Petition for Writ of Certiorari — Dugger v. Mann

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Supreme Caurt, U8,

@7-2073| ‘TLeD

JUN 18 1966

Case No.

JOSEPH F. SPANIOL, JR,

In The en

SUPREME COURT OF THE UNITED STATES

October Term, 1987

RICHARD L. DUGGER, Secretary, Florida

Department of Offender Rehabilitation

Petitioner,

Vv.

LARRY EUGENE MANN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

AND APPENDIX

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

GARY O. WELCH

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR PETITIONER

QUESTION PRESENTED

MAY A FEDERAL COURT CONSIDER A PROCEDURALLY

DEFAULTED ISSUE THAT HAD NOT BEEN RAISED ON

DIRECT APPEAL ON THE GROUNDS THAT AMBIGUOUS

LANGUAGE BY THE STATE APPELLATE COURT IN

DENYING POST CONVICTION PROCEEDINGS CONSTITU-

TED A RULING ON THE MERITS WHERE THE POST

CONVICTION PROCEEDINGS WERE NOT THE PROPER

FORUM TO RAISE THE ISSUE AND THE MERITS WERE

NOT DISCUSSED BY THE STATE APPELLATE COURT?

II.

WHETHER INFORMING A FLORIDA CAPITAL JURY,

WHICH PROVIDES AN ADVISORY SENTENCE TO THE

SENTENCING JUDGE, THAT THEIR ROLE IS ONLY AD-

VISORY AND THAT THE ULTIMATE SENTENCE IS NOT

ON THEIR SHOULDERS RENDERS THE TRIAL COURT'S

SENTENCE VIOLATIVE OF THE EIGHTH AMENDMENT

VIS A VIS CALDWELL V. MISSISSIPPI, 472 U.S.

320 (1985)?

-i-

TABLE OF CONTENTS

PAGE NO.

QUESTION PRESENTED... .ccccccccccccccsccceed

TABLE OF CONTENTS... .ccccccccccccccsccccerth

TABLE OF CITATIONS... .ccccccccccccccccvehil

OPINIONS BELOW....cccccccccccceevesseeeeilV

JURISDICTIONAL STATEMENT... ceeecsesecceeY

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED... .ccccccccccccceceeVi

STATEMENT OF THE CASE @eeeesoeoeeeeeeeeeeeeee 1

REASONS FOR GRANTING THE WRIT.....+++e+++6

py ARS Re Pa Re Or rd ce

THE EN BANC OPINION OF THE

ELEVENTH CIRCUIT COURT OF

APPEAL Is IN EXPRESS AND

IRRECONCILABLE CONFLICT WITH

THE FLORIDA SUPREME COURT AS TO

THE PROPER APPLICATION OF THIS

COURT'S DECISION IN CALDWELL V.

MISSISSIPPI, 472 U.S.

(1985), TO THE FLORIDA CAPITAL

SENTENCING SCHEME.

ait Ae

te vases seers wee

II.

THE GROUNDS UPON WHICH THE ELE-

VENTH CIRCUIT COURT OF APPEAL

EXCUSED THE PROCEDURAL DEFAULT

OF THE EIGHTH AMENDMENT CLAIM

RESULTS IN A COMPLETE EMASCULA-

TION OF WAINWRIGHT V. SYKES,

433 u.s. 72 (1977).

IIl.

THERE IS EXPRESSED CONFLICT BE-

TWEEN THE CIRCUIT COURTS OF

APPEAL AS TO WHAT CONSTITUTES A

DISCUSSION OF THE MERITS OF A

CONSTITUTIONAL CLAIM IN A STATE

APPELLATE OPINION SO AS _ TO

ALLOW FEDERAL COURTS TO ENTER-

TAIN A PROCEDURALLY DEFAULTED

ISSUE.

DS ceé6eseesescscscoccedsdsesestoisuued

CERTIFICATE OF gg PPT TTrTrrrrerr: ss

-iii-

TABLE OF CITATIONS

PAGE NO.

Aldridge v. State,

503 So.2d 1257 (Fla. 1987).......+8, 9, 10

Bates v. Blackburn,

805 F.2d 569 (5th Cir. 1986)....eeee02--18

Caldwell v. Mississippi,

472 U.S. 320 (1965S) wcccdccccecshs 2, 3, 6,

TTTITIC rr? LS PT 8, 9, 10, ll, 12, 13

Combs v. State,

13 F.L.W. 142 (Fla. Case No.

68,477 decided February 18,1988).........8

Copeland v. Wainwright,

505 So.2d 425 (Pla. BOOT Péesbtcceosbdeate 10

Dugger v. Adams,

108 U.S. 1106 CRSSS) ccccccecessoscccoecens

Exxon Corp. v. Eagerton,

462 U.S. 176 FESR cccccceccesseoctossesene

Ford v. State,

522 So.2d 345 (Fla. 1988)........8, 10, 13

Foster v. State,

518 So.2d 901 (Fla. RGSS cccccceecsceDe 10

Fuller v. Oregon,

417 U.S. 40 ETOP E) cdc cccdcccsdedodecoocech®

Grossman v. State,

13 F.L.W. 127 (Fla. Case No.

62,996 decided February 18, 1988)........8

-iv-

Harris v. Reed,

108 S.C. 1107 Cee oes ssoee 6d ee00eeee ean

Jackson v. State,

13 F.L.W. 146 (Fla. Case No.

68,097 decided February 18, 1988)........8

Mann v. Dugger,

(llth Cir. Case No. 86-3182,

decided April 21, 1988)....eeeeeeee3, Sy 9

Mann v. State,

482 So.2d 1360 (Fla. Beer secncedsvescesecss

Meadows v. Holland,

S31 F.26 493 (Sth Circ. 1987) .cccccccccecht

Oliver v. Wainwright,

795 F.2d 1524 (llth Cir. 1986) rrr rT.

Phillips v. Dugger,

515 So.2d 227 (Fla. 1987) ..ccccccccee9, 10

Phillips v. Lane,

787 F.2d 208 (7th Girt. BUGS) coscceseeestbae

Pope v. Wainwright,

496 So.2d 798 (Fla. BUEOP covccececeeseessese

Preston v. Maggio,

705 F.2d 1113 (5th Cir. BUGS) ch eeococoeeeae

Rosenfeld yv. Dunham,

820 F.2d 52 (2nd Cir. B9GTD ccccsaceessoent

Shepard v. Foltz,

771 F.2d 962 {oth Cire BOGS) ccvdecccsdtoseene

Smith v. State,

S25 GGcSe BOS Teahs ASST Cescceocsesssoertoae

Stepney v. Lopes,

760 F.2d 40 (2nd Cir. 1985)....cceeeeeeelT7

Street v. New York,

394 U.S. 576 CAUSES) ccccccccccosecesoane 16

Wainwright v. Sykes,

433 U.S. 72 CIDTT) cocccocceccoeceSs 12, 14

Wallace v. Duckworth, .

778 F.2d 1215 (7th Cir. 1985)....-ee++-18

Webb v. Webb,

451 U.S. 493 C2962) cccccccccccceccececoene

a ee -

OTHER AUTHORITIES CITED

28 U.S.C. SISZSSCA) coccccdsecocecccssooocee”’

-vi-

OPINIONS BELOW

The en banc opinion of the Court of

Appeal, Eleventh Circuit, in Mann v. Dugger,

Case No. 86-3182, was rendered on April 21,

1988, and is attached as an appendix to the

instant petition. At the time of the prepar-

ation of the instant petition, there has been

no official reporter citation assigned to the

en banc decision of the Court of Appeal. The

opinion of the Circuit Court of Appeal grant-

ing rehearing en banc and vacating the panel

opinion is reported as Mann v. Dugger, 828

FP.2d 1498 (llth Cir. 1987). The panel opin-

ion of the Court of Appeals, Eleventh Cir-

cuit, is reported as Mann v. Dugger, 817 F.2d

1471 (llth Cir. 1987). The opinion of the

Florida Supreme Court Court denying a peti-

tion for writ of habeas corpus and affirming

the denial of the motion for post conviction

relief is reported as Mann v. State, 482

So.2d 1360 (Fla. 1986). The direct appeal in

-vii-

state court which affirmed the judgment and

sentence is reported as Mann v. State, 453

So.2d 784 (Fla. 1984). A previous direct

appeal, which mandated another sentencing, is

reported as Mann v. State, 420 So.2d 578

(Fla. 1982).

JURISDICTIONAL STATEMENT

Jurisdicton to review the en banc

judgment of the Eleventh Circuit Court of

Appeal rendered on April 21, 1988, is invoked

pursuant to 28 U.S.C. $1254(1).

-viii-

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

AMENDMENT VIII

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

FLA. STAT. §921.141 (1981)

921.141. Sentence of death or life im-

prisonment for capital felonies; further pro-

ceedings to determine sentence.

(1) Separate proceedings on issue of

penalty -- Upon conviction or adjudication of

guilty of a defendant of a capital felony,

the court shall conduct a separate sentencing

proceeding to determine whether the defendant

should be sentenced to death or life impri-

sonment as authorized by §775.082. The pro-

ceeding shall be conducted by the trial judge

before the trial jury as soon as practi-

cable. If, through impossibility or inabil-

ity, the trial jury is unable to reconvene

-ix-

for a hearing on the issue of penalty, having

determined the guilt of the accused, the

trial judge may summon a special juror or

jurors as provided in chapter 913 to deter-

mine the issue of the imposition of the pen-

alty. If the trial jury has been waived, or

if the defendant pleaded guilty, the senten-

cing proceeding shall be conducted before a

jury impaneled for that purpose, unless

waived by the defendant. In the proceeding,

evidence may be presented as to any matter

that the court deems relevant to the nature

of the crime and the character of the defen-

dant and shall include matters relating to

any of the aggravating or mitigating circum-

stances enumerated in subsections (5) and

(6). Any such evidence which the court deems

to have probative value may be received, re-

gardless of its admissibility under the ex-

Clusionary rules of evidence, provided the

defendant is accorded a fair opportunity to

’ Us

. <eok

rebut any hearsay statements. However, this

subsection shall not be construed to author-

ize the introduction of any evidence secured

in violation of the Constitution of the

United States or the Constitution of the

State of Florida. The state and the defen-

dant or his counsel shall be permitted to

present argument for or against sentence of

death.

(2) ADVISORY SENTENCE BY THE JURY --

After hearing all the evidence, the jury

shall deliberate and render an advisory sen-

tence to the court, based upon the following

matters:

(a) Whether sufficient aggravating cir-

cumstances exist which outweigh the aggrava-

ting circumstances found to exist; and

whether the defendant should be sentenced to

life imprisonment or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF

DEATH -- Notwithstanding the recommendation

of a majority of the jury, the court, after

weighing the aggravating and mitigating cir-

cumstances, shall enter a sentence of life

imprisonment or death, but if the court im-

poses a sentence of death, it shall set forth

in writing its findings upon which the sen-

tence of death is based as to the facts:

(b) That there are insufficient mitiga-

ting circumstances to outweigh the aggrava-

ting circumstances.

In each case in which the court imposes

the death sentence, the determination of the

court shall be supported by specific written

findings of fact based upon the circumstances

in subsections (5) and (6) and upon the re-

cords of the trial and the sentencing pro-

ceeding. If the court does not make the

findings requiring the death sentence, the

court shall impose sentence of life imprison-

ment in accordance with §775.082.

-xii-

2 tan AOR ND eins h 2S gt a IH ed EDA te eg

AY ae

2 tat ANC RIS ARRAN lr NN a

(4) Review of Judgment and Sentence --

The judgment of conviction and sentence of

death shall be subject ot automatic review by

the Supreme Court of Florida within 60 days

after certification by the sentencing court

of the entire record, unless the time is ex-

tended for an additional period not to exceed

30 days by the Supreme Court for good cause

shown. Such review by the Supreme Court

shall have priority over all other cases and

shall be heard in accordance with rules pro-

mulgated by the Supreme Court.

(5) Aggravating Circumstances -<

Aggravating circumstances shall be limited to

the following:

(a) The capital felony was committed by

a person under sentence of imprisonment.

(b) The defendant was previously con-

victed of another capital felony or of a

felony involving the use or threat of vio-

lence to the person.

-xiii-

great risk of death to many persons.

(d) The capital felony was committed

while the defendant was engaged, or was an

accomplice, in the commission of, or an

attempt to commit, or flight after committing

or attempting to commit, any robbery, rape,

arson, burglary, kidnapping, or aircraft

piracy or the unlawful throwing, placing or

discharging of a destructive device or bomb.

(e) The capital felony was committed

for the purpose of avoiding or preventing a

lawful arrest or effecting an escape from

custody.

(£) The capital felony was committed

for pecuniary gain.

(g) The capital felony was committed to

disrupt or hinder the lawful exercise of any

governmental function or the enforcement of

laws.

