# Roy Allen Harich v. Richard Dugger, Secretary, Florida Department of Corrections, Respondent

> Court of Appeals for the Eleventh Circuit · April 21, 1988 · 844 F.2d 1464

URL: https://www.frixlaw.com/law-library/cases/9477522

## Case

- **Full name:** Roy Allen HARICH, Petitioner-Appellant, v. Richard DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** April 21, 1988
- **Citations:** 844 F.2d 1464; 1988 U.S. App. LEXIS 5192; 1988 WL 39117
- **Precedential status:** Published
- **Opinion:** Concurring in part by Vance
- **Judges:** Anderson, Clark, Fay, Hatchett, Hill, Johnson, Kravitch, Roney, Tjoflat, Vance
- **Cited by:** 105 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Davis v. Singletary, 119 F.3d 1471 (1997).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477522

## How later opinions describe it (automated extraction)

- 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 probab…
- 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
- 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
- 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
- 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

## Opinion text

VANCE, Circuit Judge,
concurring in part and dissenting in part, in which JOHNSON, Circuit Judge, joins:
I agree with the majority that petitioner is not entitled to relief on his ineffective assistance of counsel claim. I also agree that a Caldwell violation requires inaccurate or misleading statements. I further agree with Judge Tjoflat that the Caldwell analysis should focus on whether the inaccurate or misleading remarks left the jury with a misimpression as to the importance of its role. After reviewing the record in this case, however, I believe that the remarks made by the prosecutor and the trial court, considered in the context of the entire trial, left the jury with an inaccurate sense of its role. I therefore must conclude that Caldwell requires that we grant petitioner relief on this ground.
I.
In Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), a majority of the Supreme Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29 , 105 S.Ct. at 2639 . This is because “the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at 333 , 105 S.Ct. at 2641-42 . Thus when the trial court and the prosecutor misled the jury into believing that the responsibility for sentencing rested with the Mississippi appellate court, which was inaccurate under state law, the resulting sentence did not meet the eighth amendment’s standard of reliability. Id. at 341 , 105 S.Ct. at 2646 .
The translation of the Caldwell issue from Mississippi to Florida requires us to focus on Justice O’Connor’s concurring opinion in Caldwell . A plurality of four justices found that the statements to the jury regarding appellate review were both inaccurate and irrelevant. Id. at 336 , 105 S.Ct. at 2643 . Justice O’Connor, who provided the fifth vote for vacating the petitioner’s death sentence, based her decision only on the ground that the statements were inaccurate. Id. at 341-42 , 105 S.Ct. at 2646 (O’Connor, J., concurring in part and concurring in the judgment). Justice O’Connor did not agree with the plurality that “the giving of nonmisleading and accurate information regarding the jury’s role in the sentencing scheme is irrelevant to the sentencing decision.” Id. at 341 , 105 S.Ct. at 2646 (O’Connor, J., concurring in part and concurring in the judgment) (emphasis in original). I therefore agree with the majority that statements to the jury must be inaccurate or misleading, and not merely arguably irrelevant, before we will find a Caldwell violation. See Mann, 844 F.2d at 1454-55.
Under Florida’s sentencing scheme the jury renders an advisory sentence. The trial judge then independently weighs the evidence from the sentencing phase before entering the sentence. Fla.Stat. § 921.141 (1985). It is therefore technically accurate and not misleading to tell a jury in Florida that its sentence is “advisory.” “Emphasizing” the advisory nature of the jury’s sentencing recommendation also does not necessarily constitute Caldwell error. See ante at 1472-74. As we held in Mann, however, there are still ways to mislead a Florida jury by minimizing its perception of its role in the sentencing scheme. Mann, 844 F.2d at 1454,1457-58; see ante at 1475 (Tjoflat, Circuit Judge, specially concurring).
