Larry Eugene Mann v. Richard L. Dugger, Secretary, Florida Department of Corrections, Respondent

42(b) Fed.R.App.P. and the Pursuant parties, appeal

stipulation of published opinion, at 840 Our

dismissed. and our

F.2d is withdrawn

vacated. remanded the district

The mátter judg to vacate the instructions States v. Mun

ment United appealed. Inc.,

singwear,

L.Ed. 36 MANN,

Larry Eugene

Petitioner-Appellant, DUGGER, Secretary, Florida

Richard L. Corrections,

Department of

Respondent-Appellee.

No. 86-3182. Appeals,

United States Circuit.

Eleventh

April degree convicted of first murder and

kidnapping.1 At the conclusion of sen- tencing phase petitioner’s trial, penalty. recommended the death The trial judge followed the recommendation and en- tered a sentence of death. appeal,

On direct the Supreme Court of Florida affirmed the conviction but vacated the sentence and ordered a new proceeding jury.2 without a Mann v. State, (Fla.1982). 420 So.2d 578 The trial reimposed and, court penalty, the death on appeal direct from the resentencing, supreme State, court affirmed. Mann v. (Fla.1984), denied, 1181, 83 L.Ed.2d 953 (1985). Petitioner thereafter moved tri al court to vacate the and sen pursuant tence to Fla.R.Crim.P. 3.850. He petitioned also supreme court for writ Larry Spalding, Ñolas, H. H. Billy Talla- corpus. of habeas The trial court denied hassee, Fla., D’Alemberte, Talbot The Flor- motion, the Rule 3.850 and the supreme University Law, ida College State Talla- affirmed, court at the time denying same hassee, Fla., petitioner-appellant. petitioner’s request for habeas relief. Welch, Kotler, Gary Attys. Michael Asst. State, (Fla.1986). Mann v. 482 So.2d 1360 Gen., Fla., Tampa, for respondent-appellee.

Petitioner then instituted this habe corpus action in the district court. petition, his he attacked conviction and RONEY, Before Judge, Chief on grounds. several As one TJOFLAT, HILL, FAY, VANCE, sentence, ground attacking petition KRAVITCH, JOHNSON, HATCHETT, er contended that he was entitled to resen ANDERSON, CLARK, and tencing Mississippi, under Caldwell v. EDMONDSON, Judges. Circuit 86 L.Ed.2d TJOFLAT, Judge: because Circuit likely had made comments that had