-xiv-

ee ee ee ee See | eee ve CL se we ae eee ee

Sn eee es eee

STATEMENT OF THE CASE

The respondent, Larry Eugene Mann, was

found guilty of the first degree murder and

kidnapping of ten-year-old Elisa Nelson.

After the jury rendered an advisory sentence

of death, the trial court sentenced the re-

spondent to death.

The respondent did not raise a Caldwell

v. Mississippi, 472 U.S. 320 (1985), claim at

trial. The respondent twice appealed his

judgment and sentence to the Florida Supreme

Court without raising a Caldwell v. Missis-

sippi claim in either of his two direct

appeals. Mann v. State, 453 So.2d 784 (Fla.

1984); Mann v. State, 420 So.2d 578 (Fla.

1982). Respondent filed a Motion for Post

Conviction Relief raising, inter alia, a

Caldwell v. Mississippi claim as Ground

VII. The trial court denied the Caldwell v.

Mississippi claim on procedural default

grounds since the issue could have and should

have been raised on direct appeal. (RI - 1 -

App. tab #9) The respondent appealed the

denial of the Motion for Post Conviction

Relief and simultaneously petitioned the

Florida Supreme Court for a writ of habeas

corpus. The Florida Supreme Court affirmed

the denial of the Motion for Post Conviction

Relief and denied the petition for writ of

habeas corpus in a single opinion. (Appendix

pages 1 - 10)

Respondent sought relief in federal

court vis a vis,a petition for writ of habeas

corpus. The United States District Court for

the Middle District of Florida denied relief

on the Caldwell v. Mississippi claim stating

that the claim was procedurally defaulted and

without merit due to a curative instruc-

tion. (R3 - 26 - 18, 19) On appeal to the

United States Court of Appeals for the

Eleventh Circuit, an initial panel opinion

affirmed the denial of the petition as to the

PS Le eee ee a eT

—

conviction, but held that the prosecutor's

and the court's comments to the jury, which

in substance consisted of apprising the jury

that their role was merely advisory and that

the trial judge was the ultimate sentencer,

mislead the jury; thereby rendering the sen-

tencing proceeding and the resulting death

sentence infirm on Eight Amendment grounds.

Petitioner sought and obtained rehearing en

banc in the Circuit Court of Appeal. The en

banc opinion of the Circuit Court of Appeal

(appendix pages 11 - 96) determined that:

(1) the Florida Supreme Court excused the

multiple procedural defaults of the Caldwell

v. Mississippi claim and entertained the

Claim during the combined appeal from the

denial of the Motion for Post Conviction

Relief and the petition for writ of habeas

corpus since the Florida Supreme Court's

opinion stated "“[a] comparison of the

original trial record clearly and

conclusively refutes any claim that there was

any constitutional infirmity in the trial."

Mann _v. Dugger, slip opinion page 27 n. 4

(llth Cir. Case No. 86-3182, decided April

21, 1988), citing Mann v. State, 482 So.2d

1360 at 1362 (Fla. 1986); and (2) that the

Florida capital sentencing scheme allotted a

substantive sentencing role to the jury, and

as such, any misleading statements to the

jury concerning that role tainted the trial

court's sentencing decision. Applying the

above determination of the jury's role in the

Florida sentencing scheme, the Circuit Court

of Appeal determined that informing the jury

that the final/ultimate sentencing decision

rested with the trial judge, and not with the

jury, was misleading. The Circuit Court of

Appeal determined that such misleading state-

ments tainted the jury's recommendation and

that the trial court's sentencing determina-

tion was in turn tainted. Thereafter, the

Circuit Court held that the imposition of the

resulting death sentence was violative of the

Eight Amendment. Mann _v. Dugger, supra at

slip opinion page 25., appendix page 53.

REASONS FOR GRANTING THE WRIT

THE EN BANC OPINION OF THE ELEVENTH CIRCUIT

COURT OF APPEAL IS IN EXPRESS AND IRRECON-

CILABLE CONFLICT WITH THE FLORIDA SUPREME

COURT AS TO THE PROPER APPLICATION OF THIS

COURT'S DECISION IN CALDWELL V. MISSISSIPPI

472 U.S. 320 (1985), TO THE FLORIDA CAPITAL

SENTENCING SCHEME.

II.

THE GROUNDS UPON WHICH THE ELEVENTH CIRCUIT

COURT OF APPEAL EXCUSED THE PROCEDURAL DE-

FAULT OF THE EIGHTH AMENDMENT CLAIM RESULTS

IN A COMPLETE EMASCULATION OF WAINWRIGHT V.

SYKES, 433 U.S. 72 (1977).

Itt.

THERE IS EXPRESSED CONFLICT BETWEEN THE CIR-

CUIT COURTS OF APPEAL AS TO WHAT CONSTITUTES

A DISCUSSION OF THE MERITS OF A CONSTITUTION-

AL CLAIM IN A STATE APPELLATE OPINION SO AS

TO ALLOW FEDERAL COURTS TO ENTERTAIN A PROCE-

DURALLY DEFAULTED ISSUE.

ARGUMENT

THE EN BANC OPINION OF THE

ELEVENTH CIRCUIT COURT OF

APPEAL IS IN EXPRESS AND

IRRECONCILABLE CONFLICT

WITH THE FLORIDA SUPREME

COURT AS TO THE PROPER

APPLICATION OFr THIS

COURT'S DECISION IN CALD-

WELL V. ee 472

U. . ’ THE

PLORIDA CAPITAL S ING

SCHEME.

In the instant opinion sought to be re-

viewed by this petition, the Eleventh Circuit

Court of appeal held that a description of a

Florida capital jury's role as being merely

advisory, statements by the trial court that

the trial judge was the ultimate sentencer,

and informing the jury that the final sen-

tencing decision was not on the jury's

shoulders resulted in a denigration of the

jury's sentencing role and that such a deni-

gration violated the Eighth Amendment under

this Court's decision in Caldwell v. Missis-

Sippi, 472 U.S. 320 (1985). This holding is

oJa

——————7

in irreconcilable conflict with every deci-

sion of the Florida Supreme Court on this

point. Grossman _v. State, 13 F.L.W. 127

(Fla. Case No. 68,096 decided February 18,

1988); Combs v. State, 13 F.L.W. 142 (Pla.

Case No. 68,477 decided February 18, 1988);

Jackson v. State, 13 F.L.W. 146 (Fla. Case

No. 68,097 decided February 18, 1988); Ford

v. State, 522 So.2d 345 (Fla. 1988); Aldridge

v. State, 503 So.2d 1257 (Fla. 1987); Pope v.

Wainwright, 496 So.2d 798 (Fla. 1986); Smith

v. State, 515 So.2d 182 (Pla. 1987).

Furthermore, the Eleventh Circuit has ruled

that the Florida Supreme Court excused the

procedural default on the Caldwell claim when

the Florida Supreme Court has, without excep-

tion, held that either the failure to object

at the trial level or the failure to raise

the matter on direct appeal results in a pro-

cedural default of Caldwell claim. Jackson

v. State, supra; Ford vy. State, supra;

Aldridge v. State, supra; Copeland v. Wain-

wright, 505 So.2d 425 (Fla. 1987); Foster v.

State, 518 So.2d 902 (Fla. 1988); Phillips v.

Dugger, 515 So.2d 227 (Fla. 1987)

The language of the state appellate

opinion used by the Eleventh Circuit Court of

Appeal to rationalize its finding that the

Florida Supreme Court, in an _ appellate

opinion reviewing the denial of a motion for

post conviction relief, had reached the

merits of Caldwell claim was a statement in

the Florida Supreme Court's opinion that the

record clearly and conclusively refuted any

claim of constitutional infirmity in the

trial. Mann v. Dugger, slip opinion page 27

at n.4, appendix pages 56 - 57. This

language was rendered from a combined appeal

from a summary denial of a Motion for Post

Conviction Relief and a petition for writ of

habeas corpus, Mann v. Dugger, 482 So2.d 1360

(Fla. 1986), and was only responsive to an

ineffective trial/appellate counsel claim

since a Caldwell claim may not be entertained

collaterally in Florida. Ford v. State,

supra; Aldridge v. State, supra; Copeland v.

Wainwright, supra; Foster v. State, supra;

Phillips v. Dugger, supra.

Petitioner respectfully submits that the

irreconcilable conflict between the Florida

Supreme Court and the Eleventh Circuit Court

of Appeal on both the merits of the Caldwell

claim and the procedural bar to entertainment

of the issue warrants this Court's exercise

of certiorari jurisdiction since the merits

issue impacts upon every post 1976 death

sentence in Florida and the excusal of the

procedural default by federal courts on such

a tentative basis creates unbearable friction

between the federal and state judiciary as a

result of federal belittlement of state pro-

cedural rules which serve Florida's legiti-

mate interests in finality and judicial

=f0=

SAL RCRA PE LOOSE ANCL Reith Na aii A OS RAS

ies Mian, ite. te ce,

economy. This Court has previously re-

cognized the certiorari worthiness of both

issues by its acceptance on March 7, 1988, of

the Caldwell issue in Dugger v. Adams, 108

U.S. 1106 (1988), and the procedural default

issue in Harris v. Reed, 108 S.Ct. 1107

(1988). As such, petitioner prays that this

Court grant certiorari as to both issues

presented for review and entertain

expeditious briefings of the issues in light

of their importance.

oie}

II.

THE GROUNDS UPON WHICH THE

ELEVENTH CIRCUIT COURT OF

APPEAL EXCUSED THE PROCE-

DURAL DEFAULT OF THE

EIGHTH AMENDMENT CLAIM RE-

SULTS IN A COMPLETE EMAS-

CULATION OF WAINWRIGHT V.

SYKES, 433 72 (1977).

The opinion of the Eleventh Circuit

Court of Appeal sought for review by the in-

stant petition excused the procedual default

of the Caldwell v. Mississippi claim at both

the state trial and direct appeal levels on

the grounds that ambiguous language, void of

any discussion of the merits, in the Florida

Supreme Court's opinion rendered in a colla-

teral attack setting excused the default and

entertained the Caldwell claim on the

merits. Mann v. Dugger, slip opinion pg. 27,

n.4, appendix pg. 56 - 57. Whereas (1) a

Florida collateral forum is an _ 8 improper

setting in which to litigate a Caldwell claim

and the Florida Supreme Court has consistent-

ly held that the issue will "not be

o12=

entertained collaterally, "Ford v. State,

supra, and (2) the trial court specifically

ruled that the Caldwell claim was

inappropriate for collateral entertainment

since it was an issue which should have been

raised on direct appeal (Rl - 1 - App. tab

#9), the Eleventh Circuit Court of Appeal's

reliance on such ambiguous language has in

essence created a de facto presumption that

ambiguous language in a state appellate opin-

ion is a ruling on the merits of a constitu-

tional claim exclusive of the factual or

legal setting in which the ambiguous language

was rendered. Petitioner would note that

such a de facto presumption is contrary to

this Court's declaration that a lack of

discussion of a constitutional question in a

state appellate opinion will be presumed a

product “of the want of proper presentation

in state courts, unless the aggrieved party .

° ° can affirmatively show to the

contrary." Street v. New York, 394 U.S. 576

at 582 (1969). See also Fuller v. Oregon,

417 U.S. 40, 50 n.11l (1974); Exxon Corp. v.

Eagerton, 462. U.S. 176, 181 at n.3 (1983);

and Webb v. Webb, 451 U.S. 493 at 495

(1981). Notwithstanding the merits of the

above mentioned excusal of the procedural de-

fault, petitioner respectfully submits that

the excusal of the default in the manner the

Circuit Court has done so in the instant case

would, for all practical matters, permit fed-

eral courts to indulge in speculation as a

sufficient legal basis for executing ad hoc

end runs around the procedural default bars

to habeas corpus relief without providing for

the legitimate policy reasons behind the pro-

cedural default doctrine enunciated in Wain-

wright v. Sykes, 433 U.S. 72 (1977). The re-

sulting impact would be relitigation of the

majority of state judgments and sentences in

federal courts with no deference to concepts

ATh—

of comity and a complete denigration of the

perception of a state criminal trial as a

"decisive and portentous event." The result-

ee overwhelming cost to society as a result

of the marginal expenditures of both finan-

cial and judicial resources along with

further denigration of the criminal justice

system warrants this Court's exercise of cer-

tiorari jurisdiction in the instant cause.

~1S~

Ift!l.

THERE IS EXPRESSED CON-

FLICT BETWEEN THE CIRCUIT

COURTS OF APPEAL AS TO

WHAT CONSTITUTES A DISCUS-

SION OF THE MERITS OF A

CONSTITUTIONAL CLAIM IN A

STATE APPELLATE OPINION SO

AS TO ALLOW FEDERAL COURTS

TO ENTERTAIN A PROCEDURAL-

LY DEFAULTED ISSUE.

