. Thompson told police that he

had sexual intercourse with Balarzs after he cut her and stabbed her. Ex.-1, Vol. V at 955.

According to Thompson, this establishes that the act of intercourse took place after Balarzs' death.

The State contends that Thompson's own statements to Police Officer Renfroe ("Renfroe")

prove that Balarzs was alive when the act of intercourse occurred. First, Thompson stated that after

he tied her up and gagged her with a sock, he asked her if there was any gold or silver in the house.

Id. at 953. Thompson stated that she shook her head to indicate no and then he cut the binding from

her face and removed the sock from her mouth. Id. As this occurred at virtually the same time, the

State contends that Balarzs was alive when Thompson removed the sock from her mouth. Second,

when asked by Renfroe if Balarzs was alive on the way to Green Mountain, Thompson replied that

"she was moaning and groaning" during the drive. Id. at 922. Third, Thompson told Renfroe that

Balarzs was bleeding and vomit was coming from her mouth when he removed her from the car

upon arriving at Green Mountain. Id. at 954. Thompson stated that he wiped the vomit and blood

from Balarzs' face with a towel but that she continued to bleed from her nose until he wiped it

several times. Id. Finally, Thompson described having intercourse with Balarzs, tying her to his car,

and dragging the body. Id.

Thompson relies heavily on the testimony of his expert at the Rule 20 hearing to support his

claim that the act of intercourse occurred after Balarzs died. The medical evidence produced at the

Rule 20 hearing may bear on other claims, such as ineffectiveness of counsel, but is irrelevant to

whether the jury, at trial, had sufficient evidence to find Thompson guilty of rape.

The sufficiency of the evidence claim advanced by Thompson in this appeal is based on the

Due Process Clause of the Fourteenth Amendment, which requires the State to prove beyond a

reasonable doubt each element of the offense charged. Jackson v. Virginia, 443 U.S. 307, 314, 99

S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73,
25 L.Ed.2d 368 (1970); Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir.1987). Under Alabama law,

a conviction for rape requires evidence that the victim was alive at the time of intercourse. Padgett

v. State, 668 So.2d 78, 84 (Ala.Crim.App.1995). In this case, the medical evidence produced at trial

was inconclusive as to whether the act of intercourse occurred before or after Balarzs' death.

Therefore, this court must presume that conflicting inferences to be drawn from the evidence were

resolved by the jury in favor of the State. See Machin v. Wainwright, 758 F.2d 1431, 1435 (11th

Cir.1985). The relevant question is whether any rational jury, after viewing the evidence in the light

most favorable to the prosecution, could have found the essential elements of rape beyond a

reasonable doubt. See Felker v. Thomas, 52 F.3d 907, 909 (11th Cir.) (citing Jackson, 443 U.S. at

319, 99 S.Ct. at 2789), opinion supplemented on denial of rehearing by 62 F.3d 342 (11th Cir.1995),

cert. denied, --- U.S. ----, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996). A rational jury could conclude,

based on Thompson's own statements, that Balarzs was alive at the time intercourse occurred. Thus,

the evidence supports Thompson's conviction for rape, and the district court correctly denied

