813 F.2d 1082

Roy Allen Harich, Petitioner-Appellant,
v.
Louie L. Wainwright, Secretary Florida Department of Corrections, Respondent- Appellee.

No. 86-3167

Federal Circuits, 11th Cir.

March 18, 1987

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, JOHNSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Roy Allen Harich appeals from a final judgment of the district court denying his petition for a writ of habeas corpus. We affirm in part, reverse in part, and remand for an evidentiary hearing.

Harich was charged under Florida law with first degree murder, attempted first degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. In a bifurcated trial, the jury first found defendant guilty of all charges, and then voted nine-three to advise the trial court to impose the death penalty on the murder charge. The trial court imposed the death penalty for the murder, and sentenced Harich to thirty years for attempted murder, fifteen years for using a firearm, and thirty years for each of the two kidnappings.

On direct appeal, Harich alleged, inter alia, that (1) the prosecutor engaged in improper closing arguments during the guilt/innocence and sentencing phases; (2) the trial court improperly allowed previously suppressed evidence to be admitted during the sentencing phase; (3) the trial court erred in its application of the statutory aggravating circumstances; (4) the trial court did not instruct the jury that a tie vote during the sentencing phase would be a recommendation for life imprisonment; and (5) the Florida capital sentencing statute is unconstitutional. The Florida Supreme Court, one judge dissenting, affirmed petitioner's conviction and sentence. Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, 465 U.S. 1051 , 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). After an execution date was set, Harich petitioned the Florida Supreme Court for a writ of habeas corpus. In his petition for habeas corpus, Harich alleged that (1) appellate counsel was ineffective; (2) he was sentenced by a "death qualified" jury; and (3) the prosecutor's closing argument was intended to mislead the jury. His arguments were unanimously rejected without an evidentiary hearing. Harich v. Wainwright, 484 So.2d 1237 (Fla.1986).

Next, on March 17, 1986, petitioner filed a motion to vacate judgment and sentence in the Circuit Court for Volusia County, Florida pursuant to Fla.R.Crim.P. 3.850 and sought an evidentiary hearing. Harich's only cognizable claims at this stage were two assertions of ineffective assistance of trial counsel: (1) that trial counsel did not prepare an involuntary intoxication defense; and (2) that trial counsel did not call available witnesses during the sentencing phase. On March 18, 1986, the trial court denied the motion and the request for a hearing, and the Florida Supreme Court, two judges dissenting, affirmed. Harich v. State, 484 So.2d 1239 (Fla.), cert. denied, --- U.S. ----, 106 S.Ct. 2908, 90 L.Ed.2d 993 (1986).

On March 18, 1986, Harich filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida.1 The district court dismissed the petition that same day, and denied petitioner's request for an evidentiary hearing. The district court also denied petitioner's request for a certificate of probable cause to appeal. Harich took an immediate appeal and this court granted his request for a certificate of probable cause, and entered an order staying his execution pending this appeal.

FACTS

Roy Harich came home from work at 4:00 p.m. on June 26, 1981. He testified that from that time until 9:00 p.m. that evening he consumed approximately 15 cans of beer and six marijuana cigarettes, and was "mildly drunk." Trial Transcript, Vol. II, at 502-08. He was on his way home from a friend's house when he met Carlene Kelley and Deborah Miller at a gas station in Daytona Beach. The two girls did not know Harich, but after some discussion they accepted a ride with him to the pier where they were to meet another friend. While they were in Harich's van, the three smoked a small amount of marijuana.

As they were riding, Harich suggested that they go to the woods where he was growing marijuana plants so that the party could continue. On the way, they stopped at a convenience store where they purchased a six-pack of beer. When they finally arrived at petitioner's marijuana patch, they discovered that the leaves were too damp to be smoked, so they placed the leaves under the hood of the van to dry. After about an hour of waiting, petitioner began to discuss the sexual problems he had been having with his wife. At this point, Deborah asked if they could leave. They got into the van and departed.

Petitioner drove only a few yards before he stopped the van, pointed a gun at the girls, and ordered them to undress. Petitioner forced Carlene to have sex with him, then became disgusted and told the girls to get dressed. He offered to give them a ride back, promising not to hurt them, and the girls accepted.

Petitioner drove them about a quarter of a mile, but stopped when Carlene asked if she could use the bathroom. He told the two girls that they should get out and walk the rest of the way to the highway but that they should lie down behind the van while he drove away. As they were walking toward the back of the van, Deborah told Carlene to try and see the license plate number.

The two then laid down on their stomachs behind the van. But as Deborah looked up at the license plate, Harich was upon them. He was holding a gun, which was wrapped in a towel to muffle the sound of a shot. Carlene begged for their lives, but petitioner shot her in the back of the head. He then shot Deborah in the back of the head. The two were still alive, however, and were crying when the petitioner came back out of the van with a knife. He lifted Deborah's head and cut away at her throat. He then cut Carlene's throat, severing her spinal cord, and causing instantaneous death. Harich then drove away.

Miraculously, Deborah did not lose consciousness. After checking Carlene, she walked and crawled toward the main road, stopping periodically to rest at the side of the road.2 Finally, she made it to the highway and flagged down a passing motorist who got her to a hospital.3 At the hospital, Deborah told the police that her attacker's name was Roy, and she described the man and his van. Trial Transcript, Vol. I, at 228. She was the state's key witness at trial, and was able to make an in-court identification of the petitioner.

Harich was the only witness for the defense. He claimed that, due to the amount of alcohol and drugs he consumed the night of the murder, he was unable to recall the events in detail until December, 1981. Harich testified that he read about the murder in the newspaper and heard that the police were looking for a man with a van which closely resembled Harich's van. Fearing that he might be a suspect, he contacted a local defense lawyer. According to Harich, they agreed he would go to the police to explain his innocent role in the incident.

The police, however, arrested Harich before he contacted them. Harich testified that when his memory finally became clear he remembered driving Carlene and Deborah into the woods to look for marijuana. He denied, however, sexually assaulting Carlene and denied killing Carlene and attempting to kill Deborah. Instead, he claimed he drove the girls out of the woods, dropped them off at a nearby convenience store at approximately 11:00 p.m., and got home at 11:10 p.m. The incident was reported to the police at 11:59 p.m.

Harich raises several arguments in support of his petition for a writ of habeas corpus:

  (1) That his trial counsel's ineffectiveness and the prosecutor's closing arguments during the guilt/innocence phase combined to deprive him of a voluntary intoxication defense. At the very least, Harich argues, he is entitled to an evidentiary hearing on the issue of ineffectiveness.

  (2) That he is entitled to an evidentiary hearing to show that trial counsel was ineffective because counsel failed to adequately investigate and present mitigating evidence during the sentencing phase.

  (3) That several of the prosecutor's remarks during his closing argument rendered both phases of the trial fundamentally unfair.

  (4) That Harich's statements to police, which were suppressed during the guilt/innocence phase were improperly admitted during the sentencing phase.

  (5) That the prosecutor and the trial court misled the jurors as to their role in the sentencing procedure, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

  (6) That the statutory aggravating circumstances, as applied in this case, are unconstitutional.

  (7) That the trial court erroneously instructed the jurors that a majority of them had to agree in order to make a sentencing recommendation.

I. THE INTOXICATION DEFENSE

Harich maintained his innocence throughout the guilt/innocence phase of the trial. He also testified that he drank fifteen cans of beer and smoked seven marijuana cigarettes during the five hours preceding his meeting with Carlene and Deborah. Harich's counsel used this information for several purposes during the guilt/innocence phase. First, he asked Harich whether, given his condition, he was sexually attracted to either Carlene or Deborah. Harich responded that he was not. Trial Transcript, Vol. II, at 508. Second, he asked Harich whether his intoxication caused his initial inability to recall the details of his night with Carlene and Deborah. Harich responded that he told the police following his arrest that his memory was incomplete.

According to Harich's testimony, he was not sure of his innocence until five months later, when the memory of the night's events became clear in his mind. On cross-examination, Harich testified that he did not usually drink heavily. But when he did drink heavily, Harich said it was not unusual for his memory to fail for a period of time, and then return after several days or months. Trial Transcript, Vol. II, at 554.

The prosecutor addressed the intoxication issue twice during the guilt/innocence phase. First, he elicited testimony from Deborah Miller that Harich did not appear to be intoxicated during the time when they were together. During closing argument, the prosecutor contended that Harich's voluntary intoxication was not a defense:

Well, perhaps it might come to your mind, might come up later on, well, there's a lot of drinking. Does that take away the premeditation? There was some, even though, as you recall, Debbie did not say she thought the Defendant was drunk. She said she thought he was sober. He had two beers, only, while she was with him. That they didn't smoke any pot. That they couldn't get it dried out. So that, at least, her characterization, at that time, of the Defendant, was that he was not intoxicated, nor had he been on drugs, from her observation.

The Defendant disagrees with that. He's had a lot of beer. And he's had drugs. But regardless of which point of view you might take, you will still find that the acts took such a deliberate intent and over a period of time, and that the alcohol was consumed voluntarily, not involuntarily, and that makes a difference, that that the pot, if, in fact, pot got smoked, that was done voluntarily, not involuntarily, so that drunkenness, and there's been no testimony from any of the State's witnesses concerning that there was any drunkenness or that, but drunkenness in the situation that you have before you, I submit to you, even that would not be a defense to premeditated murder in this particular case. Nor had it been argued. Like I say, I only have one argument.

Trial Transcript, Vol. II, at 677-78 (emphasis added).

Harich's counsel discussed this issue in his rebuttal closing argument. Counsel explained to the jury that he was arguing alternative theories of defense:

I am here to say to you, on behalf of Roy Harich, as his lawyer, that he says he is not guilty of any of these offenses. Okay. And, so, if I argue anything that sounds any different than that, take it as theory, take it as an answer in part to Mr. Smith's argument. But still I feel that is something that should be said, because Mr. Smith commented on the law with respect to premeditated design.

Trial Transcript, Vol. II, at 700-01. He went on to argue that intoxication can preclude a finding of premeditation:

But, suppose a man is so drunk and so stoned out on marijuana that he can't premeditate? What then? Suppose he's not capable of forming rational, logical thoughts, courses of conduct? Then where is the premeditation if he can't premeditate?

So, if you find from the evidence that Roy Harich, in fact, committed the killing, or any other offense, remember and give effect, if you will, to the rules of the law as they may be, as they will be given to you as to whether or not he could really premeditate and plan and design what happened here.

Trial Transcript, Vol. II, at 702.

Harich raises two distinct constitutional arguments relating to the voluntary intoxication defense. First, that counsel's failure to ask for an instruction on the voluntary intoxication defense, and counsel's failure to adequately prepare and present this defense, constituted ineffective assistance of counsel. Harich requests an evidentiary hearing to prove that counsel's actions fell below constitutional standards and that counsel's failure prejudiced his defense. Second, Harich claims that the prosecutor's misstatements regarding the legal validity of the voluntary intoxication defense rendered his trial fundamentally unfair. These two claims will be discussed in turn.

A. Ineffective Assistance of Counsel.

Petitioner requests an evidentiary hearing to show that his trial counsel was unaware that voluntary intoxication is a defense, under Florida law, to premeditated murder. As a result of this alleged ignorance of the law, Harich alleges counsel: (1) failed to seek a jury instruction on voluntary intoxication;4 (2) failed to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failed to seek an expert opinion on the impact of intoxication on Harich's ability to premeditate. Neither the state courts nor the district court held an evidentiary hearing in this case.

Petitioner is entitled to an evidentiary hearing if his allegations, taken as true, might merit relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).

The standard for evaluating ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 90 L.Ed.2d 674 (1984). First, the court must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. Counsel's function is to "make the adversarial testing process work in the particular case." Still, in order to prevent a flood of intrusive post-trial inquiries into attorney effectiveness, there is a strong presumption that counsel provided effective assistance. Id. at 689-90, 104 S.Ct. at 2066. Second, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. When challenging effectiveness during the guilt/innocence phase, the defendant must show that, but for the ineffective assistance, the jury would have had a reasonable doubt as to his guilt.

The state raises several objections to petitioner's request for a hearing. First, that counsel's decision to pursue one defense at the expense of another defense is a tactical decision which should not be questioned by a reviewing court. See Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2066; Corn v. Zant, 708 F.2d 549, 561 (11th Cir.1983), cert. denied, 467 U.S. 1220 , 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984), vacated on other grounds, --- U.S. ----, 106 S.Ct. 3326, 92 L.Ed.2d 732 (1986); United States v. Driver, 798 F.2d 248, 254-55 (7th Cir.1986).

The state argues that counsel chose to raise the intoxication issue in closing argument, but chose not to stress such a defense given its inconsistency with the primary defense of factual innocence. The district court, without holding an evidentiary hearing, found that counsel's failure to pursue the intoxication defense "was an actual trial tactic used by defense counsel." Record, Tab 12, at 3.

It is reasonable, in some instances, for counsel to ignore certain defenses in order to strengthen others. See, e.g., Songer v. Wainwright, 733 F.2d 788, 790-91 (11th Cir.1984) (counsel not ineffective for failure to raise self-defense where such defense would have required proof of defendant's past drug use and where the principal defense was lack of premeditation). Indeed, this is especially true where the defenses are inconsistent. See Driver, 798 F.2d at 254-55 ("defense counsel could reasonably have concluded that the strength of [defendant's] claim to innocence would have been dissipated by arguing to the jury that [defendant] was part of a conspiracy to distribute cocaine, but that he was not part of the conspiracy charged in the indictment"). Foregoing a viable defense, however, can be considered "tactical" only if it is an informed decision.

Harich's claim that counsel misunderstood the law deserves closer scrutiny than would be available to a petitioner challenging an informed tactical decision. We cannot, however, reach the merits of Harich's claim given the absence of a record on this point. No court has heard testimony from trial counsel regarding his decisions in pursuing Harich's defense. Without such a hearing, this court cannot assume that the failure to actively pursue the intoxication defense was a tactical decision. See Porter v. Wainwright, 805 F.2d 930, 935 (11th Cir.1986) (without the benefit of an evidentiary hearing at any level, we could not conclude that attorneys' failure to present mitigating evidence was a tactical decision); Thomas v. Zant, 697 F.2d 977, 982 (11th Cir.1983) (state court finding that counsel's conduct was an "apparently tactical decision" is not entitled to deference where "that determination was made in the absence of any direct evidence as to what trial counsel's strategy was and as to whether counsel's decision was reasonable"); Johnson v. Estelle, 704 F.2d 232, 239 n. 5, 240 (5th Cir.1983) (whether abandoned defense was meritorious under the facts as known by counsel was a matter of conjecture; "without impugning counsel's integrity or professionalism we must conclude that in the absence of a record the truth of this issue is undeterminable"), cert. denied, 465 U.S. 1009 , 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984). See also Code v. Montgomery, 725 F.2d at 1321 (where lower courts have not found facts necessary to a determination of ineffective assistance claim, court must remand for an evidentiary hearing).

Second, the state argues that since Harich testified that he was innocent, he cannot complain that counsel did not pursue a defense inconsistent with that testimony. When a defendant preempts his attorney's strategy by insisting that a particular defense be followed, no claim of ineffectiveness can be made. Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985); Foster v. Strickland, 707 F.2d 1339, 1343, (11th Cir.1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). This court cannot find that such a preemption of strategy took place in this case without an evidentiary hearing. There is nothing in the record to indicate that counsel considered pursuing the intoxication defense, and nothing to indicate that Harich disagreed with using intoxication as an alternative theory of defense.