In the instant case sought for review,

the Eleventh Circuit Court of Appeal enter-

tained a defaulted issue on the merits under

the authority of Oliver v. Wainwright, 795

F.2d 1524, 1528 - 1529 (llth Cir. 1986).

Mann v. Dugger, slip opinion at pg. 27 n.4,

appendix pages 163 - 164. Oliver, supra,

presumes that a silent state opinion address-

ed the merits of a constitutional claim, and

as such, federal district courts should like-

wise address the merits of a constitutional

Claim. Oliver at 1529. Not only does such a

position conflict with this Court's decisions

in Street v. New York, supra, and its progeny

as discussed in reason II of this petition,

3 G-

it is in conflict with overt declarations of

other Circuit Courts of Appeal. The Second

Circuit Court of Appeal normally interprets a

silent state opinion as a decision resting on

procedural grounds, Stepney v. Lopes, 760

F.2d 40 at 44 (2nd Cir. 1985), while treating

ambiguous language in a state opinion as a

ruling on the merits, Rosenfeld v. Dunhan,

820 F.2d 52 at 55 (2nd Cir. 1987). The

Fourth Circuit Court of Appeals in essence

presumes that silent and/or ambiguous opin-

ions rests on procedural default grounds

since it requires a habeas petitioner to make

a “clear showing" that the defaulted issue

was entertained on the merits. Meadows v.

Holland, 831 F.2d 493 at 497 (5th Cir.

1987). The Fifth Circuit Court of Appeal

applies a three prong test to both silent and

ambiguous state appellate decisions. That

inquiry being: (1) does the state apply pro-

cedural default in disposing of similarly

situated cases; (2) does the history of the

case suggest that the state courts were aware

of the procedural default; and (3) whether

silence/ambiguity suggests reliance on

procedural default or a determination of the

merits. Bates v. Blackbu~ 805 F.2d 569 at

574 (5th Cir. 1986) and Preston v. Maggio,

705 F.2d 1132 at 116 (5th Cir. 1983). In an

ambiguous language setting, the Sixth Circuit

Court of Appeal applies a procedural default

bar to a constitutional claim as long as the

state defended, at least in part, on proce-

dural default grounds in state court.

Shepard v. Foltz, 771 F.2d 962 at 965 (6th

Cir. 1985). The Seventh Circuit applies a

presumption of procedural default to a silent

state court opinion, Wallace v. Duckworth,

778 F.2d 1215 (7th Cir. 1985), and would pro-

bably do the same to an ambiguous state

appellate opinion since the Seventh Circuit

recognizes that state opinions resting on

-18-

both procedural default grounds and upon the

merits of the constitutional claim would be

unaffected by a different disposition of the

merits since the judgment would then rest en-

tirely on independent state grounds.

Phillips v. Lane, 787 F.2d 208 at 214 (7th

Cir. 1985).

From the above, it can be seen that the

instant opinion sought for review is not only

in conflict with the majority of Circuits,

but also, that the state of the law in this

area is in disarrary and in much need of this

Court's guidance. As such, petitioner prays

that this Honorable Court exercise its cer-

tiorari jurisdiction and order expeditious

briefing on the merits.

-19-

CONCLUSION

For these reasons, petitioner respect-

fully urges this Court to grant Certiorari

and order expeditious briefing on the merits.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

Le Zn

ant Attorney General

Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR PETITIONER

-20-

Case No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

RICHARD L. DUGGER, Secretary, Florida

Department fo Offender Rehabilitation

Petitioner,

LARRY EUGENE MANN,

Respondent.

APPENDIX

Larry Eugene MANN, Appellant,

STATE of Florida, Appellee.

Nos. 68261, 68262.

Supreme Court of Florida.

Feb. 1, 1986.

Petitioner, who was scheduled for execu-

tion, sought postconviction relief. The

Circuit Court, Pinellas County, Philip A.

Federico, J., denied petitioner's motion for

relief. Defendant appealed, and filed peti-

tion for habeas corpus in the Supreme

Court. The Supreme Court held that: (1)

evidentiary hearing was not required on peti-

tion for postconviction relief; (2) trial

judge did not abuse his discretion by not

having oral argument on postconviction relief

petition; (3) it was not appropriate in col-

lateral attack on death sentence to attempt

to collaterally attack petitioner's prior

conviction of a crime of violence in a

A-1

foreign jurisdiction; and (4) it was proper

to fail to delay execution of sentence prior

to ruling in that jurisdiction on collateral

attack on the prior conviction.

Order denying postconviction’ relief

affirmed; habeas corpus denied; stay of exe-

cution denied.

1. Criminal Law 998(19)

Evidentiary hearing was not required on

petition of defendant who had been sentenced

to death for postconviction relief, where re-

view of the record belied claim of prosecu-

torial misbehavior, and defendant's claims

for relief were either refuted or insuffi-

cient for relief, after review of the record,

which included record of two prior appeals.

West's F.S.A. RCrP Rule 3.850.

2. Criminal Law 998(19)

Trial judge did not abuse his discretion

by not having oral argument on petitions of

defendant sentenced to death for

postconviction relief, where motion = and

attached memorandum were self-explanatory,

motion for relief was filed on January 30 and

execution was scheduled for February 4, and

trial judge was familiar with the case.

West's F.S.A. RCrP Rule 3.850.

3. Criminal Law 998(8)

Habeas Corpus 25.1(6)

Alleged ineffective assistance of trial

counsel in failing to object to allegedly im-

proper prosecutorial statements did not jus-

tify postconviction or habeas corpus relief,

where record belied claim of prosecutorial

misbehavior, and the complained of comments

which occurred during closing arguments in

penalty phase that resulted in death sentence

could not be construed to cause substantial

harm or material prejudice, and thus, would

not have constituted reversible error if

raised on appeal. West's F.S.A. RCrP Rule

3.850.

4. Criminal Law 998(13)

Habeas Corpus 30(3)

It is not appropriate in a collateral

attack on death sentence in postconviction

and habeas corpus’ relief proceeding to

attempt to collaterally attack prior convic-

tion of a crime of violence in another

State. West's F.S.A. RCrP Rule 3.850.

5. Criminal Law 1001

It was proper to fail to delay execution

of death sentence prior to ruling in foreign

state on collateral attack on prior convic-

tion of a crime of violence in that state.

Larry Helm Spalding, Capital Collateral

Representative and Steven H. Malone and Mark

A. Evans, Asst. Capital Collateral Represen-

tatives, St. Petersburg, for appellant-

petitioner.

Jim Smith, Atty. Gen., and Michael

Kotler, Asst. Atty. Gen., Tampa for

appellee/respondent.

PER CURIAM

Larry Eugene Mann, a convicted murderer

who is scheduled for execution on February 4,

1986 seeks reversal of a circuit court order

denying relief on his motion filed pursuant

to rule 3.850, Florida Rules of Criminal Pro-

cedure. Mann also seeks relief by way of

petition for habeas corpus claiming he was

deprived of effective appellate counsel. He

further seeks a stay of execution. We deny

all relief.

Mann was convicted of first-degree mur-

der and sentenced to death for the slaying of

a ten-year-old girl. His first appeal re-

sulted in our affirming his conviction but

vacating the original sentence and remanding

the cause to the trial judge for a new sen-

tencing hearing. Mann v. State, 420 So.2d

578 (Fla. 1982). The trial court resentenced

Mann to death and this Court affirmed that

sentence. Mann vy. State, 453 So.2d 784 (Fla.

1984), cert. denied, U.S. __, 105 S.Ct.

940, 83 L.Ed.2d 953 (1985). The governor

signed Mann's death warrant on January 7,

1986.”

[l1, 2] Mann filed his motion for relief

on January 30, 1986 which was denied on the

same day without an evidentiary hearing or

Oral argument. Our first task is to review

the motion to determine if an evidentiary

hearing was required. After doing so, we

agree with the trial judge that none was. As

to not having oral argument, the motion and

attached memorandum was’ self-explanatory,

When this Court was advised of the signing

of Mann's death warrant, we immediately set a

proposed oral argument date of January

27th. In doing so we allowed ample time for

the filing of appropriate pleadings and a

hearing on them at the trial level. The mat-

ters under review were not even filed in the

trial court until after that scheduled

date. Hence, we considered this matter with-

out oral argument and on the written record

and arguments filed in the trial court and on

the petition for habeas corpus filed in this

Court.

and, considering the time constraints and the

trial judge's familiarity with this case, the

trial judge did not abuse his discretion by

not having oral argument.

[3] Mann filed numerous contentions.

Among them he claims that his trial counsel

was ineffective by failing to object to what

Mann now perceives to be improper prosecutor-

ial statements. Our review of the original

record belies the claim of prosecutorial mis-

behavior. Most of the comments complained of

occurred during closing arguments in the pen-

alty phase. Considered in the light of the

overall argument, had this argument been ob-

jected to, at best it would have resulted in

an admonishment to the jury to disregard.

The comments could not be construed to cause

substantial harm or cause material prejudice

and thus would not have constituted rever-

sible error. Breedlove v. State, 413 So.2d l

(Fla.), cert. denied, 459 U.S. 882, 103 S.Ct.

184, 74 L.Ed.2d 149 (1982); Spencer v. State,

133 So.2d 729 (Fla. 1961), cert. denied, 372

U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730

(1963). If raised on appeal, we would have

found the statements to be within the limits

of fair comments on the evidence and permis-

sible solicitation by the state for a death

recommendation. |

‘[4, 5] We see no need or benefit in

discussing in detail the remainder of Mann's

Claims in his 3.850 motion. We do reject his

contention that it is appropriate in a col-

lateral attack on his sentence of death to

attempt to collaterally attack Mann's prior

conviction of a crime of violence in

Mississippi; neither is it error to fail to

delay the execution of his sentence prior to

a ruling in Mississippi on any collateral

attack in that state.

It is obvious and clear that present

counsel's complaint of trial counsel's

handling of the trial would not have affected

the truth-seeking process, the evaluation of

the evidence, the proper application of the

law, or the outcome of the case. A compari-

son of the original trial record clearly and

conclusively refutes any claim that there was

any constitutional infirmity in the trial.

The same is true of the appellate process.

Although Mann urges vehemently numerous

grounds for habeas corpus relief, each is

either refuted or is insufficient for relief.

In conclusion, we are satisfied that

this was a well and conscientiously tried

case by counsel, the trial judge, and the

jury. Appellate counsel and this Court have

zealously fulfilled their review responsibi-

lities. Accordingly, we affirm the order of

the trial judge denying relief under the

3.850 motion. We deny the application for a

stay of execution.

No motion for rehearing will be enter-

tained by the Court.

It is so ordered.

ADKINS, Acting C.J., and OVERTON,

MCDONALD, EHRLICH and SHAW J.J., concur.

A-10

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 86-3182

LARRY EUGENE MANN,

Petitioner-Appellant,

versus

RICHARD L. DUGGER,

Secretary, Florida

Department of Correction,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(April 21, 1988)

Before RONEY, Chief Judge, TJOFLAT, HILL,

FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT,

ANDERSON, CLARK, and EDMONDSON, Circuit

Judges.

A-11

TJOFPLAT, Circuit Judge:

Petitioner, Larry Eugene Mann, is a

Florida death row inmate. In 1981, petition-

er was convicted of first degree murder and

1 At the conclusion of the sen-

kidnapping.

tencing phase of petitioner's trial, the jury

recommended the death penalty. The trial

judge followed the recommendation and entered

a sentence of death.

On direct appeal, the Supreme Court of

Florida affirmed the conviction but vacated

the sentence and ordered a new sentencing

proceeding without a jury.2 Mann v. State,

420 So.2d 578 (Fla. 1982). The trial court

reimposed the death penalty, and, on direct

appeal from the resentencing, the supreme

court affirmed. Mann v. State, 453 So.2d 784

(Fla. 1894), cert. denied, 469 U.S. 1181, 105

S.Ct. 940 (1985). Petitioner thereafter

moved the trial court to vacate the judgment

and sentence pursuant to Fla. R. Crim. P.

3.850. He also petitioned the supreme court

for writ of habeas corpus. The trial court

denied the Rule 3.850 motion, and the supreme

court affirmed, at the same time denying

petitioner's request for habeas relief. Mann

v. State, 482 So.2d 1360 (Fla. 1986).

Petitioner then instituted this habeas

corpus action in the district court. In his

petition, he attacked his conviction and sen-

tence on several grounds. As one ground for

attacking the sentence, petitioner contended

that he was entitled to resentencing under

Caldwell _v. Mississippi, 472 U.S. 320, 105

S.Ct. 2633 (1985), because the prosecutor and

trial judge had made comments that had likely

diminished the sentencing jury's sense of re-

sponsibility with respect to its role in the

sentencing process.” The district court de-

nied relief on all grounds. We reverse and

hold that petitioner is entitled to relief on

A-13

the Caldwell claim.4 we accordingly order

the district court to grant the writ setting

aside petitioner's death sentence unless the

state provides petitioner a new sentencing

proceeding before a newly empaneled jury.

