Jeffery Joseph Daugherty

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Banned
Jeffery Joseph Daugherty




Classification: Serial killer
Characteristics: Robberies
Number of victims: 5 +
Date of murders: February-March 1976
Date of arrest: March 18, 1976
Date of birth: 1955
Victims profile: Carmen Abrams, 68; Lavonne Sailer, 49; Betty Campbell, 50; Elizabeth Shank, 28; George Karns, 18
Method of murder: Shooting - Stabbing with knife
Location: Pennsylvania/Alabama/Florida, USA
Status: Executed by electrocution in Florida on November 7, 1988




Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County. Second warrant.


Jeffrey Joseph Daugherty

In February 1976, at age 21, Daugherty left Michigan with his girlfriend and a favorite uncle, bound for Florida. The trip consumed three weeks, and Daugherty slew four women on the way, for pocket money and the thrill of killing. His final victim was hitchhiker Lavonne Sailer, shot five times in Florida after Daugherty stole her wristwatch, clothing, and twelve dollars she had hidden in her shoe.

Arrested in that case, he confessed all four murders, drawing life sentences for three committed outside the Sunshine State.

Sentenced to die in Sailer's case, Daugherty exhausted his appeals on November 7, 1988, when the United States Supreme Court rejected his case by a vote of five to four. Moments later, he was strapped into the chair at Raiford prison, loudly proclaiming himself a "sacrificial lamb of a system that is not just."

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans

Jeffery Daugherty's victims:

Carmen Abrams, age 68 Killed: Feb 23, 1976, Flagler Beach, FL One round to the head.
Her husband was also shot 4 times but survived.

Lavonne Sailer, age 49 Killed: March 1, 1976, Melbourne, FL Five rounds to the head. (This was the one he was fried for 12 years, 8 months, and 6 days later).

Betty Campbell, age 50 Killed: March 1, 1976, Volusia County, FL Stabbed to death.

Elizabeth Shank, age 28 Killed: March 9, 1976, Altoona, Pennsylvania. Shot six times.

George Karns, age 18 Killed: March 11, 1976, Altoona, PA. Shot 5 times.

Plus the one in Alabama that he never was tried for.

Jeffery Daugherty's trials:

1) Tried and convicted in Virginia for armed robbery July 12, 1976. Sentenced to 19 years in the Virginia State Penitentiary...

2) Tried and convicted in Pennsylvania for murder one Sept 28, 1978. Sentenced to life in the Pennsylvania State Penitentiary at Huntingdon...

3) Tried and convicted in Pennsylvania for murder one Jan 4, 1980. Sentenced to life in the PA State Pen at Huntingdon...

4) Plead Guilty in Volusia County, FL for murder one July 14, 1980. Sentenced to life in Florida State Prison...

5) Plead Guilty in Flagler County, FL for murder one July 31, 1980. Sentenced to life in FSP...

6) Tried--During the middle of the trial he plead guilty in Brevard County, FL for murder one.

April 27, 1981 Sentenced to death in the electric chair.

Sentence was carried out on: November 7, 1988.

Florida Executes Killer of 4 Women

The New York Times

November 8, 1988

A man convicted of killing four women died in Florida's electric chair today minutes after the United States Supreme Court refused to hear his appeal.

Jeffrey Joseph Daugherty, 33 years old, was the 19th person executed at Florida State Prison here and the 103d put to death in the nation since the Supreme Court reinstated the death penalty in 1976. Only one state, Texas, has had more executions than Florida.

''I hope with all my heart I will be the last sacrificial lamb of a system that is not just, and all these people know it is not just,'' Mr. Daugherty said in a six-minute statement before his execution. ''Let's hope there are not many more that have to be sacrificed. The executions serve no purpose.''

Protesters Gather Outside

A few protesters opposing capital punishment, including the actress Margot Kidder, as well some supporting executions, stood outside the prison as Mr. Daugherty died just after 5 P.M.

Just before a lower court stay ran out at 5 P.M., the Supreme Court voted 5 to 4 to turn down a request aimed at sparing the life of Mr. Daugherty, who prosecutors said committed four murders in three weeks while he, his girlfriend and his uncle traveled from Michigan to Florida.

Justices William J. Brennan, Thurgood Marshall, Harry A. Blackmun and John Paul Stevens voted to spare Mr. Daugherty.

Mr. Daugherty was first scheduled to die in October 1987, but was granted a stay by the United States Circuit Court of Appeals for the 11th District, in Atlanta. The appeals court later rejected his arguments, as did the Supreme Court.

Last month Gov. Bob Martinez signed a second death warrant and Mr. Daugherty's lawyers argued his jury had been impropertly instructed.

Mr. Daugherty refused his last meal about 3 P.M., before having his right leg and head shaved to make better contact with the metal bands that conduct the current.

Earlier in the day, Mr. Daugherty received a surprise visit from his father, also named Jeffrey Daugherty, who arrived from Michigan.

He also had a visit from his former wife and their two children, said Bob Macmaster, a spokesman for the Department of Corrections. The Rev. Bob Baker, a Catholic priest from Augustine, celebrated Mass for Mr. Daugherty, said Mr. Macmaster.

Condemned for 1976 Killing

Mr. Daugherty was condemned for the March 1, 1976, killing of a hitchhiker, Lavonne Patricia Sailer. He shot her five times at close range after stealing her clothes, her watch and $12 hidden in a shoe.

He was under three life sentences for the 1976 slayings of Betty Campbell, part owner of Betty's Pizzeria in Edgewater; Carmen Abrams, an employee of a small grocery in Hammock, and Elizabeth Shanks, a convenience store clerk in Hollidaysburg, Pa.

All three Florida killings were committed within a week, soon after Mr. Daugherty and his girlfriend, Bonnie Jean Heath, left Michigan.

In exchange for her testimony, Ms. Heath was allowed to plead guilty to a reduced charge of second-degree murder in the killing of Ms. Campbell and drew a 25-year sentence.

The last inmate to die in Florida's electric chair was Willie Jasper Darden, who died March 15 for the 1973 slaying of a Lakeland store owner.

Murderer of 5 in 1976 Crime Spree is Executed

The Florida Times-Union

November 8, 1988

Jeffery Joseph Daugherty, a five-time convicted murderer, said he was beginning a 'journey home' yesterday shortly before he was executed at Florida State Prison for the 1976 robbery-slaying of a hitchhiker in Brevard County.

"Some of you look at this as an execution. I look at it as freedom," said Daugherty, who also killed four other people during a two-month crime spree in two states. "I've been in prison for 13 years. And now I'm going to be free."

The U.S. Supreme Court yesterday denied a request for a stay for Daugherty, setting the stage for the 33 year old Michigan native to become the 19th person to die in Florida's electric chair since 1979.

Daugherty was executed for the murder of Lavonne Patricia Sailer, who was robbed and shot to death in an isolated area near Interstate 95 in Brevard County, according to court records.

He offered no resistance as he was seated and strapped into the electric chair in the death chamber as Department of Corrections officials, witnesses and reporters watched. He occasionally gazed at his priest, the Rev. Bob Baker of St. Augustine, as he spoke softly about giving "my all" to God and told the other 294 inmates on Florida's Death Row to not "give up the fight."

