finding it unlikely that similar expert testimony would have impacted the jury’s determination of guilt because "[d]efense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reason- ably probable that presenting expert testimony earlier would have resulted in a different verdict."
How later courts described this case
- finding it unlikely that similar expert testimony would have impacted the jury’s determination of guilt because "[d]efense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reason- ably probable that presenting expert testimony earlier would have resulted in a different verdict."
- concluding -- without evidentiary hearing on whether counsel’s strategy arose from his ignorance of law -- that trial counsel’s performance was competent because hypothetical competent counsel reasonably could have taken action at trial identical to actual trial counsel
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Davis v. Singletary, 119 F.3d 1471 (1997)
844 F.2d 1464, 1470 (11th Cir. 1988) (en banc), partially overruled on other grounds, Davis v. Singletary, 119 F.3d 1471, 1481-82
Abrogated in part, on other grounds by Romano v. Oklahoma, 512 U.S. 1 (1994)
844 F.2d 1464, 1471 (11th Cir.1988) (en banc), partially abrogated on other grounds by Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994),
The opinion
CLARK, Circuit Judge,
specially concurring:
I concur with Judge Tjoflat’s opinion in the Mann case which finds that there was a Caldwell violation. I also concur with Judge Tjoflat’s specially concurring opinion in Harich which concludes that there is no Caldwell violation. I was on the panel in both cases and wrote something with respect to the Caldwell issue in each case. See Mann v. Dugger, 817 F.2d 1471, 1489 (11th Cir.1987), and Harich v. Wainwright, 813 F.2d 1082, 1089, 1098 (11th Cir.1987). I have read the record in both of the cases and agree with Judge Tjoflat and the others concurring with him that there is a meaningful difference.
In a Caldwell-type case, it is essential that one determine the jury’s perception of its role during the sentencing phase of the trial. That is, was the jurors’ collective sense of responsibility lessened when asked to decide whether life or death was the appropriate penalty. The answer depends on an analysis of the particular facts and circumstances of each case. The trial court may explain to the jury its advisory role, “as long as the significance of [the jury’s] recommendation is adequately stressed.” Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir.1987) (quoting Pope v. Wainwright, 496 So.2d 798 (Fla.1986)).
In Mann , the prosecutor made the following statements during the voir dire examination:
The recommendation that you make to Judge Federico in this portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all of the testimony himself.
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[Y]ou understand you do not impose the death penalty. That is not on your shoulders. The ultimate decision rests with Judge Federico.
Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only.
817 F.2d at 1489 (emphasis added).
Following are the judge’s comments at the beginning of the sentencing proceeding:
The punishment for this crime is either death or life imprisonment. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury render to the court an advisory sentence as to what sentence should be imposed on the defendant.
Id. (emphasis added). It is clear from the above that the prosecutor and the court misled the jury as to its responsibility. The last thought left with the jury by the prosecutor in his closing argument at sentencing replayed his earlier statements:
What I’m suggesting to you is that the ultimate responsibility for the imposition of the sentence rests with Judge Philip Federico. That is his sworn position in the system. He’s heard everything you have heard. He may have the opportunity to learn more before he imposes a sentence.
Transcript at 2439. The foregoing flagrant misstatement by the prosecutor was followed soon thereafter by Judge Federico’s *1481 instructions to the jury, which included the following:
Ladies and Gentlemen of the jury, it is now your duty to advise the court as to what punishment should be imposed on the defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the court and render to the court an advisory opinion based upon your determination....
817 F.2d at 1490 (emphasis added). Clearly the jurors’ perception of their role was minimized by the prosecutor’s statement and then the trial court’s endorsement when the court said “as you have been told....” The defense attorneys did not address the role of the jury in their closing arguments, making clear that the judge’s reference was to the prosecutor’s misde-scription of the jurors’ role.
The circumstances of this case indicate there was an intolerable danger that the jury recommended the death penalty because it did not understand that its recommendation would, to some extent, bind the trial court to a particular result. The jurors heard compelling mitigating evidence that Mann suffered from psychotic depression, and that he committed this crime during a fit of pedophilic rage. They were told that Mann attempted to commit suicide by slashing his forearms shortly after the crime had been committed. He had attempted suicide several times in the past. When the police came to his aid on the day of the murder, Mann said he had done something stupid and needed help. At the sentencing hearing, a psychiatrist testified that Mann committed the crime while under the influence of an extreme mental or emotional disturbance. The victim, a 10 year-old girl, intensified his feelings of guilt regarding his pedophilic instincts, thus channeling his self-destructive rage into an act of violence. Faced with a difficult decision, the jurors were quite susceptible to a suggestion that the sentencing decision was “not on [their] shoulders.” The improper comments in this case created the “intolerable danger” that the advisory jury gave its recommendation without truly understanding its proper role.
With respect to the identical issue in the Harich case, the prosecutorial and judicial comments in this case did not minimize the role of the jury. The statements went no further than explaining to the jury the respective functions of the judge and jury. The jury was told to listen to the evidence, weigh the aggravating and mitigating circumstances and render an advisory opinion as to the applicability of the death penalty in this case. Nothing was said which would imply to the jury that its recommendation was superfluous or that the importance of the jury’s decision was lessened by the fact that it was only a recommendation. Upon examination of the record, one concludes that the seriousness of the jury’s advisory role was adequately communicated by the court and prosecutor. As mentioned in the discussion of the Mann case, the Florida Supreme Court has stated that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell “as long as the significance of [the jury’s] recommendation is adequately stressed.” Pope v. Wainwright, 496 So.2d 798 (Fla.1986).
In distinguishing between Mann and Ha-rich, it is necessary to analyze the context in which the statements are made with respect to the jury’s sense of responsibility for its sentencing decision. In Mann there were a number of statements by the prosecutor which reduced the jurors’ perception of their duty vis-a-vis the judge's duty, and the court’s comments in Mann gave emphasis to what the prosecutor had said. However, in Harich , there is very little to which one can point that was said by the prosecutor that would have misled the jury. Judge Vance in his dissent at page 1483 recites one statement by the prosecutor. The balance of the statements in that dissent are quotations from what the trial judge told the jury and those statements read in the context of the total instructions and comments of both counsel do not reduce the importance of the jury’s role during the sentencing phase. At page 1483 of *1482 his special concurrence, Judge Tjoflat points out statements by the trial judge and defense counsel which emphasize the importance of the juror’s responsibility. Similar statements are not found in the Mann trial.
Thus, I have no trouble in joining the majority in Mann that the writ be issued unless a new trial is granted, and also concurring with the majority in Harich that the petition be denied.