Thompson's claim on this ground.3

B. WHETHER THE ALABAMA COURT OF CRIMINAL APPEALS VIOLATED THE EX POST
FACTO CLAUSE

3
Even if the evidence were insufficient to support Thompson's rape conviction, that would not
affect the sentence of death in this case. The jury convicted Thompson of three capital offenses:
rape-murder, kidnapping-murder, and robbery-murder. The sentencing judge found two
aggravating circumstances. First, the judge found the commission of murder during the course
of each of these felonies to be an aggravating circumstance. Ex.-1, Vol. VII at 1322; ALA.CODE
§ 13A-5-49(4) (1975). Second, the judge found that each of the three capital offenses were
especially heinous, atrocious, and cruel compared to other capital offenses. Id.; ALA.CODE §
13A-5-49(8) (1975). The judge found Thompson's lack of adult criminal activity to be a
mitigating circumstance. Id. at 1324; ALA.CODE § 13A-5-51(1) (1975). Thus, even without
rape, the kidnapping and robbery convictions amply support the aggravating circumstance of
felony-murder and no rational sentencer would have failed to find it. See Lewis v. Jeffers, 497
U.S. 764, 781, 110 S.Ct. 3092, 3102-03, 111 L.Ed.2d 606 (1990) ("[I]n determining whether a
state court's application of its constitutionally adequate aggravating circumstance was so
erroneous as to raise an independent due process or Eighth Amendment violation, we think the
more appropriate standard of review is the "rational factfinder' standard established in Jackson v.
Virginia."); see also Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123
L.Ed.2d 353 (1993) ("[H]abeas petitioners may obtain plenary review of their constitutional
claims, but they are not entitled to habeas relief based on trial error unless they can establish that
it resulted in "actual prejudice.' "). Moreover, the aggravating circumstance of "heinous,
attrocious, and cruel" remains. Our conclusion is buttressed by the fact that this is an override
case. The jury recommended life without parole but the sentencing judge imposed the death
penalty.
 The Due Process Clause prevents courts from taking actions which, if taken by a legislature,

would violate the Ex Post Facto Clause. See, e.g., Marks v. United States, 430 U.S. 188, 191-92,

97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84

S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964); Rubino v. Lynaugh, 845 F.2d 1266, 1271 (5th

Cir.1988). The Ex Post Facto Clause prohibits criminal prosecution of a defendant for an act which

was not a criminal offense at the time the act took place. Collins v. Youngblood, 497 U.S. 37, 42,

110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990); Rubino, 845 F.2d at 1273. Thompson argues that the

Alabama Court of Criminal Appeals violated the Ex Post Facto Clause when it stated, in an opinion

denying post-conviction relief to Thompson, that sexual intercourse after a victim's death could

constitute rape under Alabama law.

This court has held that if an accused had the intent to commit the underlying offense at the
time he murdered and the offense is committed immediately after the murder, he is guilty of
murder while committing the underlying offense, and the capital murder statute still applies.
It seems to be generally understood that it is impossible to say with certainty whether
intercourse immediately preceded or immediately followed the murder of a female victim.

Thompson v. State, 615 So.2d 129, 133 (Ala.Crim.App.1993) (citations omitted). Because we hold

that there was sufficient evidence to support Thompson's rape conviction, we need not reach the Ex

Post Facto issue.

Were we to reach the issue, however, Thompson would not prevail. The Alabama Court of

Criminal Appeals' decision did not alter the meaning of ALA.CODE § 13A-5-40(a)(3) under which

Thompson was convicted. The court merely clarified that when the death and the underlying felony

occur contemporaneously, the Alabama capital murder statute can apply even if the death preceded

the felony. See, e.g. Hallford v. State, 548 So.2d 526, 534 (Ala.Crim.App.1988) ("The intentional

murder must occur during the course of the robbery in question; however, the taking of the property

of the victim need not occur prior to the killing."); Clements v. State, 370 So.2d 708, 713

(Ala.Crim.App.1978) ("[T]he fact that the victim was dead at the time the property was taken would

not militate against a finding of robbery if the intervening time between the murder and the taking

formed a continuous chain of events."), aff'd in pertinent part, 370 So.2d 723 (Ala.1979). When a

court clarifies but does not alter the meaning of a criminal statute, the Ex Post Facto Clause is not
implicated. See Hays v. State of Alabama, 85 F.3d 1492, 1501-02 (11th Cir.1996), cert. denied, ---

U.S. ----, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997). Thus, Thompson cannot claim that the Alabama

Court of Criminal Appeals' decision operates against him ex post facto.

C. WHETHER THE STATE PROVED BEYOND A REASONABLE DOUBT THAT THOMPSON
FORMED THE SPECIFIC INTENT TO KILL

Alabama law authorizes capital punishment only if the State proves beyond a reasonable

doubt that the defendant had the specific intent to kill the victim. ALA.CODE § 13A-5-40 (1975).

