# Thomas Knight A/k/a, Askari Abdullah Muhammad v. Richard L. Dugger and Tom Barton

> Court of Appeals for the Eleventh Circuit · August 23, 1989 · 863 F.2d 705

URL: https://www.frixlaw.com/law-library/cases/515812

## Case

- **Full name:** Thomas KNIGHT A/K/a, Askari Abdullah Muhammad, Petitioner-Appellant, v. Richard L. DUGGER and Tom Barton, Respondents-Appellees
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 23, 1989
- **Citations:** 863 F.2d 705
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Roney, Tjoflat, Clark
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/515812

## How later opinions describe it (automated extraction)

- explaining that a conviction may be reversed based on the exclusion of evidence where there is either a clear error by the trial court in its evidentiary rulings or “compelling reasons for exceptions” to the rules of evidence
- noting that “[bjecause of the state of the law in Florida at the time of Knight’s trial, defense attorneys could not anticipate the conflict between the not yet decided Lockett decision and Florida’s law limiting a jury’s consideration of nonstatutory mitigating evidence”
- noting that a conviction must be reversed where there is "either clear error by the trial courts in their evidentiary rulings or compelling reasons for exceptions to state evidentiary or procedural rules”
- reasoning counsel may not be faulted for not presenting mitigating evidence after he investigated options, but defendant refused to permit presentation

## Opinion text

863 F.2d 705
Thomas KNIGHT a/k/a, Askari Abdullah Muhammad, Petitioner-Appellant,
v.
Richard L. DUGGER * and Tom Barton,
Respondents-Appellees.
No. 86-5610.
United States Court of Appeals,
Eleventh Circuit.
Dec. 8, 1988.
Rehearing Denied Aug. 23, 1989.
Roy Black, Black and Furci, P.A., Marisa Tinkler Mendez, Black and Furci, Miami, Fla., Susan Cary, Gainesville, Fla., G. Richard Strafer, Zuckerman, Spaeder, Taylor & Evans, Coral Gables, Fla., for petitioner-appellant.
Jim Smith, Atty. Gen., Calvin Fox, Susan Hugentugler, Asst. Attys. Gen., Miami, Fla., for respondents-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, Chief Judge, TJOFLAT and CLARK, Circuit Judges.
RONEY, Chief Judge:
1
This is an appeal from the denial of a writ of habeas corpus in a capital case, the tragic facts of which have been referred to as "unusual and bizarre." Knight v. State, 394 So.2d 997, 999 (Fla.1981). On July 17, 1974, Askari Abdullah Muhammad, formerly known as Thomas Knight, abducted Sydney Gans, a wealthy Miami business man on his way to work, forced him to return to his home and held his wife Lillian hostage, demanding a $50,000 ransom. After Gans obtained the money, notifying law enforcement officers in the process, Muhammad instructed Gans to drive to a secluded area, where Muhammad fatally shot Gans and his wife. Law enforcement officers, hot on Muhammad's trail after Gans' tip, came upon the crime scene just as Muhammad was running away. Muhammad was apprehended four and a half hours later, hiding in the brush 2000 feet away from the crime scene. He had bloodstains on his pants and was standing atop a buried rifle and a bag containing $50,000.
2
On September 19, 1974, while awaiting trial on two counts of first-degree murder, Muhammad escaped from jail. A massive, nationwide manhunt ensued and Muhammad was recaptured on December 31, 1974. In April 1975, Muhammad was tried, convicted and sentenced to death. Muhammad's convictions and sentence were affirmed on direct appeal. Knight v. State, 338 So.2d 201 (Fla.1976). Muhammad raised twenty-three points on appeal, including a number of issues related to the extensive publicity that accompanied his trial. No petition for certiorari was filed after this decision. 1
3
The collateral proceedings in this case have moved in a rather disorderly course. Shortly after executive clemency proceedings were held in December 1979, Muhammad filed a petition for writ of habeas corpus with the Florida Supreme Court, alleging ineffective assistance of appellate counsel. The court transferred the petition to the trial court for consideration as a motion for post-trial relief under Fla.R.Crim.P. 3.850. Muhammad sought leave to amend the petition and moved for appointment of new counsel. On August 15, 1980, the trial court, sua sponte, dismissed the petition.
4
Muhammad was appointed new counsel and an appeal was taken from the dismissal of his petition. While this appeal was pending before the Florida Supreme Court, two things happened. First, on October 12, 1980, Muhammad fatally stabbed a prison guard in his cell on death row. Muhammad was ultimately convicted and sentenced to death for this crime, and the judgment and sentence were affirmed on appeal. Muhammad v. State, 494 So.2d 969 (Fla.1986), cert. denied, 479 U.S. 1101 , 107 S.Ct. 1332 , 94 L.Ed.2d 183 (1987).
5
Second, the Governor signed a death warrant and Muhammad's execution for the Gans' murders was scheduled for March 3, 1981. A motion for a stay of execution was filed with the court on February 2, 1981. As of February 20, 1981, the supreme court had not ruled on the appeal or the motion for stay, and Muhammad returned to the trial court, filing a motion under rule 3.850. The trial court dismissed the petition because of the appeal pending with the supreme court. On February 24, 1981, the supreme court denied Muhammad's appeal, rejecting the contention that he received ineffective assistance of counsel on direct appeal. Knight v. State, 394 So.2d 997 (Fla.1981). 2
6
On the same day that his appeal was denied, Muhammad filed a petition for writ of habeas corpus and a motion for stay of execution in the United States District Court. The district court granted the stay, retained jurisdiction over the petition and ordered Muhammad to return to state court to exhaust his claims. Pursuant to this directive, Muhammad filed a 3.850 motion with the trial court on March 26, 1981. The motion was denied on August 25, 1981, and the Supreme Court affirmed. Muhammad v. State, 426 So.2d 533 (Fla.1982), cert. denied, 464 U.S. 865 , 104 S.Ct. 199 , 78 L.Ed.2d 174 (1983). Nine points were raised in this appeal. The court found that four of the issues had been previously decided, found that two of the issues were procedurally barred and found three of the issues to be meritless. 3 Of the three issues addressed on the merits, only the question of ineffective assistance of trial counsel was dealt with at length.
7
With the exhaustion requirement satisfied, Muhammad pursued his previously filed federal petition, which raised thirteen bases for relief. 4 A United States Magistrate conducted the initial review of the petition and recommended that it be denied. Objections were filed to the magistrate's report and recommendation, and as a part of the district court's de novo review of the petition, it held an evidentiary hearing on the issue of ineffective assistance of counsel at the penalty phase. On June 27, 1986, the district court entered an order dismissing Muhammad's petition for writ of habeas corpus. This order was accompanied by an exhaustive memorandum opinion.
8
On appeal, Muhammad raises the following seven claims: (1) ineffective assistance of counsel at guilt and penalty phases of trial; (2) denial of a fair trial based on failure to change venue and inadequate voir dire; (3) infringement of the right to present a defense by improper exclusion of evidence of Muhammad's insanity; (4) denial of due process right to unanimous verdict because of ambiguity in theory of prosecution and in instructions on underlying felonies; (5) denial of right to fair sentencing hearing because of prosecutor's comment on Muhammad's right to remain silent and improper shifting of burden of proof; (6) right to an evidentiary hearing on the claim that the death penalty in Florida has been imposed in an arbitrary and discriminatory manner; and (7) denial of right to an individualized sentencing determination based on failure to consider non-statutory mitigating circumstances.
9
As to the first six of these grounds, we are satisfied that the district court handled each one properly. Accordingly, we affirm the denial of relief on these claims based on the district court's careful, detailed, 123-page opinion, attached hereto as an appendix.
10
Muhammad's last claim, however, concerning restrictions on the consideration of non-statutory mitigating evidence presents a more difficult issue. The district court decided this case prior to the United States Supreme Court's decision in Hitchcock v. Dugger, 481 U.S. 393 , 107 S.Ct. 1821 , 95 L.Ed.2d 347 (1987). In Hitchcock, the Supreme Court reversed this Court's in banc decision in Hitchcock v. Wainwright, 770 F.2d 1514 (1985) and held that, on the record of the case, it appeared clear that the jury had been restricted in its consideration of non-statutory mitigating circumstances in contravention of Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978). Hitchcock "breathed new vitality into claims based on the exclusion of non-statutory mitigating factors ...," Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987) (in banc ), petition for cert. filed, --- U.S.L.W. ---- (March 2, 1988), and so we must examine Muhammad's Lockett claim anew. 5
11
This Court reaffirmed the case-by-case approach to the evaluation of an alleged Lockett violation in Hitchcock v. Wainwright, 770 F.2d 1514 (1985) (in banc ). Because the United States Supreme Court adopted this case-by-case approach in evaluating Hitchcock's Lockett claim, albeit with different results than were reached in this Court, it would appear that the Supreme Court's reversal of Hitchcock on the merits does not affect the viability of the case-by-case approach. Compare Hitchcock v. Dugger, 107 S.Ct. 1821, 1823-24 (1987) with Hitchcock, 770 F.2d at 1516-18 .
12
This approach requires a court to "consider the status of Florida's law on the date of sentencing, the record of the trial and sentencing, the jury instructions requested and given, post-trial affidavits or testimony of trial counsel and other witnesses and proffers of nonstatutory mitigating evidence claimed to have been available at the time of sentencing." Hitchcock, 770 F.2d at 1517 . Consideration of these matters in the instant case, and comparison of the record herein with that in Hitchcock, see Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1987) (in banc ) (suggesting that the Lockett claims in pre-Lockett cases should be evaluated by "matching the record" with Hitchcock ), petition for cert. filed, --- U.S.L.W. ---- (March 2, 1988), reveal a clear Lockett violation.
The following chart is illustrative:
13
Hitchcock v. Dugger Muhammad v. Dugger
Instructions The jury was told by the At the commencement of the
to Jury trial judge that he sentencing hearing the court
would instruct them "on instructed the jury that it would
the factors in "receive testimony or evidence
aggravation and from either side concerning
mitigation that you may aggravating or mitigating
consider under our circumstances." The court then
law." The judge then stated that "[a]ggravating
instructed them that circumstances shall be limited to
"[t]he mitigating the following ..." (listing the
circumstances which you statutory aggravating
may consider shall be circumstances) and "[t]he
the following ..." mitigating circumstances which you
(listing the statutory may consider, if established by
mitigating the evidence, are as follows ..."
circumstances). (listing the statutory mitigating
Hitchcock v. Dugger, circumstances).
107 S.Ct. at 1824 .
Hitchcock v. Dugger Muhammad v. Dugger
Comments of In his sentencing order, Before the jury was called at the
Judge the judge found that penalty phase, the trial judge
"there [were] made the following comment to the
insufficient mitigating attorneys: "[I]t's the State's
circumstances as burden to produce or ... convince
enumerated in Florida the jury and the Court of the
Statute 921.141(6) to aggravating circumstances. Then it
outweigh the is the duty of the defense to do
aggravating two things: First, to show some
circumstances." mitigating circumstances set forth
(Emphasis added by in the statute. In addition to
United States Supreme show that, to show that those
Court). The judge mitigating circumstances overcome
described the the force and effect of the
sentencing process as aggravating circumstances."
follows: "In (Emphasis added). In the judge's
determining whether the sentencing order, he refers only
defendant should be to statutory mitigating factors.
sentenced to death or
life imprisonment, this
Court is mandated to
apply the facts to
certain enumerated
'aggravating' and
'mitigating'
circumstances."
(Emphasis added by
United States Supreme
Court). Hitchcock v.
Dugger, 107 S.Ct. at
1824 .
Comments of The prosecutor told the In voir dire, the prosecutors made
Prosecutor jury that it was "to the following objection to defense
consider the mitigating counsel's question on the ability
circumstances and of jurors to follow the judge's
consider those by instructions on mitigating
number." The prosecutor circumstances: "I object to that,
then went down the unless [defense counsel] advises
statutory list item by the jury that the Court will
item, arguing that only advise the jury as to x-number of
one statutory possible mitigating
factor--petitioner's circumstances.... [a]nd names each
youth--was applicable. one." During argument in the
Hitchcock v. Dugger, penalty phase, the prosecutor
107 S.Ct. at 1824 . stated that "[t]here are two
mitigating circumstances of the
seven that are in the law that I
think you might reasonably be
asked to consider." (Emphasis
added).
