finding admission of confession in violation of Miranda harmless error; “The most important factor in our decision is that the [improperly admitted] confession was merely cumulative of the evidence contained in the [properly admitted] confession. In fact, the [properly admitted] confession included a far more detailed description of the murder than did the [improperly admitted] confession.” (footnote omitted)
How later courts described this case
- finding admission of confession in violation of Miranda harmless error; “The most important factor in our decision is that the [improperly admitted] confession was merely cumulative of the evidence contained in the [properly admitted] confession. In fact, the [properly admitted] confession included a far more detailed description of the murder than did the [improperly admitted] confession.” (footnote omitted)
- barring such evidence and explaining, inter alia, “Evidence concerning whether the death penalty has a deterrent effect, either on potential murderers in general or on a specific category of potential murderers, is not designed to help the sentencer focus on the unique characteristics of a particular capital defendant or crime. Rather, such evidence is designed to persuade the sentencer that the legislature erred, in whole or in part, when it enacted a death penalty statute. Such evidence has never been held, either by the Supreme Court or by this court, to be ‘constitutionally indispensable.’ ”
- discussing trial court evidence “consist[ing] of the testimony of law professor Hans Zeisel of the University of Chicago, who sought to tell the jury that (1) in general, the death penalty has no proven deterrent effect, and (2) in particular, the death penalty does not deter the mentally ill.”
- holding that Elstad applies whether the suspect’s initial statement was un-warned or obtained after the suspect invoked his rights under Miranda
Written by the judges who cited it.
The opinion
HATCHETT, Circuit Judge,
concurring in part and dissenting in part:
I dissent from that portion of the majority’s opinion that holds that evidence relative to general deterrence may not be introduced in the penalty phase of a capital offense trial.
With the filing of this opinion, the Eleventh Circuit’s cases on the subject of general deterrence hold (1) that neither the prosecutor nor defense counsel may put into evidence facts relevant to whether the death penalty provides general deterrence to murder, but (2) that both the prosecutor and the defense counsel may argue to the jury the merits or demerits of the death penalty as a deterrent. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 361 , 83 L.Ed.2d 297 (1984). Sounds fair enough; but, in reality, such holdings render any defense counsel’s argument about general deterrence totally ineffective.
The defense and the prosecution, as in this case, are prohibited from introducing evidence of the deterrent effect of the death penalty, but the prosecutor is not at an equal disadvantage under this rule of exclusion. The prosecutor can argue general deterrence, using the existence of the legislative enactment, the capital sentencing statute, as evidentiary support. Further, the prosecutor’s argument of general deterrence is benefited by jury instructions which caution the jury not to consider the general deterrence issue, but to “follow such legislative enactments” as the capital sentencing statute under which the jury is impaneled. The prosecutor is able, therefore, to get before the jury the existence of the view of the enacting legislators and the trial judge’s declaration that the capital sentencing statute has conclusively resolved the general deterrence issue. The prosecutor’s argument, legitimized by the existence of the legislative enactment and by the trial judge’s instruction, has the impact of credible evidence. An argument with such impact cannot be successfully rebutted by defense counsel’s argument against imposition of the death sentence.
In this case, the unfairness was increased when the trial judge admitted the out-of-state professor’s testimony and then, in effect, instructed the jury to ignore the testimony because “whether or not one state has such a penalty is the exclusive prerogative of the people of that state____”
Florida law allows the prosecutor the broadest latitude in arguing to the jury. Even “inflammatory” or “abusive argument” is allowed where “there is ample basis in the record to support the remarks.” Darden v. State, 329 So.2d 287, 291 (Fla.1976). In the sentencing phase of a capital offense prosecution, “evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant.” Fla.Stat.Ann. § 921.141(1) (West 1985). A prosecutor’s argument in the sentencing proceeding that the jury should recommend the death penalty as a deterrent to crime has been approved by Florida law. Gibson v. State, 351 So.2d 948, 950 (Fla.1977) (citing Darden v. State, 329 So.2d 287 (Fla.1976)). Florida may well cure this problem by allowing the introduction of general deterrence evidence. In any event, this court must face the federal constitutional question presented as a result of our holdings.
The present anomaly is of constitutional proportions making fundamentally unfair the capital sentencing proceeding. See Donnelly v. DeChristoforo, 416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). To put an end to this anomaly, it is time for the en banc court to hold that no arguments may be made to the jury about the deterrent effect of the death penalty, or to hold that such arguments may only be made based on evidence presented before the jury.