Thompson argues that the State did not prove that he formed the specific intent to kill Balarzs. In

fact, Thompson argues that the evidence produced at trial showed that he wanted to frighten and

control Balarzs, not kill her. Thompson points to the testimony of Renfroe, who recounted

Thompson's description of putting the rope around Balarzs' neck. According to Renfroe, Thompson

confessed that he "applied enough pressure, to let her know I wasn't messing around." Ex.-1, Vol.

IV at 952. In addition, Thompson argues that any post-mortem acts against Balarzs' corpse are

irrelevant to whether he formed the specific intent to kill Balarzs.

Thompson procedurally defaulted this claim because he did not raise it at trial, on direct

appeal, or at his Rule 20 hearing in state court. In Marek v. Singletary, 62 F.3d 1295 (11th

Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 113, 136 L.Ed.2d 65 (1996), we held:

A state prisoner seeking federal habeas corpus relief, who fails to raise his federal
constitutional claims in state court, or who attempts to raise claims in a manner not permitted
by state procedural rules, is barred from pursuing the same claim in federal court absent a
showing of cause for and actual prejudice from the default.

Id. at 1301. Thompson cannot show cause and prejudice. He first attempted to raise this claim in

his appeal from the denial of post-conviction relief. Compare Brief for the Appellant at 36 (appeal

from Rule 20 proceeding) with Brief and Argument for Appellant (direct appeal). The Alabama

Court of Criminal Appeals did not address whether the issue was barred. However, the district court

examined Thompson's claim that he raised this issue on both direct appeal and in the Rule 20

proceedings. The district court concluded that Thompson had not raised an intent claim. See Mem.

Op. dated July, 1, 1996 (N.D.Ala.). Thompson has not addressed the procedural default issue in his

brief before this court. In the district court, Thompson alleged ineffective assistance of counsel as
cause. Constitutionally ineffective assistance can constitute cause. See Part VI.D (discussing

standards governing ineffective assistance of counsel claims). However, the district court concluded

that Thompson's counsel was not ineffective in not raising the State's failure to establish Thompson's

intent to kill.

Thompson's claim of cause is meritless. First, Thompson's ineffective assistance claim is

without factual basis. Renfroe testified that Thompson told him he went to Balarzs' home with the

intent to rob her. Ex.-1, Vol. V at 952. Thompson's counsel argued to the jury in closing arguments

that Thompson did not have the intent to rob or murder Balarzs. Ex.-1, Vol. VI at 1074-1085. More

importantly, the jury easily could infer, from the gruesome evidence in this case, that Thompson

intended to kill Balarzs. Because Thompson has not established cause, his intent claim is

procedurally barred. See Marek, 62 F.3d at 1301.

D. WHETHER TRIAL COUNSEL WAS INEFFECTIVE

The Sixth and Fourteenth Amendments entitle a criminal defendant to the effective

assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); Routly v. Singletary, 33 F.3d 1279 (11th Cir.1994). A defendant claiming

ineffective assistance of counsel must show first that counsel's performance was "outside the wide

range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

Second, a criminal defendant must show "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct.

at 2068. The burden is on the petitioner to establish both of these elements, Atkins v. Singletary, 965

F.2d 952, 958 (11th Cir.1992), and the burden is a heavy one. "Counsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; see also Horton v. Zant,

941 F.2d 1449, 1460 (11th Cir.1991) (Reviewing courts "should presume effectiveness and should

avoid second-guessing with the benefit of hindsight.")

Thompson challenges the effectiveness of his trial counsel on five grounds.

1. Did trial counsel's failure to show that no rape occurred constitute ineffectiveness?
 Thompson argues that "despite the crucial importance at trial of the time of Balarzs' death,

[ ] trial counsel did not present forensic evidence to demonstrate affirmatively that the act of

intercourse occurred after Balarzs died." Brief for Appellant at 39 (emphasis added). Thompson

relies heavily on the testimony of his forensic expert at the Rule 20 hearing, Dr. Blake, in arguing

that Balarzs was dead when intercourse occurred. Dr. Blake testified that in his opinion Balarzs died

within three to four minutes after Thompson gagged her with a sock. Ex.-8, Vol. VI at 70. Dr.