Comments/ Defense counsel Defense counsel testified at a
Actions of introduced hearing on Muhammad's
Defense non-statutory ineffectiveness claim that he was
Counsel mitigating evidence and "sure that the Judge was not going
referred to it in his to confine us to testimony
closing argument. While strictly in adherence with the
stressing the evidence statutory mitigating
relating to statutory circumstances" and it could be
mitigating factors, he argued that he did present
told the jury that in non-statutory mitigating evidence
reaching its sentencing by introducing a pre-sentence
decision it was to investigation report that had once
"look at the overall been prepared on Muhammad. In his
picture.... consider argument at the penalty phase,
everything together.... however, defense counsel made the
consider the whole following statement: "Now his
picture, the whole ball Honor has read to you the
of wax." Hitchcock v. mitigating factors that you are
Dugger, 107 S.Ct. at required by law to consider, and
182324. there are two mitigating factors
that I want to suggest to you that
are appropriate as I try to reason
with you." (Emphasis added).
14
In this case, like Hitchcock, the statements of the trial judge, the prosecutor and defense counsel suggest a shared perception that statutory mitigating factors were all that the jury was required to consider. Since a Lockett error is thus apparent, the Court must next consider the Government's contention that such error is harmless in this case.
15
This Court has held that a Lockett violation can be harmless. See Clark v. Dugger, 834 F.2d 1561, 1569-70 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1282 , 99 L.Ed.2d 493 (1988). The precise guidelines for determining harmlessness in this context, however, have not been settled. Cf. Magill v. Dugger, 824 F.2d 879, 893-95 (11th Cir.1987) (holding that Lockett violation did not constitute harmless error); Armstrong v. Dugger, 833 F.2d 1430, 1436 (11th Cir.1987) (noting that Supreme Court rejected harmless error contention involving cumulative, non-statutory mitigating evidence in Skipper v. South Carolina, 476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986) (stating in dicta that it was "doubtful" that Lockett violation in this case was harmless); Ruffin v. Dugger, 848 F.2d 1512, 1519-20 (11th Cir.1988) (Tjoflat, J. concurring in part and dissenting in part) (petitioner "not entitled to a new sentencing hearing if the Lockett error was harmless beyond a reasonable doubt."). See also Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1987) (in banc ) (granting relief on Lockett claim without addressing issue of harmless error), petition for cert. filed, --- U.S.L.W. ---- (March 2, 1988); Messer v. Kemp, 831 F.2d 946 (11th Cir.1987) (same), cert. denied, --- U.S. ----, 108 S.Ct. 1586 , 99 L.Ed.2d 902 (1988).
16
The State argues that the Lockett error was harmless in this case because so many aggravating factors were found (four) that no amount of non-statutory mitigating evidence could change the result in this case. No authority has been furnished for this proposition and it seems doubtful that any exists. The State's theory, in practice, would do away with the requirement of an individualized sentencing determination in cases where there are many aggravating circumstances. It is this requirement, of course, that is at the heart of Lockett and its progeny. See Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964 , 57 L.Ed.2d 973 (1978) (" 'in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense ...," quoting Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976)).
17
While we are not prepared to definitively state what might constitute harmless error in the Lockett context, it is clear that harmless error cannot be made out simply because multiple aggravating circumstances exist in a given case. Since the State offers no other arguments to support its contention that the violation of Lockett in this case is harmless, relief must be granted.
18
We therefore remand this case to the district court with instructions to enter an order granting the application for writ of habeas corpus, unless the State within a reasonable period of time either resentences Muhammad in a proceeding that comports with Lockett or vacates the death sentence and imposes a lesser sentence consistent with law.
19
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS
APPENDIX
20
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
21
No. 81-391-CIV-Hoeveler.
Filed June 27, 1988
22
Askari Abdullah Muhammad, f/k/a Thomas Knight, Plaintiff,
23
vs.
24
Louie L. Wainwright, etc., Defendants.
MEMORANDUM OPINION
25
THIS CAUSE comes before the Court upon the Petition for Habeas Corpus filed by ASKARI ABDULLAH MUHAMMAD, f/k/a THOMAS KNIGHT. The Court has reviewed the record, held two conferences and an evidentiary hearing, reviewed memoranda provided by the parties, and is otherwise advised in the premises.
26
The Memorandum Opinion of the Court is set forth below. The Petition for Writ of Habeas Corpus is denied for the reasons stated.
BACKGROUND
27
The Circuit Court for the Eleventh Judicial Circuit in and for Dade County adjudged Askari Abdullah Muhammad (f/k/a Thomas Knight) guilty of two counts of first degree murder and sentenced him to death. Petitioner's execution was to occur on March 3, 1981, at 7:00 a.m. On February 24, 1981, Petitioner filed his Petition for Writ of Habeas Corpus in this district court. Petitioner filed his application for Stay of Execution on the following day, February 25, 1981. On February 26, 1981, United States District Judge Joe Eaton granted Petitioner's motion to stay his execution. By Order of March 9, 1981, the Court retained jurisdiction over the matter.
28
1. State action--exhaustion of state remedies
29
Prior to filing his Petition in this district court, Petitioner appealed his conviction to the Florida Supreme Court. By Order of September 30, 1976, the Florida Supreme Court affirmed the Circuit Court's conviction and death sentence. See Knight v. State, 338 So.2d 201 (Fla.1976). On February 24, 1981, the Florida Supreme Court declined to grant Petitioner's state habeas petition. See Knight v. State, 394 So.2d 997 (Fla.1981). The state case was in this posture when Petitioner filed his federal petition for writ of habeas corpus in this district court. While retaining jurisdiction over the matter, Judge Eaton ordered Petitioner to return to state court to litigate an unexhausted issue pertaining to Petitioner's claim that he received ineffective assistance of trial counsel. Eventually, the Florida Supreme Court heard Petitioner's post conviction claim and on December 16, 1982, that Court affirmed the trial court's denial without hearing Petitioner's motion to vacate judgment and sentence. See Muhammad v. State, 426 So.2d 533, 538 (1982), reh. den'd, 426 So.2d 533 (1983), cert. denied., [ 464 U.S. 865 , 78 L.Ed.2d 174 ] 104 S.Ct. 199 reh. denied, [ 464 U.S. 1013 , 78 L.Ed.2d 718 ] 104 S.Ct. 539 (1983).
30
Hearings on the federal Petition for Writ of Habeas Corpus were held on June 12 and November 27, 1984. On August 14, 1985, United States Magistrate Charlene Sorrentino issued a report in the instant matter. Thereafter, Petitioner filed his objections to that report on December 6, 1985. Each of Petitioner's several bases for issuance of the writ will be discussed hereafter.
I. PRETRIAL PUBLICITY
A. Need for Evidentiary Hearing
31
Petitioner Muhammad contends as one of the grounds for granting the Writ of Habeas Corpus that the pretrial publicity generated by the news media was so pervasive that prejudice to his ability to receive a fair and impartial trial in Dade County should be presumed. Petitioner also claims that the trial court made two errors at the end of the voir dire. The first was the trial court's denial of his motion for change of venue. The second was his request for additional peremptory challenges.
32
The Florida Supreme Court twice addressed petitioner's contentions, denying relief each time. On Petitioner's first appeal of his conviction, the Court noted that "[t]he trial court 'expressly determined that no showing of prejudice had been made. Additionally, we note that the trial judge was extremely liberal in excusing jurors for cause in order that an impartial trial would be secured,' " (Knight v. State, 338 So.2d 201 (Fla.1976) at 203) and "appellant 'has failed to prove that he did not receive a fair and impartial trial and that the setting of this trial was inherently prejudiced.' "
33
On a later review of the issue, the Florida Supreme Court found:
34
The record shows that trial defense counsel did present evidence of the pretrial publicity in support of the motion for change of venue. The denial of the motion for change of venue was reviewed and affirmed on appeal. The record also shows that defense counsel questioned prospective jurors extensively regarding any influence the pretrial publicity may have had on them.
35
Muhammad v. State, 426 So.2d533 (Fla.1982) at 537. It is thus apparent that petitioner's claims in this pretrial publicity issue have been exhausted in state proceedings and are properly before this Court.
36
Petitioner has requested an evidentiary hearing to explore the merits of his pretrial publicity claim. The standards governing whether the federal district court must hold an evidentiary hearing to determine the merits of a habeas corpus petition of a person in state custody are set forth in Townsend v. Sain, 372 U.S. 293 [ 9 L.Ed.2d 770 ], 83 S.Ct. 745 , and Thomas v. Zant, 697 F.2d 977 (11th Cir.1983). Petitioner urges this court to grant him an evidentiary hearing on his pretrial publicity claim on the grounds that the material facts relevant to the pretrial publicity generated by his capture, escape and recapture "were not adequately developed at the state court hearing." See 372 U.S. at 313 , 83 S.Ct. at 757 . I agree with the Report of the Magistrate which determined that petitioner did receive an adequate hearing on the issue in the trial court.
37
At the close of the jury selection defense counsel for petitioner proffered some of the evidence of the pretrial publicity from which, the defense urged, prejudice could be presumed. The proffer was not made in the presence of the jury. Defense counsel began by encapsulating film clips shown on the television newscast. The defense's summary of the television coverage of petitioner's alleged crimes included brief descriptions of the persons interviewed, the running time of the film clips, the channels on which they were shown, the times of day at which they were shown, the dates of the airings, and the estimated numbers of persons in the viewing audiences.
38
Defense counsel then repeated the process using the newspaper articles about the Petitioner and the crimes. Beginning by giving the dates of the articles, defense counsel's proffer stated whether the articles appeared on the front page, in which newspaper the articles appeared, the topics of the articles (e.g., the specific crimes, the general articles on the insanity defense, other crimes allegedly committed by the defendant, etc.), and the circulation figures of the newspapers. Defense counsel specifically mentioned certain allegedly prejudicial descriptions of the defendant which had appeared in the news stories. The trial judge heard the cumulative proffer but commented that the jurors had answered that they could give the defendant a fair and impartial trial and that the court was relying not only upon their answers on voir dire, but their expressions and mode of answering. The court also noted that there had not been great discussion in the press as to the nature of the evidence against Petitioner.
39
This Court concludes that the proceedings at the state trial level were adequate to develop the factual predicate for petitioner's pretrial publicity claim. See Coleman v. Zant, 708 F.2d 541 (11th Cir.1983) at 547 ("[t]he content of and audience for television/radio media's coverage are indeed 'indispensable to a fair, rounded development of the material facts' ") (quoting Townsend v. Sain, 372 U.S. at 322 , 83 S.Ct. at 762 ).
40
Further, the Court has reviewed an extensive indexed collection of television news scripts and newspaper articles compiled by petitioner and appended to his request for evidentiary hearing. Thus, the factual matter upon which the pretrial publicity claim rests is before the Court. This Court is not faced with having to "rel[y] on the voir dire transcript in the absence of a well-rounded description of the local television and radio coverage." Coleman v. Zant, 708 F.2d at 547 . Accordingly, the Court concludes that since the material facts were addressed at the state proceeding, and a full record with documentation of the media coverage is before the Court, an evidentiary hearing on the pretrial publicity claim is unnecessary and petitioner's request for such hearing is denied. The Court now examines the media coverage itself to determine whether it can be found to have prejudiced petitioner's trial.B. The Media Coverage
1. Television
41
The Court first examines the television news scripts submitted by petitioner. The initial coverage which aired on July 17, 1974, the day of the Gans murders, cannot be said to have been unduly prejudicial because it consisted primarily of factual news reporting. Petitioner was referred to as an "alleged" killer or a "suspect." One clip, originating from the suspect's neighborhood and shown on Channel 10, the ABC local station, mentioned that the suspect was from a "black" section of Opa Locka and had marital problems, but reported also that the suspect was liked by his neighbors. The same clip reported that the suspect was described by his neighbors as one who loved children. The clip concluded with the on-scene reporter stating that "[e]veryone I talked to said the same thing: 'I can't believe he would do something like this.' "
42
Another film that was shown on Channel 10 on July 17th at 6:00 p.m., and 11:00 p.m., reported that a man is in jail charged with a "brutal machine-gun slaying."
43
A news story which aired on July 17th on Channel 7, the local NBC affiliate, reported that the suspect "surrendered meekly" and that "WCKT newsfilm showing the suspect's face has been withheld at the request of the Public Safety Department ... until witnesses can try to identify him in a police lineup."
44
Another July 17th newscast referred to the victims as a "wealthy Miami industrialist and his wife." Later in the broadcast, the petitioner was referred to as an "unidentified black man," "the abductor," "the kidnapper," and "the killer." Describing the capture, the broadcast mentioned that "[t]he young black man with his hair in numerous braids seemed relatively unconcerned and even smiled a few times as he was put into a car for a trip to Jackson Memorial Hospital."
45
A newscast which aired on July 17th reported that Thomas Knight "was found with a weapon and the money."