It.

Caldwell v. Mississippi, 472 U.S. 320,

105 S.Ct. 2633 (1985), is best understood in

the context of its facts. The case involved

a challenged to a death sentence imposed pur-

suant to the Mississippi capital sentencing

scheme. Mississippi affords capital defen-

dants a bifurcated trial. After the jury

renders a verdict of guilty, the trial court

convenes a sentencing proceeding before the

same jury. The jury then renders a verdict

of either death or life imprisonment, and the

trial court enters a sentence in accordance

with the jury's verdict. If the jury renders

a verdict of death, the sentence is automati-

cally reviewed by the Supreme Court of

Mississippi. Miss. Code Ann. §99-19-105;

Jackson v. State, 337 So.2d 1242, 1255 (Miss.

1976). In conducting its review, that court

applies a presumption of correctness to the

sentencing jury's verdict. Caldwell _ v.

State, 443 So.2d 806, 816 (Miss. 1983) (Lee,

J., Gissenting). Under Mississippi law, the

supreme court may overturn a death sentence

in three situations only: (1) where the sen-

tencing jury's verdict was so arbitrary as to

be “against the overwhelming weight of the

evidence,” Williams v. State, 445 So.2d 798,

811 (Miss. 1984), cert. denied, 469 U.S.

1117, 105 S.Ct. 803 (1985); (2) where the

evidence of statutory aggravating circumstan-

ces, required for the imposition of the death

penalty, was so lacking that a “judge should

have entered a judgment of acquittal notwith-

standing the verdict,” id.; or (3) where the

sentence is “excessive or disproportionate to

the penalty imposed in similar cases,

A-15

considering both the crime and the defen-

dant." Id.

In Caldwell, the petitioner, Bobby Cald-

well, contended that his death sentence was

invalid under the eighth amendment because

the sentencing jurors had been led to believe

that the responsibility for determining the

sentence rested not with them but with the

appellate court that would later review the

case. The facts supporting the claim were as

follows. In closing argument before the sen-

tencing jury, defense counsel entreated the

jurors to show mercy and remarked that "[y]Jou

are the judges and you will have to decide

[Caldwell's] fate. It is an awesome respon-

sibility, I know -- an awesome responsibil-

ity." Caldwell, 472 U.S. at 324, 105 S.Ct.

at 2637. The prosecutor then sought to down-

play the effect of counsel's argument by

telling the jurors that "your decision is not

the final decision .. . [yJour job is

A-16

reviewable." Id. at 325, 105 S.Ct. at

2637. Defense counsel objected to this

statement, but the trial court overruled the

objection, commenting that "it [is] proper

that the jury realizes that it is reviewable

automatically as the death penalty conm-

mands." Id., 105 S.Ct. at 2638.

The United States Supreme Court held

that Caldwell's sentence was invalid under

the eighth amendment because it rested on "a

determination made by a sentencer who ha[d]

been led to believe that the responsibility

for determining the appropriateness of the

defendant's death rest[ed] elsewhere." Id.

at 328 - 29, 105 S.Ct. at 2639. The Court

reasoned that the eighth amendment's need for

reliability in capital sentencing required

that capital sentencers “view their task as a

serious one of determining whether a specific

human being should die at the hands of the

State." Id. at 329, 105 S.Ct. at 2640. The

A-17

jurors, having been told that their decision

was “automatically reviewable," were misled

into believing that their judgment call on

the evidence would be reviewed de novo.

Thus, because the jury's sense of responsi-

bility had likely been diminished as a result

of the comments by the prosecutor and the

court, the sentencing decision did not meet

the standard of reliability required by the

eighth amendment. Id. at 341, 105 S.Ct. at

2646.

In the present case, the attorney gener-

al argues that Caldwell is inapplicable be-

cause the Florida sentencing jury, unlike

Mississippi sentencing jury, is not’ the

actual sentencer under the state capital pun-

ishment scheme. Under the Florida statutory

scheme, the jury weighs the evidence of

aggravating and mitigating circumstances pre-

sented during the sentencing phase of the de-

fendant's trial, and then makes a

A-18

<2. a0 * eee

hii” a Mateo’

recommendation of either life imprisonment or

death. Fla. Stat. §921.141(2) (1985).°> That

recommendation, the attorney general asserts,

is always subject to rejection by the trial

judge, who must under Fla. Stat. §921.141(3)

independently weigh the aggravating and miti-

gating circumstances before entering a sen-

tence. Because the trial judge plays this

role in sentencing, the attorney general

argues, Caldwell error does not occur when

the jury is told that sentencing responsibil-

ity lies elsewhere.

At first blush, the attorney general's

argument has some appeal. It is true that

the trial court independently weighs the

aggravating and mitigating circumstances and

actually enters the sentence. It is also

true that the statute describes the senten-

cing jury's function as that of "“render[ing]

an advisory opinion to the court." The

legislature's use of the term “advisory,”

A-19

considered in a vacuum, could be viewed as

evincing a legislative intent that the sen-

tencing jury play a role which, in the final

analysis, is in fact largely meaningless. In

common parlance, we often associate the term

"advisory" with the term "nonbinding";

"advice," in ‘the minds of most people, is

something that a decisionmaker may follow or

reject as he or she sees fit. In analyzing

the role of the jury, however, we cannot

operate in the vacuum. Rather, we must look

to how the Supreme Court of Florida, the

final interpreter of the death penalty

statute, has characterized that role.

A review of the case law shows that the

Supreme Court of Florida has interpreted sec-

tion 921.141 as evincing a legislative intent

that the sentencing jury play a significant

role in the Florida capital sentencing

scheme. See Messer v. State, 330 So.2d 137,

A-20

142 (Fla. 1976) ("{T]he legislative intent

that can be gleaned from Section 921.141 [in-

dicates that the legislature] sought to de-

vise a scheme of checks and balances in which

the input of the jury serves as an integral

part."); see also Riley v. Wainwright, 517

So.2d 656, 657 (Fla. 1987) ("This Court has

long held that a Florida capital sentencing

jury's recommendation is an integral part of

the death sentencing process."); Lamadline v.

State, 303 So.2d 17, 20 (Fla. 1974) (right to

sentencing jury is “an essential right of the

defendant under our death penalty legisla-

tion"). In the supreme court's view, the

legislature created a role in the capital

sentencing process for a jury because the

jury is "the one institution in the system of

Anglo-American jurisprudence most honored for

fair determinations of questions decided by

balancing opposing factors." Cooper v.

State, 336 So.2d 1133, 1140 (Fla. 1976),

A-21

cert. denied, 431 U.S. 925, 97 S.Ct. 2200

(1977); see also McCampbell v. State, 421

So.2d 1072, 1075 (Fla. 1982) (the jury's re-

commendation "“represent[s] the judgment of

the community as to whether the death sen-

tence is appropriate"); Chambers v. State,

339 So.2d 204, 209 (Fla. 1976) (England J.,

concurring) (the sentencing jury “has been

assigned by history and statute the responsi-

bility to discern truth and mete out jus-

tice").

To give effect to the legislature's in-

tent that the sentencing jury play a signifi-

cant role, the Supreme Court of Florida has

severly limited the trial judge's authority

to override a jury recommendation of life im-

prisonment. In Tedder v. State, 322 So.2d

908, 910 (Fla. 1975), the court held that a

trial judge can override a life recommenda-

tion only when "the facts [are] so clear and

convincing that virtually no reasonable

A-22

ot Se CO i i Oh

SOKO a a ree

person could differ." That the court meant

what it said in Tedder is amply demonstrated

by the dozens of cases in which it has

applied the Tedder standard to reverse a

trial judge's attempt to override a jury re-

commendation of life. See, e.g., Wasko Vv.

State, 505 So.2d 1314, 1318 (Fla. 1987);

Brookings v. State, 495 So.2d 135, 142 - 43

(Fla. 1986); McCampbell v. State, 421 So.2d

1072, 1075 - 76 (Fla. 1982); Goodwin v.

State, 405 So.2d 170, 172 (Fla. 1981); Odom

v. State, 403 So.2d 936, 942 - 43 (Fla.

1981), cert. denied, 456 U.S. 925, 102 S.Ct.

1970 (1982); Neary v. State, 384 So.2d 881,

885 - 88 (Fla. 1980); Malloy v. State, 382

So.2d 1190, 1193 (Fla. 1979); Shue v. State,

366 So.2d 387, 390 - 91 (Fla. 1978); McCas-

kill v. State, 344 So.2d 1276, 1280 (Fla.

1977); Thompson v. State, 328 So.2d l, 5

(Fla. 1976).

A-23

The attorney general argues that al-

though the trial court may be required under

Tedder to give deference to a jury recommen-

dation of life, it is in no way similarly

bound to give deference to a jury recommenda~

tion of death. Since a Florida sentencing

jury can therefore never play a substantive

role in imposing a death sentence, the attor-

ney general contends, Caldwell can never be

implicated in a Florida case.

One problem with this argument is that

its central premise -- that the sentencing

jury plays no substantive role in imposing a

death sentence -- is contradicted by numerous

pronouncements by the Supreme Court of

Florida. The issue of what deference is due

a jury recommendation of death would arise

most directly when the jury recommends death

and the trial judge rejects the recommenda-

tion and imposes life imprisonment. Such

cases never appear before the supreme court,

A-24

however, because the state cannot appeal a

sentence of life imprisonment. See State v.

Dixon, 283 So.2d 1, 8 (Fla. 1973), cert. de-

nied, 416 U.S. 943, 94 S.Ct. 1950 (1974).

Nonetheless, the issue has arisen in cases

where the jury recommends death, the trial

court imposes death, and the defendant con-

tends on direct appeal that the trial court

improperly weighed the aggravating and miti-

gating circumstances. In one such recent

case, Smith v. State, 515 So.2d 182 (Fla.

1987), the supreme court held that

"[a]Jlthough we find that one of the five

aggravating circumstances relied on by the

trial court was invalid, we approve the death

sentence on the basis that a jury recommenda-

tion of death is entitled to great weight and

there were no mitigating circumstances to

counterbalance the four valid aggravating

circumstances.” Id. at 185 (emphasis add-

ed). In LeDuc v. State, 365 So.2d 149 (Fla.

A-25

1978), cert. denied, 444 U.S. 885, 100 S.Ct.

175 (1979), the supreme court stated that

"(t]he primary standard for our review of

death sentences is that the recommended sen-

tence of a jury should not be disturbed if

all reasonable data was considered, unless

there appear strong reasons to believe that

reasonable persons could not agree with the

recommendation." Id. at 151 (citing Tedder)

(emphasis added). See also Middleton vy.

State, 426 So.2d 548, 552 - 53 (approving

trial court's imposition of death sentence

and reiterating in conclusion that jury had

recommended death), cert. denied, 458 U.S.

1122, 102 S.Ct. 3511 (1982); Francois v.

State, 407 So.2d 885, 891 (Fla. 1982) (same),

cert. denied, 463 U.S. 1230, 103 S.Ct. 3573

(Fla. 1983); Enmund v. State, 399 So.2d 1362,

1373 (Fla. 1981) (same), rev'd on other

grounds, 458 U.S. 782, 102 S.Ct. 3368 (1982);

cf. Grossman v. State, 13 Fla. L. Weekly 127,

A-26

133 n.l (Fla. Feb. 18, 1988) ("We have...

held that a jury recommendation of death

should be given great weight."). On one

occasion, the supreme court went so far as to

suggest that the trial judge's role in sen-

tencing is merely to articulate findings in

support of the jury's sentencing decision.

See Provenzano v. State, 497 So.2d 1177, 1185

(Pla. 1986) ("[(T)he trial judge does not con-

sider the facts anew. In sentencing a defen-

dant, a judge lists reasons to support a

finding in regard to mitigating or aggrava-

ting factors."), cert. denied, U.S. __,

107 S.Ct. 1912 (1987).

The issue of what deference is due a

jury recommendation of death has also arisen

in cases where the jury recommends death, the

trial judge imposes death, and the defendant

Claims on direct appeal that the trial judge

gave undue deference to the jury's recommen-

dation. The Supreme Court of Florida has

A-27

consistently indicated in such cases that no

error occurs when the trial judge gives due

weight to the jury recommendation of death.

In Garcia v. State, 492 So.2d 360 (Fla.),

cert. denied, __—sv«iU«w SS. ~___—z107:«=S.CK. «= 80

(1986), for instance, the judge stated in his

instructions to the jury that their recommen-

dation “would not be overruled unless there

was no reasonable basis for it." Id. at

367. The jury returned a recommendation of

death and the trial court entered a sentence

of death. On direct appeal, the defendant

claims, citing the trial court's instructions

to the jury, that the judge had mistakenly

given weight to the jury's recommendation of

death. The supreme court disagreed and

affirmed the death sentence: "There is no

error; this is the law. It is appropriate to

stress to the jury the seriousness which it

should attach to its recommendation and, when

the recommendtion is received, to give it

A-28

weight." Id. (emphasis added). See also

Rogers v. State, 511 So.2d 526, 536 (Fla.