Blake also concluded that the act of intercourse occurred after Balarzs' death. Id. at 63-64 & 81.

Dr. Blake based this conclusion on the absence of semen in Balarzs' home and the absence of trace

evidence such as the exchange of skin, bodily fluids, or clothing fibers, which typically indicate that

a struggle took place. Id. at 84.

Dr. Stilwell, a forensic expert called by the State at the Rule 20 hearing, testified that he

could not determine whether the victim was dead or alive when intercourse took place. Id. at 150.

Dr. Stilwell also testified that he could not determine how long Balarzs lived after Thompson placed

the sock in her mouth. Id. at 157-60. Dr. Stilwell disagreed with Dr. Blake's conclusion that the

absence of trace elements suggested that Balarzs was dead at the time of intercourse. Id. at 168. In

Dr. Stilwell's view, the absence of trace elements meant nothing in this case because Balarzs' body

was dragged behind Thompson's car through mud and over rocks for at least 3,000 feet, which could

have destroyed such evidence. Id. at 173.

Drs. Blake and Stilwell agreed that the "moaning and groaning" of Balarzs that Thompson

recalled was not necessarily evidence that she was alive. Both experts stated that a corpse may emit

such sounds if moved shortly after death. Id. at 80 (Blake) & 154 (Stilwell). Thus, the medical

evidence produced at the Rule 20 hearing, like that at the trial, was inconclusive as to Balarzs' exact

time of death.

Because the medical evidence is inconclusive as to whether intercourse took place before

or after Balarzs died, it would have been impossible for Thompson's counsel to have shown

affirmatively that rape did not occur. Failure to do the impossible cannot constitute ineffective

assistance of counsel. A reasonable jury could infer, based largely on Thompson's own statements,
that Balarzs was alive when intercourse took place. The district court correctly denied Thompson

relief on this claim.

2. Did trial counsel's failure to show that Thompson did not intend to kill constitute ineffectiveness?

As discussed in Part IV.C, Thompson's counsel argued to the jury that Thompson did not

have the intent to rob or murder Balarzs. Thus, the factual premise of this claim is false. In

addition, the jury reasonably could infer from the evidence that Thompson intended to kill Balarzs.

This claim is without merit and the district court properly denied it.

3. Did trial counsel's failure to present a mental health defense constitute ineffectiveness?

Thompson contends that trial counsel should have presented a mental health expert as part

of the defense because Thompson entered a plea of not guilty by reason of mental disease or defect.

In addition, Thompson argues that a mental health expert should have been part of the defense

because the Lunacy Commission, which examined Thompson before trial, could not reach a

unanimous conclusion. Thompson's trial counsel called only one mental health expert, Dr. Hopkins,

who had never met with Thompson. Dr. Hopkins explained multiple personality disorder in general

terms to the jury. Ex.-1, Vol. VI at 1046. Thompson contends that the decision to rest his entire

mental health defense on this witness constituted ineffectiveness.

Thompson's trial counsel hired Dr. Alan Shealy to examine Thompson. Trial counsel

testified at the Rule 20 hearing that no psychologist in Alabama had a better reputation in the

criminal defense bar than Dr. Shealy. Ex.-8, Vol. VII at 380. After examining Thompson, Dr.

Shealy informed trial counsel that his evaluation was not favorable to Thompson. Id. Dr. Shealy

diagnosed Thompson as antisocial, which, as understood by trial counsel, basically meant Thompson

was mean rather than crazy. Id. At that point, Thompson's trial counsel elected to pursue a mental

health defense through the testimony of Thompson's father and the hypothetical questions presented

to Dr. Hopkins based on Thompson's father's testimony. Id. at 381-82. Thompson's trial counsel

chose this strategy to avoid the presentation of unfavorable evidence. Id. at 360-61 & 380-81.

At the Rule 20 hearing, Thompson and the State presented conflicting testimony by mental

health experts. Thompson's expert, Dr. Goff, testified that Thompson suffered from a
"depersonalization episode" at the time of the crime. Id. at 450-51. Dr. McClaren testified for the

State and disputed Dr. Goff's diagnosis. He testified that Thompson suffered from an adjustment

disorder resulting from a romantic disappointment. Id. at 573. Dr. McClaren stated that such a

disorder is "extremely common." Id. at 574. The testimony at the Rule 20 hearing therefore was

inconclusive regarding Thompson's mental health.