"I hope with all my heart I will be the last sacrificial lamb for a system that is not just," Daugherty said. "This execution is not going to stop anything. It is my time to go, and I'm going home."

After other preparations were made, Daugherty received a one minute bolt of electrical current that jolted him back in the chair. Prison medical officials pronounced him dead at 5:16pm.

As the time for Daugherty's execution grew near, seven death penalty opponents stared at the prison from a field across Florida 16. "It's getting close," said Sister Hannah Daly, director of detention ministries for the Catholic Diocese of Orlando. "We should pray."

After the execution, actress Margot Kidder, who had been visiting friends in Florida, joined the protesters. "I just wanted to come out and show solidarity," said Ms. Kidder, who spoke out in March against the execution of Willie Darden. Darden's March 15 execution was the last in Florida before Daugherty's yesterday.

"It's not an accident that this is the day before the election, an election in which crime has played a great part," Ms. Kidder said.

Separated from the protesters by a fence was Sheila Lee of Starke, the only death penalty supporter to show up yesterday. "A lot of times, I think that it should be televised," she said. "If you actually saw someone put to death, that would be more of a deterrent."

Gov. Bob Martinez signed the death warrant on Daugherty, his second, on Oct. 7. His execution was rescheduled for 5:01pm yesterday after the appellate court denied his appeals but extended his stay through 5pm. The first warrant was signed by Martinez on Aug. 24, 1987, but was stayed by the 11th U.S. Circuit Court of Appeals.

Defense attorney John Dean of Washington argued before the Court of Appeals last week that Daugherty's life should be spared because of problems with the instructions given by the judge to the jury, which recommended the death sentence.

Daugherty was sentenced to death on April 27, 1981, for the murder conviction of Ms. Sailer. He has received life sentences for two other murders in Florida and was convicted of two murders in Pennsylvania.

The convictions stemmed from a crime spree by Daugherty and his girlfriend, Bonnie Heath, 54. They drove from Michigan to Florida with his uncle in January 1976 in search of employment and to visit Ms. Heath's children, according to court records.

Daugherty also was convicted of killing Carmen Abrams, 60, during a robbery of an Easy Way food store in Flagler County on Feb. 23, 1976. Within the same week, he killed Betty Campbell, 50, part-owner of a Volusia County pizzeria.

On March 1, 1976, Daugherty and Ms. Heath picked up Ms. Sailer as she was hitchhiking near Melbourne. They took her to an area near the Brevard County dump where she was robbed of $12 and some clothing and shot five times at close range.

They drove to Hollidaysburg, PA where Daugherty on March 4 robbed convenience store clerk Elizabeth Shank and shot her five times in the head. He also was convicted of killing service station attendant George Karns on March 11. Daugherty and Ms. Heath were captured in Virginia about a week later.

Daugherty was transferred from Virginia to Pennsylvania, where he received the death sentence for killing the service station attendant and was sentenced to life in prison for the murder of Ms. Shank.

Daugherty was sent to Florida to stand trial after the Pennsylvania Supreme Court reversed his death sentence. Pennsylvania officials agreed to the move after prosecutors in Florida vowed to seek the death penalty. He received two life sentences for the killings of Ms. Abrams and Ms. Campbell.

Daugherty executed; his accomplice free

The Florida Times-Union

November 12, 1988

Jeffery Joseph Daugherty was executed Monday at Florida State Prison, but his girlfriend and accomplice in a cross country crime spree that left at least five people dead in 1976 left prison last year.

Bonnie Jean Heath, 54, was released from Florida Correctional Institution on July 10, 1987 after twice being convicted of second degree murder in two of three Florida slayings, a Department of Corrections spokeswoman said. Ms. Heath never testified against Daugherty, yet she avoided prosecution and harsher punishment for a variety of reasons involving the cases, including Daugherty's conflicting statements about her role in the killings.

Daugherty, 33, was executed for the March 1, 1976, slaying of Lavonne Patricia Sailer in Brevard County. She was picked up hitchhiking by Daugherty and Ms. Heath and taken to a remote area where she was robbed of $12 and some clothing before being shot.

In a taped statement introduced at his trial, Daugherty blamed Ms. Sailer's death on Ms. Heath. He claimed she told him to leave no witnesses. "As far as I'm concerned, she [Ms. Heath] had her finger on the trigger with me," Daugherty said.

But Ms. Heath was never prosecuted for the murder. State Attorney Norm Wolfinger of Titusville said there were weaknesses in a possible case against her because Daugherty also told Pennsylvania authorities that she was not involved in the killings. "You can only go with what you have," Wolfinger said. "We felt we could get Jeff Daugherty for the death penalty, and we did. But we felt that to pursue Bonnie for criminal prosecution would not have gotten us anywhere."

Wolfinger said he doesn't think justice was served on Ms. Heath for her involvement in the crime spree. "She certainly was in the midst of all these homicides," he said.

Ms. Heath was released from Florida Correctional Institution, located 10 miles north of Ocala, with $100 and a bus ticket to Tampa under an inmate release assistance program. Her location is unknown.

Daugherty, Ms. Heath and his uncle drove from Michigan to Florida in January 1976 in search of employment and to visit her children. Daugherty told authorities that the robberies began as the trio ran out of money.

The first killing might have been in Alabama, where authorities suspect Daugherty in the slaying of a Demopolis businessman during a robbery on Feb. 19, 1976. District Attorney Nathan Watkins of Demopolis told a reporter this week that Daugherty's girlfriend fingered him as the triggerman in the killing.

Watkins said Daugherty was not charged because there was little solid evidence against him and because he was already on Death Row in Florida. He did not give a reason for not prosecuting Ms. Heath.

Daugherty killed Carman Abrams during a Feb. 23, 1976 robbery of a convenience store in Flagler County. He also stabbed Betty Campbell during a robbery of her pizzeria in Volusia County on March 1.

After the Florida killings, the three drove to Pennsylvania, where several brutal robberies and slayings occurred in mid-March in Blair County. Daugherty was convicted of killing convenience store clerk Elizabeth Shank and received a life sentence. He also was convicted of killing gasoline station attendant George Karns, but the Pennsylvania Supreme Court overturned his death sentence in that case.

Daugherty was transferred from Pennsylvania to Florida after prosecutors in Florida vowed to seek the death penalty against him.

In his taped statement played at his trial, Daugherty said he wanted to only knock Ms. Sailer unconscious but was told by Ms. Heath to shoot her. "I shot her twice and Bonnie said, 'She's not dead. I can hear her breathing.' I thought I'd done enough, but Bonnie said to shoot her again," Daugherty said.

At a clemency hearing in 1983 before Gov. Bob Graham and the Cabinet, Daugherty's attorney said his client was emotionally dominated by Ms. Heath. He was 20 and she was 41 when the crimes occurred.

Pennsylvania prosecutor Thomas J. Peeples this week called Daugherty "the most amoral individual I ever met."