46
In a newscast of July 17th it was reported that "a few teenage boys said Thomas Knight was nuts, dumb ... but mostly people said he spent time on his car."
47
On July 18th, a news brief reported that "[t]he suspect in the Gans kidnap murder is picked out of a lineup and arraigned." The same news show concluded by mentioning that "Florida Attorney General Robert Shevin reacted to the kidnap murder today, ... calling on the Supreme Court to reinstate the death penalty."
48
A July 18th newscast show at 6:00 p.m. on Channel 7, the NBC affiliate, focused on the arraignment and stated that "[t]he suspect appeared rather nonchalant as he was escorted back to his cell ... Knight appeared in a police lineup and according to Metro Public Safety officials--was positively identified as the man driving around town yesterday in the Gans' (sic) auto." The same newscast also reported that "Knight's co-workers say he was basically a loner ... he was also known in the neighborhood as a quiet guy. Knight's arrest record is quite extensive, dating back to 1965 when he was placed on five years probation for a breaking and entering conviction. His (sic) had another bout with police last month when he was arrested and charged with grand larceny."
49
The remainder of the television coverage until September 20, 1974, has been reviewed by the Court. I do not find anything unduly prejudicial to the defendant in this period of television coverage, as whatever scant coverage existed focused on the factual aspects of the crime and not upon the guilt or innocence of Petitioner.
50
Petitioner became newsworthy again when he, along with ten other prisoners, escaped from the Dade County Jail on September 20, 1974. A newsclip that aired on September 20th at 6:00 p.m. reported that police were searching for nine of eleven men who escaped from the Dade County Jail, and that the men were considered dangerous.
51
An editorial shown on Channel 4, the CBS affiliate, on September 20th, complained about the lax security at the jail that allowed eleven prisoners to escape. The editorial mentioned that "[O]ne still on the loose is charged with the murder of Sidney and Lillian Gans two months ago ... one of the most frightening crimes in recent local history."
52
Another September 20th newscast described the escape, reporting that "5 prisoners are still at large, including Thomas Knight, the alleged killer of industrialist Sidney Gans and his wife. All are described as extremely dangerous."
53
A newsclip which aired on September 20th at 11:00 p.m., mentioned that "Knight might have been the coordinator of the jailbreak."
54
A September 21st newsclip which aired at 11:00 p.m. on Channel 7 reported that "[a]mong the 3 inmates still missing is 23-year old Thomas Knight of Opa Locka. Knight is charged with two counts of murder in the kidnap-slaying of wealthy businessman Sydney Gans and his wife. Police say Knight may have been the leader of the escape. At this hour, police have set up a perimeter in the area of N.W. 27th Avenue as Knight was positively identified by 15 customers as the man who held up a food store in the area."
55
Another September 20th newscast reported that "the leader [of the jailbreak] and most sought-after one, Thomas Knight, continues to follow his police predicted behavior: elusive and smart." The newscast then briefly described a holdup in which Knight was allegedly involved earlier that day.
56
Another September 21st newscast which aired at 11:00 p.m. on Channel 7 gave a description of the holdup that Knight allegedly committed.
57
While Knight was at large, there was coverage of the escape which featured on occasion "Wanted" pictures of Knight and brief updates of reported sightings of him. Some of this coverage mentioned in passing the Gans murders, but the Gans murders and the guilt or innocence of Knight therein was not made the focus of the Knight escape reporting.
58
On September 25th a brief mention was made of a $500.00 reward offered to anyone who turned in Thomas Knight.
59
On September 30, 1974, it was twice briefly reported that "[t]oday Dade State Attorney Richard Gerstein announced a reward for information leading to Knight's arrest. Gerstein says an anonymous donor has promised 2,500 dollars for information leading to Knight's arrest."
60
On October 16th, it was reported at 11:00 p.m. that Knight had been the subject of an intensive manhunt that day after he was reputedly spotted in South Dade. The newscast reported that "Knight is the most sought-after man in Dade County. He's wanted to stand trial for the brutal slaughter of a wealthy Miami couple."
61
On November 13th it was reported on the 6 o'clock news that "[t]he Miami FBI office wants accused slayer Thomas Knight placed on the 10-most-wanted list ... He's now wanted by the FBI for unlawful flight to avoid prosecution. Georgia officials want Knight in connection with robbery and homicide. An accomplice of Knight's was captured in that case ...".
62
On December 31, Channel 4 reported on Knight's capture, stating "[w]hen Knight escaped from the Dade County Jail in September, he was described as cunning and vicious. But today, at a federal court hearing in Orlando, he seemed confused and was caught in a simple error." The report also mentioned that "[t]he FBI says Knight is wanted for a slaying in Georgia and for several robberies, all of which occurred while he was a fugitive."
63
On January 2, 1975, Channel 7 reported on the transfer of Knight from Orlando to Miami, and stated "Knight smiled and made obscene gestures to newsmen as he entered the Dade Jail. Knight was held in solitary confinement in the Orlando jail, and jail attendants said he went in a rampage last night ... tore up be[ds] and he attempted to set the mattress in his c[ell] on fire." The report mentioned in one line the murder of the Ganses and also reported that "he is also wanted in Cordele, Georgia, where police say he shot and killed a liquor store clerk during a robbery."The remainder of the television coverage is not remarkable.
2. Newspapers
64
On July 18 the Miami Herald ran a front page article on the murders. The headline reported "Dade Couple Kidnapped and Shot To Death." There were two portrait photos of the Ganses and a picture which showed Knight's head as he was ducking into a police car. The article contained a detailed factual account of the crime.
65
Another Miami Herald article which ran on July 18 on page 28 was headlined "Good Worker, But Emotional." The article mentioned that a hat, which co-workers said belonged to Knight had been found in the executive parking lot at Sidney Gans's business. The article reported that "Knight had served time in prison for a Fort Pierce burglary conviction and was awaiting trial in Dade County on a June 15 larceny arrest." The article quoted one of Knight's co-workers as stating that Knight was "a good worker--a very good worker ... He was pretty witty--he joked a lot, laughing all the time." The article reported that Knight often complained to his co-workers about "... racism, because Knight felt there were a lot of anti-blacks." Another co-worker was quoted as stating that Knight was "a very good worker" with "a very strong character," but he could be "very emotional." The co-worker said that Knight once told him he could be dangerous when mad since he was a karate expert. The article concluded by noting that "[c]o-workers as well as Knight's neighbors in Opa Locka expressed shock that he had been charged with the murders."
66
An article which appeared in the Miami News on July 18 was headlined "8 of 11 Identify Murder Suspect." The article briefly described the crime and Knight's earlier arrest for grand larceny for stealing roofing tiles from an earlier employer. The earlier employer was reported to have described Knight as a hardworking, hot-tempered person who had trouble getting along with others.
67
A front-page article in the Miami Herald on July 19 was headlined "Kidnap-Death Suspect Was Out on Bond." The article rehashed the events surrounding the crime. It also consisted mainly of burglary charges. One of Knight's former probation officers recalled Knight as "arrogant, with a chip on his shoulder." A former employee described Knight as a "hothead." The article reported that Knight's neighbors described him "as a quiet man who liked to tinker with his 1965 Plymouth."
68
A July 19 article appearing in the Miami News was headlined "Gans Liked Giving Man With Record Second Chance." The article described the crime and Knight's previous work problem at Gory Associated Industries, where he was fired after allegedly stealing a truckload of roof tile. The article related that Knight had been picked out of a police lineup by several police witnesses, but others could not be positive in their identification.
69
Another July 19 Miami News article was headlined "Murder-Kidnap Suspect Faces Jury." That article described the crime factually.
70
A July 27th article was headlined "Slaying Suspect Knight Held; Trial Heads to Circuit Court." The article briefly described the crime and Knight's preliminary hearing.
71
The next important spate of newspaper publicity was generated upon Knight's escape from the Dade County Jail. On September 23, the front page of the local section of the Miami Herald was headlined "Thomas Knight Tough, Smart, Free." The article briefly described the jailbreak and then reported the feelings of Knight's neighbors and his mother. The article reported that "[a]ccused kidnap-murderer Thomas Knight 'could have been anything he wanted,' a friend says." A neighbor was quoted as stating "[o]nce I would have trusted Thomas Knight with my apartment or my car, [n]ow I don't trust him as far as I can spit." The article continued by stating "[i]t was a shock when Knight, 23, was charged with the kidnap-murder last July of a North Miami industrialist and his wife. "I just couldn't believe it was the right Thomas Knight, said a neighbor for whom Knight once fixed a sewing machine." Later in the article it was reported that "[h]e (Knight) chose escape, says a friend who talked with Knight after his arrest, because he saw himself in the electric chair. The things that scared him most were, one, (State Attorney Richard) Gerstein prosecuting, two, the publicity about the case. Thomas thought that there was no way to get a fair trial in Dade County or in Florida."
72
The same article, which is reported in depth here because it is one of the main sources for references to Knight that does not focus solely on the facts of the crime or the escape, continues "[l]ike many felons Knight had a deep interest in law. Was a graduate of the Raiford Bar Association, you might say.' He reportedly wrote from memory a complete transcript of his hour-and-a-half pre-trial hearing. He also, a source said, wanted to direct his own trial."
73
The same article reported that "[h]is tested IQ was about 100,'--average nationally, but for a disadvantaged student, indifferent to school, likely to indicate exceptional ability." The article reported that Knight's mother said "I think it's something wrong with his head ... I just pray to God the police don't kill him. If I could tell him something it would be to tell him to give up. Maybe then they would have mercy and send him some place to get some help about his head."
74
The article reported that "[n]eighbor Art Doyle, who used to drink beers with Knight, recalls sharing complaints about a leaking roof. Knight fixed it. He [Knight] knew nothing about cars, another neighbor said, but learned by taking apart his beige 1965 Plymouth."
75
The article briefly mentioned that Knight's life appeared to be straightening out after arrests earlier in his life.
76
The article reported that "Beatrice [Knight's wife] was attractive, Knight jealous. She left him shortly before he allegedly killed Sydney Gans, owner of Sydney Bag and Paper, and Gans' wife, Lillian. When Beatrice left, My Lord, something must have exploded inside him, a neighbor said."
77
"Knight was also frustrated about work, a friend said. 'Thomas used to say he'd go to work on time, do it, but no matter how good he did, he never moved up. "Some cracker comes in with a diploma, first day on the job, and moves up ahead of you," he'd say.' "
78
An article which appeared in the Miami News on September 23rd was headlined "Everyone, Everywhere 'Sees' Fugitive Knight." The article reported numerous false sightings of the fugitive but did not contain material particularly prejudicial to Knight.
79
An article which appeared in the September 30th Miami Herald, on the front page of the local section, was headlined "Manhunt: Not Glamorous, Just Tiring." The article reported that detectives who had helped capture Knight initially were also working to recapture him. The article generally described the manhunt by police and the numerous false sightings of Knight called in to police. A photograph of a "Wanted" poster for Knight was included.
80
The few articles about the continuing manhunt, which ran between September 30th and December 31st, were primarily factual. Knight was recaptured on December 31, 1974, in New Smyrna Beach, Florida. Periodically, articles detailing his recapture and his fugitive time appeared in the newspapers. An article which appeared in the December 31st Miami Herald was headlined "Fugitive Knight Seized in Raid at New Smyrna." The article was a factual account of the police and FBI capture of Petitioner in a boarding house in New Smyrna Beach. While the article essentially reported the capture, it did recount the details of the Gans murders, albeit briefly and also factually.
81
An article which appeared in the Miami News on January 3, 1975, was headlined "Accused Kidnapper--Slayer placed in Dade Safety Cell." A photograph of a smiling Knight flanked by guards also appeared and was captioned "Laughing Knight escorted by deputies."
82
The article reported that "Thomas Knight, laughing and waving obscenely at photographers, has been brought back in the Dade County Jail to await trial on murder and kidnapping charges." The article briefly recounted in two sentences the Gans murders. The article also reported that "Knight is also charged with the October murder of a Georgia liquor store clerk." A Georgia Sheriff was quoted as stating "[W]e want him (Knight) back up here very badly, after Dade County has a crack at him."
83
An undated January 1975 article, presumably from January 3rd or 4th, appeared in the Miami Herald headlined "Georgia Police Also Want Knight." The article reported that a suspected accomplice was willing to testify that Knight was the triggerman in the Georgia shooting. The article briefly touched upon the Gans crimes, the jailbreak, Knight's fugitive time, and his prior record. The information in the article was rather detailed and factual, except for a brief section which inquired "[H]ow did Knight manage to stay free for three months despite a $3,000 reward on his head and nationwide notoriety as one of the FBI's 10 Most Wanted Criminals? And did his plans include a future bank robbery and the abduction of a police chief, as notes seized in his second-floor tenement seemed to indicate?"