I. sentencing jury’s diminished sense Petitioner, respect Larry Eugene Mann, with to its Flor- is a ida petitioner process.3 death row inmate. The district court de- per- 1. Petitioner’s supreme criminal conduct is described errors identified court (Fla.1982). judge’s Mann findings, 420 So.2d 578 tained to the trial sentencing jury, to defects before the resentenc- operation 2. The sentenc- ing before new was not deemed neces- explained supra part scheme is II. See sary. Here, accompanying peti- note text. appeal, already resentencing, direct tioner’s Court 3.Petitioner had one improperly pursuant Florida held that the trial to an order supra found two accompanying circumstances under Fla. Florida. See note 2 and 921.141(5) resentencing Stat. specify accomplished § and had failed text. That with- clarity regarding resentencing sufficient empaneling jury; his conclusions miti- out a new factors, gating therefore, required petitioner, Fla.Stat. the trial court used 921.141(6). original sentencing § Mann v. recommendation of the (Fla.1982). Accordingly, supreme origi- being court or- That we must examine the resentencing judge. determining dered jury sentencing proceeding Because nal (Miss.1984), grounds. We reverse and on all relief nied to relief on is entitled petitioner hold accordingly (2) We order statutory aggra claim.4 where evidence of grant setting the writ circumstances, vating the district required for the im death sentence unless the petitioner’s position aside penalty, the death was so lack a new petitioner provides state “judge that a should have entered a newly empaneled jury. a proceeding before acquittal notwithstanding id.; verdict,” (3) where sentence is II. disproportionate “excessive or penal 320, Mississippi, 472 U.S. v. cases, ty imposed considering in similar 231 2633, 86 L.Ed.2d both crime the defendant.” Id. context of its facts. understood best Caldwell, petitioner, Bobby In Cald- challenge to a involved The case well, his contended that death sentence was to the Missis- imposed pursuant eighth invalid under the amendment be- Mississip- scheme. capital sippi sentencing jurors had cause been led a bifurcated capital defendants pi affords believe that the for determin- a verdict of After the renders trial. ing the sentence rested not with them but court convenes sentenc- guilty, the trial appellate court would later that The same proceeding before supporting review the case. facts of either death then renders verdict closing argu- claim were as follows. In imprisonment, and the court or life sentencing jury, ment before the defense in accordance with the enters a sentence jurors mercy counsel entreated the to show If the renders verdict jury’s verdict. “[y]ou judges that are the and remarked death, automatically re- the sentence you will decide [Caldwell’s] Mississip- by Supreme Court of viewed responsibility, It is fate. an awesome 99-19-105; pi. Jackson Miss.Code Ann. § responsibility.” know—an awesome Cald- (Miss.1976). 1242, State, 1255 v. 324, well, 472 U.S. at 105 S.Ct. at 2637. review, conducting applies court prosecutor sought downplay then sen- presumption of correctness argument by telling the effect counsel's State, v. tencing jury’s verdict. Caldwell jurors “your decision is not the (Lee, 806, (Miss.1983) J., dis- 443 816 So.2d [y]our job final decision ... is reviewable.” senting). Mississippi the su- Under 325, S.Ct. 2637. Defense Id. at 105 at preme court a death sentence overturn statement, objected to this but the counsel only: (1) where the sen- three situations objection, trial court overruled the com- tencing jury’s arbitrary was so verdict menting overwhelming proper that “it “against weight [is] evidence,” automatically that it is reviewable v. 445 So.2d realizes Williams any petitioner’s claim constitutional in sentence is valid under the that there eighth firmity amendment. v. the trial.” Mann 482 1360, added). (Fla.1986) (emphasis 1362 We disposition 4. We affirm the district court’s indicating interpret statement as remaining claims de claims. Those supreme the merits of each court considered opinion. Dug panel Mann scribed in the See vacated, motion, petitioner’s Rule includ claim 3.850 (11th Cir.), ger, 817 F.2d 1471 828 F.2d Since the the Caldwell claim. (11th 1987). Cir. 1498 not to enforce Court of Florida therefore chose attorney general argues petitioner’s rule, procedural habeas its own default federal procedural Caldwell claim is barred default is not See Oliver v. review claim barred. petitioner failed the claim on because to raise 1524, (11th Wainwright, Cir. F.2d 1528-29 795 appeal direct conviction sentence. — U.S. —, 1986), denied, S.Ct. procedurally We the claim is not find (1987); Wainwright, Campbell L.Ed.2d Although petitioner failed raise the barred. Cir.1984), (11th 738 F.2d denied, 1576-77 appeal, raise claim on direct he did it in his 475 U.S. S.Ct. 90 L.Ed.2d court denied Rule 3.850 motion. circuit McMullen, Rogers petitioner 673 F.2d appealed motion and Su- Cir.1982), preme disposing Court of Florida. rt. ce appeal, supreme that its review stated S.Ct. L.Ed.2d 961 conclusively "clearly of the record refute[d] Id., as the death commands.” because the sense of responsibility 2638. S.Ct. at been likely diminished as a result of comments and the The United States Court held court, decision did not meet sentence was invalid under Caldwell’s reliability required standard of eighth amendment because it rested on eighth “a made determination sentencer who amendment. Id. at responsi- been led to believe that the ha[d] determining bility appropriateness present In the the attorney general defendant’s death else- rest[ed] argues that inapplicable Caldwell is be- 328-29, where.” Id. at 105 S.Ct. at 2639. cause the sentencing jury, unlike eighth The Court reasoned that the amend- Mississippi sentencing jury, is reliability capital need ment’s sen- actual sentencer under capital the state tencing required sentencers punishment scheme. Under the Florida their as a “view task serious one of deter- scheme, statutory jury weighs the evi- mining specific being whether a human aggravating dence of mitigating and cir- die at the hands of the State.” Id. presented during cumstances the sentenc- jurors, at The hav- ing phase trial, of the defendant’s and then ing been told that their decision was “auto- makes reviewable,” a recommendation of either im- matically life were misled into be- lieving judgment prisonment 921.141(2) that their call or death. evi- Fla.Stat. § Thus, (1985).5 recommendation, dence would be reviewed de novo. That the attor- provides: (b)That 5. Section mitigating 921.141 there are insufficient outweigh aggravating circumstances to (1) Separate proceedings penal- on issue of circumstances. ty. Upon adjudication guilt conviction or — capital felony, of a defendant a the court (4) Review of and sentence.