Thompson v. Nagle

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-6752

D. C. Docket No. CV-94-PT-1674

STEVEN A. THOMPSON,

Petitioner-Appellant,

versus

JOHN EDDY NAGLE,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Alabama

(July 30, 1997)

Before HATCHETT, Chief Judge, 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,

2
 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).

3
 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.

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 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 (1989);

Thompson v. Alabama, 493 U.S. 986 (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 (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.

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 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, 116

S.Ct. 2505 (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

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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 (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 § 13A-
6-61(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.” A LA. CODE § 13A-6-

60(8) (1975). Thompson contends that the State cannot prove

7
“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
2
constitute “abuse of a corpse” under Alabama law, but not rape.

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 Balarzs caused her to aspirate. Id.

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).

8
 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,

9
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 (1979); In re Winship, 397 U.S. 358, 364 (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

10
Jackson, 443 U.S. at 319), opinion supplemented on denial of

rehearing by 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S.Ct.

956 (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 (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
(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.

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 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
(1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (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 (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

12
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, 117 S.Ct. 1262 (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. A LA. 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

13
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, 117 S.Ct. 113 (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

14
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 (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. Second, a criminal

defendant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

15
have been different.” Id. at 694. 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 691; 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

16
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

17
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

18
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

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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,

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

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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 , 122 So.2d 731, 734

(Ala. Crim. App. 1960). Defense counsel therefore misunderstood

the law, which is “outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690. 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. 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.

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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

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 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 (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 (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

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Cir. 1995) (citations omitted), cert. denied, Sears v. United

States, 116 S.Ct. 1335 (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

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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. 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.

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