84
An article appearing in the Miami Herald around the same period in January 1975 was headlined "17 of Knights's 'Free Days' Spent in Arkansas Jail." A photo of Knight was shown with the caption "Cocky and Boastful Knight Is Returned to Dade Jail." In the article, Knight is quoted extensively as having hidden his identity from Arkansas police who had jailed him for trespassing:
85
"I made a fool out of the [Arkansas] police department and they showed how stupid they are. They think they're so smart and they're not."
86
"They arrested me for trespassing on a train and asked me for my Social Security Number. I told them I never had one.
87
"They asked me for my driver's license. I said I didn't have one. They wanted to know my mother's name. I said I didn't have a mother. They asked me for my father's name and I said I didn't know.
88
"They said, 'well who raised you?' I said I came from an orphan's home. When they asked what school I went to, I told them Black Muslim School. I always give a phony name.
89
"I'm glad I can use my own name now. My wife is here in Miami. I love her very much. I kept trying to call her and could never get through. Somebody told me they had her in jail. That's the only reason I swung back this way. I'm glad I got caught. I'll have a chance to see my wife. I got real lonesome and I wanted to see her."
90
The remaining articles which appeared up until Knight's trial began were not particularly significant. There was an article which rehashed Knight's alleged shooting in Georgia, an article about the similarity of the cell in which he was held in at Orlando to the one he escaped from in Miami, an article about Knight's acceptance of his court-appointed attorney, and a brief mention of a robbery charge, against Knight, which was dismissed. The articles were primarily factual accounts.
91
There were several articles which appeared during the trial, but these articles focused on an error of the trial judge, the outbursts made by Knight in the courtroom, Knight's attempts to fire his lawyers, and an editorial denouncing the death penalty as unfair. The record reflects that the judge repeatedly directed that the sequestered jury was not to read about, listen to, watch or discuss any aspect of the Knight case. There is no indication that any juror did come into contact with any of the publicity generated during the trial. In any event, the Court specifically finds that the publicity generated during the trial was not legally prejudicial to the Petitioner. In fact, the most noteworthy publicity during this period was a long editorial in the April 24, 1975 Miami News which discussed the unfairness of the death penalty as applied to Thomas Knight in particular and to poor young blacks in general.
3. The Applicable Law
92
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717 , [at 722] 6 L.Ed.2d 751 at 755 , 81 S.Ct. 1639 [at 1642] (1961). Where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further need to establish bias. Mayola v. State of Alabama, 623 F.2d 992 (5th Cir.1980) at 997.
93
Due process required the trial court to grant a defendant's motion for change of venue where the trial court was unable to seat an impartial jury because of prejudicial pretrial publicity of an inflamed community atmosphere. Rideau v. Louisiana, 373 U.S. 723, 726 , 10 L.Ed.2d 663 [ 83 S.Ct. 1417, 1419 ] (1963).
94
The burden placed upon a petitioner to show that pretrial publicity deprived him of his right to a fair trial is an extremely heavy one. Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985) at 1537. "To satisfy his burden even in ... sensational cases, the petitioner must, therefore, demonstrate that the populace from which his jury was drawn was widely infected by a prejudice apart from mere familiarity with the case." Mayola, 623 F.2d at 999 .
95
Petitioner relies on several famous cases in which the pretrial publicity was found to have prejudiced the right of the defendants therein to a fair trial by a panel of impartial indifferent jurors. In Irvin v. Dowd, supra, the Supreme Court found that the pretrial publicity of the case had indeed prejudiced the defendant's right to a fair trial. Newspaper headlines "announced [petitioner's] confessions to ... six murders ..." and his "offer to plead guilty if promised a 99-year sentence ..." Id. [ 366 U.S. at 725-26 , 6 L.Ed.2d] at 758 [ 81 S.Ct. at 1644 ]. In the pretrial publicity was a newspaper story that appeared the day before trial which discussed petitioner Irvin's oral admissions to additional murders. It also contained comments of petitioner's court-appointed counsel, who acknowledged the criticism he had received over being Irvin's counsel. The article further recounted the extent of the community's deep feelings as to the defendant's guilt and its hopes for punishment; comments of spectators ("my mind is made up;" "I think he is guilty;" and "he should be hanged") were printed.
96
In Rideau v. Louisiana, 373 U.S. 723 , 10 L.Ed.2d 663 , 83 S.Ct. 1417 (1963), the Supreme Court found that a single piece of pretrial publicity was so devastating in its adverse impact upon petitioner that prejudice to petitioner's right to a fair trial was presumed and the writ of habeas corpus was granted. In Rideau, a film was made of an "interview" between the sheriff and the accused, who was without counsel at the time. In the film, the accused, under interrogation, admitted to certain crimes, including murder. The film was televised later that day and was shown twice more over the next two days. The Supreme Court found:
97
[T]he spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged ... was Rideau's trial--at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.
98
Rideau, [at 726] 10 L.Ed.2d at 665 [83 S.Ct. at 1419] (emphasis in original).
99
Petitioner in the instant cause relies on Sheppard v. Maxwell, 384 U.S. 333 , 16 L.Ed.2d 600 , 86 S.Ct. 1507 (1966), in which the Supreme Court granted petitioner's writ of habeas corpus on a prejudicial pretrial publicity claim. Sheppard was a Cleveland physician accused of murdering his wife. Sheppard claimed that an intruder had been the killer. Sheppard claimed that he was attacked by the "form," whom he then pursued unsuccessfully. Shortly after the police were notified of the murder, Sheppard became the prime suspect. The views of the Assistant County Attorney, later the chief prosecutor of Sheppard, appeared in the news, sharply criticizing the refusal of the Sheppard family to permit the immediate questioning of the suspect. Sheppard, at 338, 16 L.Ed.2d at 606 [ 86 S.Ct. at 1510 ]. From that point on, headline stories repeatedly stressed Sheppard's lack of cooperation with the police and other officials. Id.
100
One front page editorial appeared which suggested that Dr. Sheppard should have been subjected instantly to a third-degree interrogation. Id. [at 339, 16 L.Ed.2d] at 607 [ 86 S.Ct. at 1510 ]. The next day, another front page editorial appeared demanding that the coroner call an immediate inquest. Id.
101
The inquest was broadcast on live television. Sheppard was examined without counsel for more than five hours over the three day proceeding, which ended in a public brawl.
102
There was editorial coverage which directly demanded that Sheppard be arrested and jailed immediately. There appeared an editorial cartoon that depicted the accused as an untelling sphinx. The names and addresses of the veniremen were published in all three of Cleveland's newspapers. All of the prospective jurors received anonymous and identified telephone calls, as well as letters regarding the impending trial. Id. [at 342, 16 L.Ed.2d] at 609 [ 86 S.Ct. at 1512 ].
103
A front-page story which appeared during the jury selection contained subjective material which evoked sympathy for the victim. The same article featured quotations of the chief detective in the case assuring readers that the prosecution's exhibits would speak for the victim and tell her story. Id. [at 346, 16 L.Ed.2d] at 611 [ 86 S.Ct. at 1514 ].
104
While Sheppard was on the stand, a Captain Kerr of the Homicide Bureau issued a press statement denying allegations of police mistreatment. The press statement carried the headline "Bare-faced Liar, Kerr Says of Sam." Id. [at 349, 16 L.Ed.2d] at 612 [ 86 S.Ct. at 1515 ].
105
The Supreme Court observed that "[f]or months the virulent publicity about Sheppard and the murder had made the case notorious." Id. [at 349, 16 L.Ed.2d] at 615 [ 86 S.Ct. at 1515 ].
106
The Eleventh Circuit recently decided the case of Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), a case not cited by petitioner but germane to this issue. The pretrial publicity in that case was so relentless and prejudicial that the court granted petitioner's writ, holding that "[i]f there were no constitutional right to a change in the venue in the instant case, then one can conceive of virtually no case in which a change of venue would be a constitutional necessity." Id. at 1538 .
107
In the Coleman case, four escaped prisoners from Maryland killed six members of a Georgia farm family, the Aldays, shooting five men and raping and killing the wife of one of the men.
108
The director of the state crime lab was quoted as saying that the Alday murders were "the biggest deliberately planned homicide in Georgia." This quotation appeared in a front page article in the Atlanta Constitution. Id. at 1518 .
109
One article quoted one of the suspects, whose mug shots and escapee status had already been prominently featured in the major newspaper of the community in which the crimes were committed, as stating that he would "kill any policeman who tries to stop us for any reason." Id. at 1491 .
110
A front-page article quoted the director of the Georgia Bureau of Investigation as stating that the circumstantial evidence against the four suspects was overpowering, and "[t]here's no point in looking for anybody else." Id.
111
An article in a leading local paper quoted Sheriff White of Seminole County (where the murders took place):
112
If I had my way about it, I'd have me a large oven and I'd precook them for several days, just keep them alive and let them punish ... And I don't think that would satisfy me.
113
* * *
114
* * *
115
Whenever I'm protecting them, I'm going to do my job and bring them to court, and I hope they'll get justice.
116
* * *
117
* * *I don't see where they could put up any plea for mercy ... The acts of these men are lower than animals.
118
If a citizen gets out of hand and starts shooting people up, there's only one way to arrest and that's with a shotgun. Any man that believes in God believes in capital punishment ... I could throw the switch to the electric chair and never lose a minute's sleep.
119
Id. at 1501 .
120
A news article reported a Georgia official as stating that there was ballistics evidence that the suspects had killed the victims. Id.
121
Sheriff White was quoted in another news article, stating:
122
There's blood boiling all over the nation about this. You name me a state where if they [the captured suspects] broke loose, people wouldn't want to hurt them.
123
There's no other place for it [the trial] to be held except in Seminole County.
124
Id. at 1519 .
125
A front-page article appeared headlined "Deserve What They Get: Mother of Slay Suspects." The mother of three of the accused murderers was quoted as stating that "[t]hey had no respect for their family and those people in Georgia. How can they expect any from us?" Id. at 1502 .
126
One article described two of the suspects as "hav[ing] been involved with homosexuality." Another article quoted the son of one of the murder victims as stating, "I think the killers ought to be killed." Id. at 1519 .
127
The Georgia Director of Public Safety was quoted as saying that "the killings were the most horrifying crime that has ever been committed in our state." Id.
128
Sheriff White's quotations again found their way into print. An article reported him stating that "[t]here's not a doubt in my mind that lynching has crossed the mind of everybody. I'd like to try 'em in court this afternoon if I had them down there." Id. at 1520 .
129
Another article mentioned suspect Dungee's naming of suspect Coleman as the killer of the victim Mary Alday. Id.
130
A front page article appeared which quoted suspect Coleman a stating that he shot and killed a Pennsylvania youth during the same crime spree because they [the suspects] did not "want any witnesses." Id. at 1503 .
131
A front-page editorial referred to the suspects as "sorry, shiftless people" of the kind for whom the people of the community have never had much use.
132
It was noted in another article that the newly enacted state death penalty law could be applied to the four suspects.
133
An editorial appeared which began by lauding the police for the rapidity of the suspect's capture. The editorial later commented on the lack of a place in society for "... individuals who place no value on the life of any other individual with whom they come in contact." The editorial concluded by comparing killers to rattlesnakes, mad dogs or other rabid animals, opining that "[w]hen individuals become as these lower animals, they lose their right to human treatment." Id. at 1493 .
134
Several articles appeared which featured complaining quotations from the court-appointed attorneys for the suspects. The extreme reluctance of the lawyers to represent the accused was repeatedly reported ("I despise it, I'd rather take a whipping, but the Judge appointed me and I have to do my job.") Id. at 1494, 1522 .
135
One particularly prejudicial editorial appeared which called specifically for the death penalty in the Alday case:
136
... Three of the persons charged with the execution style killings, escaped from a prison that was preparing them for life on the outside. They were to be released soon back into society. It seems clear that there are some criminals that just cannot be rehabilitated and should not be returned to society to destroy the lives of innocent, hard-working people like the Aldays.
137
* * *
138
* * *
139
Look at it this way. When a person is convicted by the courts beyond a reasonable doubt of a crime like the slaughter of the Alday family, it seems to me that there is nothing else society can do. It is absurd to accept the argument that such a criminal can be made to see the error of his ways. As long a such a criminal lives, he is indeed a threat to society. If he is put into prison, he has the opportunity for escape or parole. If he is executed, society has nothing more to fear from such a criminal.