—The separate sentencing proceed- shall conduct a judgment of conviction and sentence of death ing to determine whether the defendant subject shall be review automatic imprison- should be sentenced to death or life Supreme Court of Florida.... proceeding ment.... The shall be conducted (5) Aggravating Aggravat- circumstances.— before the trial as soon ing circumstances shall be limited to the fol- practicable.... proceeding, In the evidence lowing: any presented as to matter that the (a) capital felony The a was committed court deems relevant to the of the nature person imprisonment. under sentence of and crime the character of the defendant and (b) previously The defendant was convicted relating any shall include matters of the felony felony involving of another or of a aggravating mitigating or circumstances enu- person. the use or threat of violence to the (5) (6).... (c) merated in knowingly subsections and The defendant created (2) Advisory great persons. many sentence risk of death to —After evidence, (d) felony capital hearing was The committed while all the deliber- shall engaged, or ac- the defendant was was an advisory ate and render an sentence of, complice, court, in the commission or an at- upon following based matters: commit, committing tempt flight or after (a) aggravating Whether sufficient circum- commit, attempting any robbery, or sexu- stances exist as enumerated subsection arson, battery, burglary, kidnapping, al or (b) mitigating Whether sufficient circum- throwing, piracy aircraft placing, or unlawful outweigh aggravating stances exist which discharging de- or of a destructive exist; circumstances found to and vice or bomb. (c) considerations, Based on these (e) capital felony committed for The the defendant should life im- be sentenced to avoiding preventing purpose or prisonment or death. effecting escape lawful arrest or an from (3) Findings support custody. Notwithstanding the recommendation death.— of a (f) felony capital for was committed court, majority after pecuniary gain. weighing aggravating mitigating and cir- (g) capital felony was committed cumstances, life shall enter a sentence of im- disrupt or hinder the lawful exercise of death, prisonment imposes but if the court governmental function or the enforcement death, a sentence of it shall set forth writ- of laws. (h) findings upon which the sentence of felony especially capital hei- is nous, atrocious, based as to the facts: or cruel. (a)That aggravating (i) capital felony sufficient and circumstanc- was a homicide calculated, cold, es exist as enumerated in subsection was committed in asserts, always subject to scheme. See is Messer So.2d ney general (Fla.1976) (“[T]he legislative judge, who must un- intent rejection by 921.141(3) gleaned independently can be from Section 921.141 der Fla.Stat. § legislature] sought cir- weigh [indicates entering a checks sentence. devise scheme of and balances cumstances before input in which the as an judge plays serves Because general argues, integral part.”); also attorney Riley see sentencing, the Wain (Fla.1987) (“This wright, not occur when the does error sentencing responsibility long capital that a Court has held jury is told sentencing jury’s in recommendation is an lies elsewhere. tegral part sentencing pro of the death blush, attorney general’s ar- At first cess.”); Lamadline v. It true gument appeal. some (Fla.1974) (right sentencing jury independently weighs the the trial court right “an essential under defendant mitigating circumstances aggravating and legislation”). our death In the su sentence. It is also actually enters the view, legislature preme court's created the sentenc- true that the statute describes sentencing process a role in the “render[ing] as that of ing jury’s function jury because the “the one institu court.” The opinion to the advisory system Anglo-American juris tion "advisory,” legislature’s use of the term prudence most honored fair determina vacuum, in a could be viewed considered by balancing op questions tions of decided that the sen- evincing legislative intent State, posing Cooper factors.” v. 336 So. which, in the final tencing jury play a role 1133, (Fla.1976), denied, 2d 1140 431 cert. meaningless. In analysis, largely in fact 2200, 925, 97 53 L.Ed.2d 239 S.Ct. parlance, we often associate common (1977); State, 421 McCampbell see also v. “advisory” with the term “nonbind- term (the 1072, (Fla.1982) 1075 rec So.2d “advice,” peo- ing”; in the minds of most “represents] ommendation something may ple, is that a decisionmaker community as to the death sees fit. In reject follow or as he or she v. appropriate”); sentence is Chambers however, of we analyzing the role 204, State, (Fla.1976) (Eng 339 So.2d 209 Rather,, in a vacuum. we operate cannot (the land, J., concurring) of Supreme must to how Court look assigned history “has been and statute Florida, of interpreter the final discern truth and mete statute, has that role. characterized justice”). out A. give legislature’s effect intent To play significant sentencing jury A review of the case law shows that role, of Florida has interpreted of Court judge’s authority evincing legislative severely limited the trial section 921.141 as life sentencing jury play sig recommendation of intent override State, capital imprisonment. v. 322 So. nificant in the Florida sentenc Tedder (e) du- premeditated pretense The acted under extreme manner without defendant of ress or under the substantial domination legal justification. or moral person. another (6) Mitigating Mitigating circumstances.— (f) appre- capacity of the defendant to following: shall circumstances be the criminality or to of his conduct ciate (a) history significant The defendant has no requirements of conform conduct activity. prior criminal impaired. substantially was law (b) capital felony while was committed age (g) defendant at the time was defendant under influence the crime. mental or extreme emotional disturbance. 586, Ohio, S.Ct. Lockett 438 U.S. 98 Under v. (c) participant The victim was a in the de- 2954, (1978), v. Hitchcock 57 L.Ed.2d 973 fendant’s conduct (d) consented to the act. — 1821, U.S. —, L.Ed.2d Dugger, 95 accomplice The defendant was (1987), may not be sentencer 347 precluded capital felony person another committed considering nonstat- evidence of from participation relatively and his minor. mitigating utory factors.