1987) (no merit to appellant's contention

that trial court gave undue weight to jury's

recommendation of death where record reflects

that “the court has weighed relevant factors

and reached its own independent judgment

about the reasonableness of the jury's recom-

mendation."), cert. denied, _—s«U.S. __s, ~-108

S.Ct. 733.6

The supreme court's understanding of the

jury's sentencing role is illustrated by the

way it treats sentencing error. In cases

where the trial court follows a jury recom-

mendation of death, the supreme court will

vacate the sentence and order resentencing

before a new jury’ if it concludes that the

proceedings before the original jury were

tainted by error. Thus, the supreme court

has vacated death -sentences where the jury

was presented with improper evidence, see

A-29

Dougan v. State, 470 So.2d 697, 701 (Fla.

1985), cert. denied, 475 U.S. 1098, 106 S.Ct.

1499 (1986), or was subject to improper argu-

ment by the prosecutor, see Teffeteller v.

State, 439 So.2d 840, 845 (Fla. 1983), cert.

denied, 465 U.S. 1074, 104 S.Ct. 1430

(1984). The supreme court has also vacated

death sentences where the trial court gave

the jury erroneous instructions on mitigating

circumstances or improperly limited the de-

fendant in his presentation of evidence of

mitigating circumstances. See Thompson v.

Dugger, 515 So.2d 173, 175 (Fla. 1987); Downs

v. Dugger, 514 So.2d 1069, 1072 (Fla. 1987);

Riley v. Wainwright, 517 So.2d 656, 659 - 60

(Fla. 1987); Valle v. State, 502 So.2d 1225,

1226 (Fla. 1987); Floyd v. State, 497 So.2d

1211, 1215 - 16 (Fla. 1986); Lucas v. State,

490 So.2d 943, 946 (Fla. 1986); Simmons v.

State, 419 So.2d 316, 320 (Fla. 1982); Miller

v. State, 332 So.2d 65, 68 (Fla. 1976). In

A-30

ae es eee ee

these cases, the supreme court frequently

focuses on how the error may have affected

the jury's recommendation. See, e.g., Riley,

517 So.2d at 659 ("If the jury's recommenda-

tion, upon which the judge must rely, results

from an unconstitutional procedure, then the

entire sentencing process necessarily is

tainted by that procedure."); Valle, 502

So.2d at 1226 ("(UJnless it is clear beyond a

reasonable doubt that the erroneous exclusion

of evidence did not affect the jury's recom-

mendation of death, the defenant is entitled

to a new jury recommendation or resenten-

cing."). Dougan, 470 So.2d at 701 (death

sentence vacated and resentencing ordered

where supreme court could not "tell how the

improper evidence and argument may have

affected the jury"); Teffeteller, 439 So.2d

at 845 (death sentence vacated and resenten-

cing ordered where supreme court could not

"determine that the needless and inflammatory

A-31

comments by the prosecutor did not substan-

tially contribute to the jury's advisory re-

commendation of death"). Such a focus would

be illogical unless the supreme court began

with the premise that the jury's recommenda-

tion must be given significant weight by the

trial judge. Once that premise is establish-

ed, a focus on how the error may have affect-

ed the jury's recommendation makes sense: if

the jury's recommendation is tainted, then

the trial court's sentencing decision, which

took into account that recommendation, is

also tainted.

Finally, we note that the Supreme Court

of Florida has ordered resentencing in cases

where the trial court excused a prospective

juror in violation of Witherspoon v. Illi-

nois, 391 U.S. 510, 88 S.Ct. 1770 (1968).

See, e.g., Chandler v. State, 442 So.2d 171,

173 - 75 (Fla. 1983). Under Witherspoon and

its progeny, a state violates a capital

Rea Chih t De adtae hy ial ehat a

defendant's right to trial by imparital jury

when it excuses for cause a prospective juror

who has voiced conscientious objections to

the death penalty, unless the juror's views

would “prevent or substantially impair the

performance of his duties as a juror in

accordance with his instructions and his

oath.” Wainwright v. Witt, 469 U.S. 412,

433, 105 S.Ct. 844, 857 (1985). Witherspoon

assumes, of course, that the jury will play a

substantive role in the sentencing deci-

sion. By applying Witherspoon to vacate

death sentences, then, the Supreme Court of

Florida implicitly acknowledges that the jury

plays a substantive role under the Florida

capital sentencing scheme.

Thus, in various ways, the Florida case

law evinces an interpretation of the death

penalty statute that requires a trial judge

to give great weight to a jury's sentencing

recommendation. As our review of the case

A-33

law shows, that requirement applies as to

both recommendations of life imprisonment and

recommendations of death.

In analyzing the role of the sentencing

jury, the Supreme Court of Florida has appar-

ently been influenced by a normative judgment

that a jury recommendation of death carries

great force in the mind of the trial judge.

This judgment is most clearly reflected in

cases where an error has occurred before the

jury, but the trial judge indicates that his

own sentencing decision is unaffected by the

error. As a general matter, reviewing courts

presume that trial judges exposed to error

are capable of putting aside the error in

reaching a given decision. The Supreme Court

of Florida, however, has on occasion declined

to apply this presumption in challenges to

death sentences. For example, in Messer v.

State, 330 So.2d 137 (1976), the trial court

A-34

erroneously prevented the defendant from

putting before the sentencing jury certain

psychiatric reports as mitigating evidence.

The jury recommended death and the trial

judge imposed the death penalty. The supreme

court vacated the sentence, even though the

sentencing judge had stated that he had

himself considered the reports before

entering sentence. The supreme court took a

similar approach in Riley v. Wainwright, 517

So.2d 656 (Fla. 1987). There, the defendant

presented at his sentencing hearing certain

nonstatutory mitigating evidence. The trial

court instructed the jury that it could con-

sider statutory mitigating evidence, but said

nothing about the jury's obligation under

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954

(1978), to consider nonstatutory mitigating

evidence. The jury recommended death and the

trial judge imposed the death penalty. In im-

posing the death sentence, the trial judge

A-35

expressly stated that he had considered all

evidence and testimony presented. ® On peti-

tion for writ of habeas corpus, the supreme

court ordered the defendant resentenced. The

court held that the jury had been precluded

from considering nonstatutory mitigating evi-

dence, and that the trial judge's considera-

tion of that evidence had been “insufficient

to cure the original infirm recommenda-

tion." Id. at 659 n. l.

In light of the disposition of these

cases, it would seem that the Supreme Court

of Florida has recognized that a jury recom-

mendation of death has a sui generis impact

on the trial judge, an impact so powerful as

to nullify the general presumption that a

trial judge is capable of putting aside

error. We do not find it surprising that the

supreme court would make this kind or norma-

tive judgment. A jury recommendation of

death is, after all, the final stage in an

A-36

elaborate process whereby the community

expresses its judgment regarding the appro-

priateness of a death sentence. The process

begins with the legislature, which broadly

defines the class of cases for which capital

punishment is appropriate. Then, in the par-

ticular case, the prosecutor, who is elector-

ally accountable to the community, makes the

decision whether to request the death pen-

alty. Finally, the jury, traditionally de-

picted as the conscience of the community,

makes a judgment about the appropriateness of

death in light of aggravating and mitigating

cricumstances. Thus, by the time the case

comes before the judge for the actual imposi-

tion 6f eeatence, it has already been filter-

ed through three levels of community senti-

ment, each level less porous than the pre-

ceding one.?

It would indeed be surprising

were the trial judge, who in Florida is also

an electorally accountable official, not

A-37

powerfully affected by the result of that

process.

In light of the case law, we conclude

that the Florida jury plays an important role

in the Florida capital sentencing scheme.

The case law reflects an interpretation of

the death penalty statute that requires the

trial court to give significant weight to the

jury's recommendation, whether it be a recom-

mendation of life imprisonment or a recommen-

dation of death. The case law also reflects,

we think, an insightful normative judgment

that a jury recommendation of death has an

inherently powerful impact on the trial

judge.

Because the jury's recommendation is

significant in these ways, the concerns

voiced in Caldwell are triggered when a

Florida sentencing jury is misled into be-

lieving that its role is unimportant. 2°

A-38

Under such circumstances, a real danger

exists that a resulting death sentence will

be based at least in part on the determina-

tion of a decisionmaker that had been misled

as to the nature of its responsibility. Such

a sentence, because it results from a formula

involving a factor that is tainted by an im-

permissible bias in favor of death, necessar-

ily violates the eighth amendment requirement

of reliability in capital sentencing. See

Adams _v. Wainwright, 804 F.2d 1526, 1532

(llth Cir. 1986), modified, 816 F.2d 1493

(llth Cir. 1987), cert. granted, 56 U.S.L.W.

3608 (U.S. Mar. 7, 1988).

IIIf.

Having determined that the sentencing

jury plays a substantive role under the

Florida capital sentencing scheme, we turn to

the question whether the jury in this case

was misled as to its role so as to render

petitioner's sentence invalid under_ the

A-39

eighth amendment. We begin with a thorough

examination of the trial record.

A-40

The first reference to the jury's role

was made as the jury was being selected, dur-

ing counsel's voir dire of the venire. The

prosecutor said the following:

The recommendation that

you make to Judge Federico

in [the sentencing] por-

tion of the trial is sim-

ply a recommendation, and

he is not bound by it. He

may impose whatever sen-

tence the law permits. He

will have been here and

will have listened to all

the testimony himself.

A few moments later, the prosecutor repeated

this point in stronger terms:

You understand you do not

impose the death penalty;

that is not on your

shoulders .. . . 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.

A-41

The prosecutor repeated the point again that

afternoon, in a dialogue with two veniremen:

You . . . understand that

the ultimate responsibil-

ity rests with the Court;

that it's not the jury's

responsibility?

During closing argument at the conclusion of

the guilt phase of the trial, the prosecutor

once again informed the jury that “[t])he mat-

ter of sentencing ultimately rests with

Court."

After the jury rendered its verdict of

guilty, the jurors were temporarily excused

from the courtroom while the court and coun-

sel made preliminary preparations for the

sentencing phase of the trial. At that time,

defense counsel requested that the jury, when

it returned, be instructed by the court that

its sentencing recommendation would be "“"en-

titled to great weight." The court refused

to grant the request:

A-42

THE COURT: Well, I

think that goes without

saying. I don't know if I

need to instruct them that

that is so.

[DEFENSE COUNSEL]: I

think it is. The reason

we would ask --

THE COURT: That's

something that I need to

do after they make their

recommendation, and I will

give it great weight.

[DEFENSE COUNSEL]: I

know, but they need to

know that so they know

we're not up there just --

THE COURT: I think

the standard instructions

bring home to them that it

is very important that

they, you know, [d]Jo not

act hastily or without due

regard to the gravity of

these proceedings, that

they should carefully

weigh and sift and con-

sider the evidence. I

think that's sufficient.

Notwithstanding his apparent understanding of

the sentencing jury's function, the judge in-

formed the jurors when they returned to the

courtroom that "[t]he final decision as to

A-43

what punishment shall be imposed rests solely

with the judge of this court." The prosecu-

tor repeated the point in the final statement

of his closing argument at the conclusion of

the sentencing phase:

What I'm suggesting to you

is that the ultimate re-

sponsibilty for the impo-

sition of the sentence

rests with Judge Philip

Federico. That is his

sworn position in the sys-

tem. He's heard every-

thing you have heard. He

may have the opportunity

to learn more before he

imposes a_ sentence. I

think this community, as

represented by this jury,

should give to him the

prerogative of imposing

the death penalty, if

that's what he ultimately

feels is required in this

case.

The court then read its instructions to

the jury. The instructions included the fol-

lowing statements regarding the jury's sen-

tencing function:

Ladies and gentlement of

the jury, it is now your

duty to advise the Court

A-44

as to what punishment

should be imposed on the

Defendant for his crime of

murder in the first de-

: gree. As you have been

4 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 as

‘ to whether sufficient

aggravating circumstances

exist to justify the impo- 4

sition of the death pen-

alty, whether sufficient

mitigating circumstances

exist to outweigh any

aggravating circumstances

found to exist.

The court's instructions also included the

following statements.

The fact that the deter-

mination of whether or not

a majority of you recom-

mend a sentence of death

or sentence of life impri-

sonment in this case can

be reached by ae single

ballot should not in-

fluence you to act hastily

or without due regard to

the gravity of these pro-

ceedings. Before you

A-45

ballot, you should care-

fully weigh, sift and con-

sider the evidence, and

all of it, realizing that

a human life is at stake,

and bring to bear your

best judgment upon the

sole issue which is sub-

mitted to you at this

time, of whether a major-

ity of your number reconm-

mend that the Defendant be

sentenced to death or life

imprisonment.