A Florida jury plays an important and significant role in the Florida capital sentencing scheme. Florida law requires the trial judge to give great weight to a jury’s recommendation. See Grossman v. State, *1483 525 So.2d 833 , 839 n. 1, 13 Fla.L.Weekly 127, 133 n. 1 (1988); Tedder v. State, 322 So.2d 908, 910 (Fla.1975); see also Spaziano v. Florida, 468 U.S. 447, 465 , 104 S.Ct. 3154, 3165 , 82 L.Ed.2d 340 (1984) (Tedder standard affords capital defendant in Florida significant safeguards, and Florida Supreme Court takes the standard seriously); Proffit v. Wainwright, 756 F.2d 1500, 1503 (11th Cir.1985) (Florida law requires so much deference to jury’s advisory opinion that trial judge must give explicit reasons for choosing death if the jury recommends life). Before a trial judge in Florida may override a jury recommendation of life imprisonment, the judge must find that the facts are so clear and convincing that virtually no reasonable person could differ. Combs v. State, 525 So.2d 853, 857 , 13 Fla.L.Weekly 142, 144 (1988); see. also Dobbert v. Florida, 432 U.S. 282, 295-96 , 97 S.Ct. 2290, 2299-2300 , 53 L.Ed.2d 344 (1977) (Tedder rule provides crucial protection so that defendants are not disadvantaged with respect to a jury’s recommendation of life). The Florida Supreme Court’s recent decisions in Grossman and Combs emphatically reaffirm this principle of Florida law. Cf. Grossman, 525 So.2d at 847 , 13 Fla.L.Weekly at 134 (Shaw, J., specially concurring) (Florida’s scheme for imposing the death penalty would pass master without Tedder); Combs, 525 So.2d at 859 , 13 Fla.L.Weekly at 144 (Shaw, J., specially concurring) (questioning whether the Tedder rule is still viable). The Caldwell issue therefore turns on whether the jurors had an accurate perception of this role when they sentenced petitioner to death.
II.
After reviewing the record in this case in light of Caldwell , I must conclude that the jury was misled as to its role under Florida law. Both the prosecutor and the trial court made misleading and inaccurate statements to the jury throughout the trial. Although the majority and Judge Tjoflat attempt to soften the impact of these statements, I am unable to do so.
During voir dire the prosecutor introduced the jury to its role in the sentencing phase:
Let me add that yours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court what the circumstances show.
This is both inaccurate and misleading. It is inaccurate because the sentencing jury under Florida law gives more than some direction to the trial court. It gives considerable direction. It is also misleading because to say that the trial court may pronounce whatever sentence it sees fit implies that the trial judge need not pay any attention at all to what the jury recommends. Thus the jurors were presented with an inaccurate and misleading conception of their role from the very beginning of the trial.
Rather than finding that other statements by the trial court “effectively undermined” this inaccurate and misleading statement, I conclude that subsequent events exacerbated the jury’s misconception of its role. For example, immediately before the prosecutor’s opening statement, the trial court told the jury:
Your duty is to determine if the Defendant is guilty or not guilty, in accordance with the law. It is the Judge’s job to determine what a proper sentence would be if the Defendant is guilty.
While this may be accurate it is misleading. By omitting the fact that it is in part the jury’s job to determine the proper sentence, the trial court reinforced the prosecutor’s inaccurate and misleading remarks at voir dire.
At the end of the guilt phase, the trial court, rather than correcting any misconception, repeated this misleading statement to the jury verbatim. The trial court added:
I will now inform you of the maximum and minimum possible sentences in this case. The penalty is for the Court to decide. You are not responsible for the penalty in any way because of your verdict.
This is at least misleading. It is true, as Judge Tjoflat suggests, that this statement reminded the jurors that the guilt phase is distinct from the sentencing phase, and *1484 that their decision in the guilt phase should not be influenced by the possibility of the death penalty as the punishment. See ante at 1478-79 (Tjoflat, Circuit Judge, specially concurring). The statement, however, is a misleading way to communicate this fact to the jury.
In charging the jury at the beginning of the sentencing phase, the trial court stated:
As I advised you, when the charge of the law was given you at the conclusion of the case, the punishment of this crime is either death or life imprisonment without possibility of parole for twenty-five years. The final decision as to what punishment shall be imposed rests solely upon the Judge of this court. However, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.