"He had no feeling for anyone other than Bonnie Heath," Peeples said.

Ms. Heath was convicted in the Shank and Karns murders and the robbery of a music store in Pennsylvania. In at least one of the trials, Ms. Heath depicted herself as psychological slave to the brutal Daugherty. She claimed he told her what to wear, how to act, when to have sex and when to stand or sit.

The Pennsylvania Supreme Court later ordered new trials for Ms. Heath on the murder charges. Prosecutors decided to drop the cases because she was on trial in Florida. The court also reversed the robbery conviction, and that case was dropped by prosecutors because of the time since the robbery and because the music store owner had died.

In Florida, Ms. Heath received two concurrent 25 year prison sentences for her involvement in the murders of Ms. Abrams and Ms. Campbell. She was released early from the Florida prison with credit for good behavior and about five years served in county jails, said a Department of Corrections spokeswoman.

Body count from a Southern slay spree

By Sam Roen

April 27, 1981

What began in Melbourne Florida with a mystery corpse, would end with prosecutors from various states competing for first crack at the traveling killer whose methods were as repulsive as his murderous compulsion.

Titusville, Florida - The body of a white middle-aged female lay soaking in a marl pit on the outskirts of Melbourne, Florida. The rains that had saturated Brevard County on the Atlantic seaboard throughout most of the night of Monday, March 1, 1976, subsided by daybreak but the morning remained overhung with gray mist.

As Terry Parsons, Dennis McNarra and Bernie Lees rode along Sarno Drive headed for the asphalt plant where they were employed, Terry shouted to Dennis, who was driving the work car pool that he had spotted something. The wasted woman, judged by the trio to be in her middle or late 40's, obviously dead from gunshot wounds to the head, lay face down in the limestone ooze.

Blood had seeped out of the shattered head and mixed into the soft lime blending to an oxidized color of burnt magenta. The three men gazed spellbound in silence.

It was straight up 8 o'clock, the precise time that they were all due at work but none of the men considered that. This strange death took precedence over everything.

The three men decided that Terry would remain with the body while the other two would rush on to the plant where they worked, since the nearest phone would be located there, and call the authorities.

In speedy response Captain W.J. "Buzzy" Patterson, Chief of Homicide, along with Agents Bob Schmader, Jerry Hudepohl and Billy Wilson arrived at the scene to investigate the reported death. Patterson immediately chose Schmader, one of his top investigating detectives, to organize and lead the investigation.

His experienced surveying eye on the deceased, Schmader realized that he was beginning deep in a mire of mystery. Turning to Patterson he commented, "There's not much to begin with here."

Shaking his head, the chief answered philosophically, "We'll see what the body tells us, and go from there."

It was obvious even in their cursory examination of the crime that the victim had been massively shot in the head. There seemed to be no evidence of any struggle between the woman and her assailant. As Schmader studied the powder burns that surrounded the wounds on the deceased's head, he commented again, "It looks like sheer brutality."

To augment the activities of the homicide specialists on hand, Captain Patterson had summoned crime scene technicians who also arrived quickly. Medical Examiner Associate Dr. Nongnooch R. Dunn responded to Patterson's call.

Unofficially Dr. Dunn told the officers that it seemed practically certain that the woman's death was caused by the multiple gunshot wounds to her head. But she would not make a positive statement until she had been able to perform an autopsy on the victim.

In a curious development at the crime scene, the detectives discovered something peculiar about the deceased's right hand. It appeared to be holding something "in a death grip." After very carefully photographing the clenched hand and its surroundings, the hand was slowly opened allowing a crumpled piece of paper to be released. The paper clearly showed the name Bob Hesterly scribbled out in pencil.

While the investigation proceeded at the site, an effort was put into effect to locate the man whose name was now linked to the body which so far had been unidentified by the lawmen.

It soon developed that Hesterly, an elderly fellow, was a fisherman who lived on nearby Merritt Island along the river and was known for years in this Brevard County area.

Reached at his home, the craggy old fisherman readily and voluntarily went to the Brevard County Sheriff's Department to be interrogated. With his arrival at headquarters, Schmader studied the man and asked, "Don't I know you?" The fisherman, smiling, told the officer that he had been acquainted with him for several years.

When Hesterly learned that he was brought into headquarters as a possible suspect in the mysterious death of the woman in the marl pit, he offered, "Hell, I'll tell you exactly what happened. I had two other people with me. We were delivering some fish in St. Cloud and we saw this woman standing along the road in the rain looking for a ride. So we stopped and picked her up."

The fisherman continued, saying that he felt sorry for the woman who appeared to have very little. "She looked poor as hell." He explained that he had offered to take her to his home. "She looked like she could do with a good meal and I had some nice mango that we had caught that morning, but she said that she wanted to hitch a ride to Miami."

The yarn that Hesterly had spun for the detectives seemed too plausible for the old fisherman to have concocted it. But Schmader wasn't accepting any story without checking it out.

The two other persons Bob Hesterly claimed could support his story were contacted and their separate stories corroborated with Hesterly's down to the smallest detail.

"I had to exonerate him as a suspect," Schmader stated with a great deal of satisfaction. He felt relieved that the old fisherman, who was known as a totally harmless fellow, was "off the hook."

Hesterly filled in a lot of lesser details for the officers, recalling that the victim had revealed to him that she was a native of Washington state, that she had worked as a waitress in Miami sometime back and that she was confident she would be able to get a job in the resort city.

The fisherman also told the investigators that the woman, after declining his invitation to go to his home, said she would appreciate a ride to the city limits. "She said it was better to hitchhike there," Hesterly said. And he told the investigators where he dropped the woman at the town's edge: "It was near the gun shop."

Following through on this information Schmader learned from the operators of the gun shop that the woman had lingered in front of the place for several hours before she was able to get a ride. The owners of the gun shop told the investigators that she had come into their shop "a couple of times to use the rest room."

Pressing the interrogation of the shop owners, Schmader learned that the victim was finally picked up by the driver of a white automobile that had a peculiarly large luggage rack on the top of it. "I think," one of the shop owners offered, "that it was a Ford Thunderbird." He was not positive but he was fairly certain that it was "an older Thunderbird."

While the investigation moved ahead with meager progress, Dr. Dunn proceeded with her autopsy. The medical examiner found that the victim had indeed died from gunshot wounds to the head. Bullets and fragments taken from the deceased were marked and turned over to the Brevard Sheriff's Department. There had been five bullets fired into the woman who had been found lying dead in the marl pit. These bullets destroyed the brain tissue of the victim causing her traumatic death. The bullets and fragments taken from the victim were determined to be .22 caliber.

Dr. Dunn described the deceased as a Caucasian female, 5'8" tall, weighing 131 pounds. Her hair was a bleached blondish red that revealed dark roots at the scalp line. The victim was a blue eyed woman with natural teeth in poor repair.

Dr. Claude Godwin--a Titusville, Florida dentist--examined the body and made a complete dental chart and description for the sheriff's department's use in identifying the victim. In addition, postmortem fingerprints were taken of the victim.