The state's most persuasive argument is that, assuming counsel misunderstood the law, counsel's failure to consider the intoxication defense was not prejudicial in this case because such a defense was not available on the facts. Under Florida law, "the intoxication defense to first degree murder is not available merely when the assailant has engaged in substantial drinking prior to the incident or is even intoxicated but only when the assailant is so intoxicated that he is unable to form an intent to kill." Wiley v. Wainwright, 793 F.2d 1190, 1194 (11th Cir.1986) (citing Leon v. State, 186 So.2d 93 (Fla. 3d Dist.Ct.App.1966)). See Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) ("evidence of alcohol consumption prior to the commission of a crime does not, by itself, mandate the giving of jury instructions with regard to voluntary intoxication").

The Florida Supreme Court, in denying Harich's request for an evidentiary hearing, found that "trial counsel's conduct was [not] outside the range of professionally competent assistance, given the evidence presented in this case, which included Harich's testimony that he left the victim alive at a convenience store." Harich v. State, 484 So.2d 1239, 1241 (Fla.1986).

We note initially that the Florida court's finding that counsel provided effective assistance is not binding on this court. Kimmelman v. Morrison, --- U.S. ----, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. at 2070 (ineffectiveness is a mixed question of law and fact). Next, we note that there is nothing in state or federal law which precludes a defendant from raising alternative theories of defense. The evidence is conflicting as to whether Harich was drunk at the time of the crime. The friend with whom he had been drinking was not called as a witness, nor is there any indication that he was interviewed by counsel.

Harich contends that if counsel had understood the law he would have adjusted his defense accordingly. In such a case, we cannot rely solely on the evidence actually presented to determine whether counsel was ineffective for failing to pursue the intoxication defense. For instance, Harich claims that if counsel properly understood the law, expert testimony would have been offered during the guilt/innocence phase to explain the effects of alcohol on his ability to premeditate.

Dr. Elizabeth McMahon testified, during the sentencing phase, that alcohol and drugs could have caused Harich to commit acts he was otherwise incapable of committing. Further, counsel might have called as a witness Harich's friend who supposedly drank beer and smoked marijuana with Harich on the day of the murder. An evidentiary hearing is required in this case in order to determine whether the record contains all reasonably available evidence in support of an intoxication defense.5

We do not have sufficient evidence to hold that counsel was ineffective for his failure to pursue the intoxication defense in this case. Nor do we have sufficient evidence to deny the writ. In cases where a petitioner raises a colorable claim of ineffective assistance, and where there has not been a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing. See e.g., Code v. Montgomery, 725 F.2d at 1321-22; Wiley v. Wainwright, 709 F.2d 1412 (11th Cir.1983); Johnson v. Estelle, 704 F.2d 232 (5th Cir.1983); Thomas v. Zant, 697 F.2d 977 (11th Cir.1983).6

B. Prosecutorial Misconduct.

Harich contends that the prosecutor, during closing argument, misstated the Florida law regarding voluntary intoxication as a defense to first degree murder. It is, of course, improper for the prosecutor to misstate the law to the jury. See United States v. Berry, 627 F.2d 193, 200 (9th Cir.1980), cert. denied, 449 U.S. 1113 , 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Hammond, 642 F.2d 248, 249-50 (8th Cir.1981). Cf. Drake v. Kemp, 762 F.2d 1449, 1458-59 (11th Cir.1985) (prosecutor's closing argument in which he cited two state supreme court cases which were over 100 years old to urge the jury not to consider mercy in imposing sentencing was misleading and prejudicial), cert. denied, --- U.S. ----, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). In order to obtain relief, however, petitioner must show that: (1) the prosecutor in fact misstated the law; and (2) the misstatement rendered the trial fundamentally unfair. Accord Dobbs v. Kemp, 790 F.2d 1499, 1504 (11th Cir.1986) (prosecutor's misstatement of law did not render trial fundamentally unfair given the obscurity of the improper implication, the clear instructions by the trial judge, and the overwhelming evidence of guilt).

Harich claims that the prosecutor misstated the law by implying that voluntary intoxication could not be a defense to premeditated murder. The state responds that the prosecutor merely argued that the evidence in this case did not establish the intoxication defense. The prosecutor's statement, quoted supra at 1087, was misleading to the extent he stated that voluntary intoxication could not be a defense to premeditated murder. Voluntary intoxication is a valid defense under Florida law. See Gardner v. State, 480 So.2d 91, 92 (Fla.1985).

As in Dobbs, supra, the prosecutor's improper reference was not prejudicial in the context of this trial. The clear focus of the prosecutor's remarks was that the evidence in this case did not indicate that the intoxication defense was available. He stressed Deborah Miller's testimony that Harich did not appear to be drunk, and the fact that the defense had not argued intoxication as a defense. The reference to voluntariness, although improper, was only a small part of the prosecutor's intoxication discussion. Moreover, the intoxication discussion was only a small part of the closing argument.

The prosecutor's misstatement did not render the trial fundamentally unfair. See Darden v. Wainwright, --- U.S. ----, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986). If any unfairness resulted from forfeiture of the intoxication defense, that unfairness was caused by the alleged ineffectiveness of Harich's counsel, and not by the prosecutor's statement.

The Florida courts were correct in holding that the evidence presented to the jury did not support an intoxication defense. Under these circumstances, the prosecutor was permitted to point out that Harich's intoxication was irrelevant to the jury's decision. Since the intoxication defense had not been argued by the defense, and since the evidence before the jury did not support such a defense,7 the prosecutor's comments on this subject were not so egregious as to violate petitioner's constitutional rights.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

(MITIGATING CIRCUMSTANCES)

Petitioner requests an evidentiary hearing to show that his trial counsel rendered ineffective assistance in that counsel failed to investigate and present substantial evidence of mitigating circumstances.

During the sentencing phase, Harich's counsel called two jail guards, two former employers, and Dr. McMahon. The guards testified that Harich was well behaved. The former employers testified generally as to Harich's good character and good work habits. Dr. McMahon's testimony centered on Harich's mental capacity and the fact that this act was an aberration which was unlikely to be repeated. In his closing argument, counsel argued forcefully in favor of sparing Harich's life. He noted Harich's devotion to his work and his family. Trial Transcript, Vol. III, at 898.

Harich claims that, without much effort, counsel could have done much more. He asserts there were "scores of family members, friends, and others in the community ready, willing and, indeed, eager to testify for Roy Harich." Appellant's Brief at 23. In his request for an evidentiary hearing, Harich relies primarily on Thomas v. Zant, 697 F.2d 977 (11th Cir.1983). In Thomas, counsel failed to present any evidence during the sentencing phase of the trial. Although counsel did not testify at the state evidentiary hearing, the district court nevertheless found that counsel's failure to present evidence was "an apparent tactical decision."

In his federal petition, Thomas offered counsel's affidavit in which she "came very close to admitting that she had no strategy at all for the penalty stage of Thomas' capital trial." Id. at 988. This court remanded to the district court for an evidentiary hearing on the ineffective assistance claim. The state court's finding that counsel made an "apparently tactical decision" was not entitled to deference because the finding was made "in the absence of any direct evidence as to what trial counsel's strategy actually was and as to whether counsel's decision was reasonable." Id. at 987.

This case is distinguishable from Thomas because counsel's failure to produce additional witnesses did not prejudice Harich's case. In Thomas, petitioner's counsel did not present any mitigating evidence. In the present case, counsel presented several witnesses and delivered a strong closing argument. The Florida Supreme Court, after reviewing the proffered mitigating evidence, concluded that "there is no reasonable probability that the result of this trial would have been different had the evidence been presented." Harich v. State, 484 So.2d at 1241.

Counsel offered evidence showing that Harich was a good worker and a model prisoner. Dr. McMahon testified that the attack was an isolated "explosion" and that such an outburst was unlikely to happen again. Finally, counsel's closing argument was passionate and convincing. Counsel forcefully contested each of the proposed aggravating circumstances and defended each of the proposed mitigating circumstances. He pointed out that Harich was a young, first offender who was operating under extreme emotional disturbance at the time of the murder.

We agree with the district court and with the Florida Supreme Court that the failure to present additional mitigating evidence, even if the result of counsel's neglect, does not undermine our confidence in the outcome of the sentencing proceeding. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069 ("when a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death"). Counsel, in his closing argument, described Harich's personal life, reviewed the aggravating and mitigating circumstances, and argued eloquently for leniency.8 Thus, since Harich has made an insufficient showing of prejudice, there is no need to remand for an evidentiary hearing with respect to this issue.

III. PROSECUTORIAL MISCONDUCT

A. Guilt/Innocence Phase.

Petitioner contends that two comments made during the prosecutor's closing argument in the guilt/innocence phase were constitutionally improper. First, the prosecutor attempted to impeach Harich's credibility with his constitutionality protected silence. Petitioner does not direct the court to any specific comment made by the prosecutor, but the only comment which arguably refers to defendant's silence is the following: "The State's witnesses are known. One thing is not known and that was as Defendant told you. The first time that he told the story, the first time he has come forward to tell the entire situation, was yesterday." Trial Transcript, Vol. II, at 670.

The prosecutor may not impeach a defendant with his post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A prosecutor's statement is objectionable if either: "(1) the manifest intention of the prosecution was to draw attention to the defendant's post-arrest silence; or (2) the jury could infer 'naturally and necessarily' that it was a comment on the defendant's silence." United States v. Diezel, 608 F.2d 204, 208 (5th Cir.1979).

The prosecutor's statement in this case did not draw attention to petitioner's post-arrest silence. Petitioner himself testified that he did not come forward with his version immediately after his arrest because of memory loss. Even if, as the Florida Supreme Court noted, the comment "border[ed] on the improper," it was not prejudicial. Harich v. State, 437 So.2d 1082 (Fla.1983). We agree with the Florida Supreme Court, and thus we reject petitioner's constitutional claim.

Next, petitioner complains that the prosecutor improperly argued that defense lawyers, as a class, are not to be trusted because they abuse discovery practices and learn to win cases by confusing juries. At the beginning of his argument, the prosecutor told the jury about some advice given to him by a defense lawyer:

He said, if you are ever involved in a first degree murder case, defending a person, always put the blame on someone else. Try to choose someone else, even if it is an unknown person, mysterious person. If you can't do that too well, then just try to muddle up the waters and get everyone hidden in the forest among the trees instead of keying in on the issues.... At that time in my career I was a defense lawyer. Since then I have changed sides. But I always found that his words were very wise and very accurate.

Trial Transcript, Vol. II, at 660.

Harich's due process claim is governed by Darden v. Wainwright, --- U.S. ----, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Darden, although the prosecutor's closing argument was clearly improper, there was no due process violation because the comments did not deprive defendant of a fair trial.9 The prosecutor's comments in the present case were not nearly as inflammatory as the prosecutor's comments in Darden.10 Harich's contention that the prosecutor's remarks about defense counsel rendered his trial fundamentally unfair at the guilt/innocence stage is meritless.

B. Sentencing Phase.

Petitioner contends that several of the prosecutor's closing remarks during the penalty phase were improper.11 First, that the prosecutor stressed his own expertise as to the suitability of the death penalty in this case. The prosecutor prefaced his closing argument by noting that:

In fact, in the thirteen years which I have been in this position, in over a hundred thirty-nine, forty cases of this magnitude that I have been associated with, it's only been on four, and now five occasions which have come to the conclusion that this stage of the proceeding is one in which the State must come before you and to argue the aggravating circumstances the State feels is necessary in this particular situation.

Trial Transcript, Vol. III, at 856. Later in his argument, the prosecutor added that:

This crime is the most heinous, atrocious and evil and cruel crime that I have known. And believe me, these days, murder becomes something which really is something that doesn't bother us any more. Doesn't bother me. But not this. Not this one.

Id. at 886.

We have held this type of argument to be improper. See Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir.1985) (en banc), vacated and remanded on other grounds, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986). The argument "implied to the jury that the prosecutor's office had already made the careful judgment that this case, above most other murder cases, warranted the death penalty." Id.

In addition, since the "prosecutorial expertise" argument can tend to mislead the jury as to its proper role in the sentencing process, such argument implicates some of the policies discussed in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) ("it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere").

Although the prosecutor's remarks were improper, resentencing is not required unless the remarks rendered the sentencing proceeding unfair. Our inquiry is "whether there is a reasonable probability that, but for those arguments, the death verdict would not have been given." Brooks, 762 F.2d at 1413.

We find that the prosecutor's remarks did not so infect the sentencing proceeding as to undermine our confidence in the outcome. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068 (1984).12 As in Brooks, the prejudicial effect of the prosecutor's improper remarks was mitigated by several factors. First, the remainder of the prosecutor's closing argument clearly demonstrated to the jurors that their proper role was to independently weigh the evidence supporting the various mitigating and aggravating factors. He admonished the jurors to ignore their personal feelings toward the defendant in order to be fair and impartial. Second, Harich's closing argument and the court's instructions stressed to the jury that their decision was to be made on the basis of the evidence presented and not on the basis of either counsel's arguments. We do not say that curative instructions will always remove the prejudice of an improper closing argument.

Instead, we find that the improper argument was an isolated mistake in an otherwise fair argument, which was followed by an excellent closing argument by petitioner's counsel, and by proper instructions from the court. On these facts, and given the graphic eyewitness evidence regarding the nature of the murder, the prosecutor's reference to his own expertise in the death penalty area does not undermine our confidence in the outcome.

Second, petitioner argues that the prosecutor made improper reference to petitioner's exercise of his constitutional right to seek counsel. The day after the murder, Harich, fearing that he might be a suspect, contacted a lawyer. In arguing that appellant committed the crime in order to avoid lawful arrest, which is a statutory aggravating circumstance, the prosecutor stated:

[W]e know that he was attempting to go undetected.

Even when it showed up in the papers, his first reaction was not to call the police and assist them in their investigation. His first reaction was to call a lawyer. And it was to turn himself in for arrest for suspicion of murder, not to give vital information. We know his intent was not to be apprehended and, therefore, another aggravating circumstance, because the murder was committed with the intention of ... avoiding detection or from escaping of any possible custodial situation.

Trial Transcript, Vol. III, at 871-73. Petitioner asserts that this allegedly improper argument was "virtually the only evidence" presented on this aggravating factor and as such, the sentence cannot stand. The state does not specifically address this issue, but contends broadly that none of the prosecutor's remarks prejudiced the appellant.

In United States v. McDonald, 620 F.2d 559 (5th Cir.1980),13 our predecessor court held that a prosecutor's reference to the fact that defendant sought counsel prior to the execution of a search warrant was improper. The prosecutor in McDonald was attempting to convince the jury to draw an inference that the defendant and his attorney destroyed evidence prior to the search. The former Fifth Circuit held that "[c]omments that penalize a defendant for the exercise of his right to counsel and that also strike at the core of his defense cannot be considered harmless error." Id. at 564 (emphasis added).

Several facts distinguish McDonald from this case. First, McDonald was a direct appeal from a federal conviction whereas this case is a collateral attack on a state conviction. Our review of prosecutorial argument in state habeas corpus cases is more limited than our direct review of misconduct by federal prosecutors. See Darden, 106 S.Ct. at 2472 (appropriate standard of review for prosecutorial misconduct claim on habeas corpus is "the narrow one of the due process, and not the broad exercise of supervisory power") (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)); Brooks, 762 F.2d at 1399.