After the court finished the instruc-

tions, it ordered the jury to retire and make

a decision. When the jury returned, it

announced a recommenation of death. The jury

was polled and then dismissed. After the

bailiff had declared that "“"[t]he jury has

left the courtroom," the judge remarked, for

the record, that “[t]he court, as required by

law, will give great weight to the recommen-

dation of the jury."

In reviewing Caldwell claims, our task

is twofold. First we must determine whether

the prosecutor's comments to the jury were

A-46

such that they would "minimize the jury's

sense of responsibility for determining the

appropriateness of death." Caldwell, 472

U.S. at 341, 105 S.Ct. at 2646. Second, if

the comments would have such effect, we must

determine “whether the trial judge in this

case sufficiently corrected the impression

left by the prosecutor." McCorquodale v.

Kemp, 829 F.2d 1035, 1037 (llth Cir. 1987).

When a trial court does not correct mis-

leading comments as to the jury's sentencing

role, the state has violated the defendant's

eighth amendment right because the court has

given the state's imprimatur to those com-

ments; the effect is the same as if the trial

court had actually instructed the jury that

the prosecutor's comments represented a cor-

rect statement of the law. See Tucker v.

Kemp, 802 F.2d 1293, 1295 (llth Cir. 1986)

(en banc), cert. denied, 3.86 , 107

8.ct. 1359 (1987). When a trial court does

A-47

make some attempt to correct the prosecutor's

misleading comments, the question becomes

whether the corrective statement would, in

the mind of a reasonable juror who had been

exposed to the misleading comments, correct

the misapprehension that the comments would

induce. Because our focus is ultimately on

al our mode of re-

the trial court's actions,

view is similar to that used to review claims

based on erroneous jury isntructions. CE.

Lamb v. Jernigan, 683 F.2d 1332, 1339 - 40

(llth Cir. 1982) (court must consider effect

of erroneous instructi..1 on reasonable juror

"in light of the remainder of the charge and

the. entire trial"), cert. denied, 460 U.S.

1024, 103 S.Ct. 1276 (1983).

In this case, the comments by the prose-

cutor were such that they would mislead or at

least confuse the jury as to the nature of

its sentencing responsibility under Florida

law. It bears emphasizing that the

A-48

prosecutor in Caldwell stated only that the

jury's verdict would be “automatically

reviewable." Technically, this statement was

an accurate statement of Mississippi law --

death sentences are automatically reviewed by

the Supreme Court of Mississippi under Miss.

Code Ann. §99-19-105. The mischief was that

the statement, unexplained, would have likely

been misunderstood by the jurors as meaning

that their judgment call on the appropriate-

ness of a death sentence did not really mat-

ter. We are faced with a similar situation

here. The prosecutor repeatedly told that

jury that its task was to render an "“advi-

sory” recommendation. As with "automatically

reviewable" in Caldwell, this characteriza-

tion is technically accurate, at least in the

sense that the Florida death penalty statute

contains the term “advisory.” However, the

danger exists that the jurors, because they

were unaware of the body of law that requires

A-49

the trial judge to give weight to the jury

recommendation, were misinformed as to the

importance of their judgment call. The

danger is particularly strong here, because

nothing in the common meaning of the term

"advisory" would suggest to the layman that

the trial judge would in any way be bound by

the recommendation; indeed, the common

meaning of the term would suggest precisely

the contrary.

Moreover, here the prosecutor stated to

the jurors twice that the burden of imposing

the death penalty was “not on your shoul-

nl2 He repeatedly told the jurors that

ders.

the responsibility for imposing the sentence

rested with the trial judge. Additionally,

we note that the prosecutor suggested to the

jurors that the trial judge, because of his

position as a legal authority, was more able

than the jury to make the approriate senten-

cing decision. As the Supreme Court noted in

A-50

Caldwell, this kind of suggestion induces

jurors, who are “placed in a very unfamiliar

‘ ebteation and called on to make a very diffi-

cult and uncomfortable choice," to delegate

wrongly their sentencing’ responsibility.

Caldwell, 472 U.S. at 333, 105 S.Ct. at 2641

- 42. We conclude that the prosecutor's

statements, considered together, misrepresent

the nature of the jury's critical role under

the Florida capital sentencing scheme. 23

Such comments, if uncorrected, would un-

doubtedly minimize a juror's sense of respon-

sibility, thus creating "a danger of bias in

favor of the death penalty." Adams, 804 F.2d

at 1532. |

Turning to the second prong of our in-

quiry, we conclude that the trial judge's

comments did not correct the false impression

left by the prosecutor. The trial court

specifically denied defense counsel's request

that the jury be properly informed as to its

A-51

role. Moreover, the judge himself stated

that the final sentencing decision rested

"solely with the judge of this court." The

trial judge expressly put the court's impri-

matur on the prosecutor's previous misleading

statements by saying to the jurors that "[a]s

you have been told, the final decision as to

what punishment shall be imposed is the re-

sponsibility of the judge."14

The only potentially corrective state-

ment by the court came when the court in-

structed the jurors that they shou!d proceed

with "due regard to the gravity" of the mat-

ter and should “carefully weigh, sift and

consider the evidence, and all of it, reali-

zing that a human life is at stake, and bring

to bear your best judgment." This statement,

we conclude, did not cure the harm posed by

the court's other actions. The statement

would do little if anything to change a

juror's misapprehansion about the effect of

A-52

the jury's decision; it only instructs the

jurors that they should approach their task

with care and deliberation. At best, it

likely left some jurors confused as to their

proper role. We therefore conclude that the

court's actions, as considered by a reason-

able juror who had been exposed to the prose-

cutor's misleading comments did not correct

the false impression created by those com-

ments. Cf. Caldwell, 472 U.S. at 340 n.7,

105 S.Ct. at 2645 n. 7 (prosecutor's later

statements did not retract or undermine the

misimpression created by the earlier state-

ments). Because the overall effect of the

court's actions was to diminish the jury's

sense of responsibility with regard to its

sentencing role, petitioner's sentence is

invalid under the eighth amendment.

IV.

In conclusion, we reverse the district

court's denial of the writ of habeas corpus

with regard to petitioner's Caldwell claim.

A-53

We remand the case to the district court with

instructions to issue the writ setting aside

petitioner's death sentence unless the State

affords petitioner a new sentencing proceed-

ing befor a newly empaneled jury.

REVERSED AND REMANDED.

A-54

l. Petitioner's criminal conduct is de-

scribed in Mann v. State, 420 So.2d 578

(1982).

2. The operation of the Florida capital

sentencing scheme is explained in part II.

See supra note 5 and accompanying text.

Here, on petitioner's direct appeal, the

Supreme Court of Florida held that the trial

judge had improperly found two aggravating

circumstances under Fla. Stat. §921.147(5)

and had failed to specify with sufficient

Clarity his conclusions regarding mitigating

factors, as required by Fla. Stat. §921.141

- (6). Mann v. State, 420 So.2d 578, 581 (Fla.

1982). Accordingly, the supreme court order-

ed resentencing by the trial judge. Because

the errors identified by the supreme court

pertained only to the trial judge's findings,

and not to defects before the sentencing

jury, resentencing before a new jury was not

deemed necessary.

3. Petitioner has already had one re-

sentencing, pursuant to an -order by the

Supreme Court of Florida. See supra note 2

and accompanying text. That resentencing was

accomplished without empaneling a new jury;

A-55

in resentencing petitioner, therefore, the

trial court used the recommendation of the

Original sentencing jury. That being the

case, we must examine the original jury sen-

tencing proceeding in determining whether

petitioner's sentence is valid under the

eighth amendment.

4. We affirm the district court's dis-

position of the remaining claims. Those

Claims are described in the panel opinion.

See Mann _v. Dugger, 817 F.2d 1471 (llth

Cir.), vacated, 828 F.2d 1498 (llth Cir.

1987).

The attorney general argues that peti-

tioner's Caldwell claim is barred by proce-

dural default because petitioner failed to

raise the claim on direct appeal of his con-

viction and sentence. We find that the claim

is not procedurally barred. Although peti-

tioner failed to raise the claim on direct

appeal, he did raise it in his Rule 3.850

motion. The circuit court denied that motion

and petitioner appealed to the Supreme Court

of Florida. In disposing of the appeal, the

supreme court stated that its review of the

record “clearly and conclusively refute([d]

any claim that there was any constitutional

A-56

infirmity in the trial." Mann v. State, 482

So.2d 1360, 1362 (Fla. 1986) (emphasis

added). We interpret this statement as indi-

cating that the supreme court considered the

merits of each claim in petitioner's Rule

3.850 motion, including the Caldwell claim.

Since the Supreme Court of Florida therefore

chose not to enforce its own procedural de-

fault rule, federal habeas review of the

claim is not barred. See Oliver v. Wain-

wright, 795 F.2d 1524, 1528 - 29 (llth Cir.

1986), cert. denied, U.S. _, 107 S.Ct.

1380 (1987); Campbell v. Wainwright, 738 F.2d

1573, 1576 - 77 (llth Cir. 1984), cert. de-

nied, 475 U.S. 1126, 106 S.Ct. 1652 (1986);

Rogers v. McMullen, 673 F.2d 1185, 1188 (lith

Cir. 1982), cert. denied, 459 U.S. 1110, 103

S.Ct. 740 (1983).

5. Section 921.141 provides:

(1) Separate pro-

ceedings on issue of pen-

alty. -- Upon conviction

or adjudication of guilt

of a defendant of a capi-

tal felony, the court

shall conduct a separate

sentencing proceeding to

determine whether the

A-57

defendant should be sen-

tenced to death or life

imprisonment ... . The

proceeding shall be con-

ducted by the trial judge

before the trial jury as

soon a practicable .. .

- In the proceeding, evi-

dence may be presented as

to any matter that’ the

court deems relevant to

the nature of the crime

and the character of the

defendant and shall in-

clude matters relating to

any of the aggravating or

mitigating circumstances

enumerated in subsections

(5) and (6)...

(2) Advisory sen-

tence by the jury. --

After hearing all the evi-

dence, the jury shall de-

liberate and render an ad-

visory sentence to the

court, based upon the fol-

lowing matters:

(a) Whether suffi-

cient aggravating circum-

stances exist as enumera-

ted in subsection (5);

(b) Whether suffi-

cient mitigating circum-

stances exist which out-

weigh the aggravating cir-

cumstances found to exits;

and

A-58

considerations, whether

the defendant should be

sentenced to life impri-

sonment or death.

(3) Findings in sup-

port of sentence of death.

-- Notwithstanding the re-

commendation of a major-

ity of the jury, the

court, after weighing the

aggravating and mitigating

circumstances, shall enter

a sentence of life impri-

sonment or death, but if

the court imposes a sen-

tence of death, it shall

set forth in writing its

findings upon which the

sentence of death is based

as to the facts:

(a) that sufficient

aggravating circumstances

exist as enumerated in

subsection (5), and

(b) That there are

insufficient mitigating

circumstances to outweigh

the aggravating circum-

stances.

(4) Review of

judgment of conviction and

sentence of death shall be

subject to automatic re-

view by the Supreme Court

of Piorida «<s . »

A-59

(5) Aggravating cir-

cumstances -- Aggravating

circumstances shall be

limited to the following:

(a) The capital fel-

ony was committed by a

person under sentence of

imprisonment.

(b) The defendant

was previously convicted

of another felony or of a

felony involving the use

or threat of violence to

the person.

knowingly created a great

risk of death to many per-

sons.

(d) The capital fel-

ony was committed while

the defendant was engaged,

Or was an accomplice, in

the commission of, or an

attempt to commit, or

flight after committing or

attempting to commit, any

robbery, sexual battery,

arson, burglary, kidnap-

ping, or aircraft piracy

or the unlawful throwing,

placing, or discharging of

a destructive device or

bomb.

(e) The capital fel-

ony was committed for the

purpose of avoiding or

preventing a lawful arrest

A-60

or effecting an _ escape

from custody.

(f) The capital fel-

ony was committed for pe-

cuniary gain.

(g) The capital fel-

ony was committed to dis-

rupt or hinder the lawful

exercise of any govern-

mental function or the en-

forcement of laws.

(h) The capital fel-

ony was especially hein-

ous, atrocious, or cruel.

(i) The capital fel-

ony was a homicide and was

committed in a cold, cal-

culated, and premeditated

manner without any pre-

tense of moral or legal

justification.

(6) Mitigating cir-

cumstances -- Mitigating

circumstances shall be the

following:

(a) The defendant

has no significant history

of prior criminal acti-

vity.

(b) The capital fel-

ony was committed while

the defendant was’ under

the influence of extreme

mental or emotional dis-

turbance.

A-61

participant in the defen-

dant's conduct or consent-

ed to the act.

(d) The defendant

was an accomplice in the

capital felony committed

by another person and his

participation was_- rela-

tively minor.