From these basic procedures the Brevard Sheriff's Department soon established the identity of the victim as Lavonne Patricia Sailer, a native of Tacoma, Washington. Her age was figured to be 49, she had no criminal record of any major or felonious crimes. She had been picked up for loitering, vagrancy, hitchhiking or some such minimal offenses.

As the days fell from the calendar, the Sailer investigation moved ahead like an overloaded, overaged freight train. Despite the scant progress, however, Bob Schmader dug away at the case he was determined to solve. Buzzy Patterson stayed in contact with Schmader offering strategy plans to break through the curtain of mystery that kept the investigation from progressing.

Detective Wayne Porter, Schmader's partner, had been on vacation when the Sailer body was discovered and did not participate in the earliest days of the investigation. When he returned to the department Schmader greeted him with more than friendly solicitations.

"I'm damn glad you decided to come back to work," he told his buddy. "We have a hell of a case with Lavonne Sailer." Schmader reviewed all that had transpired and everything that the department had done to find the answers to this crime.

As the two investigators and Captain Buzzy Patterson went over everything they had, it was agreed that the best lead they had centered on the white car with the big roof rack. They also believed that the driver of this vehicle, who apparently had given Lavonne her last ride, was accompanied by another woman.

"We've got to 'make' that damn car." Buzzy told his men who exchanged determined looks of agreement. "Damn it, let's do it." Buzzy added.

For the next several days the investigators talked to several persons who had been at the gun shop sometime during the many hours that Lavonne had waited for a ride. And as the detectives interrogated and re-interrogated those persons they discovered that the concensus of opinion was that the automobile was indeed a Ford Thunderbird. It was generally agreed too, that the car was a model of the late or middle '60's.

At this point the identity of the type of car actually yielded little. "But it's the only damn thing we got," Wayne Porter said to his partner Schmader.

As the investigation floundered along, Porter began an intensive study of the national computer BOLOs. One report struck him with sledgehammer impact. "Take a look at this," Wayne suggested to Schmader.

The report read that a couple was wanted in Alma, Michigan. They had been charged with armed robbery of a grocery store, committed on January 23, 1976. It was believed the couple, driving a 1964 white Thunderbird, Michigan license SCY535, was headed for Florida.

The Pennsylvania State Police, in their pursuit of a robbery committed in Altoona, amassed a great deal of information surrounding that robbery, the white Thunderbird and the driver of that car, and his female traveling companion.

Important to their own pursuit of the perpetrators of the robbery in Altoona and to the other crimes in a variety of locations, the Pennsylvania State Police dispatched highly substantive information on these people. They identified the driver as Jeffery Joseph Daugherty, a white male, 20 years old, born on the 26th of September, 1955, 185 pounds, brown hair, hazel eyes, medium complexion, scar on left wrist and a resident of Taylor, Michigan; they also indicated that "subject is armed with a ..22 caliber revolver."

Bonnie Jean Heath was Daugherty's 41 year old female traveling companion, also from Michigan.

The Pennsylvania State Police reported also that this couple carried intermittently a third person with them, a male relative of Jeffery Daugherty's, Raymond Daugherty, Sr.

Ray Daugherty proved valuable as a source of information regarding the exploits of the Daugherty-Heath team. He recited an itinerary for the Pennsylvania State Police that Daugherty and company traveled. And the Pennsylvania State Police developed a generalization of the M.O. of the criminals which read as follows:

"Their method of operation is to select a small business place (grocery store, gift shop, etc.) where a lone attendant or clerk is on duty. After perpetration of the robbery, victims are slain by use of a handgun or knife. This couple also has a propensity for seizing personal items from the victims e.g. handbags, wallets, jewelry and trinkets."

The information that the Pennsylvania State Police gathered was organized in a chronology which they also disseminated. It began with the January 23rd robbery in Alma, Michigan; the Daugherty-Heath couple then picked up Ray Daugherty, took Route 27 to Lansing, Route 23 to Toledo and I-75 south proceeding through Kentucky, Tennessee, Georgia and into Florida, stopping at a Holiday Inn on I-95 possibly for two nights, January 24-25, 1976.

On January 26 the trio lodged at a Holiday Inn in Cocoa Beach, Florida. They traveled on to El Paso, Texas, arriving there on February 16, had their vehicle serviced for front wheel bearings and continued on to Odessa.

On February 17 they drove on through Abilene, Fort Worth, and Dallas to Shreveport, where they spent the night at Kelly's Mid-Continental Motel and Truck Stop.

On February 18-19 they traveled through Mississippi, via Jackson and Meridian and on to Alabama and Georgia where they spent the night in Cusseta.

On the 20th they drove on through Albany, Thomasville and into Monticello, Florida proceeding to Jacksonville and Daytona Beach where they stayed in an apartment that they rented in the Ritz Apartments and Motel, located on the magnificent Atlantic Ocean beachfront. Bonnie took a job at a nearby motel.

On the 23rd of February, 1976, in the small town of Flagler Beach in Flagler County, Florida, a robbery was pulled in a small convenience store. The owners, a couple were both shot. The man took four .22 caliber slugs in his head but survived. His wife, Mrs. Carmen Abrams, took one fatal shot.

On the 28th of February, Daugherty, Bonnie and Ray left Daytona Beach and drove down U.S. #1 to Pompano Beach where they checked into a motel along Route 1.

On Leap Year Day they lazed around Pompano Beach and that night they slept in the Thunderbird parked in the rear of a Hess service station.

On March 1, 1976, the threesome drove through to Brevard County where Lavonne Sailer was hitchhiking and reportedly was picked up by persons in a white Thunderbird and later discovered dead with five ..22 caliber bullets in her head.

That same date, March 1, Mrs. Betty Campbell, owner of Betty's Pizza Parlor, was found by her husband in the kitchen area of the restaurant beaten and stabbed to death. Mrs. Betty Campbell's purse was missing which contained a .25 caliber automatic, her credit cards and an unemployment check drawn in her favor. The purse was later recovered along Route 1 north of New Smyrna Beach, a few miles from the site of the robbery killing.

On the 4th of March, 1976, Ricche's Music Store in Altoona, Pennsylvania (the hometown of Daugherty's father), was robbed.

As the identities of common denominators of these crimes surfaced, the various law enforcement agencies gravitated together in a collective effort to solve the robberies and murders that had occurred and were continuing to occur.

Sheriff Ed Duff of Volusia County, Florida, huddling with his detective ace Art Dees, worked intensely on the investigation in their county on the murder of Mrs. Campbell. Dees' cooperation and exchange of information with Trooper Edward G. Pottmeyer of the Pennsylvania State Police proved of value to the Pennsylvania case problems.

Following the robbery in Altoona, the Pennsylvania State Police apprehended Ray Daugherty and held him as a material witness. Ray cooperated with the police and provided information of inestimable value. He revealed most of the facts that Trooper Pottmeyer used in his information flyer that was dispatched from Pennsylvania. Ray Daugherty explained that he meticulously avoided participation in the actual crimes that had been committed in the spree that Jeffery Daugherty and Bonnie Heath allegedly accomplished.