Our review of this case is to determine whether the prosecutor's comment rendered the sentencing proceeding fundamentally unfair. Second, the jury was well aware that Harich sought counsel as soon as he feared he might be a suspect. Harich's own testimony established the facts mentioned by the prosecutor during his closing argument.14

The fact that the jury was already aware that Harich sought counsel before his arrest distinguishes this case from McDonald, where the prosecutor's comments were the jury's only source of information on this issue. A similar distinction was found to be significant in United States v. Mack, 643 F.2d 1119, 1124 (5th Cir. Unit A Apr. 1981). In Mack, the fact that the jury was aware that defendant was represented by several lawyers rendered the prosecutor's reference to that fact harmless error.15 Id.

Similarly, although the prosecutor's remark in this case was unwarranted, its effect on the sentencing proceeding was not so profound as to undermine our confidence in the outcome. Contrary to petitioner's argument, the challenged remark was not the only evidence offered to prove that petitioner committed this crime to avoid lawful arrest. As is discussed below, this aggravating circumstance is supported by the facts of the crime, as reported by the surviving victim. The murder took place shortly after petitioner had sexually assaulted his victim. The trial court relied on these facts, and not the fact that Harich sought counsel prior to his arrest, in support of the "avoid lawful arrest" aggravating circumstance. The prosecutor's comment regarding petitioner's pre-arrest activities did not affect the fairness of the sentencing proceeding.

Finally, appellant claims that the prosecutor misled the jury as to the mitigating circumstances of "substantial impairment," and age of the defendant.16 The challenged statement is the following:

Another mitigating circumstance ... is whether or not the Defendant could appreciate the criminality of his conduct and conform the conduct to the requirements of law was substantially impaired. I remind you on that particular point that the doctor stated that in her opinion the Defendant was sane. That not only was he sane but at the time, I actually read a quote to her which she agreed with, from her report, was that it was her opinion that he was not suffering from any disease or defect of the mind such that he was unable to know and appreciate the nature and quality or consequences of his behavior and know that it was wrong. So that Dr. McMahon, without a doubt, has testified he knew the difference at the time of the crime, of right and wrong, and he could understand the nature and consequences of his act. So that the mitigating circumstance, I would submit to you, is not applicable. However, it exists before you to consider.

The age of the Defendant. I think the testimony, at least the appearance, would show that the Defendant is probably twenty-three years old, maybe twenty-two, at the time of this occurrence. That, we would show, is not really a mitigating circumstance since our common knowledge and our experience shows us most crimes are committed by people in the eighteen to twenty-five year range.

Trial Transcript, Vol. III, at 862-63.

Petitioner's claim regarding this statement is meritless. The prosecutor's comment regarding Dr. McMahon's testimony is supported by the record and does not confuse the distinction between legal insanity and substantial impairment. His comment regarding the defendant's age, while stretching somewhat outside the record, was merely an attempt to rebut any claim that a 22 year old defendant is especially entitled to mercy. See, e.g., Mason v. State, 438 So.2d 374 (Fla.1983) (trial judge did not abuse discretion in refusing to find that defendant's age--20 years--was a mitigating circumstance), cert. denied, 465 U.S. 1051 , 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The prosecutor's comment did not render the sentencing proceeding fundamentally unfair.

IV. ADMISSION OF STATEMENTS DURING SENTENCING PHASE

During the guilt/innocence phase, the trial judge excluded several statements made by Harich to Volusia County Sheriff's Investigators Vail and Burnsed. These statements were excluded because they were obtained in violation of Harich's Fifth and Sixth Amendment rights. The trial judge did, however, allow the prosecutor to introduce these statements during the sentencing phase of the trial.

Investigator Vail testified that Harich said he remembered leaving Deborah Miller and Carlene Kelley lying behind the van as he drove away from the scene. Trial Transcript, Vol. II, at 758. Investigator Burnsed testified that when Harich was questioned regarding the whereabouts of his weapon, Harich stated that he "must have thrown it out of the window of the van into the drainage ditch next to the dirt road." Id. at 761.

On direct appeal, the Florida Supreme Court held, and the state does not deny, that the trial court's admission of unconstitutionally obtained evidence during the sentencing phase was error. Harich v. State, 437 So.2d 1082, 1085-86.

That court did not reverse Harich's conviction, however, because it found that the error was harmless beyond a reasonable doubt. The district court apparently agreed with this conclusion, noting that "nothing that [Vail and Burnsed] said shed anything new for the trial judge to consider that was not already brought out at trial...." Record, Vol. I, Tab 12 at 5.

We agree with the analyses of the courts below. Sergeant Wall testified during the guilt/innocence phase as to Harich's statement that he remembered driving away and seeing the girls' bodies lying behind the van. Therefore, Investigator Vail's testimony was merely cumulative. Burnsed's testimony, on the other hand, was the first mention of Harich's disposal of the murder weapon.

Under the circumstances, we do not think that the admission of this testimony affected the sentencing decision. The jury knew that the murder weapon had not been found. Given their finding that Harich committed this murder, it would not have come as a surprise that Harich also disposed of the murder weapon.

We are not persuaded by Harich's argument that the investigators' testimony showed the sentencing jury that Harich had lied to them during the guilt/innocence phase and that he therefore deserved to die because he was of bad moral character. First, it is clear that the jury disbelieved all of Harich's trial testimony about his role in the murder. That Harich withheld the further fact that he disposed of the gun could have had only a minimal effect on the jury's opinion as to his trustworthiness, even if the jury improperly considered this as a non-statutory aggravating factor. Second, given the graphic eyewitness testimony as to the execution style killing in this case, we find it extremely unlikely that the death sentence was imposed in this case because the judge and jury believed Harich was a liar. The admission of the Vail and Burnsed testimony during the sentencing phase was harmless beyond a reasonable doubt.

V. MISLEADING THE JURY AS TO ITS PROPER ROLE IN THE SENTENCING PROCESS

Petitioner contends that one statement by the prosecutor and several statements by the trial court misled the advisory jury as to its critical role in the sentencing process, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).17 Specifically, the prosecutor told the jury during voir dire that its sentencing decision was a recommendation and that the "court pronounces whatever sentence it sees fit." Trial Transcript, Vol. I, at 74-75.18

The trial court made several similar statements during the guilt/innocence phase. Before the trial began, the court told the jury that it is the jury's duty to determine guilt or innocence, but that "it is the judge's job to determine what a proper sentence would be if the defendant is guilty." Id. at 178. In its instructions to the jury at the end of the guilt phase, the court repeated the above statement, Trial Transcript, Vol. II, at 732, and also noted:

I will now inform you of the maximum and minimum possible sentences in this case. The penalty is for the court to decide. You are not responsible for the penalty in any way because of your verdict....

Id. at 735-36.

The trial court returned to this theme in the sentencing phase. Before the state began its case, the court told the jurors the following:

As I advised you, when the charge of the law was given you at the conclusion of the case, the punishment of this crime is either death or life imprisonment without possibility of parole for twenty-five years. The final decision as to what punishment shall be imposed rests solely upon the judge of this court. However, the law requires that you, the jury, render to the court an advisory sentence as to what punishment should be imposed upon the defendant.

Id. at 754-55 (emphasis added). The court then told the jurors that their decision should be based on their balancing of the mitigating and aggravating circumstances in the case. After the evidence was presented, the court instructed the jury, in pertinent part, as follows:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed upon the Defendant for his crime of first-degree murder. 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 sentence, based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

Your advisory sentence should be based upon the evidence which you have heard while trying the guilt or innocence of the Defendant and the evidence which has been presented to you in these proceedings.

Trial Transcript, Vol. III, at 914.

We must decide whether these statements created the "intolerable danger" that the "advisory" jury chose to minimize the importance of its role, thus rendering unreliable the jury's recommendation of the death sentence. See Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2642, 86 L.Ed.2d 231 (1985); Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986).

Our inquiry is whether the role of the jury was minimized by these comments to the point that the jurors were likely to have shirked their responsibility in deciding that Harich deserved the death penalty. We do not believe that the challenged comments misled the jury as to the importance of its advisory role.

In Caldwell, the prosecutor told the jurors that their sentencing decision was automatically reviewable by the Mississippi Supreme Court, thus shifting the sense of responsibility from the jury to the appellate courts. The court reversed the conviction because "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 105 S.Ct. at 2639.

Caldwell involved a situation where the jury was misled as to its role as a sentencer. In Adams, we held that Caldwell mandates the reversal of a conviction where an advisory jury is misled as to the importance of its role.19 "[T]he jury's role in the Florida sentencing process is so crucial that dilution of its sense of responsibility for its recommended sentence constitutes a violation of Caldwell." Adams, 804 F.2d at 1530. It is vital that the advisory jury fully understand the gravity of its sentencing decision because the trial judge is not free to simply disregard the jury's recommendation. As we noted in Adams:

Although the trial judge must ... independently weigh the aggravating and mitigating circumstances and render sentence, the jury's recommendation, which represents the judgment of the community as to whether the death sentence is appropriate in a given case, is entitled to great weight, McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (per curiam), and may be rejected by the trial judge only if the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam). This limitation on the judge's exercise of the jury override provides a "crucial protection" for the defendant. Dobbert v. Florida, 432 U.S. 282, 295, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977).

Id. at 1529, See also Porter v. Wainwright, 805 F.2d 930, 936 (11th Cir.1986) (under Florida law, "in order for a judge to reject a jury's recommendation of life imprisonment, the facts justifying a death sentence must be so clear and convincing that virtually no reasonable person could differ as to the appropriateness of the death penalty").

The trial court in Adams clearly led the jury to believe that the moral responsibility for imposing the death sentence rested solely upon the trial court. The trial judge instructed the jury that he could disregard the jury's recommendation, even if the jury recommended life imprisonment. This clearly misstated the Florida law, which allows for an override of the jury's life recommendation only upon a clear and convincing showing that it was erroneous. See Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Furthermore, the trial court told the jury that:

"[T]his conscience part of it as to whether or not you're going to put the man to death or not, that is not your decision to make. That's only my decision to make and it has to be on my conscience. It cannot be on yours."

Adams, 804 F.2d at 1528. Such attempts to shield the jury from the full weight of its advisory responsibility are forbidden by Caldwell.

The prosecutorial and judicial comments in this case did not minimize the role of the jury. The statements went no further than explaining to the jury the respective functions of the judge and jury. The jury was told to listen to the evidence, weigh the aggravating and mitigating circumstances, and render an advisory opinion as to the applicability of the death penalty in this case.

Nothing was said which would imply to the jury that its recommendation was superfluous or that the importance of the jury's decision was lessened by the fact that it was only a recommendation. Upon examination of the record, we conclude that the seriousness of the jury's advisory role was adequately communicated by the court and prosecutor.

We agree with the Florida Supreme Court that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell "as long as the significance of [the jury's] recommendation is adequately stressed." Pope v. Wainwright, 496 So.2d 798 (Fla.1986). While the trial court did not, as we would prefer, explain that the jury's recommendation is entitled to great deference, we cannot say that this jury felt anything but the full weight of its advisory responsibility. As a result, petitioner's Caldwell claim must fail.

VI. AGGRAVATING AND MITIGATING CIRCUMSTANCES

A. Mitigating Circumstances.

Petitioner contends that the trial court ignored unrebutted mitigating evidence in making its decision to accept the jury's recommendation of the death sentence. In its findings of fact in support of the death penalty, the trial court recounted the four aggravating circumstances20 and five mitigating circumstances21 that were before the sentencing jury.

The court then noted that the jury rejected the proposed mitigating circumstances, although the court did find that Harich had no significant history of prior criminal activity. Because the court found the aggravating circumstances outweighed the one mitigating circumstance, it found that the death penalty was appropriate in this case.

Petitioner argues that the trial court's analysis violates the rule that a capital defendant is permitted to present all relevant mitigating evidence to the sentencing body. See Skipper v. South Carolina, --- U.S. ----, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).

Petitioner misconstrues these cases. Skipper, Eddings, and Lockett require that the defendant be allowed to present all relevant mitigating evidence to the sentencing jury or court. In this case, petitioner was given the opportunity to present such evidence. These cases do not require that the sentencing body accept the conclusion that the evidence constitutes a mitigating circumstance or that the mitigating circumstances outweigh the aggravating circumstances.

Petitioner argues that the trial court improperly limited its own inquiry by finding that the jury had rejected the mitigating circumstances. The record belies this assertion. First, the trial court noted that it reached its conclusion "after carefully studying, considering, reviewing and weighing all of the evidence in the case at the trial of this matter and at the separate sentencing proceeding...." Trial Transcript, Vol. IV, at D-28. Second, the court "found" that Harich's lack of prior criminal activity was a mitigating circumstance.

The court obviously did not feel bound by its perception that the jury had rejected each of the mitigating circumstances. The trial court's findings of fact merely reflect its analysis of the evidence. Skipper, Lockett, and Eddings do not require this court to review the weight assigned to evidence considered by the sentencing court. The concern of these cases is that the sentencing jury and court consider all relevant mitigating evidence. That concern was satisfied in this case.

B. Aggravating Circumstances.

1. "Cold, Calculated, and Premeditated"

Petitioner attacks Fla.Stat. Sec. 921.141(5)(i) both on its face and as applied to this case. This provision allows the sentencing court to find an aggravating circumstance where "the ... homicide ... was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification." Petitioner's claim is that this aggravating circumstance does not genuinely narrow the class of persons eligible for the death penalty because first degree murder is, by definition, premeditated. See Zant v. Stephens, 462 U.S. 862 , 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1982) ("an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder"); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). The constitutionality of this aggravating circumstance is an issue of first impression in this circuit.

The Florida Supreme Court has held that Sec. 921.141(5)(i) does narrow the class of defendants eligible for the death penalty because it requires a "heightened" level of premeditation. See Card v. State, 453 So.2d 17, 23 (Fla.1984) ("premeditation must rise to a level beyond that which is required for a first degree murder conviction"), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330; Jent v. State, 408 So.2d 1024, 1032 (Fla.1981) ("the level of premeditation needed to convict in ... a first degree murder trial does not necessarily rise to the level of premeditation in subsection (5)(i)"), cert. denied, 457 U.S. 1111 , 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982).

This aggravating circumstance, as so construed, provides adequate guidance both to the sentencing court and to the advisory jury. While most capital murders require premeditation, the Florida courts have construed Sec. 921.141(5)(i) to require a greater degree of premeditation and cold-bloodedness than is required to obtain a first degree murder conviction. See Brown v. State, 473 So.2d 1260, 1268 (Fla.) ("[cold, calculated] factor places a limitation on the use of premeditation as an aggravating circumstance in the absence of some quality setting the crime apart from mere ordinarily premeditated murder"), cert. denied, --- U.S. ----, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). Given this limiting construction, Sec. 921.141(5)(i) is a facially valid aggravating circumstance because it genuinely narrows the class of persons eligible for the death penalty. Cf. Proffitt v. Florida, 428 U.S. 242, 252-56, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976) (Florida courts limiting construction of the "heinous, atrocious, and cruel" aggravating circumstance provides adequate guidance to the sentencing court and jury).

Petitioner also claims this aggravating circumstance has been applied inconsistently by the Florida courts. In support of this contention, petitioner asks us to compare Mills v. State, 462 So.2d 1075 (Fla.) (court found "cold calculation" where defendant stalked his bound and injured victim through underbrush until he found and executed him), cert. denied, 473 U.S. 911 , 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985), with Drake v. State, 441 So.2d 1079 (Fla.1983) (insufficient basis in record to find "cold calculation"; victim was found with her hands tied behind her back and eight stab wounds), cert. denied, 466 U.S. 978 , 104 S.Ct. 2361, 80 L.Ed.2d 832 (1984). Although both victims were bound, the different results in these two cases are easily explainable.