(e) The defendant

acted under extreme duress

or under the substantial

domination of another per-

son.

(£) The capacity of

the defendant to appre-

ciate the criminality of

his conduct or to conform

his conduct to the _ re-

quirements of law was sub-

stantially impaired.

(g) The age of the

defendant at the time of

the crime.

Under Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2954 (1978), and Hitchcock v. Dugger,

U.S. , 107 S.Ct. 1821 (1987), the cap-

ital sentencer may not be precluded from con-

sidering nonstatutory mitigating evidence.

6. Ross v. State, 386 So.2d 1191 (Fla.

1980), is not inconsistent with the proposi-

tion that the trial judge must give great

A-62

weight to a jury recommendation of déath. In

Ross, the jury recommended death and the

trial judge imposed a death sentence, indi-

cating in his findings that he was bound by

the jury's recommendation. Id. at 1197.

The Supreme Court of Florida ordered resen-

tencing, stating that although a jury recon-

mendation of death “should be given great

weight and serious consideration," id., this

trial judge had given the recommendation “un-

due weight," id. at 1193, by abdicating his

statutory duty to make an “independent

judgment" about the aggravating and mitiga-

ting circumstances. Id. at 1198.

7. The Supreme Court of Florida has

permitted resentencing without a jury where

the error in the original proceeding related

to the trial court's findings and did not

affect the jury's recommendation. See, e.g.,

Menendez v. State, 419 So.2d 312, 314 (Fla.

1982); Mikenas v. State, 407 So.2d 892, 893

(Fla. 1981), cert. denied, 456 U.S. 1011, 102

S.Ct. 2307 (1982); Magill v. State, 386 So.2d

1188, 1191 (Fla. 1980), cert. denied, 450

U.S. 927, 101 S.Ct. 1384 (1981); Fleming v.

State, 374 So.2d 954, 959 (Fla. 1979). Such

were the circumstances in this very case.

See supra note 2.

A-63

8. The trial judge made this statement

on a resentencing. On Riley's direct appeal

of his original sentence, the supreme court

ordered resentencing on the ground that the

trial judge had considered nonstatutory

aggravating factors, in violation of state

law. Riley v. State, 366 So.2d 19 (Fla.

1978). The resentencing was accomplished

without empaneling anew jury. At the resen-

tencing, the trial judge permitted Riley to

introduce additional mitigating evidence.

The resentencing was affirmed on direct

appeal. Riley v. State, 413 So.2d 1173

(Fla.), cert. denied, 459 U.S. 981, 103 S.Ct.

317 (1982).

9. It is at least partly because of

these dynamics, we may surmise, that the

Supreme Court of Florida has interpreted the

legislative intent underlying the death pen-

alty statute as requiring the trial judge to

give great weight to the jury's recommenda-

tion.

10. Florida could, if it so desired,

administer a capital sentencing scheme in

which the jury played no role. See Spaziano

v. Florida, 468 U.S. 447, 465, 104 S.Ct.

3154, 3165 (1984) ("{T]here is no

A-64

constitutional imperative that a jury have

the responsibility of deciding whether the

death sentence should be imposed ... .").

The fact of the matter is, however, that un-

der the existing scheme in Florida the jury

does share in capital sentencing responsibil-

ity. Because the jury's recommendation is a

critical factor in the ultimate sentencing

decision, the jury's function, like the func-

tion of any capital sentencer, must be eval-

uated pursuant to eighth amendment stan-

dards. This court, in various contexts in

federal habeas cases, has treated the Florida

jury as if it were a sentencer for constitu-

tional purposes. For example, in Jackson v.

Dugger, 837 F.2d 1469 (llth Cir. 1988), we

held that the eighth amendment is violated

when a Florida sentencing jury is instructed

that, once it finds the victim's murder to

have been committed under aggravating circum-

stances, death is presumed to be the appro-

priate sentence.

To date, the Supreme Court of Florida

has refused to grant relief on Caldwell

Claims. See Combs v. State, 13 Fla. L.

Weekly 142, 143 - 44 (Fla. Feb. 18, 1988);

Grossman v. State, 13 Fla. L. Weekly 127, 129

- 30 (Fla. Feb. 18, 1988); Foster v. State,

A-65

518 So.2d 901, 901 - 02 (Fla. 1987); Smith v.

State, 515 So.2d 182, 185 (Fla. 1987);

Aldridge v. State, 503 F.2d 1257, 1259 (Fla.

1987); Pope v. Wainwright, 496 So.2d 798, 804

- 05 (Fla. 1986), cert. denied, U.S. ___,

107 S.Ct. 1617 (1987). We do not read these

cases as necessarily holding that a Caldwell

violation could never occur in a Florida

case. See Smith, 515 So.2d at 185 (no Cald-

well violation provided “the jury instruc-

tion properly stress the importance of the

jury role"); Pope, 496 So.2d at 805 (no Cald-

well violation "as long as the significance

of [the jury's] rccommendation is adequately

stressed"). In any event, we are not bound

by a state court's application of federal

constitutional principles. We look to that

court's pronouncements only to determine the

nature of the sentencing process; we indepen-

dently decide how the federal Constitution

applies to claims pertaining to that process

as thus defined.

ll. As we noted in McCorguodale, the

Supreme Court did not say in Caldwell that

any misleading comment by the prosecutor

would constitute ground for reversal; “rather

it stated that ‘[{s]Juch comments, if left un-

corrected, might so affect the fundamental

A-66

fairness of the sentencing proceeding as to

violate the Eighth Amendment.'" McCorquo-

dale, 829 F.2d at 1037 (quoting Caldwell, 472

U.S. at 340, 105 S.Ct. at 2645). Thus, the

proper focus is on whether the trial court's

actions were sufficient to correct the mis-

impression created by the pros¢cutor's com-

ments. See also Caldwell, 472 U.S. at 333,

105 S.Ct. at 2641 - 42 ("[T)he uncorrected

suggestion that the responsibility for any

ultimate determination of death will rest

with others presents an intolerable danger .

- « «+ ") (emphasis added); Tucker v. Kemp,

802 F.2d 1293, 1295 (llth Cir. 1986) (en

banc) ("Of critical importance in Caldwell

was the fact the trial judge approved of the

prosecutor's comments ... .), cert. denied,

_.__ U.S. ___, «107 S.Ct. 1359 (1987).

12. As we have noted, a number of the

misleading comments were made before the jury

was selected, during voir dire. At first

blush, one might think that such comments at

that stage of the trial proceeding would

benefit the defendant. One might think that

a prospective juror who holds strong personal

reservations about the death penalty would,

upon hearing that he will not be responsible

for the sentencing decision, be less inclined

A-67

to express those reservations in open

court. The ultimate result might be that the

prosecutor would be disabled from excusing

for cause some prospective jurors who would

otherwise be properly excusable under Wither-

spoon _v. Illinois, 391 U.S. 510, 88 S.Ct.

1770 (1968). Thus, one might think, the mis-

leading comments could ultimately have a

beneficial effect from the defendant's point

of view.

Even if there were the potential for

some marginal benefit, the dangers outlined

in Caldwell would remain. The statements

that were made du:ing the voir dire were not

isolated; they were not directed solely at

those prospective jurors who had expressed

reservations about the death penalty.

Rather, they were made before the prospective

jurors collectively, at a time when the pro-

secutor was purportedly outlining the role of

the jury. This court has recognized in the

past that comments made prior to the senten-

cing phase can establish a Caldwell viola-

tion. See Adams _v. Wainwright, 804 F.2d

1526, 1531 n. 7 (llth Cir. 1986), modified,

816 F.2d 1493 (llth Cir. 1987), cert.

granted, 56 U.S.L.W. 3608 (U.S. Mar. 7, 1988)

13. See part II, supra.

14. The only statement suggesting to

the jurors that their role was important was

a single isolated statement made by defense

counsel during jury selection. In light of

the prosecutor's repeated suggestions

throughout the proceedings that the jury's

role was unimportant, we are satisfied that

when the jurors heard the trial judge say “as

you have been told,” they understood the re-

ference to be the prosecutor's portrayal of

their role.

A-69

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 Cald-

well 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, 1789, and Harich v.

Dugger, 813 F.2d 1089, 1098. 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

A-70

an analysis of the particular facts and cir-

cumstances of each case. The trial court may

explain to the jury its advisory role, "as

long as the significance of [the jury's] re-

commendation is adequately stressed." Harich

v. Wainwright, 813 F.2d 1082, 1101 (llth Cir.

1987) (quoting Pope v. Wainwright, 496 So.2d

798 (Fla. 1986)).

In Mann, the prosecutor made the follow-

ing statements during the voir dire examina-

tion:

The recommendation that

you make to Judge Federico

in this portion of the

trial is simply a recorm-

mendation, and he is not

bound by it. He may im-

pose whatever sentence the

law permits. He will have

been here and will have

listened to all of the

testimony himself.

* *

{[Y]ou understand you do

not impose the death pen-

alty. That is not on your

shoulders. The ultimate

decision rests with Judge

Federico.

A-71

* &

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 im-

posed 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 sen-

tence should be imposed on

the defendant.

Id. (emphasis added). It is clear from the

above that the prosecutor and the court mis-

led the jury as to its responsibility. The

A-72

last thought left with the jury by the prose-

cutor in his closing argument at sentencing

replayed his earlier statements:

What I'm suggesting to you

is that the ultimate re-

sponsibility for the impo-

sition of the sentence

rests with Judge Philip

Federico. That is his

sworn position in the sys-

tem. He's heard every-

thing you have heard. He

may have the opportunity

to learn more before he

imposes a sentence.

Transcript at 2439. The foregoing flagrant

misstatements by the prosecutor was followed

soon therafter by Judge Federico's instruc-

tions to the jury, which included the follow-

ing:

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 de-

gree. As you have _ been

told, the nal decision

as to what punishment

shall be imposed is the

responsibility of the

judge. However, it is

A-73

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 min-

imized by the prosecutor's statement and then

the trial court's endorsement when the court

said "as you have been told... ." The de-

fense 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 misdescription 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 compel-

ling mitigating evidence that Mann suffered

A-74

from psychotic depression, and that he com-

mitted 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 vio-

lence. 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"

A-75

that the advisory jury gave its recommenda-

tion without truly understanding its proper

role.

With respect to the identical issue in

the Harich case, the prosecutorial and judi-

cial comments in this case did not minimize

the role of the jury. The statements went no

further than explaining to the jury the re-

spective functions of the judge and jury.

The jury was told to listen to the evidence,

weigh the aggravating and mitigating circum-

stances and render an advisory opinion as to

the applicability of the death penalty in

this case. Nothing was said which would im-

ply to the jury that its recommendation was

superflous or that the importance of the

jury's decision was lessened by the fact that

it was only a recommendation. Upon examina-

tion of the record, one concludes that the

seriousness of the jury's advisory role was

adequately communicated by the court and

A-76

prosecutor. As mentioned in the discussion

of the Mann case, the Florida Supreme Court

has stated that comments which accurately ex-

plain 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

Harich, it is necessary to analyze the con-

text 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 prosecuor that

would have misled the jury. Judge Vance in

A-77

his dissent at page 4 recites one statement

by the prosecutor. The balance of the state-

ments 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 4 of

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 un-

less a new trial is granted, and also concur-

ring with the majority in Harich that the

petition be denied.

A-78

FAY, Circuit Judge, dissenting, in which

RONEY, Chief Judge, HILL and EDMONDSON, Cir-

cuit Judges, join:

Most respectfully, I dissent from the

conclusion reached in the majority opinion

that there is merit in the Caldwell claim

presented by the petitioner. Our court is

issuing opinions in Harich v. Dugger and in

this case which contain lengthy discusions of

Caldwell claims and how they are to be evalu-

ated. I join in the statement of Judge

Tjoflat in his special concurrence in Harich

that: "The relevant question under Caldwell

is whether remarks made at trial lessened the

jury's sense of responsibility toward its

role of determing whether the death penalty

is appropriate." From our perspective as

members of the Court of Appeals, this neces-

sarily involves a case by case approach with

detailed review of the entire record of any

given case. The bottom line, however, is the

subjective reaction of each individual judge

A-79

to the language and text of the record. In

this case, it is my opinion that no Caldwell

violation occurred. Phrased in the words of

the “relevant question," this record convin-

ces me that none of the remarks of the judge,

prosecutor or defense counsel lessened, in

any way, the jury's sense of responsibility

toward its role in deciding whether or not

death was the appropriate penalty.

The majority finds that at trial, the

prosecutor misled the jury as to its senten-

cing role by stating that (1) its sentence

recommendation was advisory, and (2) the ul-

timate responsibility for imposition of the

sentence rests with the judge. The majority

also concluded that the trial judge did not

correct the false impression left by the pro-

secutor. See ante section III. In my opin-

ion, the record does not support these find-

ings.