1451 (Fla.1975), 908, imposes death, held the court that a 2d 910 the defendant contends life trial can override a recommenda appeal on direct that the trial court improp clear and tion when “the facts so erly weighed [are] the aggravating mitigat virtually per no convincing reasonable ing circumstances. In one such recent son could differ.” That court meant State, (Fla. Smith v. 515 So.2d 182 amply it what said Tedder is demonstrat 1987), supreme court held that ed it has the dozens cases which “[although we find that one of the five applied the Tedder standard to reverse aggravating circumstances relied on judge’s attempt to override a invalid, trial court approve See, e.g., recommendation of life. Wasko v. death sentence on the basis that a State, 1314, (Fla.1987); 505 1318 So.2d recommendation death is entitled to State, 135, Brookings v. 495 So.2d 142-43 great weight and there were no (Fla.1986); McCampbell State, 421 v. So.2d circumstances counterbalance the four 1072, (Fla.1982); 1075-76 v. Goodwin valid circumstances.” Id. at 170, State, (Fla.1981); 172 405 So.2d Odom added). (emphasis 185 State, LeDuc v. 936, (Fla.1981), State, 403 v. So.2d 942-43 (Fla.1978), denied, 365 So.2d 149 925, 1970, State, Neary L.Ed.2d v. supreme court stated that “[t]he (Fla.1980); Malloy So.2d 885-88 v. primary standard for our review of death (Fla.1979); State, So.2d sentences the recommended sen State, (Fla. 366 So.2d Shue 390-91 tence a jury should not be disturbed if 1978); State, McCaskill So.2d considered, all reasonable data was unless (Fla.1977); Thompson appear strong there reasons to believe that (Fla.1976). persons agree reasonable could not attorney general argues al- the recommendation.” 151 (citing Id. at though required Tedder) added). (emphasis See also Mid give under Tedder deference (Fla. dleton v. 552-53 life, way is in no 1982) (approving imposition trial court’s similarly bound to deference to a reiterating death sentence in conclu recommendation of death. Since a Florida death), jury sion that had recommended sentencing jury play can therefore never a denied, 1230, 3573, cert. 463 U.S. 103 S.Ct. imposing substantive role in a death sen- (1983); State, 77 L.Ed.2d 1413 Francois v. tence, general contends, attorney Cald- 885, (Fla.1982) (same), 407 891 So.2d cert. can never implicated well be in a Florida 3511, denied, 1122, 458 U.S. 102 73 S.Ct. case. (1982); State, 1384 L.Ed.2d v. 399 Enmund problem argument One with this is that 1362, (Fla.1981)(same), So.2d 1373 rev’d on premise sentencing its central —that 782, grounds, other 458 U.S. 102 S.Ct. jury plays imposing no substantive role in 3368, 1140 73 L.Ed.2d Grossman cf. death sentence—is contradicted numer 833, 1, State, So.2d n. 13 v. 525 839 pronouncements by ous 127, (Fla.1988) 1 Fla.L.Weekly 133 n. of Florida. The issue of what is deference (“We jury held that recom have ... jury due a recommendation death would given great be mendation death should directly jury arise most when the recom occasion, weight.”). supreme On one judge rejects mends death and the trial suggest court went so far as to imposes imprison recommendation and life merely judge’s trial role in appear ment. Such cases never before the findings support jury’s articulate court, however, supreme because state sentencing decision. See Provenzano v. appeal cannot imprison a sentence of life 1177, (Fla.1986) State, 497 So.2d 1185 Dixon, 1, ment. See State v. 283 So.2d 8 (“[T]he (Fla.1973), judge trial not consider the denied, 943, does cert. 416 94 defendant, 1950, (1974). 40 facts anew. In S.Ct. L.Ed.2d 295 None theless, finding support has judge the issue arisen in where lists reasons to cases death, jury regard mitigating recommends the trial court