While the trail of Daugherty heated up to a sizzle, another robbery was committed at Carey's Cafe in Altoona between 8 and 8:30pm on March 9, 1976. About a half hour later, Jack's Quick Market, a small convenience store, was robbed and the murdered attendant, Elizabeth Shank, was shot six times with a .25 caliber gun.

Two days later George Karns was shot to death in a Union 76 service station. Karns was hit five times with .25 caliber bullets.

The following evening, Friday, March 12, scrupulously alert Trooper E.W. Lambert of the Virginia State Police, pondered an aged white Thunderbird with extremely large luggage racks topside. Lambert thought the racks didn't look right. They were obviously disproportionate to the car which was parked in front of a small grocery store, Whorley's Market, located near Route 60 in Buckingham County, Virginia.

A while later, Lambert saw the same white Thunderbird heading west on Route 60 and as he watched the car drift into invisibility speeding away, his radio blared out from the Appomattox headquarters the report of an armed robbery at Whorley's Market.

Immediately Lambert radioed Special Agent B. M. Eye and the tracking of the white Thunderbird began.

Trooper L.K. Webber raced to the projected point of interception. The Thunderbird was permitted to get midway out onto the bridge spanning the James River before Eye pulled up behind it, while Webber tore across Route 26, approaching the intersection at Route 657 where he pulled up alongside the chased vehicle, flashing the car to a halt with his spinning red beacon. The officers ordered the driver and passenger out of the vehicle.

After careful stretching out of the driver and through examination of the passenger, both were read their constitutional rights by Webber.

With a riot gun trained on the suspect, Eye reached under the driver's seat and retrieved a hunting knife and a set of nun-chucks (a weapon used in martial arts). The trooper also opened the floor console and discovered a Colt automatic, serial number OD60612. The piece was cocked and had a live round in its chamber... the safety had been pushed to off.

The couple was transported to the Buckingham County Sheriff's Department where they were booked and processed: the man, Jeffery Joseph Daugherty; the woman, Bonnie Jean Heath, wanted in various places.

First to move in reaction to this arrest was the Pennsylvania State Police. Lieutenant Raymond J. Mitarnowski of that body asked for firing samples of the .25 caliber Colt found in the Thunderbird and taken as evidence.

On March 19, the Colt was fired and six rounds were retrieved for the Pennsylvania State Police. That same date Troopers E.G. Pottmeyer and B.S. Bidelspach helicoptered to Virginia to pick up the fired slugs and cartridges.

The Pennsylvania officers also went to the Farmville Jail where a series of photographs were taken of the accused for use in the Keystone State. The officers from Hollidaysburg also went through the massive collection in the Thunderbird and found several items that linked the couple with the murder robbery at Jack's Quick Market in Blair County, Pennsylvania and to the second murder committed at the Union 76 service station. A steel guitar found in the car was identified as having been taken from Ricche's Music Store in Altoona. Further, there was evidence tied to the robbery committed at Carey's Cafe also in Altoona.

As this unraveling of the long string of crimes was occurring in Virginia, Pennsylvania and Michigan, the Volusia County Sheriff's Department through Lieutenant Art Dees traced Betty Campbell's unemployment check as having been cashed in Florence, South Carolina, by a woman whose description matched that of Bonnie Jean Heath. Detective Dees also was able to establish the use of Betty Campbell's credit cards in South Carolina by this woman.

At the same time, ballistics was developing the relationship of the spent bullets from the .22 caliber gun and also with the slugs and cartridges of a .25 caliber taken from the Pennsylvania victims.

The Colt that had fired those bullets was traced from the manufacturer to its original sale in Metairie, Louisiana, to Michigan and finally to Florida and into the possession of Betty Campbell's husband who had given the weapon to his wife for her protection in the operation of her Pizza Parlor, located in a small building that stood alone on a highway. It ultimately fell into the hands of suspected killer Jeffery Daugherty.

These staggering, separate evolvements filtered across the different state lines and between the affected law enforcement agencies until the cooperating exchanges of facts and relative information yielded strong irrefutable cases against the young 20 year old Jeffery Joseph Daugherty and Bonnie Jean Heath.

In the subsequent game of legal musical chairs that followed the Virginia arrest, the score that was to play out a rhapsody of reckoning began in Virginia where Daugherty was to be tried first on the charge of armed robbery.

In the meantime, Detectives Bob Schmader and Wayne Porter of the Brevard Sheriff's Department journeyed to Pennsylvania as did Detective Art Dees of the Volusia County Sheriff's Department (but not together) where the substantive evidence that had been gathered was freely exchanged.

The total cooperation among all of the law agencies developed into one of the classic efforts of our nation in the execution of criminal justice.

Daugherty was tried in Virginia and convicted. On the 12th of July 1976, he was sentenced to 19 years in the Virginia State Penitentiary.

In Pennsylvania he stood trial and was convicted on two counts of first degree murder. He was sentenced first on September 28, 1978 to life imprisonment and again on January 4, 1980 to a second life sentence.

Lieutenant Art Dees brought him back to Volusia County, Florida, where he pleaded for the killing of Betty Campbell. On July 14, 1980, Daugherty was sentenced to life imprisonment.

Following that pleading and sentencing Daugherty was again scheduled for trial, this time in Flagler County, Florida, for the murder of Mrs. Carmen Abrams. But the accused Daugherty again pleaded guilty and on July 31, 1980, Judge Kim Hammond immediately sentenced him to life imprisonment "to run concurrently with the other life sentences he had received."

In this case the indictment, arraignment, pleading and sentencing took less than three hours, probably a record in the administration of justice in a felony murder case.

Still pending in Florida, however, was the murder of Lavonne Sailer who was robbed of her single asset, a ten dollar bill that she carried hidden in her shoe. Staying on top of the incredible Daugherty crime spree was State Attorney Douglas Cheshire of Florida's 18th Judicial District which includes Brevard and Volusia counties. Cheshire had worked closely with Sheriff Ed Duff and his dedicated Detective Art Dees in the preparation of the case against Daugherty in the killing of Betty Campbell.

The state attorney had also diligently pursued the developments in the murder of Lavonne Sailer. The detective team of Schmader and Porter, along with Buzzy Patterson and Inspector Speedy DeWitt, all meeting with the state attorney, concluded that Patterson and DeWitt should go to Pennsylvania and meet with Lieutenant Raymond J. Mitarnowski, one of the prime movers of the cases there, and other Pennsylvania officers to crystallize evidence. This was done in July of 1976.

Thus by the time all of the wheels had turned through the legal processes and all of the court actions had been completed, State Attorney Douglas Cheshire was totally prepared to launch a prosecution that would not be denied nor circumvented by the accused, his attorneys or whatever legal delays could be conjured up. Cheshire let it be known to the press that this impending case would not be sidetracked no matter what the ploy.

On his return to Brevard County by Bob Schmader and Wayne Porter, the accused Daugherty readily admitted killing Lavonne Sailer. He admitted that he shot her numerous times and that he robbed her of her money: ten dollars.