Thompson's counsel was not ineffective in its presentation of a mental health defense. They

retained Dr. Shealy, one of the best psychologists known to the Alabama criminal defense bar.

Because Dr. Shealy's evaluation of Thompson was not favorable to the defense, counsel made a

strategic decision to present a mental health defense based on the testimony of Thompson's father

and Dr. Hopkins. This choice was well within "the wide range of professionally competent

assistance," Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, particularly considering that defense

counsel determined that this strategy would prevent the admission of damaging testimony at trial.

The district court therefore properly denied Thompson relief on this claim.

4. Did trial counsel's failure to prevent the introduction of inadmissible evidence constitute
ineffectiveness?

Thompson claims that at the trial the State cross-examined his father and elicited

inadmissible testimony regarding Thompson's juvenile proceedings. Thompson claims that counsel's

failure to prevent the admission of this testimony constituted ineffectiveness. The State asked

Thompson's father if anyone made him aware that Thompson had committed a violent act against

a female student. Ex.-1, Vol. VI at 1026. Thompson's father answered in the affirmative and stated

that his son was fifteen at the time. Id. The State then asked if this was why he put his son in Retreat

Hospital. He replied that he put Thompson in the hospital because Thompson needed help. Id. at

1027.

This claim is without factual basis. Although Thompson is correct that testimony regarding

a juvenile adjudication is inadmissible in a criminal proceeding in Alabama, see Oliver v. State, 440

So.2d 1180, 1181 (Ala.Crim.App.1983), the testimony Thompson complains about did not refer to

a juvenile adjudication. As the magistrate judge found, "this testimony said nothing about a

"juvenile adjudication.' " Rec. Vol. I, Tab # 14 at 63. Furthermore, Thompson's counsel objected
to the admission of this testimony, and argued to the court, outside the presence of the jury, that the

State was attempting to get into Thompson's juvenile record. Ex.-1, Vol. VI at 1025-26. The district

court correctly denied Thompson relief on this claim.

5. Did trial counsel's failure to call character witnesses constitute ineffectiveness?

Thompson contends that counsel failed to call available character witnesses at trial and that

this failure probably caused his conviction. Defense counsel believed that character witnesses could

take the stand only if the defendant testified. Ex.-8, Vol. VII at 358 (McDaniel) & 423 (Sandlin).

However, Alabama law allows good character testimony as part of the defense even if the defendant

does not testify. Thomas v. State, 41 Ala.App. 19, 122 So.2d 731, 734 (1960). Defense counsel

therefore misunderstood the law, which is "outside the wide range of professionally competent

assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Thus, the court must consider whether

"a reasonable probability [exists] that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. The burden is on Thompson

to establish that prejudice resulted from counsel's error. Atkins v. Singletary, 965 F.2d 952, 958

(11th Cir.1992).

At the Rule 20 hearing, Thompson called five unrelated character witnesses whom he

claimed would have testified for him at trial. The testimony of these witnesses is discussed in detail

in the Magistrate Judge's Report. See Rec. Vol. I, Tab # 14 at 65-68. We have reviewed the record

and conclude that this testimony could not have affected the outcome of the trial because the

testimony was unbelievable and these witnesses were biased. As stated by the Rule 20 trial court:

The individuals who were called as purported character witnesses at the Rule 20
proceedings are either not credible witnesses because of their evident bias or lack of
knowledge, or they had such weak testimony to offer that the presentation of their testimony
would have detracted from the strength of other testimony offered by the defendant at trial.

Thompson v. State, 615 So.2d 129, 134 (Ala.Crim.App.1992). Given the overwhelming evidence

in this case, Thompson cannot prove that the testimony of these character witnesses would have

resulted in an acquittal.