A-80

I agree with the majority's analysis of

the role of the trial judge in determining

whether a Caldwell violation occurred. See

ante at __—«-— (citing McCorquodale v. Kemp, 829

F.2d 1035, 1037 (llth Cir. 1987)). The trial

judge should take steps to correct the im-

pression made when a prosecutor's inaccurate

statements diminish a jury's sense of respon-

sibility in a capital sentencing case. In

such a case, a trial judge's curative re-

sponse could negate a potential Caldwell vio-

lation. However, in this case, there was no

need for such a correction since no misin-

pression had been given.

In Florida, comments made by the prose-

cutor which emphasize the “advisory” role of

the jury or indicate that the jury is making

a “recommendation” to the judge, do not sup-

port a Caldwell claim. See Harich v. Wain-

wright, No. 86-3167, slip op. at (11th

Cage , 1988) (en banc); Combs v. State, 13

A-81

Fla. L. Weekly 142 (Pla. Feb. 26, 1988).

Under Florida's death penalty statute the

jury's role is advisory. After receiving the

jury's recommendation, the trial judge must

independently weigh the aggravating and miti-

gating circumstances and render sentence.!

It serves no purpose to

dwell on the word ‘advi-

sory’ {or *recommenda-

tion'] as does the major-

ity, because that is the

procedural structure esta-

blished by the FPlorida

statutes. The jury's ver-

dict as to the appropriate

sentence is advisory. The

question is whether the

jury was somehow given an

erroneous understanding of

its responsibility.

1 see Fla. Stat. §$921.141 (1985). The

Supreme Court held that the division of

authority between the jury and the trial

judge under the Florida death penalty statute

is constitutional. See Spaziano v. Florida,

468 U.S. 447 (1984); Proffitt v. Florida 428

U.S. 242 (1976). In Spaziano, the Court made

reference to the fact that the jury's reconm-

mendation is entitled to some deference by

the trial court. 468 U.S. at 465 - 66.

A-82

Mann v. Dugger, 817 F.2d 1471, 1485 (llth

Cir. 1987) (Fay, J., dissenting) (panel opin-

ion). Such comments are neither inaccurate

nor misleading.

Moreover, in this case the prosecutor

made the controversial comments during voir

dire at the suggestion of defense counsel.

The prosecutor was discussing death penalty

concerns with the prospective jurors when one

member of the venire stated that he would be

unable to find the defendant guilty if it

could lead to a death sentence. Trial

Transcript at 105. The attorneys then held a

side-bar conference with the judge. At this

conference the defense counsel suggested that

someone should inform the jury of the bifur-

cated system used in Florida to determine

A-83

guilt and sentencing.” The prosecutor

followed this suggestion and gave the jury an

accurate summation of its role under the

2 During the side-bar conference, defense

counsel stated:

I think, first of

all, I would just like to

have the right to try to

rehabilitate this gentle-

man who made these for

cause statements earlier

and perhaps the -- we

should have a right to try

to rehabilitate him in

this respect. I think he

is of the opinion, not un-

derstanding the bifurcated

system, that, in fact, if

he rendered a guilty ver-

dict, that that in and of

itself would take care of

the penalty.

I think he should be

told by somebody that, in

fact, it's two different

phases; that he can, in

fact return a guilty ver-

dict if that’s the appro-

priate verdict; and he

will have the opportunity

to voice his opinion.

That may satisfy it.

A-84

Florida

system. Defense

Trial Transcript at 106.

prosecutor stated:

Not only for your

benefit, . . . but for the

benefit of the rest of the

prospective members of the

jury, let me jump ahead a

little bit and see if I

can do some clarifica-

tion. The law in the

State of Florida provides

that in a trial for a cap-

ital offense, such as mur-

der in the first degree,

we actually have two

stages or two phases of

the proceedings.

The first phase re-

lates to the guilt or the

innocence of the Defen-

dant. At that point, the

State puts on its case in

chief against the Defen-

dant in an attempt to con-

vince the jury that he is

guilty of murdering Elisa

Nelson, beyond and to the

exclusion of every reason-

able doubt. The jury, in

Florida, has the opportun-

ity to go back and to de-

liberate that issue. Ob-

viously, if the jury finds

him to be innocent, they

come back and say so, and

A-85

counsel

During this portion of the voir dire the

supplemented the prosecutor's explanation by

he walks out of the court-

room and that's the end of

that.

= - If, on the

other hand, this jury ul-

timately at the conclusion

of the State's case, con-

victs, walks back into the

courtroom and says that he

is guilty of murder in the

first degree, there then

begins a separate portion

of the proceeding in front

of the same jury panel

with additional testimony

and evidence being pre-

sented, at which time you

again -- these ~- matters

that were not brought to

your attention in the

prior portion of the

trial. The jury then has

the opportunity to go back

and deliberate whether or

not you will come back and

make a recommendation of

mercy to the Court.

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 pe-mits. He will

have been here and will

have listened to all of

the testimony himself.

A-86

stating that should the jury find the defen-

dant guilty of first degree murder, the judge

would give the jury's sentencing

recommendation great weight. 4

Trial Transcript at 106 - 108.

4 During voir dire the following occurred:

[DEFENSE COUNSEL]: Only guilty of mur-

der one requires a death penalty. And there

are only two alternatives the Court has: One

is death in the electric chair; the other is

life with a minimum mandatory twenty-five

years before the person becomes eligible for

parole. I think a lot of people get the idea

that if somebody gets a life sentence, they

get out in seven years.

That isn't the case in a first degree

murder. It does carry a maximum of life, a

minimum mandatory of twenty-five years before

a person becomes eligible. That is the al-

ternative the judge has, one of those two.

[JUROR] : Is that the judge's discre-

tion, or is that by law?

[DEFENSE COUNSEL]: By law, the judge

only has two choices if you return a verdict

of murder in the first degree. Like [the

prosecutor] said, you go back and render an

advisory opinion as to what you people be-

lieve is the appropriate sentence, whether

you believe that the appropriate sentence is

death or whether you believe the appropriate

sentence is life with a minimum mandatory

twenty-five years.

Now, he just doesn't disregard that and

A-87

A thorough review of the trial

transcript reveals that defense counsel and

the prosecutor placed equal emphasis on the

advisory role of the jury.> In addition,

do whatever he wants to. He is, by law, re-

uired to ive our recommendation reat

weight, but * is also permitted to overrule

your recommendation, if = desires to do so

and he feels under the law he should. But he

Can still only do one of those two things.

The law does not give him any other discre-

tion.

He has to, ultimately, if Mr. Mann is

convicted of murder in the first degree, say,

I sentence you to death, life, or the minimum

mandatory of tweniy-five years. That's the

only two options he has. Okay? Does that

Clear that up? Does everybody understand

that?

(THEREUPON, the prospective jurors indicated

affirmatively.)

Trial Transcript at 163 - 64 (emphasis

added).

> The prosecutor used the words “advisory”

or “recommendation” (or derivatives thereof)

during two phases of the trial. These in-

cluded comments made during voir dire, see

Trial Transcript at 108, 109, 110, 211, 283,

285, and during the closing argument of the

sentencing phase. See Trial Transcript at

1319, 1326, 1327.

By comparison, the defense counsel used

these terms just as often. These included

A-88

both lawyers indicated to the jurors that if

they found the defendant guilty of first de-

gree murder, the judge would ultimately

comments made during voir dire, see Trial

Transcript at 163- 64 for text of this com-

ment see supra note 4), 171, 173, 272, 273,

274, and during closing argument of the sen-

tencing phase. See Trial Transcript at 1331,

1338, 1341, 1342.

A-89

6 As the majority notes, the prosecutor made

three references to the judge as the final

decision maker. These included comments

twice made during voir dire, see Trial Tran-

script at 110 - 111, 285, and once during the

closing argument of the sentencing phase.

See Trial Transcript at 1330.

The defense counsel, however, also indi-

cated that the judge had the burden of

choosing between a death and a life sen-

tence. See Trial Transcript at 164 - 165

(for text of this comment, see supra note

4). During his final argument of the senten-

cing phase, defense counsel again spoke of

the judge's responsibility as sentencer:

To begin at the very be-~

ginning, the issue here is

whether this man lives, by

my computation, to the age

of eighty-five in prison

before he can be eligible

for parole or whether he

dies. This judge can sen-

tence this man, in addi-

tion to the twenty-five

years minimum mandatory,

he can sentence him in

addition to that ninety-

nine years on the kidnap-

ping and retain jurisdic-

tion over him for thirty-

three of those years to

prevent his release or his

consideration for release,

as I understand it, to

approximately the year

2039. So, the issue that

A-90

Defense counsel's numerous comments re-

garding the jury's advisory role indicate

that he agreed with the explanations given by

the prosecutor and the trial judge. This

strengthens my conviction that the prosecutor

accurately stated the Florida law and did not

mislead the jury. Therefore, I am unable to

find that the prosecutor's statements created

a Caldwell violation.

Because I believe that the prosecutor

did not mislead the jury, I do not find it

necessary to determine whether the trial

judge's comments were sufficiently cura-

tive. I note, however, that the trial

judge's statements were not misleading. The

judge explained to the jury its role in the

Florida sentencing scheme.

you are here to determine

is not whether he lives

among us. The issue is

whether he lives.

Trial Transcript at 1331.

A-91

The trial judge essentially repeated the

explanations given by the lawyers. He told

the jury that its determination of the appro-

priate penalty would serve as a recommenda-

tion.’ The judge also stated that although

the final determination of ty curative. I

note, however, that the trial judge's

statements were not misleading. The judge

explained to the jury its role in the Florida

sentencing scheme.

The trial judge essentially repeated the

explanations given by the lawyers. He told

the jury that its determination of the appro-

priate penalty would serve as a recommenda-

tion. The judge also stated that although

7 whe trial judge made several references to

the advisory nature of the jury sentence.

These comments occurred during post verdict

instructions, see Trial Transcript at 1236,

during the initial instructions of the sen-

tencing phase, see Trial Transcript at 1252 -

1253, and during the final instructions of

the sentencing phase. See Trial Transcript

at 1344 - 1351.

A-92

the final determination of the appropriate

penalty rested with the court, the jury had a

duty to recommend the appropriate penalty in

this case.® one of the trial judge's last

8 During the initial instructions of the

sentencing phase the trial judge stated:

Members of the jury, you

have found the Defendant

guilty of murder in the

first degree. The punish-

ment for this crime is

either death or life im-

prisonment. The final de-

cision as to what punish-

ment shall be _ imposed

rests solely with the

judge of this court. How-

ever, the law requires

that you, the jury, render

to the Court an advisory

sentence as to what pun-

ishment should be imposed

upon the defendant.

Trial Transcript at 1252.

During the final instructions to the

jury in the sentencing phase, the judge

stated:

Ladies and gentlemen of

the jury, it is now your

duty to advise the Court

as to what’ punishment

should be imposed on the

A-93

comments before the jury retired reinforced

the importance of the jury's task:

The fact that the deter-

mination of whether or not

Defendant for his crime of

murder in the first de-

gree. 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 uon

your determination as to

whether sufficient aggra-

vating circumstances exist

to justify the imposition

of the death penalty,

whether sufficient mitiga-

ting circumstances exist

to outweigh any aggrava-

ting circumstances found

to exist. Your verdict

should be based upon the

evidence which you have

heard while trying the

guilt or innocence of the

Defendant, and evidence

which has been presented

to you in this proceeding.

Trial Transcript at 1344 - 44 (There are two

consecutive pages in the trial transcript

numbered as 1344.)

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a majority of you rrecom-

mend a sentence of death

or sentence of life impri-

sonment in this case can

be reached by a single

ballot should not § in-

fluence you to act hastily

or without due regard to

the gravity of these pro-

ceedings. Before you bal-

lot, you should carefully

weigh, sift and consider

the evidence, and all of

it, realizing that a human

life is at stake, and

bring to bear your best

judgment upon the _ sole

issue which is submitted

to you at this time, of

whether a majority of your

number recommend that the

Defendant be sentenced to

death or to life imprison-

ment.

Trial transcript at 1348 - 1349 (emphasis

added). Such a closing instruction had to

impress upon the jury the importance of their

role in the sentencing process.

One other aspect of cases of this sort

troubles me. Jurors are a cross section of

our communities. They are our average citi-

zens with differing degrees of education,

sophistication, experiences and views of

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government. My experience with juries con-

vinces me that they approach such service

with great dedication and awareness. In

cases involving a question of whether or not

the death penalty should be imposed, great

concern and seriousness of purpose literally

permeates the courtroom. Jurors, like

judges, lose sleep and are totally

preoccupied with doing what is right and cor-

rect under the law. We, as judges, should be

slow to assume that such men and women have

somehow been derailed or led astray.

Finding nothing in this record, when

considering such in its entirety, that would

mislead or tend to diminish the responsibil-

ity of the jury, I would deny relief.

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—DT

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.