In Mills, a co-defendant testified as to the details of the stalking, binding, and killing. In Drake, on the other hand, there was no eyewitness and the defendant did not confess to the details of the killing. The only evidence was that the victim was found with her hands tied behind her back. Thus, the court found there was insufficient basis in the record to justify application of Sec. 921.141(5)(i). The court did not foreclose the possibility that, given more evidence, the murder in Drake could have been found to be cold and calculated. Thus, these cases are not inconsistent. Mills is also distinguishable from Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963 , 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

In Harris, the defendant chased his victim throughout her house, stabbing her repeatedly. Although the defendant arguably "stalked" his victim, as did the defendant in Mills, the murder was not "cold and calculated" because the state presented no evidence that the murder was planned in advance. Id. at 798. All of the weapons used by the defendant were found by him in the victim's house during the chase. Thus, although the defendant demonstrated sufficient premeditation to justify a finding of first degree murder, he did not display the methodical and calculating behavior required for a finding of heightened premeditation. Id.

In short, petitioner's attempts to compare cases which share some, but not many, characteristics is unpersuasive. Qualitatively ranking murders is, to be sure, an imprecise business. The Supreme Court, however, has recognized that such qualitative differences as will make some murders "especially heinous, atrocious and cruel" can be considered in imposing the death penalty as long as there are guidelines for their application by the sentencing court and jury. See Proffitt, supra. Similarly, while the line between "ordinary" premeditation and the "heightened" cold, calculated premeditation is a thin one, petitioner has not shown that the state has applied this factor in an unconstitutionally arbitrary manner.

The application of Sec. 921.141(5)(i) in this case is consistent with its application in prior cases. Eyewitness testimony established that Harich had his victims lie down behind his van while he wrapped a towel around his gun. After shooting the two girls, he walked back to his van to retrieve a knife. He then cut each girl's neck, causing the instantaneous death of Carlene Kelley. Under these circumstances, it was not irrational or arbitrary to apply the "cold, calculated" aggravating circumstance in this case. Cf. Barclay v. Florida, 463 U.S. 939, 947, 103 S.Ct. 3418, 3423, 77 L.Ed.2d 1134 (1983) (upholding application of "heinous, atrocious, and cruel" aggravating circumstance).

2. To "Avoid Lawful Arrest"

Petitioner alleges that there was insufficient evidence to support the sentencing court's finding that petitioner committed the murder "for the purpose of avoiding and preventing a lawful arrest after compelling Carlene Gail Kelley to perform fellatio on him and after attempting to kill and murder Deborah Miller subsequent to the kidnapping of each of these victims." Record, Vol. IV, at D-29.

Petitioner argues that if the "avoid lawful arrest" aggravating circumstance, Fla.Stat. Sec. 921.141(5)(e), applies in this case, it would apply in every case where the murder followed another crime and where the victim saw the accused's face. Such an interpretation would, according to petitioner, render the aggravating circumstance overly broad in violation of the Eighth and Fourteenth Amendments. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

In Doyle v. State, 460 So.2d 353 (Fla.1984), the Florida Supreme Court discussed the parameters of the Sec. 921.141(5)(e) aggravating circumstance. The defendant in Doyle raped his next-door neighbor, then murdered her. The trial court found the aggravating circumstance because the victim knew her attacker and would have reported the rape. The state supreme court held that the aggravating circumstance was improperly found on these facts. "[W]here the victim is not a law enforcement officer, the state must prove beyond a reasonable doubt that the dominant motive for the murder was the elimination of witnesses." Id. at 358. As construed by Doyle, Sec. 921.141(5)(e) certainly narrows the class of persons eligible for the death penalty. Accord Adams v. Wainwright, 764 F.2d 1356, 1365-66 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 834, 88 L.Ed.2d 805 (1985).

The issue, then, is whether Sec. 921.141(5)(e) was arbitrarily or irrationally applied in this case. On direct appeal, only one justice of the Florida Supreme Court believed that there was insufficient evidence in this case to justify a finding that Harich killed to avoid lawful arrest. See Harich v. State, 437 So.2d 1082, 1087 (McDonald, J., dissenting).

Although the majority did not specifically discuss this issue, the court did note that it had fully considered petitioner's claims that "the aggravating factors should not have been applied" and found them to be without merit. Id. at 1086. We can only assume that the majority followed the Doyle test and found that the state proved beyond a reasonable doubt that the dominant motive of the killing was the avoidance of lawful arrest.

We follow the Florida court's conclusions. As we discussed in Adams, 764 F.2d at 1366, Doyle does not stand for the proposition that Sec. 921.141(5)(e) is, as a matter of law, inapplicable in cases where a murder follows a rape. Instead, proper application of this factor depends on the facts and circumstances of the particular case.

Here, as in Adams, the murder followed a kidnapping as well as a sexual battery. There was sufficient time between the sexual assault and the killing to justify a finding that Harich's dominant motive was to avoid being prosecuted for the assault. Thus, as in Adams, this case is distinguishable from Doyle, where the contemporaneity of the murder and rape indicated that "the same hostile--aggressive impulses which triggered the initial attack" also colored the defendant's decision to kill his victim. The "avoid lawful arrest" aggravating circumstance is not overly broad as applied to the facts of this case.

3. "Especially Heinous, Atrocious, and Cruel"

Finally, petitioner challenges the application of Fla.Stat. Sec. 921.141(5)(h). This provision provides for an aggravating circumstance where the capital felony was "especially heinous, atrocious, or cruel." Petitioner challenges this aggravating circumstance on the grounds that the Florida Supreme Court has "utterly failed to limit the application of this circumstance in any coherent fashion." Appellant's Brief at 48. This is substantially the same argument rejected in Proffitt v. Florida, 428 U.S. at 242, 96 S.Ct. at 2960, and we are bound to reject it here.

Petitioner shot his victim in the head after she begged for mercy. He then completed the killing by retrieving a knife from his van and slashing her throat until she was dead. On the facts of this case, we cannot say the aggravating circumstance was irrationally or arbitrarily applied. See Barclay v. Florida, 463 U.S. at 947, 103 S.Ct. at 3423.

VII. SENTENCING INSTRUCTIONS

The trial court instructed the jury that its sentencing recommendation must be a majority decision. On direct appeal, the Florida Supreme Court recognized that this was a misstatement of Florida law. See Harich v. State, 437 So.2d at 1086. In fact, a majority vote is not required for a life recommendation. Rose v. State, 425 So.2d 521, 525 (Fla.1982), cert. denied, 461 U.S. 909 , 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). A six-six vote is a recommendation for life imprisonment. Id. On direct appeal, the Florida court held that this was harmless error given the fact that the jury voted nine-three to recommend the death sentence. 437 So.2d at 1086. We agree. See Henry v. Wainwright, 743 F.2d 761, 763 (11th Cir.1984) (instructing jury that majority vote required not prejudicial where nothing in the record showed that jury was equally divided at any point during deliberation).

VIII. CONCLUSION

For the foregoing reasons, we remand to the district court for an evidentiary hearing to determine whether petitioner's trial counsel rendered ineffective assistance with respect to the intoxication defense, and if so, the legal consequence of such a determination. All other aspects of the opinion below are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

*****

FAY, Circuit Judge, dissenting in part, concurring in part:

While concurring in most of what Judge Clark has written for the court, I most respectfully dissent from the conclusion reached in section IA. My personal conclusion is that defense counsel was not ineffective.

Harich contended at trial that he did not commit these horrible crimes. The jury believed otherwise. Deborah Miller proved to be a most credible witness and made her in-court identification. It is easy to understand why the jury rejected the far-fetched story told by Harich including his "delayed ability" to recall the events of that evening and that he had dropped the girls off at a store about 11:00 P.M.

Defense counsel was faced with an extremely difficult situation. His client denied committing the offenses. He maintained that he remembered the evening and testified concerning his version of what transpired while he was with the two girls. To suggest to the jury that Harich was so drunk that he could not have "intended" the consequences of these acts proved by strong evidence would have been totally contrary to and undermining of the position being taken by Harich himself. Although inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury.

By handling the matter the way he did, defense counsel was able to inject the thought of diminished capacity (due to heavy drinking and marijuana) without totally rejecting the testimony of Harich.

The record also convinces me that any more strenuous pursuit of the intoxication defense would have been futile. The events described by Deborah Miller took an extended period of time. The conversation held at the gas station (to which Harich had driven his van), the group ride to a pier, the trip to the woods (where Harich had his marijuana growing), picking marijuana leaves, spreading the marijuana leaves on the hood in an unsuccessful attempt to have them dry (said to have taken about an hour in itself), driving to the spot where Harich forced the girls to perform the sexual acts, the shootings, the cuttings and the return to town all took time. In my opinion, defense counsel would have been foolish to attempt to defend on a theory that Harich was so "bombed" or "out of it" that he was unable to form a mental intent and yet drive his vehicle and engage in all of these activities.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 90 L.Ed.2d 674 (1984) sets forth the standard regarding claims of ineffectiveness of counsel.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064. No such showing has been made here.

To hold that a hearing is required, under the facts of this case, runs afoul of the warning issued by the Supreme Court in Strickland that such intrusive post-trial inquiry will do nothing but encourage the proliferation of such challenges. Id. at 690, 104 S.Ct. at 2066. It also renders meaningless the presumption of competence surrounding such representation. Id.

Harich tried to convince the jury that he was not with Carlene and Deborah when these repulsive crimes were committed. The jury did not believe him. Now he claims his lawyer should have defended him on the grounds that his capacities were so diminished that he didn't know what he was doing. Such Monday morning quarterbacking or second guessing is precisely what the Supreme Court has said should not be allowed. Harich is not entitled to try a different strategy simply because his first failed.

I would affirm, in toto, the denial of relief.

*****

1 Also on this date, Harich petitioned the Supreme Court for a stay of execution pending their decision on the petition for certiorari. The Court denied his request, --- U.S. ----, 106 S.Ct. 1392, 89 L.Ed.2d 707 (1986), thus requiring Harich to file his habeas petition in the district court while his petition for certiorari was still pending

2 Thinking she was going to die, Deborah attempted to leave some evidence. She testified that she tried to write either the name Roy, or the word van, in the sand with her fingers during one of her rest stops. When shown a photograph of the area at trial, she was unable to positively identify what she had written

3 The emergency room doctor testified it was unbelievable that Deborah had survived as long as she did. Deborah Miller's courage and incomparable will to live are the only encouraging aspects of this tragic case

4 As the Florida Supreme Court noted in denying Harich's habeas corpus petition, 484 So.2d at 1238 n.*, the pre-April 1981 version of the Florida Standard Jury Instructions in Criminal Cases contained an affirmative defense instruction for intoxication. Instruction 2.11(c) read as follows:

When a Defense

Voluntary drunkenness or intoxication (impairment of the mental faculties by the use of narcotics or other drugs) does not excuse nor justify the commission of crime, but intoxication (impairment of the mental faculties by the use of narcotics or other drugs) may exist to such an extent that an individual is incapable of forming an intent to commit a crime, thereby rendering such person incapable of committing a crime of which a specific intent is an essential element. When the evidence tends to establish intoxication (impairment of the mental faculties by the use of narcotics or other drugs) to this degree, the burden is upon the state to establish beyond a reasonable doubt that the defendant did, in fact, have sufficient use of his normal faculties to be able to form and entertain the intent which is an essential element of the crime.

When Not a Defense

Drunkenness (impairment of the mental faculties by the use of narcotics or other drugs) which does not go to the extent of making a person incapable of forming the intent, which is an essential element of a crime, does not in any degree reduce the gravity of the offense. Drunkenness (impairment of the mental faculties by the use of narcotics of [sic] other drugs) arising after the formation of the intent which is an essential element of a crime and voluntarily induced for the purpose of nerving the offender to commit a crime already planned does not excuse nor reduce the degree of the crime.

Partial Intoxication

Partial intoxication (impairment of the mental faculties by the use of narcotics or other drugs) which merely arouses the passions or reduces the power of conscience neither mitigates nor lessens the degree of guilt if the offender still knew right from wrong, the probable consequences of his act, and was capable of forming a specific intent to commit the crime.

For some reason, this instruction did not survive the 1981 amendments to the standard instructions, although the other affirmative defense instructions (alibi, insanity, entrapment, and self-defense) were carried forward. Notwithstanding the exclusion of the intoxication instruction in the 1981 amendment, intoxication remains a defense to specific intent crimes in Florida. See Gardner v. State, 480 So.2d 91 (Fla.1985); Linehan v. State, 476 So.2d 1262 (Fla.1985).

5 This is the same approach we adopted in Wiley v. Wainwright, 709 F.2d 1412 (11th Cir.1983). In Wiley, the defendant alleged that his counsel rendered ineffective assistance by failing to properly investigate possible defenses of intoxication and self-defense before advising defendant to plead guilty. We remanded to the district court for an evidentiary hearing because the relevant factual issues were not developed at the state level. On remand, the district court determined that counsel adequately investigated the intoxication defense and that the evidence indicated that the defense was not available because of defendant's admission that he intended to shoot the victim. We affirmed the district court's conclusion that counsel rendered effective assistance with respect to the intoxication defense. Wiley v. Wainwright, 793 F.2d 1190, 1194 (11th Cir.1986) (appeal after remand). As in Wiley, we cannot adequately assess Harich's claim without further factual development

6 The dissent contends that remanding this case for an evidentiary hearing is contrary to the mandate of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 90 L.Ed.2d 674 (1984). We disagree. First, the dissent stresses the fact that the proposed voluntary intoxication defense was inconsistent with Harich's testimony that he did not commit the crime. Harich also testified, however, that he drank fifteen cans of beer, smoked several marijuana cigarettes, and for several months had no memory of the night of the crime. Given the convincing eyewitness testimony of the surviving victim, we cannot determine, without having the benefit of counsel's testimony, whether counsel as a trial tactic abandoned the intoxication defense in order to strengthen the factual innocence defense. See Price v. State, 487 So.2d 34 (Fla. 1st Dist.Ct.App.1986) (counsel's decision to pursue mistaken identity defense, despite evidence that defendant was intoxicated, and despite convincing evidence that defendant committed the crime, warranted remand for further proceedings on defendant's claim of ineffective assistance of counsel). Furthermore, Harich alleges counsel never made an informed choice between the two defenses because counsel was unaware that voluntary intoxication was a defense to first degree murder. Although we cannot make factual findings on appeal, we note the possibility that counsel was misled by the absence of an instruction on this defense in the Florida Standard Jury Instructions. See note 4 supra. Since counsel's state of mind is relevant to his performance, this case must be remanded for further factual development on this issue

Second, the dissent suggests counsel made the best possible use of the intoxication defense by making reference during closing argument to the effect of intoxication on Harich's ability to premeditate. Without an evidentiary hearing, we cannot conclude that this limited use of the intoxication defense was a "trial tactic." Gardner v. State, 480 So.2d 91 (Fla.1985), illustrates the importance of counsel's duty, in an appropriate case, to investigate evidence that the defendant was intoxicated at the time of the crime and to request a jury instruction if the evidence so warrants. In Gardner, the defendant, who stabbed his victim over 50 times, testified that on the day of the crime he consumed three and one-half cans of beer and smoked several marijuana cigarettes. In addition, a state witness testified that the defendant's "eyes looked high" not long after the crimes were committed. The court concluded that this evidence was sufficient to raise a jury question on the issue of voluntary intoxication. Furthermore, the court noted that counsel's ability to make a closing argument regarding the impact of intoxication on defendant's ability to premeditate was not a sufficient substitute for a jury instruction. "The fact that Gardner's counsel could argue his intoxication defense to the jury cannot render the error harmless because the jury must apply the law as given by the court's instructions, rather than counsel's argument." Id. at 93. While sheer quantity of consumption is not the only factor, we believe Harich's testimony that he drank fifteen cans of beer, smoked several marijuana cigarettes, and had no memory of the night of the crime, gave rise to a duty on the part of defense counsel to at least consider an intoxication defense. The fact that counsel referred to intoxication during his closing argument was not, according to Gardner, an effective substitute for a request for a jury instruction. Since we have no evidence that counsel ever considered the voluntary intoxication defense, we cannot accept the district court's unsupported conclusion that counsel's decision to abandon this defense was an "actual trial tactic."