140
Id. at 1494 .
141
One article reprinted a letter written by the trial judge to an attorney for one of the suspects. The letter warned the attorneys about "trifling with the courts" because the attorneys had filed a motion for change of venue. Id. at 1496 .
142
The crime was reported in the newspaper to have been the "No. 2" story of the year in Georgia. Articles appeared describing the slayings as the worst crime in Georgia history. Id. at 1509 .
143
Numerous articles reported that one of the suspects was going to be the key witness for the prosecution and had issued a statement to police describing the slayings. Id. at 1497 .
144
An article appeared which discussed the hopes of the surviving Alday family members that the killers would be put to death for their crimes. Id. at 1525 .
145
Other articles and editorials appeared which called the killers mad dogs, sex maniacs, ghouls and beasts. Several of the articles which appeared in exploitative "true crime" magazines hinted at necrophilia which purportedly was performed on Mary Alday. Id. at 1526-27 .
146
Finally, extensive reporting was made of the testimony from the witness stand of Billy Isaacs, the youngest suspect who was the state's eyewitness. Isaacs described the crimes in ghastly detail and the participation therein of each of the accused. Petitioner Coleman was the last to be tried; before his trial a multitude of articles appeared which covered exhaustively the trial of two of his accomplices, both of whom were found guilty of the murders and were sentenced to death.
147
* * *
148
Having examined the nature and the extent of the pretrial publicity in the cases where the writ was granted due to presumed prejudice to a defendant's right to a fair trial, and that produced pretrial the instant cause, I conclude that the pretrial publicity generated in Petitioner Muhammad's (Knight's) case does not warrant the relief sought.
149
The Court notes that "[t]he proceedings in [the Rideau, Irvin, Sheppard and Coleman cases] were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime which he is charged alone presumptively deprives the defendant of due process." Murphy v. Florida, 421 U.S. 794 , [at 799] 44 L.Ed.2d 589 at 594 , 95 S.Ct. 2031 [at 2036] (1975) (Marshall, J.) Again, "[i]t is not required that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case." Irvin [ 366 U.S. at 722 ] 81 L.Ed.2d at 756 [ 81 S.Ct. at 1642 ].
150
It is reasonably clear, of course, that while some residents of Dade County may have been exposed to more than one of the several media, it is equally likely that no one person would have read all of the publicity referred to or, indeed all of the comments in a single media organ. Thus, the cumulative weight of the publicity, such as it was, and as presented by Petitioner, should be discounted. See Coleman v. Kemp, 778 F.2d at 1538 .
151
In the instant cause, the record of the pretrial publicity is almost entirely devoid of the elements that have been held to be prejudicial in connection with other habeas petitions raising such claims. Here, there was no confession or admission by petitioner to any of the crimes for which he was convicted. The damaging impact of a heavily publicized confession or admission cannot be underestimated. Such an inclusion in the pretrial publicity has been held to have infected an exposed community to such an extent that a fair trial there was not possible. See, e.g., Rideau, supra [ 373 U.S. at 726 , 10 L.Ed.2d] at 665 [83 S.Ct. at 1419]; see also Irvin, supra [ 366 U.S. at 725-26 , 6 L.Ed.2d] at 758 [ 81 S.Ct. at 1644 ]; Coleman v. Kemp, supra, at 1539-40 ("[t]he explicit details of the inculpatory and eyewitness testimony of Coleman's own half-brother, Billy, together with the other publicity in the case, approaches the prejudicial impact of the televised confession in Rideau."). Several sentences appeared in two articles concerned with petitioner's alleged shooting of the Georgia liquor store clerk which said that Knight's suspected accomplice in the alleged crime was willing to testify that Knight was the triggerman. However, the reporting was not exploited heavily, was factual, and was not repeated. Further, the voir dire in the case does not reveal any mention or recollection by any prospective juror of the Georgia allegations.
152
Second, "... there is no evidence of record of official misconduct ... in infuencing the publicity given the case." Patton v. Yount, 537 F.Supp. 873 (W.D.Pa.1982), rev'd, 710 F.2d 956 (3d Cir.1983), rev'd [ 467 U.S. 1025 , 81 L.Ed.2d 847 ] 104 S.Ct. 2885 (1985). In Sheppard, the Assistant County Attorney (who was to be the chief prosecutor), the County Coroner, and a Captain of the Homicide Bureau each aired his views inappropriately as to the veracity of the accused, his reluctance to be interrogated, and his participation in the subject crime. The Supreme Court observed that the trial judge's failure to take any preventive or remedial action was aggravated by the fact that many of the prejudicial news items could be traced to the prosecution (as well as the defense). Sheppard, supra, [ 384 U.S. at 361 , 16 L.Ed.2d] at 619 [ 86 S.Ct. at 1521 ]. In Coleman v. Kemp, supra, at 1539, the Eleventh Circuit noted the significance of "the community's ranking law enforcement officer['s] ... widely reported and outrageous statements as to the need for vengeance, retribution, and capital punishment, all in the name of 'justice.' "
153
In the case sub judice, the record reflects that there were two instances of official publicity. In one instance then Attorney General Shevin "reacted to the kidnap-murder ... calling on the Supreme Court to reinstate the death penalty." While a statement like this cannot be other than adverse to a murder suspect yet to be tried, the record shows that this statement was not influential in any way upon any subsequent press coverage. It did not spearhead a rash of similar sentiments. It appeared within a day or two of the petitioner's capture and was not repeated or featured after that. In short, while the statement was indeed made, it does not demonstrate concerted official involvement with or influence on the pretrial publicity.
154
During the time that the suspect Knight was free after his escape, a reward for information leading to his capture was offered. State Attorney Gerstein (later the chief prosecutor in the case) announced the reward. While the announcement was made by the prosecution, it did not focus on petitioner's guilt or innocence as to the Gans murders and cannot be said to have influenced the publicity or public opinion vis-a-vis those crimes. The announcement was only for the legitimate purpose of apprehending one who was suspected of unlawful flight to avoid prosecution.
155
The record shows that the publicity in the instant cause did not focus on the appropriateness of or the need for the death penalty for the accused (aside from the single mention discussed above, which was made more than eight months before trial). In Irvin, supra [ 366 U.S. at 725-26 , 6 L.Ed.2d] at 758 [ 81 S.Ct. at 1644 ] comments of spectators advocating the death penalty were published in the newspapers. In Coleman v. Kemp, supra, the record was rife with repeated calls for the death penalty's summary application, both by officials and by the victims' family. Id. at 1519, 1525. "The fact that the Alday family wanted the death penalty pervaded the community ... editorials called for the death penalty, and reports of comments from attorneys and other news articles repeatedly suggested the appropriateness of the death penalty." Id. at 1525. The record in the instant cause does not contain any such prejudicial advocacy of the death penalty for Petitioner. As evidence of the fact that the community was not saturated with a desire for vengeance against the petitioner, the only noteworthy editorial which appeared (during the trial) strongly denounced the death penalty and argued that such penalty was inappropriate and unfair as against defendant Knight.
156
Further there is no record showing of invidious personal attacks on petitioner appearing in the press. Knight was not turned into a monster in the press through a " 'barrage of inflammatory publicity immediately prior to trial,' Murphy v. Florida, 421 U.S. 794, 798 [ 44 L.Ed.2d 589 ] 95 S.Ct. 2031, 2035 (1975), amounting to a 'huge ... wave of public passion,' Irvin, supra, [366 U.S.] at 728 [ 81 S.Ct. at 1645 ] ..." Patton, supra [104 S.Ct.] at 2889. The record demonstrates a lack of " 'feature' articles obviously aimed at exploiting community sentiment." Mayola, supra at 995 . Generally, "... the news stories were primarily factual in nature." [See Murphy v. Florida, 421 U.S. [at] 802, 95 S.Ct. at 2037 ]; see also Calley v. Callaway, 519 F.2d at 206 ("[a] prejudicial pretrial publicity claim must be viewed differently when the news accounts complained of are 'straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.' ") (quoting Beck v. Washington, 369 U.S. 541, 556 [ 8 L.Ed.2d 98 ] 82 S.Ct. 955, 963 (1962)); Hale v. United States, 435 F.2d 737, 748 (5th Cir.1970) ("no editorials or cartoons denounced appellant"), cert. denied, 402 U.S. 976 [ 29 L.Ed.2d 142 ], 91 S.Ct. 1680 (1971). Willie v. Maggio, 737 F.2d 1372 (5th Cir.1984) at 1387.
157
Understandably, the record of publicity does contain, naturally, numerous descriptions of the Gans murders, though these accounts eventually were reduced, with the passage of time, to one or two sentence tag-lines. There was also mention made of Petitioner's previous arrests; none of these arrests, however, was for a crime remotely approaching the severity of the Gans killings. The record further reflects that Petitioner was described variously as arrogant, a hothead, nuts. However, the record also discloses numerous humanizing references to Petitioner, detailing his good sense of humor, diligence at work, love of children, willingness to help neighbors with problems and his intelligence.
158
The record shows references to the neighbors' disbelief that Petitioner would commit the crimes with which he was charged. Petitioner was not accorded one-sided treatment by the press, which seemed to recognize that the stories it printed would be more interesting if the subject Knight was given more than one dimension. Petitioner was not called any of the hostility-inducing epithets attached to the petitioner(s) in the Coleman v. Kemp (mad dogs, sex maniacs, ghouls, beasts) or Mayola (convicted sex pervert, confessed boy slayer) cases.
159
In sum, "Petitioner has failed to show that the setting of the trial was inherently prejudicial ...", Murphy, supra [ 421 U.S. at 794 , 44 L.Ed.2d] at 597 [ 95 S.Ct. at 2033 ] such that this Court can presume prejudice from the pretrial publicity and grant the writ sought on the claim.
160
Finally, even if the publicity in this cause were presumed prejudicial to petitioner Muhammad's Sixth Amendment right to a fair trial, the transcripts of the extensive voir dire proceedings in the case effectively rebut any assertion that the impanelled jurors were incapable of sitting impartially. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985) at 1541 n. 25. However, because I conclude there is no presumed prejudice in this cause, since the publicity was comparatively restrained, it is unnecessary to discuss further the particulars of the voir dire.
II. THEORY OF PROSECUTION
161
Petitioner Muhammad claims that he was denied due process and a fair trial due to the failure of the state to announce whether it was proceeding under a theory of felony murder or premeditated murder. The defense in this cause twice moved to have the state elect one or the other theory of prosecution; both motions were denied. Petitioner claims that his defense was hampered and his rights to due process and fair trial were prejudiced by the denial of his motions for statement of particulars because he was not specifically notified of the charges against him.
162
This claim was raised by Petitioner on district appeal to the Florida Supreme Court, which held:
163
We find appellant's allegation that the Court erred in allowing the State to prosecute the charges under a theory of felony murder when the indictment charged premeditated murder to be absolutely contrary to established precedent.
164
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165
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166
... [I]n Barton v. State, 193 So.2d 618 (Fla.App.2d 1967), authored by Justice Adkins while temporarily assigned to the District Court as an Associated Judge, that court opined and we agree:
167
"The indictment was in the usual form charging murder to have been committed with a premeditated design to effect the death of Corbin. The appellant argues that he should have been furnished with bill of particulars specifying whether the state would proceed in the theory of felony murder or premeditated murder. Without being appraised of the specific theory under which the State was electing to proceed, appellant says he was placed at a burdensome disadvantage by being forced to prepare defenses to each, which defenses necessarily are inconsistent. Appellant contends that forcing such a burden upon him constituted a denial of due process.
168
'The allegations of the indictment were sufficient to charge murder in the first degree, regardless of whether the murder was committed in the perpetration of any of the felonies mentioned in F.S.A. Sec. 782.04 or was committed with a premeditated design, Southworth v. Florida, 98 Fla. 1184 , 125 So. 345 . Under such a charge evidence may be introduced and defendant may be convicted either on the theory that the killing was carried out as a result of a premeditated design to effect death or on the theory of felony murder. Larry v. State, 104 So.2d 352 (Fla.1958)"
169
Cf. Hargrett v. State, 255 So.2d 298 (Fla.App. 3, 1971).
170
Knight v. State, 338 So.2d 201,204 (Fla.1976).
171
This issue of state law has been repeatedly affirmed by state courts faced with the question. State v. Pinder, 375 So.2d 836 (Fla.1979) at 839 (citing Knight ); Ables v. State, 338 So.2d 1095 (Fla. 1st DCA 1976) at 1097.
172
The Court views this claim primarily as an issue of state law. Issues of state law are ordinarily immune from federal review. See Francois v. Wainwright, 741 F.2d 1275 (11th Cir.1984) at 1281. The ultimate source of any state's law is found in the decisions of its highest court. See Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) at 810.