1452 — — cert, recommendation.”), denied, jury’s denied, U.S. —, factors.”), cert. 107 -, 733, (1987). 108 98 L.Ed.2d 518 S.Ct. L.Ed.2d 681 1912, 5.Ct. 95 (1988).6 jury deference is due a what The issue of supreme understanding has also arisen in court’s of death recommendation death, jury’s sentencing role is jury recommends illustrated cases where death, way and the de it In imposes treats error. trial judge appeal jury where the court on direct cases trial follows fendant claims death, supreme deference to the recommendation of undue gave judge trial court will vacate the and order jury’s recommendation. consistently resentencing jury7 indicated before a new if it con Court of Florida proceedings orig no error occurs when the cludes that before the in such cases Thus, inal weight due to the tainted error. gives trial supreme v. court has vacated death sentences of death. Garcia (Fla.), denied, State, — presented improp 360 cert. where the 492 So.2d evidence, 680, State, U.S. —, 93 L.Ed.2d 730 er see v. 470 Dougan So.2d 697, instance, (Fla.1985), denied, (1986), stated 701 1098, 1499, jury that their recom 89 L.Ed.2d 900 to the instructions subject improper argument by overruled unless or was mendation “would State, prosecutor, 439 no reasonable basis it.” Id. see v. there was Teffeteller 840, (Fla.1983), a recommenda So.2d 845 465 at 367. The returned 1074, 1430, court a U.S. 104 and the trial entered tion appeal, supreme court vacat death. On direct has also sentence of claimed, ed citing the court’s death sentences where the trial court defendant gave instructions on to the erroneous instructions weight improperly lim mitigating rec circumstances or mistakenly presentation supreme ited defendant in his of death. The court ommendation death sentence: evidence of circumstances. See disagreed and affirmed the 173, error; v. 175 Thompson Dugger, no this is law. It So.2d “There is (Fla.1987); Dugger, stress to the the seri Downs v. 514 So.2d appropriate to (Fla.1987); Riley it to its recom v. ousness which should attach Wain and, (Fla.1987); 659-60 wright, the recommenda So.2d mendation when State, (Fla. received, give weight.” v. 502 So.2d Id. Valle tion State, added). 1987); v. (emphasis Rogers Floyd So.2d See also v. (no (Fla.1986); State, State, (Fla.1987) Lucas 511 So.2d 1215-16 (Fla.1986); Simmons appellant’s merit to contention that So.2d (Fla.1982); gave weight Miller undue recom (Fla.1976). death where record reflects mendation of eases, weighed supreme frequently court that court has relevant these “the independent may affect on how the error factors and reached its own focuses See, jury’s e.g., judgment the reasonableness of the ed the recommendation. about State, (Fla. 1980), Supreme permitted of Florida has 6. Ross 386 So.2d 1191 is not 7. The Court v. proposition resentencing with the that the trial in inconsistent where the error without judge great weight to a must recom recom original proceeding trial related to the Ross, death. mendation of findings jury’s not and did affect court’s judge imposed mended and the trial death State, See, e.g., v. recommendation. Menendez sentence, findings indicating in his that he State, 312, (Fla.1982); v. 314 Mikenas 419 jury’s by the recommendation. Id. was bound 892, denied, (Fla.1981), 456 407 So.2d 893 Supreme at 1197. Court of Florida ordered 2307, L.Ed.2d S.Ct. stating resentencing, although jury recom State, (1982); Magill 386 So.2d given great of death "should be mendation (Fla.1980), consideration,” id., weight trial and serious this State, (1981); Fleming v. judge given the recommendation "undue (Fla.1979). Such were 374 So.2d 1193, by weight,” abdicating statutory id. at very supra note in case. See circumstances this duty "independent judgment" to make an about 2. circumstances. Id. (“If jury’s By rec- Riley, 517 So.2d at 659 applying Witherspoon to vacate death ommendation, sentences, upon which the must then, Supreme Court of Flor- rely, pro- results from an unconstitutional implicitly acknowledges ida cedure, sentencing process then the entire plays a substantive role under the Florida procedure.”); necessarily by is tainted capital sentencing scheme. Valle, (“[Ujnless 502 So.2d at it is Thus, in ways, various the Florida case beyond clear a reasonable doubt that the interpretation law evinces an of the death erroneous exclusion of evidence did af- requires statute that trial death, jury’s fect the recommendation of give great weight to a jury’s sentencing is entitled to a new defendant recommendation. As our review of the resentencing.”); Doug- recommendation on shows, requirement case law applies an, (death 470 So.2d at 701 sentence vacat- toas both impris- recommendations of life resentencing ed ordered su- where onment and recommendations death.