Finally, we do not intimate that defense counsel was ineffective. His decisions may have been dictated by trial tactics. We merely hold that Harich is entitled to an evidentiary hearing on this issue. Under these circumstances, our prior cases clearly mandate that we postpone making a judgment on the merits of the ineffectiveness claim until the relevant facts have been determined.

7 Analysis of the record in this context is different than the analysis under ineffective assistance of counsel. Harich's ineffective assistance claim suggests that the record was insufficient to show an intoxication defense because of counsel's ignorance of the law. Thus, we considered the possibility that the record would have been different if petitioner's allegations are true. Ante at 1090-91. The prosecutor's effect on the trial, on the other hand, must be assessed in light of the evidence actually before the jury. Since the intoxication defense was not established by the evidence, any unfairness in the trial could not have been caused by the prosecutor's misstatement

8 The quality of the closing argument distinguishes this case from King v. Strickland, 714 F.2d 1481 (11th Cir.1983), vacated and remanded for reconsideration, 467 U.S. 1211 , 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered to on remand, 748 F.2d 1462 (11th Cir.1984), cert. denied, 471 U.S. 1016 , 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). In King, counsel called a former employer and a prison guard, but neglected to call two long-term acquaintances of the defendant. In addition, counsel's closing argument "may have done more harm than good." 714 F.2d at 1491. This combination of errors resulted in a finding of ineffective assistance. Id. On remand from the Supreme Court, this court adhered to our earlier opinion, noting that the case against King was based on circumstantial evidence. Such cases were said to be more likely candidates for penalty leniency, and thus a finding of prejudice is also more likely. 748 F.2d at 1464. The case against Harich was, of course, based on the eyewitness testimony of Deborah Miller and thus this case was not a likely candidate for leniency

This case is also distinguishable from Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986), in which the trial court declined to follow the jury's recommendation of life imprisonment. Prejudice is more easily shown in jury override cases because of the deference shown to the jury recommendation.

9 The Court made it clear that Darden was not a "harmless error" case. Before applying "harmless error," the Court assumes there has been a constitutional violation. In Darden, because the trial was not fundamentally unfair, there was no constitutional violation. Darden, --- U.S. at ---- n. 15, 106 S.Ct. at 2473 n. 15

10 For example, in Darden, the prosecutor warned that the defendant shouldn't be out of his cell "unless he has a leash on him and a prison guard at the other end of that leash." 106 S.Ct. at 2471 n. 12

11 The state's argument that these claims are barred by procedural default is without merit. The Florida Supreme Court addressed petitioner's prosecutorial misconduct claims on direct appeal and rejected those claims on the merits. See Harich v. State, 437 So.2d at 1086

12 In Brooks, we held that the Supreme Court's analysis of "fundamental fairness" in the context of counsel ineffectiveness, announced in Strickland, was applicable in the context of improper prosecutorial argument. See Brooks, 762 F.2d at 1401-02

13 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. Nov.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209

14 During Harich's direct testimony in the guilt/innocence phase, the following colloquy took place:

Q [Defense Counsel] What, if upon reading the newspaper concerning the account of that crime, what, if anything, did you do to seek advice and counsel concerning what you should do in the premises [sic]?

A [Harich] Once I read the newspaper account, which had the description of the van which very closely resembled mine, my wife contacted my father-in-law. He came over to the house. And she told him, asked him if he saw the newspaper that morning.

He said no, he hadn't.

She showed it to him, And she said that there was a possibility that Roy may be involved in something like this.

And he got in touch with an attorney friend of his. I don't remember what his name is. And he gave me the number of Dan Warren.

Trial Transcript, Vol. II, at 515.

15 Of course, the fact that the jury was aware of Harich's decision to seek counsel does not excuse the prosecutor's decision to argue that the exercise of this right established an aggravating circumstance. As we said in Mack, "the prosecutor's remarks fall somewhat short of the high level of evenhandedness expected of those responsible for prosecutions in United States courts." 643 F.2d at 1124

16 Florida recognizes the following statutory mitigating circumstances: (1) the defendant has no significant history of prior criminal activity; (2) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) the victim was a participant in the defendant's conduct or consented to the act; (4) the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor; (5) the defendant acted under extreme duress or under the potential domination of another person; (6) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and (7) the age of the defendant at the time of the crime. Fla.Stat.Ann. Sec. 921.141(6). The jury is not limited to the statutorily enumerated mitigating circumstances and may consider any evidence in mitigation it deems relevant. Hall v. Wainwright, 733 F.2d 766 (11th Cir.1984)

17 The state has argued that this claim is barred by the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Caldwell was decided after petitioner's direct appeal was dismissed, and before petitioner instituted his post-conviction proceeding. Petitioner's attempt to raise this issue in his state collateral attack was rejected because of his failure to raise it on direct appeal. Under similar facts, we have held that there was cause for failure to raise the Caldwell claim on direct appeal and that the state court's failure to entertain this claim in a post-conviction proceeding does not constitute an independent and adequate state procedural ground. Adams v. Wainwright, 804 F.2d 1526, 1531 n. 6 (11th Cir.1986). As is evident from Adams, id. at n. 7, a petitioner satisfies the prejudice prong of Sykes when he presents a meritorious Caldwell claim. Accordingly, since there was cause for the failure to raise the Caldwell claim, we will proceed to a discussion of the merits of this claim in lieu of deciding the merits under the guise of a Sykes prejudice inquiry

18 The prosecutor explained the bifurcation of proceedings in capital cases and then told the jury that, in the sentencing phase:

[Y]ours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court as to what the circumstances show.

Trial Transcript, Vol. I, at 74-75. Immediately prior to this statement, the prosecutor warned the jury that the sentencing phase "is a very serious part of the trial and a very serious proceeding." Id. at 74. Immediately after this statement, the prosecutor noted that the sentencing phase is not "a proceeding based upon sympathy or based upon any emotion, it is proceeding based upon law, law and facts." Id. at 75.

19 Florida's death penalty statute provides for bifurcated proceedings in capital cases. First, the jury must determine whether the defendant is guilty of a capital crime. Second, if the defendant is found guilty, the court conducts a separate sentencing proceeding to determine whether the appropriate penalty is death or life imprisonment. Fla.Stat. Sec. 921.141(1). The sentencing phase consists of three subphases. First, the jury considers the mitigating and aggravating evidence and renders an advisory sentence to the court. Fla.Stat. Sec. 921.141(2). Second, the trial court decides whether to accept the jury's recommended sentence. If the court decides to impose the death sentence, it must set forth in writing its findings upon which the sentence of death is based. Fla.Stat. Sec. 921.141(3). Finally, the judgment of conviction and sentence of death is subject to automatic review in the Supreme Court of Florida. Fla.Stat. Sec. 921.141(4)

The division of authority between the jury and the trial judge under the Florida death penalty statute has been upheld against constitutional challenge. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Spaziano, the Court made reference to the fact that the jury's recommendation is entitled to some deference by the trial court. 104 S.Ct. at 3165-66.

20 These were that: (1) the murder was committed during the commission of a sexual battery and kidnapping; (2) the murder was for the purpose of preventing lawful arrest; (3) the murder was especially wicked, evil, atrocious and cruel; and (4) the murder was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification

21 These were: (1) the absence of prior criminal activity; (2) the crime was committed while defendant was under the influence of extreme mental or emotional disturbance; (3) a substantial impairment of defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; (4) the age of the defendant; and (5) any other aspect of defendant's character or record and any other circumstance of the offense

 

---

 

Roy Allen Harich, Petitioner-Appellant,
v.
Richard Dugger, Secretary, Florida Department of Corrections, Respondent- Appellee.

No. 86-3167

Federal Circuits, 11th Cir.

April 21, 1988

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, and EDMONDSON, Circuit Judges.

FAY, Circuit Judge:

Roy Allen Harich appeals from a final judgment of the district court denying his petition for a writ of habeas corpus. Harich alleges (1) that he is entitled to an evidentiary hearing to show that trial counsel was ineffective because counsel failed to adequately investigate and present a voluntary intoxication defense, and (2) that the prosecutor and the trial court misled the jurors as to their role in the sentencing procedure in violation of Caldwell v. Mississippi, 72 U.S. 320 , 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We affirm.

I. BACKGROUND

The panel opinion thoroughly explains the facts and procedural background of this case. Harich v. Wainwright, 813 F.2d 1082, 1084-87 (11th Cir.1987). To aid in understanding this case, we briefly recount its background.

Roy Harich testified that on June 26, 1981 between 4:00 p.m. and 9:00 p.m. he consumed about fifteen cans of beer and six marijuana cigarettes and became "mildly drunk." Trial Transcript, Vol. II, at 502-08. On his way home from a friend's house he met Carlene Kelley and Deborah Miller at a gas station in Daytona Beach. The two girls did not know Harich, but after some discussion they accepted a ride with him. While in Harich's van, the three smoked a small amount of marijuana.

They stopped at a convenience store to purchase a six-pack of beer. Harich then drove the girls to the woods where he had a marijuana patch. The marijuana leaves were too damp to smoke, so they placed the leaves under the hood of the van to dry.

After waiting for about an hour, petitioner began to discuss the sexual problems he had been having with his wife. At this point, Miller asked if they could leave. They got into the van, but petitioner drove only a few yards before stopping. Using a gun, petitioner forced Carlene Kelley to have sex with him. He then offered to give them a ride back, promising not to hurt them. The girls accepted.

After a short drive, petitioner told the two girls that they would have to get out and walk the rest of the way. He instructed them to lie down behind the van while he drove away. The two then laid down on their stomachs behind the van. Harich wrapped his gun in a towel and shot both Kelley and Miller in the back of the head. Petitioner then used a knife to cut both their throats. Kelley died instantly, but Miller survived. Harich drove away.

Miraculously, Miller remained conscious and made her way to the highway. A passing motorist picked her up and drove her to a hospital. At the hospital, Miller described her assailant and his van. She told the police that her attacker's name was Roy. Trial Transcript, Vol. I, at 228. At trial, she made an in-court identification of the petitioner.

Harich was the only witness for the defense. He claimed that the alcohol and drugs he consumed the night of the murder caused him to forget the events in detail until December, 1981. Harich testified that when his memory became clear he remembered driving Kelley and Miller into the woods to look for marijuana. However, he denied sexually assaulting, attempting to kill, or killing anyone. He claimed that he left the girls, unharmed, at a nearby convenience store at approximately 11:00 p.m., and arrived home at 11:10 p.m. This was about fifty minutes before the police learned of the incident.

The State of Florida charged Harich with first degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The jury found defendant guilty of all charges, and then advised the trial court to impose the death penalty. The trial court sentenced Harich to death for the murder.

After exhausting all available remedies in the state courts,1 Harich filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The district court dismissed the petition and denied petitioner's request for an evidentiary hearing. The district court also denied petitioner's request for a certificate of probable cause to appeal. Harich immediately appealed. This Court granted his request for a certificate of probable cause and entered an order staying his execution pending this appeal.

II. DISCUSSION

Having made a thorough examination of this case, we adopt sections IB, II, III, IV, VI, and VII of Judge Clark's panel opinion. See Harich v. Wainwright, 813 F.2d 1082 (11th Cir.1987).2 This opinion discusses ineffectiveness of counsel and the Caldwell issue.

A. Ineffectiveness of Counsel

Petitioner requests an evidentiary hearing to show that trial counsel was ineffective because he was unaware that under Florida law voluntary intoxication is a defense to premeditated murder. Harich claims that as a result of this alleged ignorance, counsel: (1) failed to seek a jury instruction on voluntary intoxication;3 (2) failed to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failed to seek an expert opinion on the impact of Harich's intoxication on his ability to premeditate. Neither the state courts nor the district court held an evidentiary hearing in this case. Petitioner is entitled to an evidentiary hearing if his allegations, taken as true, might merit relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).

The sixth amendment right to an attorney requires "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland v. Washington sets forth the standard for evaluating ineffective assistance of counsel claims. First, the defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066.

In practice this means that courts will not find that an attorney is incompetent for using a particular approach to a case so long as that approach was reasonable. There is a strong presumption that counsel provided effective assistance. Id. at 689-90, 104 S.Ct. at 2065-66. Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069.

1. The Range of Professionally Competent Assistance.

The district court, without holding an evidentiary hearing, found that counsel made a tactical decision not to pursue the intoxication defense.4 See Record, Tab 12, at 3. According to the record before us, however, no court has heard testimony from trial counsel regarding his decisions in pursuing Harich's defense. Without a hearing, it is impossible to determine whether counsel's failure to argue the intoxication defense was an actual trial tactic. To determine whether counsel was ineffective, we must first consider whether competent counsel could have reasonably decided not to pursue the voluntary intoxication defense.

Throughout the guilt/innocence phase of the trial, Harich maintained that he was innocent. He testified that due to the quantity of alcohol and drugs he consumed the night of the murder, he was unable to recall the events in detail. After reading the morning newspaper, he feared that he might be a suspect.

Harich then contacted a local defense attorney and the two of them agreed that Harich would go to the police to explain his innocent role in the incident. The police, however, arrested Harich before he contacted them. Harich testified that his memory returned five months later. At that point he admitted driving the victims to the woods to look for marijuana and then dropping them off at a convenience store, unharmed.

Defense counsel faced a difficult dilemma. Harich admitted that he was with the victims that evening, yet insisted that he was innocent of any wrongdoing. He also indicated that he was under the influence of the drugs and alcohol that evening. Armed with these tough facts, defense counsel adopted the primary defensive strategy of asserting factual innocence.

Petitioner suggests that defense counsel should have employed alternative defenses. We believe that it was reasonable not to pursue alternative defenses beyond the length taken by counsel.5 Harich testified that he was only "mildly drunk" and did not commit these crimes.

To suggest to the jury that Harich was so drunk that he could not have "intended" the consequences of these acts proved by strong evidence would have been totally contrary to and undermining of the position being taken by Harich himself. Although inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury.

By handling the matter the way he did, defense counsel was able to inject the thought of diminished capacity (due to heavy drinking and marijuana) without totally rejecting the testimony of Harich.

Harich, 813 F.2d at 1105 (Fay, J., dissenting in part, concurring in part).