It is not clear from the briefs whether Thompson also claims counsel's failure to call these

character witnesses at the sentencing hearing constituted ineffectiveness. Counsel called only
Thompson's father and two sisters at the sentencing hearing. Counsel believed their pleas for

Thompson's life were persuasive and that the testimony of the other character witnesses would not

be helpful. Ex.-8, Vol. VII at 358-59 & 392. Obviously, counsel was correct. The jury, by an eight

to four vote, recommended life imprisonment rather than the death penalty. Given the heinous

nature of the crimes, counsel was anything but ineffective at the sentencing hearing.

E. WHETHER A PREJUDICIAL VARIANCE EXISTED BETWEEN THE EVIDENCE AND THE
INDICTMENT

Thompson claims the indictment varied materially from the proof offered at trial. The

indictment stated that Thompson caused Balarzs' death by "striking her with his fists and dragging

her behind an automobile, either or both of which acts resulted in the aspiration of stomach contents

and suffocation." Ex.-1, Vol. VI at 1193. Thompson argues that the State did not prove this, and

instead proved that Balarzs died after Thompson gagged her with sock.

An accused has a constitutional right to an indictment which puts him on notice of the case

the prosecution will present at trial. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239,

90 L.Ed. 1557 (1946); United States v. Peel, 837 F.2d 975, 976-77 (11th Cir.1988); Ex Parte

Washington, 448 So.2d 404, 408 (Ala.1984). The rationale behind the rule prohibiting material

variances between indictments and proof at trial is twofold. Most importantly, the rule insures "that

the accused shall be definitely informed as to the charges against him, so that he may be enabled to

present his defense and not be taken by surprise by the evidence offered at the trial." Berger v.

United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Secondly, the rule protects

the accused against subsequent prosecutions for the same offense. Id. The Eleventh Circuit has

established a two-step inquiry when considering allegations of variance between indictments and

proof at trial. "First, we must determine whether a material variance did indeed occur; and second,

whether [the defendant] suffered substantial prejudice as a result of the variance." United States v.

Starrett, 55 F.3d 1525, 1553 (11th Cir.1995) (citations omitted), cert. denied, Sears v. United States,

--- U.S. ----, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996).

Neither requirement is met in this case. Regarding the first requirement, it is undisputed that

the cause of Balarzs' death was aspiration of stomach contents and suffocation. Ex.-1, Vol. IV at
744. As discussed in Parts IV.A and IV.D-1, however, it is impossible to determine the exact time

of death or which particular acts by Thompson caused Balarzs to aspirate her stomach contents.

Although the State's pathologist, Dr. Embry, testified that Balarzs died as a result of being strangled

with a rope or being gagged, Dr. Embry also testified that lack of oxygen, which results from trauma

or shock, causes nausea and vomiting. Id. at 751-52. The jury reasonably could have inferred that

the struggle at Balarzs' home, which involved "striking her with his fists" caused Balarzs trauma and

shock, triggering the aspiration of her stomach contents. The fact is Balarzs suffered injuries from

beating, strangling, gagging, cutting, stabbing, shaving, and dragging at the hands of Thompson.

As the Court of Criminal Appeals concluded, "it is clear that these acts were part of the same

atrocious transaction." 542 So.2d at 1290. The State's inability to pinpoint which particular part of

the "atrocious transaction" caused Balarzs' death does not mean that there was a material variance

between the indictment and the proof at trial.

Even assuming a material variance existed, Thompson cannot satisfy the second requirement

of his claim—that the variance caused him "substantial prejudice." Thompson admitted committing

these crimes. In fact, his counsel admitted the beating, strangling, stabbing, cutting, and dragging

during opening statements to the jury. Ex.-1, Vol. III at 410. Thus, Thompson clearly had notice

of the charges against him, was able to prepare a defense, and was not surprised by the evidence

introduced at trial. See Berger, 295 U.S. at 82, 55 S.Ct. at 630-31. The district court therefore

properly denied Thompson relief on this claim.

V. CONCLUSION

We see no constitutional deficiency in Thompson's convictions or sentence. Accordingly,

we affirm the district court's judgment denying Thompson's petition for habeas corpus.

AFFIRMED.