173
As the court notes elsewhere in this opinion, there was ample evidence in this cause upon which to base a conviction for premeditated murder, and indeed the Court finds that the primary theory of prosecution was in fact premeditated murder as charged in the indictment. See Knight v. State, 394 So.2d at 1002 . While premeditated murder was charged in the indictment, strongly argued to the jury, and premeditated design instructions were given to the jury, the record discloses that there was also substantial proof of felony murder established through the testimony of state witnesses. See Knight v. State, 394 So.2d at 999-1000 (factual statement setting out in detail appellant's abductions and robbery). A federal court will not overturn a factual conclusion of a state court unless the conclusion is not fairly supported by the record, which is not the case here. See Wainwright v. Goode, 464 U.S. 78 78 L.Ed.2d 187 at 192-93 , 104 S.Ct. 378 (1983).
174
Petitioner relies upon Cole v. Arkansas, 333 U.S. 196 , 92 L.Ed. 644 [ 68 S.Ct. 514 ] (1948) for the proposition that a criminal defendant is constitutionally entitled to specific notice of the charges against him.
175
"No principal of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal."
176
Cole, supra [ 333 U.S. at 201 , 92 L.Ed.] at 647 [ 68 S.Ct. at 517 ].
177
Consideration of the stated principle does not help Petitioner here. Petitioner was given notice, through the indictment of the charges of premeditated murder that the state was bringing against him.
178
At the time of Petitioner's trial, Florida law permitted (and still does) the state to prosecute under premeditated or felony murder theories when the indictment charged premeditated murder. Therefore, the trial court's denials of the defense's motions for statements of particulars were proper under state law.
179
At any rate, a refusal by a court to grant a bill of particulars is reversible error only if it can be shown that the defendant was actually surprised at trial and thereby suffered prejudice to his substantial rights. See, e.g., United States v. Cole, 755 F.2d 748 (11th Cir.1985); United States v. Williams, 679 F.2d 504,510 (5th Cir.1982) (citing United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981)). In this cause, Petitioner has not seriously claimed surprise.
180
Further, Petitioner has not demonstrated that any prejudice to him resulted from the trial court's denials of his motions. The state prosecuted primarily under a premeditated design theory even though evidence showing felony-murder was introduced at trial. The trial court simply refused to limit the state to one theory of prosecution where state law permitted the prosecution to proceed under a dual theory. If there was error by the trial court, this Court is convinced that such error was not of a constitutional dimension. The benefit to the state from the error (if any was committed) did not contribute to Petitioner's conviction since there was ample evidence upon which to base a conviction under either theory. See Chapman v. California [ 386 U.S. 18 ] 17 L.Ed.2d 705 [ 87 S.Ct. 824 ] (1967) ("harmless error" rule).
III. EXCLUSION OF DEFENSE WITNESS
181
Petitioner contends that his Fifth Amendment right to due process and Sixth Amendment right to fair trial were violated by the trial court's exclusion of the testimony of defense witness, Lt. Pat Duval of the St. Lucie County Sheriff's Department, Fort Pierce, Florida.
182
Petitioner asserts that Duval's testimony was needed to impeach the testimony of the psychiatrist Dr. Mutter, a state expert witness. Dr. Mutter stated at the pretrial competency hearing that he had based his opinion that defendant Knight was sane, in part, on Knight's appropriate expressions of affection for his father. Further, Petitioner contends that Duval's testimony was crucial because it would have bolstered the testimony of the defense's witnesses. One of the defense's psychiatric witnesses testified that Knight had paranoid fantasies involving fear and hatred of his father. Another defense psychologist testified that Knight had difficulty with the concept of "father" in a word-association test.
183
The defense attempted to introduce the testimony of Lt. Duval to provide a background for the defense expert's opinion that Knight's mental difficulties could be illustrated by his perceptions of and response to his father. The prosecution objected to Lt. Duval's proposed testimony because Duval did not appear on the witness list provided to the state by the defense. The trial court permitted the defense to proffer Lt. Duval's testimony outside the presence of the jury, ruling that if it were relevant it would be admitted.
184
After hearing Lt. Duval's proffer, the trial judge sustained the state's objections as to its competency.
185
Lt. Duval would have testified that he had arrested Thomas Knight in the past. Lt. Duval proffered that Petitioner first came to his attention when he arrested him at age ten or eleven. Duval proffered that he was generally familiar with the Knight family background because Mrs. Knight, Thomas's mother, occasionally spoke to him about various family problems. (Duval admitted that he did not know the other Knight siblings well.) Duval knew about the incest incident involving the father and sister of Thomas Knight, for which the elder Knight was eventually imprisoned. Lt. Duval also would have testified that in 1970, he had seen Thomas Knight in a jail cell after an arrest and that Knight's conversation was rambling and vaguely threatening.
186
After Lt. Duval had indicated that his testimony was to be in the general area described, the state objected to the testimony and the trial court sustained the objection.
187
Petitioner raised the issue of the exclusion of this defense witness in his state habeas corpus petition, as part of a larger ineffective assistance of appellate counsel claim. The Florida Supreme Court addressed the point:
188
The third asserted omission by appellate counsel concerns the failure to raise as error the exclusion of testimony by witness Pat Duval. The testimony of this witness was proferred at trial to show the jury that, given the family history of abuse and incest by the father of the petitioner, the feelings professed by the petitioner to the expert witness were in fact "inappropriate." The proposed witness Duval was not an expert witness and our review of the record reveals that the ruling of the trial judge was clearly within his discretion and was proper under the circumstances of this case. The failure to raise the issue on appeal was not a substantial deficiency by appellate counsel, and there was no prejudice.
189
Knight v. State, 394 So.2d 997, 1003 (Fla.1981).
190
I have reviewed the entire trial record submitted in this cause. As to the instant issue, I find that the trial judge acted within his discretion in excluding the testimony of the witness, Lt. Duval. He was not an expert on the insanity issue. He would not, as indicated by his proffer, have testified as to his direct knowledge of Knight's sanity. Allowing the introduction of summaries of conversations between Duval and Mrs. Knight would have violated the rule against hearsay evidence without a showing that the hearsay fell into any of the recognized hearsay exceptions. Duval's knowledge of Knight was remote in time. There was no showing made by the proffer that Duval's recollections were especially accurate or reliable. See, e.g., R. at 3121. There was nothing in the proffer that related directly to the question of Thomas Knight's sanity, and nothing was profferred that did not involve hearsay or non-authenticated evidence.
191
The right to present witnesses in one's own defense in a criminal trial lies at the core of the Fifth and Fourteenth Amendments' guarantee of due process of law. Washington v. Texas, 388 U.S. 14, 19 [ 18 L.Ed.2d 1019 ] 87 S.Ct. 1920, 1923 (1967). In reviewing the evidentiary determination of a state trial judge, the federal court does not sit as a " 'super' state Supreme Court." Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983). The general rule is that a federal court will not review a trial court's actions with respect to the admission of evidence. Id.; Nettles v. Wainwright, 677 F.2d 404, 414 (5th Cir.1982) (citing Lisenba v. California, 314 U.S. 219, 228 [ 86 L.Ed. 166 ] 62 S.Ct. 280, 286 (1941)). Before habeas relief may be granted because of a state court's erroneous evidentiary ruling, the violation must rise to the level of a denial of "fundamental fairness." Nettles, supra at . Id.
192
Fundamental fairness is violated when the evidence excluded is material in the sense of a crucial, critical, highly significant factor. Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984).
193
Petitioner has cited several cases to the Court in support of his contention that his rights to due process and fair trial were violated by the state court's evidentiary ruling. The Court has reviewed the cited authorities and finds that they are distinguishable from the case at bar.
194
In Washington v. Texas, supra, the Supreme Court held that defendant Washington's Sixth Amendment right to have compulsory process for obtaining witnesses in his favor was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime could not be introduced as witnesses for each other. The Texas trial judge refused to permit convicted perpetrator Fuller to testify on behalf of co-perpetrator Washington when the testimony would have exculpated Washington (Fuller would have testified that Washington tried to persuade him not to commit the crime and that Washington ran before the fatal shot was fired.)
195
In reviewing Washington's conviction, the Court relied on Rosen v. United States, 245 U.S. 467 , 62 L.Ed. 406 , 38 S.Ct. 148 (1918), in overruling United States v. Reid, 12 How. 361 , 13 L.Ed. 1023 (1852) (which had held that one of two defendants jointly indicted for murder on the high seas could not call the other as a witness). This rule had been followed because it was thought that if two persons charged with the same crime were allowed to testify on each other's behalf, each would try to swear the other out of the charge. The rule rested on the premise that the right to present witnesses was subordinate to the Court's interest in preventing perjury. In Rosen the Court took note of "the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or the court...."
196
The Court held that Washington had been denied his Sixth Amendment rights because the state had denied him the "right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." Washington, [ 388 U.S. at 23 ] 18 L.Ed.2d at 1025 [ 87 S.Ct. at 1925 ].
197
In Chambers v. Mississippi, 410 U.S. 284 , 35 L.Ed.2d 297 , 93 S.Ct. 1038 (1973), the Court considered two Mississippi state evidentiary rulings in petitioner's case. The facts showed that police officers in Woodville, Mississippi, had tried to arrest a youth in a pool hall. A skirmish ensued when onlookers attempted to prevent the arrest. In the melee, one of the officers, Liberty, was shot. Before the officer died, he returned the fire, hitting a man who was running down an alley. The wounded man was Chambers. Chambers was taken to the hospital by three persons and subsequently charged with Liberty's murder.
198
One of the men who took Chambers to the hospital was McDonald. McDonald later gave a sworn confession to Chambers' attorneys that he shot Liberty. McDonald stated that he had already told another man, Williams, that he had used his own pistol. He also stated that his confession was voluntary. McDonald was jailed after making the confession.
199
McDonald later repudiated the confession. He stated that one Rev. Stokes had persuaded him to confess, saying that he would not go to jail and that he would share in the proceeds of a suit against Woodville. McDonald's repudiation was accepted and he was released.
200
The trial court ordered McDonald to appear at the trial. The state, however, did not call him. Chambers called McDonald and had his sworn confession read to the jury. On cross-examination, the state elicited the fact McDonald had repudiated his prior confession. McDonald then testified that he had not shot Liberty and explained why he had given a false confession. Chambers then attempted to examine McDonald as an adverse witness, but the trial court ruled (and was upheld on appeal) that since McDonald was not adverse in the accusatory sense, he could not be called as an adverse witness, even though his testimony was hostile to Chambers.
201
Chambers then sought to introduce the testimony of three persons to whom McDonald had admitted the shooting. The trial court refused to let the jury hear any of their testimony on hearsay grounds (upheld on appeal).
202
Chambers was convicted of the shooting and sentenced to life in prison.
203
The Supreme Court, in reversing the conviction, balanced the essential and fundamental right of cross-examination against the Mississippi rule that a party may not impeach its own witness. The rule rested on the presumption that a party who calls a witness "vouches for his credibility." The Court rejected the present usefulness of such a rule, which had been condemned as archaic, irrational and potentially destructive of the truth-gathering process. Chambers, [at 297, n. 8] 35 L.Ed.2d at 309 n. 8 [87 S.Ct. at 1046 n. 8].
204
The Court held that the availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the state.
205
The Court further held that it was additional fundamental error for the trial court to have excluded the testimony of the three witnesses to whom McDonald had admitted the shooting. The Court held that the hearsay exception which permitted declarations against interest should have included declarations against penal, as well as pecuniary, interest. The circumstances of the case provided considerable assurances of the reliability of the confessions made by McDonald to the witnesses, who were close friends of McDonald's. (The spontaneous confessions were made to close friends shortly after the murder, each confession was corroborated by other evidence in the case, all of the confessions were unquestionably admissions against interest, and McDonald himself was present in the courtroom and available for cross-examination if there had been any question about the truthfulness of the extrajudicial statements.)
206
In Green v. Georgia, 442 U.S. 95 , 60 L.Ed.2d 738 , 99 S.Ct. 2150 (1979), the Supreme Court vacated petitioner Green's death sentence where the trial court excluded as inadmissible hearsay a statement made by co-indictee Moore exculpating Green. The trial court refused to allow one Pasby, a confidant of Moore to whom an admission was made by Moore, to testify on behalf of the co-perpetrator Green. The Supreme Court held that in this case the supporting evidence corroborating the admission was ample since the State used it to convict Moore. The statement was certainly against interest. In these circumstances, the Court held, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302 , 35 L.Ed.2d 297 , 93 S.Ct. 1038 [1049] (1973)).