It is not enough for petitioner to claim that his lawyer was ignorant of the Florida law. Petitioner must prove that the approach taken by defense counsel would not have been used by professionally competent counsel. As the Supreme Court has stated, petitioner "must overcome the strong presumption that counsel provided effective assistance.... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Considering that defendant denied committing the crimes, and testified as to his factual innocence, we conclude that the approach taken and the presentation made by defense counsel was one which falls well within the objective yardstick that we apply when considering the question of ineffectiveness of counsel.6

We cannot say that by failing to pursue an intoxication defense, counsel's approach to this case was outside the range of professionally competent assistance. A competent attorney completely informed on the intoxication defense and faced with a defendant advocating his factual innocence could well have taken action identical to counsel in this case.

2. The Probability of Change in the Outcome.

Even if we found that competent counsel would not have taken the approach defense counsel used in this case, we would affirm. We do not believe that petitioner satisfied the second prong of Strickland by showing any prejudice from counsel's alleged errors.7 Petitioner failed to demonstrate that there is a reasonable probability that including defense counsel's omissions would have changed the outcome of the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Under Florida law, voluntary intoxication is a defense to first degree murder when the intoxicant renders the defendant incapable of forming the intent to commit the crime. See supra note 3. Even deciding every credibility determination in Harich's favor, we find that it is not reasonably probable that the jury would have accepted the intoxication defense. Harich's lawyer built a case around his client's claim of factual innocence. Through his own testimony, Harich recounted details about what he did, where he went, and when he dropped off the girls. Harich tried to convince the jury that he was not with Kelley and Miller when these crimes were committed. The jury did not believe him.

The evidence favoring conviction was the persuasive testimony of the survivor, Deborah Miller, identifying Harich as the assailant and stating that Harich appeared sober on the day of the crimes. In addition, evidence admitted at trial revealed that Harich operated his vehicle without any noticeable impairment. He also tricked the girls into lying down behind his van and shot them in the head with a gun he had the presence of mind to muffle. Finally, after shooting the victims, Harich sliced their throats to insure their death.

Petitioner claims that had counsel included a jury instruction on voluntary intoxication, there is a reasonable probability that the jury would have found him not guilty by reason of intoxication. We find this difficult to believe. The acts committed required a significant degree of physical and intellectual skills. See Keys v. Duckworth, 761 F.2d 390, 393 (7th Cir.1985) (per curiam). Moreover, to accept the intoxication argument, the jury would have had to disbelieve the testimony of both Miller and Harich.8 The absence of a jury charge did not prejudice petitioner.

We also feel that there was not a reasonable probability of a different result had defense counsel objected to the prosecutor's misstatement of the applicable law during closing arguments. Essentially, the prosecutor indicated that because Harich's state of intoxication was voluntary, Florida law did not permit mitigation of first degree murder. Although the prosecutor incorrectly stated the law, see supra note 3, there was no prejudice.

Defense counsel subsequently stated in his closing argument that the jury should consider Harich's alleged state of intoxication as mitigating evidence. The jury thus heard both positions on this issue. Because the trial judge correctly instructed the jury that closing arguments were not treated as evidence, there was even less chance of prejudice. An objection by defense counsel to the prosecutor's misstatement was unlikely to change the result for the petitioner.

It is also unlikely that presenting expert testimony on intoxication in the guilt/innocence phase of the proceedings would have impacted on the jury's determination of guilt. Telling the jury that Harich was not capable of forming the specific intent to kill, kidnap, or sexually assault the victims because he was suffering from alcohol idiosyncratic intoxication, would implicate him in the murder in contradiction of his own testimony. Defense counsel did use an expert during the penalty phase with apparently no impact on the jury's recommended sentence.9 It is, therefore, not reasonably probable that presenting expert testimony earlier would have resulted in a different verdict.

We find that given the state of Florida law at the time of trial, even counsel who knew and appreciated the relevance of intoxication could have reasonably decided not to pursue such a defense in this case. We also find that petitioner did not suffer any prejudice thereby, as it is not reasonably probable that the jury would have accepted the intoxication defense petitioner suggests defense counsel should have offered.

We do not believe that petitioner raised a colorable claim of ineffectiveness under Strickland. After a thorough review of the record, we hold that under the facts of this case, these allegations, if true, do not constitute ineffective assistance of counsel. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321 (11th Cir.1984). Petitioner, therefore, is not entitled to an evidentiary hearing on this claim.

B. The Caldwell Issue

Petitioner contends that statements made by the prosecutor and by the trial court misled the advisory jury as to its critical role in the sentencing process in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).10

In Caldwell the prosecutor urged the jury not to view itself as determining whether defendant would die, because the Supreme Court of Mississippi automatically reviewed a death sentence for correctness. The Supreme Court of the United States found that this statement made the jury's determination that death was the appropriate punishment unreliable, and thus inconsistent with the eighth amendment.

The Caldwell Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639.

In Caldwell the prosecutor's remarks were inaccurate and misleading, thus shifting the sense of responsibility for imposing the death sentence from the jury to the appellate courts. The prosecutor made affirmative statements designed to give the jury the idea that their role in the sentencing process was not a serious responsibility. These statements violated defendant's constitutional rights and entitled him to a new trial.

The relevant question under Caldwell is whether remarks made at trial lessened the jury's sense of responsibility toward its role of determining whether the death penalty is appropriate. Although certain language in Caldwell could be interpreted broadly, we must consider such language in light of the facts of Caldwell. We believe the Supreme Court intended that a Caldwell violation should include some affirmative misstatement or misconduct that misleads the jury as to its role in the sentencing process. Caldwell does not mandate reversal if an advisory jury is told that its role is to advise or to recommend.

In Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), we held that Caldwell mandates the reversal of a conviction where an advisory jury is misled as to the importance of its role. "[T]he jury's role in the Florida sentencing process is so crucial that dilution of its sense of responsibility for its recommended sentence constitutes a violation of Caldwell." Adams, 804 F.2d at 1530. It is vital that the advisory jury fully understand the gravity of its sentencing decision.

The trial court in Adams incorrectly led the jury to believe that the responsibility for imposing the death sentence rested solely upon himself. The trial judge instructed the jury that he could disregard the jury's recommendation, even if the jury recommended life imprisonment. This was incorrect. Florida law allows for an override of the jury's recommendation of life imprisonment only upon a clear and convincing showing that it was erroneous.11

Furthermore, the trial court told the jury that: "[T]his conscience part of it as to whether or not you're going to put the man to death or not, that is not your decision to make. That's only my decision to make and it has to be on my conscience. It cannot be on yours." Adams, 804 F.2d at 1528. Caldwell prohibits such attempts to shield the jury from the full weight of its advisory responsibility.

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 mitigating circumstances and render sentence.12 Therefore, emphasizing the "advisory" role of the jury, or the fact that the jury is making a "recommendation" to the judge, does not support the Caldwell claim.13 Such statements are neither inaccurate nor misleading.14

In the instant case, petitioner contends that the remarks made by the prosecutor and judge improperly diluted the jury's sense of responsibility for their sentencing decision in violation of the Eighth Amendment. [Specifically, the prosecutor told the jury during voir dire that its sentencing decision was a recommendation and that the "court pronounces whatever sentence it sees fit."] Trial Transcript, Vol. I, at 74-75.15

The trial court made several similar statements during the guilt/innocence phase. Before the trial began, the court told the jury that it is the jury's duty to determine guilt or innocence, but that "it is the judge's job to determine what a proper sentence would be if the defendant is guilty." Id. at 178. In its instructions to the jury at the end of the guilt phase, the court repeated the above statement, Trial Transcript, Vol. II at 732, and also noted:

I will now inform you of the maximum and minimum possible sentences in this case. The penalty is for the court to decide. You are not responsible for the penalty in any way because of your verdict....

Id. at 735-36.

The trial court returned to this theme in the sentencing phase. Before the state began its case, the court told the jurors the following:

As I advised you, when the charge of the law was given you at the conclusion of the case, the punishment of this crime is either death or life imprisonment without possibility of parole for twenty-five years. The final decision as to what punishment shall be imposed rests solely upon the judge of this court. However, the law requires that you, the jury, render to the court an advisory sentence as to what punishment should be imposed upon the defendant.

Id. at 754-55 (emphasis added). The court then told the jurors that their decision should be based on their balancing of the mitigating and aggravating circumstances in the case. After the evidence was presented, the court instructed the jury, in pertinent part, as follows:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed upon the Defendant for his crime of first-degree murder. 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 sentence, based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

Your advisory sentence should be based upon the evidence which you have heard while trying the guilt or innocence of the Defendant and the evidence which has been presented to you in these proceedings.

Trial Transcript, Vol. II, at 914.] 813 F.2d at 1098-99.

We do not believe that the challenged comments misled the jury as to the importance of its advisory role. These statements did not create the intolerable danger that the advisory jury's recommendation of the death sentence was unreliable. Neither did they minimize the role of the jury. The statements explained to the jury their role with respect to the judge.

The judge also instructed the jury to listen to the evidence, weigh the aggravating and mitigating circumstances, and render an advisory opinion as to the applicability of the death penalty in this case. Neither the prosecutor nor the trial judge implied that the jury's recommendation was superfluous. The fact that the jury knew they were making a recommendation did not detract from the importance of their decision.

We agree with the Supreme Court of Florida that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell "as long as the significance of [the jury's] recommendation is adequately stressed." Pope v. Wainwright, 496 So.2d 798, 805 (Fla.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). After examining the record, we conclude that the court and prosecutor adequately communicated the seriousness of the jury's advisory role. We cannot say that this jury felt anything but the full weight of its advisory responsibility. As a result, petitioner's Caldwell claim must fail.16

III. CONCLUSION

For the foregoing reasons we affirm, in toto, the denial of relief.

AFFIRMED.

*****

TJOFLAT, Circuit Judge, specially concurring, in which KRAVITCH, HATCHETT, ANDERSON and CLARK, Circuit Judges, join:

I agree fully with the majority's treatment and disposition of petitioner's ineffectiveness of counsel claim. I also agree with the majority's disposition of petitioner's Caldwell claim, but I do not agree with its analysis of that claim. The chief defect in the analysis, I submit, is that it focuses too heavily on whether the statements by the prosecutor and the court regarding the sentencing process were accurate in a very technical sense, and does not fully consider whether the jurors were nevertheless left with a misimpression as to the importance of their role. In my view, a proper analysis of the Caldwell claim requires an evaluation of how a reasonable juror would have understood the court's statements in the context of the entire trial. Applying this analysis, I conclude, along with the majority, that petitioner's Caldwell claim is without merit.

I.

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Supreme Court held that a death sentence is invalid under the eighth amendment if it rests on "a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639.

Under the Florida capital sentencing scheme, the jury makes a sentencing recommendation and the trial judge actually imposes sentence. Fla.Stat. Sec. 921.141 (1985). Because the trial judge is required by Florida law to give great weight to the jury's sentencing recommendation, this court has held that the concerns voiced in Caldwell are triggered when the jury is misled into believing that its sentencing role is an unimportant one. See Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (en banc).

An examination of the trial record in this case reveals the following facts pertinent to petitioner's Caldwell claim. In the course of counsel's voir dire of the venire, the prosecutor explained to the prospective jurors that the trial would be in two stages, a guilt phase and a sentencing phase. After describing the jury's function in the guilt phase, he stated that

in the event the State has, in fact, proven its case of guilty of murder in the first degree, then it is necessary for the jury to determine one thing and one thing alone. And that is their recommendation concerning whether the recommendation should be life imprisonment or it should be death. Of course, it is a very serious part of the trial and a very serious proceeding.... [It] is going to be a very vital part of the proceedings, and one which both parties will probably strenuously object as to what recommendations you might should recommend to the Court.

The prosecutor then went on to make the following statement:

Let me add that yours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court as to what the circumstances show.

The prosecutor concluded this discussion of the jury's role by telling the prospective jurors that

[y]ou are a fact-finding body. And you must make several findings, or at least in your own mind, before you render verdict, the State has to show you what we call an aggravating circumstance or [there] might be mitigating circumstances. And you are to make a judgment, based upon those proceedings. And so it is a detailed process that we go through.

Once the jury had been selected, the trial judge delivered an opening charge. In that charge, the trial judge explained the jury's role in the following way:

Your duty is to determine if the Defendant is guilty or not guilty, in accordance with the law. It is the Judge's job to determine what a proper sentence would be if the Defendant is guilty.

The trial judge repeated this point verbatim in his instructions to the jury at the close of the guilt phase. The trial judge also instructed the jurors that

[t]he penalty is for the Court to decide. You are not responsible for the penalty in any way because of your verdict. The possible results of this case are to be disregarded by you when you arrive at your verdict. Your duty is to discuss only the question of whether the State has proved the guilt of the Defendant in accordance with these instructions of the law.

The jury returned a verdict of guilty on all charges. The trial judge then convened the sentencing phase of petitioner's trial. In his opening charge to the jurors, the trial judge stated that

[t]he final decision as to what punishment shall be imposed rests solely upon the Judge of this court. However, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.

At the conclusion of the sentencing phase, the prosecutor and defense counsel both made closing arguments to the jury. The prosecutor reminded the jurors not to approach their task lightly, stating:

This proceeding which we have at this stage of a murder trial is always a difficult one. And I am sure it applies, likewise, to everyone concerned. Don't think that anyone at any time takes it any lighter than anyone else, by any means.

Defense counsel, in his closing argument, expressly outlined the importance of the jury's sentencing role:

And your recommendation carries great weight. It is true that the Judge, and the Judge alone, decides what the sentence will be. But this is not an exercise in futility for you. For what you decide has more weight for him and for the Court and for our system than any other single factor in his recommending whether Roy Harich shall suffer death or be imprisoned for life.

After defense counsel concluded his argument, the trial judge delivered the final charge to the jury. In the course of the charge, the judge made the following statement:

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 sentence....

The jury then retired for deliberations. Upon returning to the courtroom, it announced a recommendation of death, which the judge followed in imposing sentence.

II.

I begin my analysis by evaluating the prosecutor's statements. In this case, the prosecutor's misrepresentation of the jury's role consisted of a single isolated statement made in the course of jury selection. In explaining to the prospective jurors how the capital sentencing process functioned, the prosecutor stated that "[t]he Court pronounces whatever sentence it sees fit."

This statement, considered by itself, does mischaracterize the nature of the jury's role. As noted above, the trial judge is required under Florida law to give great weight to the jury's recommendation. The prosecutor's statement suggested, contrary to Florida law, that the judge's sentencing prerogatives would in no way be constrained by the jury's recommendation.

In evaluating the impact of the statement on the jurors, however, we cannot ignore the context in which the statement appeared. It was immediately preceded by the comment that the jury's sentencing determination would be a "very serious" and "very vital" juncture in the trial. It was immediately followed by the qualifying remark that the effect of the jury's recommendation would be to "giv[e] some direction" to the trial judge. Although this qualifying remark was not itself entirely accurate, it did at least suggest, consistent with Florida law, that the jury's recommendation would count as a factor in the final sentencing decision.

In any event, the prosecutor immediately returned to his earlier theme that the jury's determination would be the focal point of the sentencing phase by stating that the jury was a "fact-finding body" that would be required to reach a sentencing "judgment" based on the evidence presented at the sentencing proceeding.

In my view, the prosecutor's misleading statement about the judge imposing "whatever sentence he sees fit" was effectively undermined by the statements immediately preceding and immediately following it. Those statements suggested that the jury's sentencing determination would be a vital juncture in the trial and would count as a factor in the ultimate sentencing decision. The effect of those statements, if there was any effect, would have been to bolster, not diminish, the jury's sense of responsibility.