After their arrival in Brevard County, the two detectives took a formal statement of confession from Daugherty on August 5,1980. He recited the minute details of picking up the hitchhiking woman, driving out to a side road and shooting her numerous times. He said that Bonnie Jean had urged him to shoot her again and again because Bonnie could still hear her breathing.

In his confession he stated that he had made one big mistake and that was not killing the woman in Virginia. It was his opinion that Kathy Rancor had suffered a heart attack and died when he robbed her. Had he shot and killed her she would not have been able to give the state trooper the assistance and information that led to his arrest. But the admitted murderer showed no remorse or regret for the killings he had done.

On Tuesday, November 18, 1980, Jeffery Joseph Daugherty pleaded guilty to the murder of Lavonne Sailer. It was obvious, especially to Douglas Cheshire who refused to be taken in by the mass murderer, that he was moving to escape the death penalty that is Florida law.

The following day Daugherty told the jury that was now assembled to hear arguments for and against the death penalty that "Jesus has forgiven me." He told the court and jury that he had turned to Christianity and to Catholicism. He went into a dissertation explaining that he had "seen the light" after an attempt at suicide that he had made in 1977 in the Huntington State Prison in Pennsylvania. He told the silent court in a dramatic solemn tone that, "I would never take another human life." Pausing for effect just as a great Shakespearean actor might, Daugherty waited and then added in a clear ringing resonant voice, "Only God has the right to decide who shall live and who shall die."

In response, State Attorney Cheshire stated that Daugherty's was a "well rehearsed act."

On Monday, April 27, 1981, Jeffery Daugherty was ushered into the Titusville, Florida Criminal Court and appeared before Circuit Judge William Woodson. Shaken, scared and timid, the convicted killer stood cowered in a body grown obese (probably 220 pounds plus) after years of confinement, and responded to the judge's invitation to make a statement. "Let God's will be done," were Daugherty's only words.

The judge reached for a document from which he read, "You, Jeffery Joseph Daugherty, are to be electrocuted until you are dead."

In yet another maneuver, the mass murderer made a boisterous plea to Judge Woodson to return him to Virginia where he would be incarcerated and safe from the Florida electric chair.

The judge, however, told him that that was up to the two governors of the two states.

Daugherty shouted, "I have something to say about that."

State Attorney Douglas Cheshire, who also has something to say about that intends to keep murderer Daugherty on Florida's death row until all the procedures of his appeals have run their course.

EDITOR'S NOTE:

The names Terry Parsons, Dennis McNarra, Bernie Lees, Bob Hesterly, Sara Louise Sunshine [aka Bonnie Jean Heath], Chick Russo [aka Raymond L. Daugherty, Sr.] and Kathy Rancor are fictitious and were used because there is no reason for public interest in their true identities.

839 F.2d 1426

Jeffery Joseph DAUGHERTY, Petitioner-Appellant,
v.
Richard L. DUGGER, Secretary, Florida Department of Corrections,
and Robert A. Butterworth, Attorney General, State of Florida,
Respondents-Appellees.

No. 87-3707.

United States Court of Appeals,
Eleventh Circuit.

Feb. 12, 1988.
Rehearing and Rehearing En Banc Denied April 14, 1988.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, HILL and HATCHETT, Circuit Judges.

PER CURIAM:

Jeffery Joseph Daugherty, the appellant, appeals the district court's denial of his petition for writ of habeas corpus. Challenging only his sentence, Daugherty contends that: (1) his lawyer's failure to object to a jury instruction and to introduce expert psychiatric testimony constituted ineffective assistance of counsel; (2) the district court failed to consider evidence of nonstatutory mitigating circumstances; and (3) the prosecution exercised its discretion arbitrarily in seeking the death penalty. We affirm.

FACTS

Jeffery Joseph Daugherty and his girl friend, Bonnie Heath, traveled from Michigan to Florida in January, 1976. During the trip, Daugherty committed a series of murders and armed robberies. In February, 1976, he robbed a convenience store killing an attendant and seriously wounding the attendant's husband.

In March, in Melbourne, Florida, Daugherty and Heath picked up Lavonne Sailer who was hitchhiking. After taking her to an isolated area, Daugherty ordered Sailer to get out of the automobile. Daugherty robbed Sailer of $15, then shot her five times in the back of the head at close range with a 22 caliber pistol. For the next twenty days, Daugherty and Heath committed a series of murders and robberies. Prior to his conviction and sentence for the Sailer murder, Daugherty received sentences for these additional crimes.

PROCEEDINGS

Daugherty pleaded guilty to the first-degree murder, robbery, and kidnapping of Sailer. The court empaneled a jury to recommend a sentence for the murder. The state presented evidence concerning the details of the murder and of convictions Daugherty received for other murders, robberies, and assaults committed during the crime spree. The jury recommended a sentence of death. The judge imposed the death sentence for the murder and consecutive life sentences for the robbery and kidnapping.

In support of the death sentence, the state trial court found two statutory aggravating circumstances and no statutory or nonstatutory mitigating circumstances. As aggravating circumstances, the trial court found Sailer's murder "was committed for pecuniary gain" and that Daugherty "was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person." Fla.Stat. Sec. 921.141(5)(b) and (f). The trial court listed the previous convictions it relied upon:

(1) First degree murder conviction for the Flagler County, Florida killing of a woman in her sixties. Daugherty shot her in the left shoulder and right temple while robbing her.

(2) Conviction for the stabbing murder of a woman committed while Daugherty robbed her place of business in Volusia County, Florida.

(3) While robbing a gas station Daugherty shot the young attendant twice in the side, once in the bridge of the nose, and once under the chin. He received convictions for criminal homicide, criminal conspiracy, robbery and crimes committed with firearms.

(4) In Altoona, Pennsylvania, Daugherty robbed a music store clerk with a firearm, assaulting the woman until she lost consciousness. He received convictions for robbery, aggravated assault, simple assault and crimes committed with firearms.

(5) Daugherty received additional convictions in Pennsylvania for aggravated and simple assault, burglary, robbery and crimes committed with firearms.

(6) In Virginia Daugherty received convictions for armed robbery and using a firearm while committing a felony.

(7) Daugherty killed a convenience store clerk by shooting her in the body and head. He received convictions for criminal homicide, criminal conspiracy, and robbery.

At the sentencing hearing, Daugherty testified about the crimes he had committed, his remorse for the murders, his childhood, and his religious conversion. A prison chaplain testified to the sincerity of Daugherty's religious beliefs. The jury unanimously recommended a sentence of death, which the trial court imposed and which, on direct appeal, the Florida Supreme Court affirmed. The United States Supreme Court denied Daugherty's petition for writ of certiorari. The Florida Supreme Court then denied Daugherty's petition for writ of habeas corpus without requiring a response from the state. Daugherty sought review of this denial through another petition for writ of certiorari. The United States Supreme Court also denied relief.