207
In Boykins v. Wainwright, 737 F.2d 1539 (11th Cir.1984), Petitioner Boykins successfully challenged his robbery conviction on habeas. Boykins's only defense at trial was insanity and he sought to introduce expert testimony of one Dr. Jesus Rodriguez, who had treated petitioner for mental illnesses for three years at the Florida State Mental Hospital at Chattahoochee and had last examined him eight months before the robbery. Rodriguez was to have testified on the history of Boykins's mental illness and the possibility that Boykins's symptoms might have recurred after his release from the mental hospital. But because Boykins had been judged competent by hospital officials in January, 1973, the trial court refused to admit any evidence of his mental illness prior to then on the ground that it was irrelevant. Instead, the judge limited Dr. Rodriguez to the single hypothetical question of whether the doctor felt Boykins was sane at the time of the robbery.
208
The Eleventh Circuit held that the excluded testimony was material in that it was a crucial, critical, highly significant fact in Boykins's defense. Id. at 1544 . Rodriguez had been his treating physician and was intimately familiar with his history. There was no indication that Dr. Rodriguez's testimony was not trustworthy. The doctor was to testify on Boykins's entire symptomatology, and that was information in an area which was needed for the jury's resolution of the issue of the defendant's criminal responsibility. See Gordon v. United States, 438 F.2d 858 (5th Cir., cert. denied, 404 U.S. 828 [ 30 L.Ed.2d 56 ] 92 S.Ct. 139 (1971).
209
A comparison of the foregoing cases and their rationales reveals that all of those cases presented either clear error by the trial courts in their evidentiary rulings or compelling reasons for exceptions to state evidentiary or procedural rules. In Green, Chambers and Washington, the trial courts involved all erred when they refused to allow the testimony of persons directly involved in the crimes to be introduced. The excluded testimony in those cases was direct and materially relevant; the testimony related directly to the crime in question. In Chambers the trial court also erred by excluding the "hearsay" statements of the witnesses; the excluded statements were confessions against interest made by one co-perpetrator exculpating another. There can be no doubt as to the critical and crucial nature of these exclusions. It was certainly reasonable to conclude that the direction of the trials were changed by these exclusions. Each of the defendants was prejudiced by the exclusion of these directly exculpatory statements.
210
In the instant cause, it is difficult to conclude that Lt. Duval's proffered testimony had any direct bearing on either the crime for which the defendant was being tried or the question of the defendant's sanity. The testimony concerned various loosely organized recollections of the defendant as a youth and of his family background by a sympathetic police officer. As far as the jury's need to hear that defendant harbored feelings for his father that were inconsistent with feelings of affection, that was spoken to in Dr. Wells's remarks on the fears of the father held by Mr. Knight. R. 2981-82. Nothing in Lt. Duval's proffer or his contemplated testimony approaches the massive need for the excluded testimony in Green, Chambers and Washington.
211
The excluded testimony in Boykins is likewise readily distinguishable from the instant case. Lt. Duval was not an expert and had never been professionally responsible for knowledge of Knight's mental condition. Moreover, his proposed testimony concerned Knight's family history but contained no hint that Duval had any personal knowledge of any incidents tending to show Knight's insanity (save for one incident where Duval heard Knight make rambling, threatening statements).
212
In sum, the Court must deny Petitioner's writ on this ground, as it finds no prejudice to Mr. Knight from the trial judge's evidentiary ruling since the excluded testimony cannot be considered crucial, critical or highly significant. The exclusion of Lt. Duval did not affect the fundamental fairness of this trial.
IV. FAILURE TO INSTRUCT ON FELONY MURDER
213
Petitioner Muhammad raises as one ground for granting the writ of habeas corpus the error of the trial court in failing to instruct the jury on the underlying elements of the felonies of kidnapping and robbery. Petitioner claims that the trial court instructed the jury that a verdict of guilty of murder in the first degree could be returned under either a premeditated murder theory or a felony-murder theory. Error requiring the granting of the writ occurred, Petitioner contends, because the trial court failed to instruct the jury on the elements of the crimes constituting the underlying felonies. The issue was raised on appeal to the Supreme Court of Florida, which held, in denying Petitioner's appeal on the stated grounds:
214
The record in the instant cause reflects that the trial judge gave the general definitive instructions for homicide but did not specifically instruct upon the elements of the underlying felony of kidnapping or robbery. There was no request or objection by petitioner's trial counsel to this failure to give these instructions.
215
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216
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217
We conclude that where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. See Frazier v. State, 107 So.2d 16 (Fla.1958).
218
Knight v. State, 394 So.2d 997 (Fla.1981) at 1002.
219
Petitioner urges the Court that the Florida Supreme Court treatment of this issue should not be afforded the usual immunity from federal review. See Francois v. Wainwright, 741 F.2d 1275, 1281 (11th Cir.1984); Ford v. Strickland, 696 F.2d 804, 810 (11th Cir.1983). Rather, Petitioner urges, the Court should be guided by the Eleventh Circuit's holding in Adams v. Wainwright, 764 F.2d 1356 (11th Cir.1985). The specific language in Adams relied upon by Petitioner states:
220
The Florida Supreme Court's approach to deciding the petitioner's Stromberg claim was incorrect. The proper approach is to examine only the trial court's instructions and the jury's verdict, not the sufficiency of the evidence to support the verdict. Stromberg does not suggest a harmless error standard based on overwhelming evidence of guilt under the valid portion of the jury charge.
221
Adams, supra at 1362 .
222
Petitioner claims that the Adams holding shows that the ruling by the Florida Supreme Court cannot be determinative as it employed a legally erroneous standard of review. A close reading of the Adams case and Stromberg v. California, 283 U.S. 359 [ 75 L.Ed. 1117 , 51 S.Ct. 532 ] (1931) shows that Petitioner's reliance on these cases is misplaced. Stromberg held that "a conviction cannot be upheld if (1) the jury was instructed that a guilty verdict could be returned with respect to any one of several listed grounds, (2) it is impossible to determine from the record on which ground the jury based the conviction, and (3) one of the listed grounds was constitutionally invalid." Adams, supra at 1361 (citing Stromberg v. California, 283 U.S. 359, 368 [ 75 L.Ed. 1117 ] 57 S.Ct. 532 , 535 (1931)) (emphasis added by this Court). The third prong of the Stromberg enunciation is required for a Stromberg attack upon a conviction; its inclusion in the Stromberg language is preceded by the conjunctive "and" rather than the disjunctive "or." Indeed, the very trigger of a Stromberg attack is the presence of a listed ground upon which a jury might convict that is constitutionally invalid.
223
Thus, the Adams case examined in part whether Petitioner Adams's conviction could be sustained in the face of a Stromberg attack where the verbal charge given the jury during the guilt-innocence proceedings listed, as murder in the first degree, both premeditated murder and felony murder, with the latter being defined as killing during the commission of, or an attempt to commit, "rape, ... abominable and detestable crime against nature or kidnapping ..." (and where the reference to rape was erroneous under Florida law and the Florida statute prohibiting abominable and detestable crimes against nature had been declared unconstitutional before the petitioner's trial). The Adams court was concerned with the proper approach to examining the propriety and sufficiency of jury instructions where the instructions created the possibility that a defendant might have been convicted of a crime that did not exist under state law or under a statute previously held to be unconstitutional. The Stromberg case and the portion of Adams relied upon by Petitioner are not concerned with the failure to instruct the jury on the elements of the underlying felonies. Instead, they deal with instructions which contain misstatements of the law (certainly the inclusion in a jury charge of a constitutionally invalid ground qualifies as a misstatement of the law).
224
In Petitioner Muhammad's case the trial court's charge to the jury did not set forth as a ground for conviction the violation of a statute previously held unconstitutional. It is crystal clear from the record that when the prosecution or the trial court referred to underlying felonies committed by the Defendant, the references were to robbery and kidnapping. Both exist under Florida law. Neither was declared unconstitutional prior to petitioner's trial. Therefore, Petitioner's reliance on Stromberg and Adams is inappropriate.
225
This Court is faced with jury instructions which contained omissions, or incomplete instructions, rather than misstated or erroneous elements. The standard is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. at 147, 38 L.Ed.2d 368 , 94 S.Ct. 396 [ (1973) ] not merely whether "the instruction is undesirable, erroneous or even 'universally condemned,' " Id., at 146, 38 L.Ed.2d 368 , 94 S.Ct. 396 [at 400]. Henderson v. Kibbee, 431 U.S. 145 [at 154] 52 L.Ed.2d 203 at 212 , 97 S.Ct. 1730 [at 1737] (1977). Further, "[a]n incomplete instruction is less likely to prejudice the defendant than one which is substantively incorrect. See Henderson v. Kibbee, supra 431 U.S. at 155 , 97 S.Ct. at 1737 . Moreover, a claim of prejudice is particularly remote where the defendant did not object to the instructions' lack of completeness when the opportunity arose. Id. Such is the status of the petitioner's claim here. The jury instruction was not substantively erroneous, just incomplete. The Petitioner's trial counsel did not object or move for further instructions. "... Under the circumstances, the possibility that the jury would have reached a different verdict ... 'is too speculative to justify the conclusion that constitutional error was committed.' Id. at 157 , 97 S.Ct. at 1738 ." Adams, supra at 1364-65 .
226
The Court is in accord with the Florida Supreme Court that the failure to instruct on the underlying felonies was harmless error. In finding that there was no prejudice, the court held:
227
[A]n argument could be made under the facts of this case that giving the underlying felony instruction would have been more of a detriment than a benefit to this petitioner. This stems from the fact that one of the arguments of the petitioner at trial was the lack of direct evidence that Knight actually killed the victims. Indeed, the record reflects that there was strong circumstantial evidence but no direct eyewitness evidence of the actual killings, in contrast to the considerable direct evidence, including numerous law enforcement eyewitnesses, that Knight was the perpetrator of the kidnapping and the robbery.
228
However, the record in this cause, and in particular, the final argument of counsel demonstrates that the state, although it mentioned felony murder, strongly argued premeditated murder to the jury. The record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. ... We are satisfied beyond a reasonable doubt that the failure to give the instruction at issue was not prejudicial and did not contribute to the petitioner's conviction. See Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
229
Knight, supra at 1002; see also, e.g., Henderson, supra [ 431 U.S. at 214 n. 16, 97 S.Ct. at 1738 n. 16].
230
The record reflects that the premeditated murder theory was the primary ground stressed by the state. The indictment returned against the Petitioner charged premeditated murder. The prosecution, as discussed above, strongly argued the calculated premeditative nature of the killings and the preparations of the Petitioner in anticipation of the acts. Under Florida law, premeditation can be shown by circumstantial evidence and may be inferred from evidence such as the nature of the weapon used, the presence or absence of provocation, previous difficulties between the parties, the manner in which homicide was committed, and the nature and manner of the wound inflicted. Way v. Wainwright, 786 F.2d 1095, 1096 (11th Cir.1986) (citing Sireci v. State, 399 So.2d 964, 967 (Fla.1981)). In this case, the jury was exposed to an overwhelming amount of circumstantial evidence showing premeditation.
231
The trial judge, in his charge, spent considerable time discussing the premeditated design theory and instructing the jurors accordingly. He reminded the jury that the indictment charged premeditated design and described the various classes of homicide and the elements involved. While the judge did comment on felony-murder in his discussion of the kinds of first degree murder under Florida law, his mentions of felony-murder merely tracked the statutory language on first-degree murder. The instructions' omissions did not extend in any way to the instructions on premeditated murder. The premeditated murder instructions given were specific and fully detailed. R. 3573-75. Thus, this case is unlike Glenn v. Dallmann, 686 F.2d 418 (6th Cir.1982), where the harmless error rule was held inapplicable because the instructions were incomplete as to the only crime charged. Cf. Adams, supra at 1364 . The omissions in the instructions did not leave the jury guessing as to the elements of the only crime with which petitioner was charged. See In Re: Winship, 397 U.S. 358, 364 , 25 L.Ed.2d 368 , 90 S.Ct. 1068 [1072] (1970). The jury was carefully instructed on the varying gradations and respective elements of homicide, focusing on premeditated murder.
232
Accordingly, I am convinced that the trial court's omission as to the elements of the underlying felonies was harmless beyond a reasonable doubt. See Chapman, supra [ 386 U.S. at 25-26 , 17 L.Ed.2d] at 711 [87 S.Ct. at 828]. Here there was ample evidence of premeditation aside of the evidence of the felonies. See also, e.g., State v. Pinder, 375 So.2d 836 (Fla.1979) at 839; R. at 3467-70 (summation by state in closing). Petitioner Muhammad was not prejudiced by the trial court's instructions as delivered such that the "ailing instruction[s]" violated his rights to due process. I conclude further that the verdict would not have been different if the elements of the underlying felonies for the secondary theory of felony-murder had been included in the instructions.