This statement is not only inaccurate and misleading (the final decision does not rest solely with the trial judge), it also results in the exact “imprimatur” condemned in Mann. See Mann, 844 F.2d at 1457-58. By opening this inaccurate and misleading statement with the words “as I advised you,” the trial judge “expressly put the court’s imprimatur” on all the previous misleading statements made to the jury. Id.; see also Caldwell, 472 U.S. at 339 , 105 S.Ct. at 2645 (“trial judge in this case not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them”). 1
In light of these statements I cannot agree with the majority that this jury felt the full weight of its advisory responsibility. Nor can I agree with Judge Tjoflat that these jurors “were likely left with something very close to an accurate understanding of the nature of the sentencing process.... ” Ante at 1479 (Tjoflat, Circuit Judge, specially concurring). At best, the statements likely left some jurors confused as to their proper role. Mann, 844 F.2d at 1458. At worst, the statements misled the jurors. Cf. Peek v. Kemp, 784 F.2d 1479, 1489 (11th Cir.) (in banc) (“ultimate question is whether there is a reasonable possibility that the jury understood the instructions in an unconstitutional manner”), cert. denied, — U.S. —, 107 S.Ct. 421 , 93 L.Ed.2d 371 (1986). Although I view this as a closer case than Mann, I must conclude that Caldwell requires us to vacate this petitioner’s death sentence as well.
III.
I recognize that the Florida Supreme Court, confronted with this very issue, has held recently that the jury’s role in Florida’s sentencing scheme is sufficiently different from the jury’s role in Mississippi’s scheme so that Caldwell does not apply to Florida cases. Grossman, 525 So.2d at 839-40 , 13 Fla.L.Weekly at 129-30; Combs, 525 So.2d at 855 , 13 Fla.L.Weekly at 143. We are not bound, however, by a state court’s application of federal constitutional principles. Mann, 844 F.2d at 1454 n. 10. We must independently decide whether Florida’s sentencing process, as defined by that state’s courts, violates Caldwell in a given situation. 2
Applying these principles, I am forced to conclude that because the jury was misled as to its role, there is no way around Caldwell . I recognize that the United States Supreme Court may not have intended Caldwell to apply to Florida’s sentencing scheme. I believe, however, that the Caldwell opinion requires that we vacate petitioner’s sentence.
*1485 The multitude of opinions in this case and various approaches to the Caldwell issue in Florida highlights the considerable uncertainty in this area. This uncertainty extends to the justices of the Florida Supreme Court. Compare Combs, 525 So.2d at 858, 13 Fla.L.Weekly at 144 (refusing to apply Caldwell to Florida’s standard jury instructions) with Grossman, 525 So.2d at 851, 13 Fla.L.Weekly at 136 (Barkett, J., concurring in part, dissenting in part) (Caldwell applies to the Florida advisory jury as well as the trial judge, since both exercise sentencing discretion). Caldwell casts doubt on a great number of Florida death sentences. The United States Supreme Court has granted certiorari in a Florida case involving a Caldwell claim. See Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified sub nom, 816 F.2d 1493 (11th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 1106 , 99 L.Ed.2d 267 (1988). I hope the Court will clarify the law in this area. Because the petitioner in this case was sentenced to death in violation of Caldwell as I read that opinion, I respectfully dissent from part II.B of the majority opinion in this case.
. The trial court’s statement is actually worse than the statement made by the trial court in Mann. In Mann, we found that by stating to the jury "as you have been told,” the trial court put its imprimatur on misleading remarks made previously by the prosecutor. In this case, the trial court reinforced the jury’s inaccurate sense of its role by reaffirming the court's own inaccurate and misleading statements.
. In Grossman , for example, the Florida Supreme Court found no Caldwell violation because it was "not persuaded that the weight given to the jury's advisory recommendation is so heavy as to make it the de facto sentence[r].” 525 So.2d at 840, 13 Fla.L.Weekly at 130. This is not, however, the proper inquiry under the federal constitution. In Combs the Florida Supreme Court distinguished Caldwell because of the statutory description of the jury's role as "advisory." 525 So.2d at 855, 13 Fla.L.Weekly at 143. As we held in Mann, however, the legislature’s use of this word is not determinative of the Caldwell issue. See Mann, 844 F.2d at 1450.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477522. Public record. Not legal advice.