Daugherty then filed a motion for post-conviction relief in the Circuit Court for Brevard County, Florida. After an evidentiary hearing, the court denied the motion, and the Florida Supreme Court subsequently affirmed. On August 20, 1987, Daugherty filed his third petition for writ of certiorari seeking review of this latest decision of the Florida Supreme Court. Then on August 24, 1987, the Governor of Florida signed a death warrant. Daugherty's execution was scheduled for October 15, 1987. In mid-September, 1987, Daugherty unsuccessfully moved the Florida Supreme Court for stay of execution. Daugherty then filed a petition for writ of habeas corpus in the federal district court. The district court denied his petition. On October 13, 1987, this court granted Daugherty an indefinite stay of execution to allow review of the district court's order.

ISSUES

Daugherty presents four issues on appeal. First, he contends that he received ineffective assistance of counsel at the sentencing hearing because his lawyer failed to object to an unconstitutional instruction to the jury defining one of the statutory aggravating circumstances. Second, he contends that he received ineffective assistance of counsel when his lawyer failed to arrange for a psychological evaluation and failed to introduce expert psychiatric testimony at the hearing. Third, he contends that the district court failed to consider nonstatutory mitigating circumstances. Fourth, he contends that the government's request for the death penalty amounted to an arbitrary exercise of prosecutorial discretion.

DISCUSSION

1. Ineffective Assistance: The Sentencing Instruction

Daugherty contends he received ineffective assistance of counsel when his lawyer failed to object to the sentencing court's jury instruction defining one of the statutory aggravating circumstances. The statute expresses the circumstance as follows: "The capital felony was especially heinous, atrocious, or cruel." Fla.Stat. Sec. 921.141(5)(h). The trial court defined for the jury "heinous, atrocious, or cruel" as follows:

Heinous means extremely wicket [sic] or shockingly evil. Atrocious means outrageously wicked and foul. Cruel means designed to inflict a high degree of pain. Utter indifference to or adjoined [sic] of the suffering of others, pitiless.1

Daugherty contends that from the court's instruction, the jury might have determined the killing, by five gunshot wounds to the head, constituted a heinous, atrocious, or cruel murder despite evidence that the first gunshot would have rendered the victim unconscious; therefore, she was unable to suffer during the infliction of the other four gunshots.

To prove ineffective assistance of counsel, Daugherty must show that the instruction was improper, that a reasonably competent attorney would have objected to the instruction, and the failure to object was prejudicial. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 693 (1984).

Because our task is not to grade counsel's performance, but to determine whether counsel's performance impaired the defense, we resolve this issue solely under the prejudice prong of Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. To determine whether Daugherty was prejudiced by the instruction, we assume that it was unconstitutionally vague, that reasonably effective counsel would have objected to the instruction, that the jury did in fact find the murder "especially heinous, atrocious, or cruel," and that had the jury been properly instructed, it would not have found the murder "especially heinous, atrocious, or cruel."

Given these assumptions, the narrow issue becomes whether the evidence of statutory aggravating circumstances, other than of an "especially heinous, atrocious, or cruel" murder, so clearly outweighs the evidence of statutory and nonstatutory mitigating circumstances that no reasonable probability exists that the sentencing jury would not have recommended a sentence of death had it been properly instructed. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Strickland also involved a Florida death row inmate's federal habeas corpus petition challenging the effectiveness of his counsel at the sentencing proceeding, which followed the inmate's plea of guilty to murder. As stated in Strickland,

when a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. 2069, 80 L.Ed.2d at 698. The Supreme Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In determining the probable effect of any error on the jury's recommendation, we must weigh the evidence of those aggravating and mitigating circumstances not the subject of the alleged erroneous instruction. The balance of aggravating and mitigating circumstances turns as much on the weight of evidence supporting each circumstance as on the number of circumstances supported. As stated by the Supreme Court:

A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2069, 80 L.Ed.2d at 698-99. The evidence strongly supported three statutory aggravating circumstances listed in Florida Statute Sec. 921.141(5):

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

....

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery ... [or] kidnapping....

....

(f) The capital felony was committed for pecuniary gain.

Evidence also supported a fourth aggravating circumstance:

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

The evidence of circumstance (b) included convictions for four murders, five robberies, four firearms violations, and two aggravated assaults. The sentencing court expressly found this circumstance present. That finding is entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). With respect to circumstances (d), (f), and (i), Daugherty pleaded guilty to the kidnapping and robbery of Sailer in addition to her murder. This evidence amply supports the existence of factors (d), a felony committed while the defendant was engaged in the commission of, or flight from, any robbery or kidnapping, and (f), a capital felony committed for pecuniary gain. The sentencing court also expressly found circumstance (f). The fact that the homicide was committed after the kidnapping and robbery of Sailer, and after Daugherty debated with Heath the need to kill Sailer, in combination with the execution-style killing of Sailer, provides substantial support for circumstance (i), a cold, premeditated homicide.

Daugherty attempted to prove statutory mitigating factors through testimony that he had "acted ... under the substantial domination of another person." Fla.Stat. Sec. 921.141(6)(e). Bonnie Heath was more than twice the age of Daugherty at the time of the Sailer killing. He introduced some evidence tending to show that she encouraged his criminal activities, including the Sailer killing. Daugherty claimed his young age, 20, mitigated his crime. Fla.Stat. Sec. 921.141(6)(g). He also suggested his frequent headaches were an extreme mental or emotional disturbance which influenced his conduct. Fla.Stat. Sec. 941.141(6)(b).

The sentencing court, however, found he was not suffering from a headache at the time of the Sailer killing. The evidence of nonstatutory mitigating circumstances included Daugherty's testimony about his childhood, unstable family life, religious conversion, suicide attempt, remorse for the murders, and the fact that at the time of sentencing, due to other convictions, he would not be eligible for parole for 107 1/2 years. Nevertheless, the sentencing court found Daugherty established no mitigating factors. As we are required to do, we accord this finding a presumption of correctness under 28 U.S.C. Sec. 2254(d).

Balancing the aggravating against the mitigating circumstances, we determine that no reasonable probability exists that the jury would have recommended a sentence other than death had it been properly instructed. This determination is based primarily on our sense that the extraordinary violence of Daugherty's twenty-day crime spree which resulted in convictions for four murders and numerous robberies, assaults, and firearms violations must have weighed heavily in the sentencing jury's decision.

Indeed, the sentencing statute authorizes the finding of an aggravating circumstance based on a single conviction for a felony involving the mere threat of violence to a person. The proof of Daugherty's conviction for a dozen felonies, including four murders, suggests the great weight which the jury probably attached to this circumstance, above all others.

In addition, the evidence supporting the aggravating circumstances contains indicia of credibility not appearing in the evidence of mitigating circumstances. For example, the prior convictions are matters of public record based on judicial determinations. Daugherty's confession to the robbery and kidnapping of Sailer prior to her murder are statements against interest which Daugherty would have little motive to falsify. The credibility of Daugherty's testimony, however, as to his remorse for the killings, his religious conversion, and the domination by Bonnie Heath is somewhat tainted by Daugherty's motive to save his own life in the sentencing proceeding.