The prosecutor made no other statement directly addressing the jury's sentencing role.1 Although he did not expressly tell the jurors that the trial judge would be required to give great weight to their recommendation, he lodged no objection when defense counsel, in closing argument at the conclusion of the sentencing phase, articulated an explicit and accurate description of the jury's sentencing role:

And your recommendation carries great weight. It is true that the Judge, and the Judge alone, decides what the sentence will be. But this is not an exercise in futility for you. For what you decide has more weight for him and for the Court and for our system than any other single factor in his recommending whether Roy Harich shall suffer death or be imprisoned for life.

The jurors were well aware that objections to statements in closing argument would be entertained; defense counsel had interrupted the prosecutor's closing argument several times, and the prosecutor at one point interrupted defense counsel's closing argument on the ground that defense counsel had misrepresented the law.

Thus, the jurors could have interpreted the prosecutor's failure to object to defense counsel's description of the jury's sentencing role as an implicit acquiescence to that description. Such an interpretation would have been entirely logical, since defense counsel's description was not inconsistent with the overall tone of the prosecutor's earlier comments about the importance of the jury's determination.

In light of these considerations, I agree with the majority's conclusion that the prosecutor did not mislead the jurors as to the importance of their sentencing role. That conclusion does not end the matter, however; as we stated in Mann, our ultimate focus is on the trial court's actions. We must examine the court's actions and determine whether reasonable jurors, in light of the entire trial, would have been misled as to the importance of their decision. Mann, 844 F.2d at 1457.

Thus, where the prosecutor has misled the jury, as was the case in Mann, Caldwell error occurs if the trial court implicitly puts its imprimatur on the prosecutor's statements. By the same token, if the prosecutor has not misled the jury, as I have concluded was the case here, there is no Caldwell error provided the trial court does nothing to disturb the nonmisleading impression.2 If the court does disturb that impression, however, and affirmatively misrepresents the nature of the jury's role, the constitutional violation is direct and unmistakable.

In my view, none of the trial court's statements disturbed the nonmisleading impression created by the prosecutor. The trial judge first referred to the jury's role during the guilt phase, when he charged the jury. In the course of the charge, the court told the jurors that "[y]ou are not responsible for the penalty in any way because of your verdict."

This statement, taken in context, merely reminded the jurors that the guilt and sentencing phases are two distinct phases, and that their decision on guilt should not be influenced by the possibility that the death penalty might be imposed should they return a verdict of guilty. Such a reminder by the trial judge was entirely proper. Although the judge could have made the point with a bit more clarity, any ambiguity as to what he meant was removed by his immediately subsequent statement that "[t]he possible results of this case are to be disregarded by you when you arrive at your verdict."3

The trial judge also made reference to the jury's role in his initial and final charges at the sentencing proceeding. In those charges, the judge stated that "the final decision as to what punishment shall be imposed rests solely upon the Judge of this court." This statement, properly analyzed, no more supports a finding of Caldwell error than does the earlier statement.

As the majority notes, the statement was technically accurate, at least in the sense that Fla.Stat. Sec. 921.141(3) identifies the trial judge as the actor who actually imposes sentence. That observation is not dispositive of the Caldwell issue, however; the dispositive question is how a reasonable juror would have understood the statement in the context of the entire trial. See Mann, 844 F.2d at 1457.4

In Mann, the trial judge made the very same statement, and we found Caldwell error. In that case, however, the prosecutor had specifically and repeatedly downplayed the significance of the jury's role throughout the trial. Thus, when the jury in that case finally heard the judge say that the final sentencing decision rested with the court, they would have likely understood the judge to be saying "yes, the prosecutor has accurately described your role as an essentially meaningless one and I am now reiterating that point." By thus putting its imprimatur on the misimpression created by the prosecutor, the trial court violated Mann's rights under the eighth amendment.

Here, the statement was made by the trial judge under entirely different circumstances. As discussed above, the overall effect of the prosecutor's comments would have, if anything, bolstered the jury's sense of responsibility. Furthermore, the judge's statement was immediately preceded by defense counsel's accurate and explicit description of the jury's role, to which the prosecutor lodged no objection.5

Under these circumstances, the trial judge's statement, which was technically accurate to begin with, would not have misled the jurors. Rather, the jurors were likely left with something very close to an accurate understanding of the nature of the sentencing process: the trial judge would be the final sentencer, but would be required by law to give great weight to their recommendation. Because the jurors were therefore not misled into believing that their role was an unimportant one, petitioner's sentence is valid under the eighth amendment.

*****

HILL, Circuit Judge, specially concurring:

I fully concur in the court's decision and I agree with the court's resolution of the merits of the Caldwell claim. I write only to express my view that the court need not have reached the merits of the Caldwell issue because the claim was procedurally barred.

The court affirms the panel's holding on the question of procedural default, which was based upon the decision in Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986). While I agree that Adams supports the panel's decision that the claim was not procedurally barred, I believe that the court, sitting en banc, should revisit the default issue decided in Adams.

In Adams, 804 F.2d at 1530, the court held that Caldwell represented a significant change in the law and that the change provided sufficient "cause" to excuse a procedural default. I disagree that Caldwell was such a change in the law. It seems to me that a competent litigator in any case would quickly and strenuously object to an argument or jury instruction which led the jury "to believe that the responsibility for determining the appropriateness of [its verdict] rests elsewhere." Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 1639.

It may be instructive to venture outside of the tangled web of capital case jurisprudence in considering this question. In a typical damage suit, for example, an instruction or argument which led the jury to underestimate its role in the decision making process would be error. The jury may not be told that it need not be concerned about the consequences of its verdict, and I believe that the objections to such statements would be made with or without the guidance of the Caldwell decision. Given that, I cannot agree that Caldwell represents a significant change in the law.

The court in Adams 804 F.2d at 1530 n. 5, noted that Caldwell-type claims were not being raised by other defendants at the time of that defendant's trial. The court attributed this to a lack of awareness of the potential claim. There is, however, a simpler explanation for the scarcity of such claims, namely, the scarcity of Caldwell-type violations. I believe that this may, in fact, explain the failure of the present petitioner to raise the claim earlier. It may very well be that he did not fail to recognize the existence of a claim so much as he failed to recognize the existence of a violation because there was, as the court holds, no violation.

The court has, however, held that the Caldwell claim in this case was not procedurally barred, and inasmuch as the court reaches the issue on the merits, I concur in the decision that there was no violation.

*****

CLARK, Circuit Judge, specially concurring:

I concur with Judge Tjoflat's opinion in the Mann case which finds that there was a Caldwell violation. I also concur with Judge Tjoflat's specially concurring opinion in Harich which concludes that there is no Caldwell violation. I was on the panel in both cases and wrote something with respect to the Caldwell issue in each case. See Mann v. Dugger, 817 F.2d 1471, 1489 (11th Cir.1987), and Harich v. Wainwright, 813 F.2d 1082, 1089, 1098 (11th Cir.1987). I have read the record in both of the cases and agree with Judge Tjoflat and the others concurring with him that there is a meaningful difference.

In a Caldwell-type case, it is essential that one determine the jury's perception of its role during the sentencing phase of the trial. That is, was the jurors' collective sense of responsibility lessened when asked to decide whether life or death was the appropriate penalty. The answer depends on an analysis of the particular facts and circumstances of each case. The trial court may explain to the jury its advisory role, "as long as the significance of [the jury's] recommendation is adequately stressed." Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir.1987) (quoting Pope v. Wainwright, 496 So.2d 798 (Fla.1986)).

In Mann, the prosecutor made the following statements during the voir dire examination:

The recommendation that you make to Judge Federico in this portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all of the testimony himself.

* * *

* * *

[Y]ou understand you do not impose the death penalty. That is not on your shoulders. The ultimate decision rests with Judge Federico.

* * *

* * *

Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only.

817 F.2d at 1489 (emphasis added).

Following are the judge's comments at the beginning of the sentencing proceeding:

The punishment for this crime is either death or life imprisonment. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury render to the court an advisory sentence as to what sentence should be imposed on the defendant.

Id. (emphasis added). It is clear from the above that the prosecutor and the court misled the jury as to its responsibility. The last thought left with the jury by the prosecutor in his closing argument at sentencing replayed his earlier statements:

What I'm suggesting to you is that the ultimate responsibility for the imposition of the sentence rests with Judge Philip Federico. That is his sworn position in the system. He's heard everything you have heard. He may have the opportunity to learn more before he imposes a sentence.

Transcript at 2439. The foregoing flagrant misstatement by the prosecutor was followed soon thereafter by Judge Federico's instructions to the jury, which included the following:

Ladies and Gentlemen of the jury, it is now your duty to advise the court as to what punishment should be imposed on the defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the court and render to the court an advisory opinion based upon your determination....

817 F.2d at 1490 (emphasis added). Clearly the jurors' perception of their role was minimized by the prosecutor's statement and then the trial court's endorsement when the court said "as you have been told...." The defense attorneys did not address the role of the jury in their closing arguments, making clear that the judge's reference was to the prosecutor's 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 compelling mitigating evidence that Mann suffered from psychotic depression, and that he committed this crime during a fit of pedophilic rage. They were told that Mann attempted to commit suicide by slashing his forearms shortly after the crime had been committed. He had attempted suicide several times in the past. When the police came to his aid on the day of the murder, Mann said he had done something stupid and needed help.

At the sentencing hearing, a psychiatrist testified that Mann committed the crime while under the influence of an extreme mental or emotional disturbance. The victim, a 10 year-old girl, intensified his feelings of guilt regarding his pedophilic instincts, thus channeling his self-destructive rage into an act of violence. Faced with a difficult decision, the jurors were quite susceptible to a suggestion that the sentencing decision was "not on [their] shoulders." The improper comments in this case created the "intolerable danger" that the advisory jury gave its recommendation without truly understanding its proper role.

With respect to the identical issue in the Harich case, the prosecutorial and judicial comments in this case did not minimize the role of the jury. The statements went no further than explaining to the jury the respective functions of the judge and jury. The jury was told to listen to the evidence, weigh the aggravating and mitigating circumstances and render an advisory opinion as to the applicability of the death penalty in this case. Nothing was said which would imply to the jury that its recommendation was superfluous or that the importance of the jury's decision was lessened by the fact that it was only a recommendation.

Upon examination of the record, one concludes that the seriousness of the jury's advisory role was adequately communicated by the court and prosecutor. As mentioned in the discussion of the Mann case, the Florida Supreme Court has stated that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell "as long as the significance of [the jury's] recommendation is adequately stressed." Pope v. Wainwright, 496 So.2d 798 (Fla.1986).

In distinguishing between Mann and Harich, it is necessary to analyze the context in which the statements are made with respect to the jury's sense of responsibility for its sentencing decision. In Mann there were a number of statements by the prosecutor which reduced the jurors' perception of their duty vis-a-vis the judge's duty, and the court's comments in Mann gave emphasis to what the prosecutor had said. However, in Harich, there is very little to which one can point that was said by the prosecutor that would have misled the jury. Judge Vance in his dissent at page 1483 recites one statement by the prosecutor.

The balance of the statements in that dissent are quotations from what the trial judge told the jury and those statements read in the context of the total instructions and comments of both counsel do not reduce the importance of the jury's role during the sentencing phase. At page 1483 of his special concurrence, Judge Tjoflat points out statements by the trial judge and defense counsel which emphasize the importance of the juror's responsibility. Similar statements are not found in the Mann trial.

Thus, I have no trouble in joining the majority in Mann that the writ be issued unless a new trial is granted, and also concurring with the majority in Harich that the petition be denied.

*****

VANCE, Circuit Judge, concurring in part and dissenting in part, in which JOHNSON, Circuit Judge, joins:

I agree with the majority that petitioner is not entitled to relief on his ineffective assistance of counsel claim. I also agree that a Caldwell violation requires inaccurate or misleading statements. I further agree with Judge Tjoflat that the Caldwell analysis should focus on whether the inaccurate or misleading remarks left the jury with a misimpression as to the importance of its role.

After reviewing the record in this case, however, I believe that the remarks made by the prosecutor and the trial court, considered in the context of the entire trial, left the jury with an inaccurate sense of its role. I therefore must conclude that Caldwell requires that we grant petitioner relief on this ground.

I.

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), a majority of the Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639.

This is because "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." Id. at 333, 105 S.Ct. at 2641-42. Thus when the trial court and the prosecutor misled the jury into believing that the responsibility for sentencing rested with the Mississippi appellate court, which was inaccurate under state law, the resulting sentence did not meet the eighth amendment's standard of reliability. Id. at 341, 105 S.Ct. at 2646.

The translation of the Caldwell issue from Mississippi to Florida requires us to focus on Justice O'Connor's concurring opinion in Caldwell. A plurality of four justices found that the statements to the jury regarding appellate review were both inaccurate and irrelevant. Id. at 336, 105 S.Ct. at 2643. Justice O'Connor, who provided the fifth vote for vacating the petitioner's death sentence, based her decision only on the ground that the statements were inaccurate. Id. at 341-42, 105 S.Ct. at 2646 (O'Connor, J., concurring in part and concurring in the judgment).

Justice O'Connor did not agree with the plurality that "the giving of nonmisleading and accurate information regarding the jury's role in the sentencing scheme is irrelevant to the sentencing decision." Id. at 341, 105 S.Ct. at 2646 (O'Connor, J., concurring in part and concurring in the judgment) (emphasis in original). I therefore agree with the majority that statements to the jury must be inaccurate or misleading, and not merely arguably irrelevant, before we will find a Caldwell violation. See Mann, 844 F.2d at 1454-55.

Under Florida's sentencing scheme the jury renders an advisory sentence. The trial judge then independently weighs the evidence from the sentencing phase before entering the sentence. Fla.Stat. Sec. 921.141 (1985). It is therefore technically accurate and not misleading to tell a jury in Florida that its sentence is "advisory." "Emphasizing" the advisory nature of the jury's sentencing recommendation also does not necessarily constitute Caldwell error. See ante at 1472-74. As we held in Mann, however, there are still ways to mislead a Florida jury by minimizing its perception of its role in the sentencing scheme. Mann, 844 F.2d at 1454, 1457-58; see ante at 1475 (Tjoflat, Circuit Judge, specially concurring).

A Florida jury plays an important and significant role in the Florida capital sentencing scheme. Florida law requires the trial judge to give great weight to a jury's recommendation. See Grossman v. State, 525 So.2d 833, 839 n. 1, 13 Fla.L.Weekly 127, 133 n. 1 (1988); Tedder v. State, 322 So.2d 908, 910 (Fla.1975); see also Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984) (Tedder standard affords capital defendant in Florida significant safeguards, and Florida Supreme Court takes the standard seriously); Proffit v. Wainwright, 756 F.2d 1500, 1503 (11th Cir.1985) (Florida law requires so much deference to jury's advisory opinion that trial judge must give explicit reasons for choosing death if the jury recommends life). Before a trial judge in Florida may override a jury recommendation of life imprisonment, the judge must find that the facts are so clear and convincing that virtually no reasonable person could differ. Combs v. State, 525 So.2d 853, 857, 13 Fla.L.Weekly 142, 144 (1988); see also Dobbert v. Florida, 432 U.S. 282, 295-96, 97 S.Ct. 2290, 2299-2300, 53 L.Ed.2d 344 (1977) (Tedder rule provides crucial protection so that defendants are not disadvantaged with respect to a jury's recommendation of life).