V. JURY INSTRUCTIONS
233
Petitioner contends that the jury should have been instructed concerning the consequences of a successful insanity defense, i.e. that if Petitioner were found not guilty by reason of insanity, he would have been committed to a state psychiatric hospital. Absent this information, Petitioner asserts that his jury was permitted to speculate concerning whether a verdict of not guilty by reason of insanity might allow the Petitioner to go free. In his favor, Petitioner cites this Court to an excerpt taken from the Prosecutor's summation that arguably injects speculation into the fact finding process:
234
But at any rate, as a jury, no matter what the evidence, you can disregard that evidence if you wish and turn that man loose, walk him out of this courtroom as though nothing had ever happened and nobody can stop you.
235
R. at 3464.
236
Respondent contends that the Florida Supreme Court decided this issue as a matter resting on an adequate foundation of state substantive law in Muhammad v. State, 426 So.2d 533, 536 (Fla.1982). This argument assumes that federal habeas review is barred by the doctrine set forth in Wainwright v. Sykes, [ 433 U.S. 72, 80-81 ] 53 L.Ed.2d 594, 604 [ 97 S.Ct. 2497, 2503 ] (1977). However, the Florida Supreme Court reviewed the merits of Petitioner's claim along with Petitioner's claim regarding ineffective assistance of appellate counsel. In that context, Petitioner argued that his appellate counsel was ineffective by failing to preserve this issue for appeal. Thus, this Court's habeas review is not barred by Wainwright v. Sykes.
237
On July 8, 1976, the Florida Supreme Court decided Roberts v. State, 335 So.2d 285 (Fla.1976). The Roberts rule was designed to avoid "confusion and wonderment as to the possible practical effect of a verdict of not guilty by reason of insanity ... [J]urors will be able to weigh the evidence relating to the factual existence of legal insanity in an atmosphere untroubled by the distracting thought that such a verdict would allow a dangerous psychopath to roam at large." Id. at 289 . The Florida Supreme Court adopted the "Lyles rule" espoused by the D.C. Circuit Court of Appeal in Lyles v. U.S., 254 F.2d 725 (D.C.Cir.1957). The Lyles court held that "whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accordance with the expressed view in this opinion." Id. at 729 . Relying on Roberts, the Petitioner argues that he was denied a federal constitutional right to have a judge instruct the jury to the consequences of a verdict of not guilty by reason of insanity.
238
The Florida Supreme Court decided Roberts after Petitioner's trial and after briefs had been submitted and oral argument in the direct appeal of his conviction. Petitioner did not ask the trial court for a jury instruction concerning the consequences of a not guilty by reason of insanity verdict. Instead, Petitioner argued this issue in his state Petition for Habeas Corpus in connection with his charge that his appellate counsel was ineffective in not anticipating the Roberts rule. Because Petitioner did not preserve this issue for his state appeal, Roberts does not apply. As the Florida Supreme Court found in Knight v. State, 394 So.2d 997, 1003 (Fla.1981), "clearly our Roberts decision did not adopt a rule of law dictated by the United States Supreme Court, the United States Constitution, or the Florida Constitution, nor did it apply retroactively to any pending decisions except those in which the issue had been preserved and which were actually pending on appeal." It can only be inferred that the Florida Supreme Court intended to confine the Roberts rule to a state law issue. Issues of state law are ordinarily immune from federal review. Francois v. Wainwright, 741 F.2d 1275, 1281 (11th Cir.1982, en banc).
239
Petitioner's charge that his appellate counsel should have preserved this issue on appeal in anticipation of Roberts is without force. There is no requirement that counsel, to be reasonably effective, must anticipate changes in the law. Parker v. North Carolina, [ 397 U.S. 790, 797 ] L.Ed.2d 785, 792 [ 90 S.Ct. 1458, 1462 ] (1970); Alvord v. State, 396 So.2d 184, 191 (Fla.1981).
240
The Roberts case was decided after Petitioner's state appeal. As fashioned by the Florida Supreme Court, Roberts did not vest Petitioner with the retroactive right to a jury instruction at his trial concerning the consequences of a not guilty by reason of insanity verdict. As the Florida Supreme Court noted, this issue is a matter of state law determined adversely to Petitioner in Knight v. State, 394 So.2d 997, 1002-3 (Fla.1981). In Knight, the Florida Supreme Court held that Roberts did not apply to Knight because Petitioner's appellate counsel did not preserve the issue on appeal. Effectively, this decision meant that McClure v. State, 104 So.2d 601 (Fla. 3 DCA 1958) applied at Petitioner's trial. Under the McClure rule, while the trial court "may instruct the jury as to the consequences of a verdict of not guilty by reason of insanity, a refusal to do so does not constitute error." Roberts, 335 So.2d at 288 .
VI. DUE PROCESS AT SENTENCING PHASE
241
Petitioner argues that he was denied due process at the sentencing phase of his trial. Because of the asserted due process deprivation at sentencing, Petitioner claims that the death sentence recommended by the jury and imposed by the judge was improper. Petitioner alleges that specific violations occurred at his sentencing through inadequate jury instructions, improper prosecutorial argument, a non-unanimous jury recommendation, defense counsel's ineffective assistance at the sentencing phase, and the excessive and disproportionate sentences imposed.
242
Petitioner's claim of ineffective assistance at sentencing will be addressed separately.
243
Petitioner maintains that the trial court failed to specify which felonies were being referred to when the jury was instructed that one of the statutory aggravating circumstances was that the capital felonies were committed while the defendant was engaged in the commission of any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb. The Magistrate's Report states that "[t]he jury had sat through ... [the] trial and knew full well that Sydney and Lillian Gans were murdered during the course of a robbery and kidnapping."
244
This Court finds that there was no way the jury could not have known which of the enumerated felonies were applicable in the case after having heard the cumulative testimony and arguments presented. Further, the prosecution repeatedly told the jury that the underlying felonies involved were robbery and kidnapping. See R. at 3467, 3567, 3624-25.
245
As a second ground for finding taint in the sentencing procedure, Petitioner claims that the trial court failed to instruct the jury that the standard for a finding of mental disturbance was less stringent at the sentencing phase than at the guilt-innocence phase of the trial. The jury in this cause was not without the benefit of a specific and careful explanation, delivered by defense attorney Meadows, that the showing of mental disturbance for the mitigating circumstance of mental disturbance could be made under a less stringent standard than that required for a finding of incompetency to stand trial. R. at 3535-38. There was no objection raised by the prosecution to this explanation, which also mentioned that the lesser standard was provided for by statute. Given the specific and detailed explanation which was not disputed or questioned at all by the prosecution, this Court cannot find any error of constitutional magnitude stemming from the fact that the jury heard the explanation from defense attorney Meadows rather than from the court. The important thing is that the jury was informed that the standard for mental disturbance for the purpose of finding the presence of a statutory mitigating circumstance was a lesser standard than that for competency to stand trial.
246
Petitioner claims that the trial court's instructions restricted the jury's consideration of mitigating circumstances only to those listed in the statute. The state court rejected this claim on the ground that it presupposed that counsel was expected to anticipate the decision in Lockett v. Ohio, 438 U.S. 586 [ 57 L.Ed.2d 973 ] 98 S.Ct. 2954 (1978). Muhammad v. State, 426 So.2d at 538 . Petitioner's claim cannot be rejected out of hand solely upon the above-stated basis. A court should consider the status of Florida's law on the date of sentencing, the trial record, and proffers of nonstatutory mitigating evidence claimed to be available. Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985) (en banc) at 1517.
247
At the time of Knight's sentencing, the confusion in Florida law had not yet been, at least, partially alleviated by Lockett and obviously had not been clarified by the later decision in Songer v. State, 365 So.2d 696, 699 (Fla.1978). Because these decisions had not yet been issued, it is important to examine the record at sentencing to evaluate the claim of petitioner.
248
The Court concludes that this claim is without merit in light of the fact that the defense discussed non-statutory mitigating circumstances without limitation by the trial judge. Further, although the trial judge did not find that there were any mitigating circumstances present, statutory or otherwise, there was no indication that the judge did not consider everything presented. See Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.), cert. denied, [ 469 U.S. 873 , 83 L.Ed.2d 156 ] 105 S.Ct. 227 (1984).
249
The instructions given to the jury do not appear to have been restrictive. Defense counsel, in fact, argued the existence of nonstatutory mitigating circumstances to the jury seemingly without limitation (although arguably some of the nonstatutory mitigating factors were discussed in conjunction with defense counsel's presentation on mental disturbance as a mitigating circumstance). Moreover, Attorney Matthews testified at this Court's evidentiary hearing that he knew the judge was not restricting the defense to statutory mitigating circumstances.
250
Defense counsel argued that the death penalty should not be recommended because there was no proof that it was a deterrent to future crimes. R. 3633. Defense counsel also discussed the failure of society to deal with the underlying causes of crime.
251
And I want to suggest to you, as you consider the verdict in this case, that there is a very important factor involved here as far as society is concerned and as far as I get into the discussion now of the mitigating factors which I believe are appropriate.
252
I want to discuss to you that all of society's efforts have been fruitless and have really not done much to prevent crime because we have not dealt with the real basic problem, and that's the roots, the causes, the basic underlying causes of crime.
253
And I believe that relates to Thomas Knight, and its appropriate for you to consider that in your deliberations as to the punishment for him.
254
R. at 3634-35.
255
The failure of society to deal with "the roots" and "causes of crime" is not a statutorily listed mitigating circumstance, yet it was presented to the jury.
256
Petitioner Knight's family background was referred to by defense counsel at the sentencing phase.
257
There's other testimony that has been put in evidence today, you know, about his family background, the circumstances under which he grew up.
258
R. 3639.
259
While Petitioner's family background and tragic circumstances were not extensively discussed, because defense counsel instead emphasized other points relating to Petitioner's mental state, it cannot be said that the defense or the jury was precluded from giving weight to Knight's background or other circumstances presented in the mitigation argument.
260
Defense counsel again mentioned the lack of guidance the defendant had received when he was a youth.
261
I want to suggest to you, though, that it's appropriate for you to consider this. Is he to be blamed a hundred percent for what happened to him for what he did and for what has happened to him or does society have some responsibility in this matter? Where along the line as this young man was growing up was there a person who either had, either took time or had time to really give him some assistance as he was developing his mind?
262
R. 3641.
263
In this cause, the defense counsel were not restricted in any way from presenting any mitigating circumstances that they desired to put before the jury and the judge. The Florida Supreme Court found that the trial court considered all of the relevant aggravating and mitigating circumstances, 394 So.2d at 1003 , and this Court agrees and finds that because nonstatutory mitigating factors were discussed by defense without objection or limitation by the court, the trial court's instructions on this point were not unconstitutionally restrictive.
264
The record shows that the trial court advised the jury that if mitigating circumstances outweighed the aggravating circumstances, the defendant should not be recommended for the death penalty. R. 3615-16. The trial judge further instructed the jury that aggravating circumstances must be established beyond a reasonable doubt, and that evidence on an aggravating circumstance which failed to meet that burden should be disregarded. R. 3618-19. Accordingly, the Court finds that the trial court did not impermissibly shift the burden of proof onto defendant.
265
If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence which should be imposed.
266
R. at 3619 (emphasis added).
267
With the above statement, the trial court made it clear that the balancing of the aggravating and mitigating circumstances was not simply a mere counting process. See State v. Dixon, 283 So.2d 1 (Fla.1973) at 9-10.
PROSECUTORIAL ARGUMENT
268
Petitioner argues that the prosecutor made remarks during closing argument that were improper, inaccurate, misleading, inflammatory and designed to divert the jury from its proper function in recommending a penalty. The prosecutor's closing argument, Petitioner asserts, violated his Eighth Amendment right to be free from the improper imposition of the death penalty.
269
The allegedly improper remarks complained of are summarized as follows:You having heard the facts, being best acquainted with the kind of trauma that is inflicted upon people who are the victims of kidnapping, the kind of pain that is inflicted upon a man who knows his wife is being held hostage, the kind of pain that is inflicted upon a woman who is being forced at gun point to drive around while her husband gets together fifty thousand dollars ransom for her. You are in the best position to determine whether the kind of cruelty that the law talks about is involved in this case.
270
There is nothing that was said by the defendant during his int

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/515812. Public record. Not legal advice.