Assuming, without deciding, that the court gave the jury an unconstitutional instruction to which effective counsel would have objected, we hold that no reasonable probability exists that the jury would have recommended a sentence other than death had it been properly instructed. Our confidence in the outcome of the sentencing proceeding has not been undermined by the instruction as given. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Daugherty cites Florida cases for the proposition that where the sentencing jury receives an improper instruction on an aggravating circumstance, the sentencing process is impermissibly tainted, requiring a new one. Daugherty, however, grounds his petition on ineffective assistance of counsel, which under Strickland requires that he show prejudice; he has failed to do so.

2. Ineffective Assistance: Psychiatric Evidence

Daugherty further contends he received ineffective assistance of counsel when his lawyer failed to obtain for him a psychiatric examination and to present expert testimony of the examination results. Daugherty's lawyer conceded he could have presented favorable psychiatric testimony. Again, in order to demonstrate ineffective assistance of counsel, Daugherty must "show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, Daugherty "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Regarding the first prong of Strickland, Daugherty argues that his lawyer failed to exercise reasonable professional judgment in deciding not to arrange a psychiatric or psychological evaluation of him. Where, however, the defendant himself gives counsel reason to believe that further investigation of the defendant's mental condition would be useless or even harmful to the defense, then the decision not to further investigate is reasonable. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696.

Daugherty's trial lawyer discussed with one psychiatrist and with one psychologist Daugherty's childhood accidents, use of quaaludes, and his relationship with Bonnie Heath. Daugherty's lawyer obtained much of this information from Daugherty himself. Based on this investigation, the lawyer determined that he could not obtain psychological testimony adequate to support his theory that Bonnie Heath dominated Daugherty. Consequently, Daugherty's lawyer feared the negative inference the jury might draw: that Daugherty was indeed responsible for his own violent actions. The lawyer also believed that if he called experts, the state would call its own experts who would impeach Daugherty's experts with Daugherty's previous statements suggesting he did not act under the domination of Bonnie Heath. The lawyer, therefore, decided to present the domination theory through Daugherty's testimony and the testimony of state witnesses, such as Raymond Daugherty.

Daugherty argues that the inconsistent statements which his lawyer feared would be used to impeach psychology experts were also available to impeach him. Because the lawyer had Daugherty testify at his own sentencing hearing, thereby subjecting him to credibility attacks, does not mean the lawyer acted unreasonably in refusing to call additional expert witnesses to face the same attack. It is not unreasonable for a lawyer to determine that a defendant's testimony on his own behalf will be at least as favorable as a somewhat more objective expert testifying on behalf of the defendant.

The lawyer's decision to introduce evidence of Daugherty's mental condition through the testimony of family members and acquaintances familiar with Daugherty, rather than through experts, was a sufficiently well-informed, strategic decision as to assure Daugherty of effective assistance of counsel under the sixth amendment. Foster v. Dugger, 823 F.2d 402, 407-08 (11th Cir.1987); see Elledge v. Dugger, 823 F.2d 1439, 1444-45 (11th Cir.1987) (counsel's failure to make any effort to locate an expert or obtain testimony of family members familiar with the defendant's background held ineffective assistance).

Under the second prong of Strickland, Daugherty contends that the lawyer's failure to introduce expert testimony in mitigation of his crime prejudiced him. Prejudice exists if a reasonable investigation would have revealed an expert who would testify favorably for Daugherty and whose testimony would create a reasonable probability that the jury would have recommended life, rather than death. Elledge, 823 F.2d at 1446-47; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In a state collateral attack proceeding five years after the jury recommended death, Daugherty's lawyer at that time introduced a psychologist's testimony that Daugherty murdered Sailer while under the domination of Bonnie Heath, and that Daugherty's age should be considered an additional statutory mitigating circumstance. The mere fact that an expert who would give favorable testimony for Daugherty was discovered five years after this sentencing proceeding is not sufficient to prove that a reasonable investigation at the time of sentencing would have produced the same expert or another expert willing to give the same testimony. Elledge, 823 F.2d at 1446.

Daugherty attempts to distinguish Elledge on the ground that the defendant introduced no evidence that favorable expert testimony could have been obtained at the time of his sentencing. Daugherty asserts that in this case, experts were available to testify that he acted under the domination of Bonnie Heath and that the absence of that testimony prejudiced him. Again, we note that the testimony of these experts would have been subject to rebuttal by Daugherty's prior contradictory statements. Furthermore, the lawyer attempted to prove the domination theory through testimony of Daugherty and state witnesses, including Daugherty's uncle.

Finally, given the severity of the aggravating circumstances in this case, we cannot conclude that the absence of psychiatric testimony in the sentencing phase creates a reasonable probability that the jury would have recommended life. Conceivably, psychiatric evidence of Heath's domination of Daugherty could weaken the aggravating circumstance of the numerous violent felonies he committed with her on a twenty-day crime spree. Because the evidence of domination was in conflict, we do not believe the great weight likely given by the jury to Daugherty's prior convictions would have been significantly undermined. Accordingly, we hold that the lawyer's decision not to introduce expert psychiatric testimony at the sentencing hearing did not prejudice Daugherty. Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068-69, 80 L.Ed.2d at 698; Elledge, 823 F.2d at 1447-48.

3. Nonstatutory Mitigating Circumstances

Daugherty's third contention is that the trial court failed to consider nonstatutory mitigating circumstances in reviewing the jury's recommendation of death. Daugherty bases this argument on the trial court's order which failed to explicitly state that it considered nonstatutory mitigating circumstances.

It is well established that the sentencer must consider all mitigating circumstances, not merely statutory ones, in the recommendation of, or decision to impose, a sentence of death. See generally Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In this case, however, both lawyers argued nonstatutory mitigating circumstances to the jury, and the court's instruction to the sentencing jury specified it could consider nonstatutory mitigating circumstances. These factors indicate the court's awareness of the rule in Lockett and persuade us that when the judge stated in his order that in imposing the sentence of death he had considered "all the evidence," he considered evidence of nonstatutory mitigating circumstances, as well as of statutory mitigating circumstances.

Although the sentencing judge in this case did not state that he found no nonstatutory mitigating circumstances, he instructed the jury to consider nonstatutory mitigating circumstances. Daugherty's lawyer introduced evidence of several nonstatutory mitigating circumstances and both lawyers argued that evidence, all in the court's presence. We conclude, as reason and common sense dictate, that the state trial court did consider nonstatutory mitigating circumstances in imposing the sentence of death.

4. Prosecutorial Discretion

Daugherty's fourth contention is that the state arbitrarily exercised its prosecutorial discretion in seeking the death penalty after Daugherty pleaded guilty to the murder of Sailer. Daugherty failed to raise this issue on direct appeal in state court. Since Daugherty has not made a showing of cause and prejudice, the issue is procedurally barred. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Daugherty v. State, 505 So.2d 1323, 1324 (Fla.1987). Having rejected Daugherty's claims on appeal, we affirm the district court's denial of Daugherty's petition for writ of habeas corpus.

Accordingly, the district court's judgment is affirmed.

AFFIRMED.

*****

1

The standard jury instruction in Florida says: "8. The crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel." See Florida Standard Jury Instruction (Penalty Proceedings--Capital Cases) (1981)
 
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