The Florida Supreme Court's recent decisions in Grossman and Combs emphatically reaffirm this principle of Florida law. Cf. Grossman, 525 So.2d at 847, 13 Fla.L.Weekly at 134 (Shaw, J., specially concurring) (Florida's scheme for imposing the death penalty would pass master without Tedder); Combs, 525 So.2d at 859, 13 Fla.L.Weekly at 144 (Shaw, J., specially concurring) (questioning whether the Tedder rule is still viable). The Caldwell issue therefore turns on whether the jurors had an accurate perception of this role when they sentenced petitioner to death.

II.

After reviewing the record in this case in light of Caldwell, I must conclude that the jury was misled as to its role under Florida law. Both the prosecutor and the trial court made misleading and inaccurate statements to the jury throughout the trial. Although the majority and Judge Tjoflat attempt to soften the impact of these statements, I am unable to do so.

During voir dire the prosecutor introduced the jury to its role in the sentencing phase:

Let me add that yours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court what the circumstances show.

This is both inaccurate and misleading. It is inaccurate because the sentencing jury under Florida law gives more than some direction to the trial court. It gives considerable direction. It is also misleading because to say that the trial court may pronounce whatever sentence it sees fit implies that the trial judge need not pay any attention at all to what the jury recommends. Thus the jurors were presented with an inaccurate and misleading conception of their role from the very beginning of the trial.

Rather than finding that other statements by the trial court "effectively undermined" this inaccurate and misleading statement, I conclude that subsequent events exacerbated the jury's misconception of its role. For example, immediately before the prosecutor's opening statement, the trial court told the jury:

Your duty is to determine if the Defendant is guilty or not guilty, in accordance with the law. It is the Judge's job to determine what a proper sentence would be if the Defendant is guilty.

While this may be accurate it is misleading. By omitting the fact that it is in part the jury's job to determine the proper sentence, the trial court reinforced the prosecutor's inaccurate and misleading remarks at voir dire.

At the end of the guilt phase, the trial court, rather than correcting any misconception, repeated this misleading statement to the jury verbatim. The trial court added:

I will now inform you of the maximum and minimum possible sentences in this case. The penalty is for the Court to decide. You are not responsible for the penalty in any way because of your verdict.

This is at least misleading. It is true, as Judge Tjoflat suggests, that this statement reminded the jurors that the guilt phase is distinct from the sentencing phase, and that their decision in the guilt phase should not be influenced by the possibility of the death penalty as the punishment. See ante at 1478-79 (Tjoflat, Circuit Judge, specially concurring). The statement, however, is a misleading way to communicate this fact to the jury.

In charging the jury at the beginning of the sentencing phase, the trial court stated:

As I advised you, when the charge of the law was given you at the conclusion of the case, the punishment of this crime is either death or life imprisonment without possibility of parole for twenty-five years. The final decision as to what punishment shall be imposed rests solely upon the Judge of this court. However, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.

This statement is not only inaccurate and misleading (the final decision does not rest solely with the trial judge), it also results in the exact "imprimatur" condemned in Mann. See Mann, 844 F.2d at 1457-58. By opening this inaccurate and misleading statement with the words "as I advised you," the trial judge "expressly put the court's imprimatur" on all the previous misleading statements made to the jury. Id.; see also Caldwell, 472 U.S. at 339, 105 S.Ct. at 2645 ("trial judge in this case not only failed to correct the prosecutor's remarks, but in fact openly agreed with them").1

In light of these statements I cannot agree with the majority that this jury felt the full weight of its advisory responsibility. Nor can I agree with Judge Tjoflat that these jurors "were likely left with something very close to an accurate understanding of the nature of the sentencing process...." Ante at 1479 (Tjoflat, Circuit Judge, specially concurring). At best, the statements likely left some jurors confused as to their proper role. Mann, 844 F.2d at 1458. At worst, the statements misled the jurors. Cf. Peek v. Kemp, 784 F.2d 1479, 1489 (11th Cir.) (in banc) ("ultimate question is whether there is a reasonable possibility that the jury understood the instructions in an unconstitutional manner"), cert. denied, --- U.S. ----, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986). Although I view this as a closer case than Mann, I must conclude that Caldwell requires us to vacate this petitioner's death sentence as well.

III.

I recognize that the Florida Supreme Court, confronted with this very issue, has held recently that the jury's role in Florida's sentencing scheme is sufficiently different from the jury's role in Mississippi's scheme so that Caldwell does not apply to Florida cases. Grossman, 525 So.2d at 839-40, 13 Fla.L.Weekly at 129-30; Combs, 525 So.2d at 855, 13 Fla.L.Weekly at 143. We are not bound, however, by a state court's application of federal constitutional principles. Mann, 844 F.2d at 1454 n. 10. We must independently decide whether Florida's sentencing process, as defined by that state's courts, violates Caldwell in a given situation.2

Applying these principles, I am forced to conclude that because the jury was misled as to its role, there is no way around Caldwell. I recognize that the United States Supreme Court may not have intended Caldwell to apply to Florida's sentencing scheme. I believe, however, that the Caldwell opinion requires that we vacate petitioner's sentence.

The multitude of opinions in this case and various approaches to the Caldwell issue in Florida highlights the considerable uncertainty in this area. This uncertainty extends to the justices of the Florida Supreme Court. Compare Combs, 525 So.2d at 858, 13 Fla.L.Weekly at 144 (refusing to apply Caldwell to Florida's standard jury instructions) with Grossman, 525 So.2d at 851, 13 Fla.L.Weekly at 136 (Barkett, J., concurring in part, dissenting in part) (Caldwell applies to the Florida advisory jury as well as the trial judge, since both exercise sentencing discretion).

Caldwell casts doubt on a great number of Florida death sentences. The United States Supreme Court has granted certiorari in a Florida case involving a Caldwell claim. See Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified sub nom, 816 F.2d 1493 (11th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988). I hope the Court will clarify the law in this area. Because the petitioner in this case was sentenced to death in violation of Caldwell as I read that opinion, I respectfully dissent from part II.B of the majority opinion in this case.

*****

1 For a more detailed account of the procedural history in this case, see Harich, 813 F.2d at 1084-85

2 Brackets enclosing material are used, unless otherwise indicated, to denote insertions or additions taken directly from the panel opinion prepared by Judge Clark

3 [As the Florida Supreme Court noted in denying Harich's habeas corpus petition, 484 So.2d 1237, 1238 n.*, the pre-April 1981 version of the Florida Standard Jury Instructions in Criminal Cases contained an affirmative defense instruction for intoxication. Instruction 2.11(c) read as follows:

When a Defense

Voluntary drunkenness or intoxication (impairment of the mental faculties by the use of narcotics or other drugs) does not excuse nor justify the commission of crime, but intoxication (impairment of the mental faculties by the use of narcotics or other drugs) may exist to such an extent that an individual is incapable of forming an intent to commit a crime, thereby rendering such person incapable of committing a crime of which a specific intent is an essential element. When the evidence tends to establish intoxication (impairment of the mental faculties by the use of narcotics or other drugs) to this degree, the burden is upon the state to establish beyond a reasonable doubt that the defendant did, in fact, have sufficient use of his normal faculties to be able to form and entertain the intent which is an essential element of the crime.

When Not a Defense

Drunkenness (impairment of the mental faculties by the use of narcotics or other drugs) which does not go to the extent of making a person incapable of forming the intent, which is an essential element of a crime, does not in any degree reduce the gravity of the offense. Drunkenness (impairment of the mental faculties by the use of narcotics of [sic] other drugs) arising after the formation of the intent which is an essential element of a crime and voluntarily induced for the purpose of nerving the offender to commit a crime already planned does not excuse nor reduce the degree of the crime.

Partial Intoxication

Partial intoxication (impairment of the mental faculties by the use of narcotics or other drugs) which merely arouse the passions or reduces the power of conscience neither mitigates nor lessens the degree of guilt if the offender still knew right from wrong, the probable consequences of his act, and was capable of forming a specific intent to commit the crime.

For some reason, this instruction did not survive the 1981 amendments to the standard instructions, although the other affirmative defense instructions (alibi, insanity, entrapment, and self-defense) were carried forward. Notwithstanding the exclusion of the intoxication instruction in the 1981 amendment, intoxication remains a defense to specific intent crimes in Florida. See Gardner v. State, 480 So.2d 91 (Fla.1985); Linehan v. State, 476 So.2d 1262 (Fla.1985).] 813 F.2d at 1088 n. 4.

4 Under the umbrella term "pursuing an intoxication defense" we include all three of petitioner's allegations relating to ineffectiveness of counsel: (1) failure to seek a jury instruction on voluntary intoxication; (2) failure to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failure to seek an expert opinion on the impact of intoxication on Harich's ability to premeditate

5 The record shows that defense counsel made many calculated attempts to uphold petitioner's position of factual innocence while injecting evidence of intoxication

6 Indeed, we think that the lawyer was above average if not outstanding in representing his client in this case

7 It is not error to decline to hold an evidentiary hearing on a habeas corpus petition alleging ineffective assistance of counsel where the allegations fail to satisfy the "prejudice" requirement necessary under Strickland v. Washington. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985)

8 The jury would have had to find that Harich lied about his innocence while telling the truth about his state of intoxication. It is not reasonably probable that the jury would have made such a finding

9 The expert's report and testimony included the following:

Based on a review of the data available to this examiner, it is my opinion that Mr. Harich was suffering from alcohol idiosyncratic intoxication (DSM III 291.40) in that he showed a marked behavioral change (e.g., aggressive behavior) due to the recent ingestion of a large quantity of alcohol and this behavior is atypical of the person when not drinking. In view of this evaluation, it is certainly likely that because of his state of intoxication, Mr. Harich was not capable of forming the specific intent to kill, kidnap, or sexually assault the victims, and was in all probability responding impulsively to the emotional strain in his life at that time.

R1-3 (Appendix)--Exh. B; see Trial Transcript, Vol. III at 812-22.

10 The State of Florida argues that the Caldwell claim is procedurally barred. Because the panel opinion correctly disposes of this issue, see Harich, 813 F.2d at 1098 n. 17, we see no need to address it further

11 [T]he jury's recommendation, which represents the judgment of the community as to whether the death sentence is appropriate in a given case, is entitled to great weight, McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (per curiam), and may be rejected by the trial judge only if the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam)

Adams, 804 F.2d at 1529.

12 [Florida's death penalty statute provides for bifurcated proceedings in capital cases. First, the jury must determine whether the defendant is guilty of a capital crime. Second, if the defendant is found guilty, the court conducts a separate sentencing proceeding to determine whether the appropriate penalty is death or life imprisonment. Fla.Stat. Sec. 921.141(1). The sentencing phase consists of three subphases. First, the jury considers the mitigating and aggravating evidence and renders an advisory sentence to the court. Fla.Stat. Sec. 921.141(2). Second, the trial court decides whether to accept the jury's recommended sentence. If the court decides to impose the death sentence, it must set forth in writing its findings upon which the sentence of death is based. Fla.Stat. Sec. 921.141(3). Finally, the judgment of conviction and sentence of death is subject to automatic review in the Supreme Court of Florida. Fla.Stat. Sec. 921.141(4)

The division of authority between the jury and the trial judge under the Florida death penalty statute has been upheld against constitutional challenge. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Spaziano, the Court made reference to the fact that the jury's recommendation is entitled to some deference by the trial court. 104 S.Ct. at 3165-66.] 813 F.2d at 1100 n. 19.

13 One concern expressed in Caldwell was that a sentencing jury "unconvinced that death is the appropriate punishment, ... might nevertheless wish to 'send a message' of extreme disapproval for the defendant's acts." The jury might thus tend to sentence the defendant to death " 'because the error may be corrected on appeal.' " The Supreme Court feared that a defendant might thus be executed, "although no sentencer had ever made a determination that death was the appropriate sentence." Caldwell, 472 U.S. at 331-32, 105 S.Ct. at 2641

This aspect of Caldwell is not applicable to this case. The appellate court in Caldwell would have had to rely on appellate briefs and transcripts to make a determination of whether death was appropriate. Although Florida juries play a crucial role in the sentencing process, the trial judge serves as the true sentencer. The Florida trial judge, like the jury, hears firsthand all testimony and evidence.

14 We note that the Supreme Court of Florida has held that jury instructions and statements informing the jury that their role is advisory are accurate. Pope v. Wainwright, 496 So.2d 798, 805 (Fla.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Aldridge v. State, 503 So.2d 1257, 1259 (Fla.1987); Smith v. State, 515 So.2d 182 (Fla.1987)

15 [The prosecutor explained the bifurcation of proceedings in capital cases and then told the jury that, in the sentencing phase:

[Y]ours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court as to what the circumstances show.

Trial Transcript, Vol. I at 74-75. Immediately prior to this statement, the prosecutor warned the jury that the sentencing phase "is a very serious part of the trial and a very serious proceeding." Id. at 74. Immediately after this statement, the prosecutor noted that the sentencing phase is not "a proceeding based upon sympathy or based upon any emotion, it is proceeding [sic] based upon law, law and facts." Id. at 75.] 813 F.2d at 1098 n. 18.

16 Petitioner also contends that the prosecutor and trial judge should have informed the jury about the weight accorded its sentencing verdict. The Florida trial judge uses this Tedder standard, see supra note 11, when determining whether to override the jury's verdict of life imprisonment. We can find no reason why the jury would not take their role seriously simply because the trial judge did not inform them of a rule of law applicable only to him

*****

1 In his closing argument at the conclusion of the sentencing phase, the prosecutor noted that the capital sentencing decision is "always a difficult one" for "everyone concerned." This statement, construed as an indirect reference to the jury's sentencing role, would only bolster the jurors' sense of responsibility

2 Under Caldwell, the eighth amendment does not require that the capital sentencer be affirmatively instructed as to the importance of its role; it requires only that the sentencer not be misled into believing that sentencing responsibility rests elsewhere

3 The trial judge's statement during the guilt phase that it would be his "job" to determine sentence is properly understood as intended to reinforce this admonition

4 It is also not dispositive to note that the references to the jury's "advisory" function were accurate in the technical sense that Fla.Stat. Sec. 921.141(2) contains the term "advisory." The question remains as to what meaning the jurors would have attributed to that term in light of everything else they were told. As we noted in Mann, nothing in the common meaning of the term "advisory" would suggest to the jurors that the trial judge would be required to give their recommendation great weight

5 In Mann, defense counsel also made a reference to the weight that would be accorded the jury's recommendation. That reference, however, was made early in the trial and was directly contradicted by numerous statements by the prosecutor. For these reasons, we concluded that "when the jurors heard the trial judge say 'as you have been told,' they understood the reference to be to the prosecutor's portrayal of their role." Mann, 844 F.2d at 1458 n. 14

1 The trial court's statement is actually worse than the statement made by the trial court in Mann. In Mann, we found that by stating to the jury "as you have been told," the trial court put its imprimatur on misleading remarks made previously by the prosecutor. In this case, the trial court reinforced the jury's inaccurate sense of its role by reaffirming the court's own inaccurate and misleading statements

2 In Grossman, for example, the Florida Supreme Court found no Caldwell violation because it was "not persuaded that the weight given to the jury's advisory recommendation is so heavy as to make it the de facto sentence[r]." 525 So.2d at 840, 13 Fla.L.Weekly at 130. This is not, however, the proper inquiry under the federal constitution. In Combs the Florida Supreme Court distinguished Caldwell because of the statutory description of the jury's role as "advisory." 525 So.2d at 855, 13 Fla.L.Weekly at 143. As we held in Mann, however, the legislature's use of this word is not determinative of the Caldwell issue. See Mann, 844 F.2d at 1450