preme improp- court could not “tell how the argument may er evidence and have affect- B. jury”); ed the Teffeteller, 439 So.2d at 845 (death In analyzing the resentencing sentencing sentence vacated and jury, supreme Supreme ordered where court could not Court of apparently by “determine that the needless and inflamma- been influenced a normative tory judgment comments a jury did not recommendation of substantially jury’s great contribute to the death carries in advis- force the mind of the ory death”). recommendation of judge. Such a This clearly is most illogical supreme focus would be unless the reflected cases where an error has oc began premise curred before the but the trial judge jury’s given sig- recommendation must be indicates that his own decision weight nificant judge. Once general is unaffected the error. As a established, premise a focus on how matter, reviewing presume courts that trial the error have affected the rec- judges exposed to capable put error are ommendation if makes sense: ting reaching aside the error tainted, recommendation is then the trial Florida, decision. The Court decision, court’s which took into however, has on apply occasion declined to recommendation, account that also taint- presumption challenges to death ed. example, sentences. For in Messer v. 330 So.2d 137 the trial court Finally, we note that the erroneously prevented the defendant from resentencing Florida has ordered putting sentencing jury before the certain cases where the pro- trial court excused a psychiatric reports mitigating evidence. spective juror in Witherspoon violation of recommended death and the trial Illinois, judge imposed penalty. The su (1968). See, L.Ed.2d e.g., Chandler v. sentence, preme court even vacated (Fla.1983). 173-75 though had stated Witherspoon progeny, Under and its he had reports himself considered the right state a capital violates defendant’s entering supreme before sentence. The impartial jury when it excuses for approach Riley court took a similar prospective cause a juror who has voiced (Fla.1987). Wainwright, 517 So.2d 656 objections penal- conscientious to the death There, sen presented the defendant at his ty, juror’s “prevent unless the views would tencing hearing nonstatutory miti certain substantially impair performance of the gating juror his duties as a evidence. trial court instructed in accordance with his statutory jury the could consider instructions and his v. it Wainwright oath.” Witt, evidence, 412, 433, 844, 857, mitigating nothing 469 U.S. but said about S.Ct. (1985). Ohio, Witherspoon jury’s obligation L.Ed.2d 841 the v. as- under Lockett sumes, course, of jury play 57 L.Ed.2d 973 will nonstatutory mitigating substantive role in the decision. to consider community, makes a recommended death conscience of jury evidence. pen- death imposed appropriateness of judge judgment trial about and the sentence, the death alty. imposing light mitigat- In of he had stated that judge expressly Thus, trial by the time the ing circumstances. testimony evidence considered all judge actual comes before the for the case for writ of habeas petition presented.8 On sentence, already it been imposition has the de- court ordered corpus, supreme community through filtered three levels held that The court fendant resentenced. sentiment, porous level less than the each from consider- precluded jury had been surpris- It would indeed preceding one.9 evidence, and ing nonstatutory is ing judge, were the trial who in Florida of that consideration judge’s official, electorally also an accountable to cure “insufficient evidence had been by the of that powerfully affected result Id. original recommendation.” infirm process. n. 1. eases, disposition these light C. it would seem that light of the case we conclude jury recom- recognized that a Florida has plays important an Florida im- generis has mendation of death sui capital sentencing power- the Florida impact an so judge, on the pact interpre law an general presumption scheme. The case reflects nullify ful as capable putting penalty statute a trial is tation surprising significant not find it requires error. We do the trial court aside recommendation, would make supreme jury’s weight rec- judgment. juryA kind of normative life whether be a recommendation is, all, final after ommendation of death imprisonment or a recommendation whereby the stage process in an elaborate reflects, we case law also death. regard- judgment community expresses think, insightful an normative sen- of a death appropriateness of death that a recommendation legisla- begins process tence. The impact powerful on the trial inherently ture, class of broadly which defines the judge. ap- capital punishment is cases for which Because the recommendation Then, particular propriate. significant ways, in these the concerns prosecutor, electorally accountable who is triggered when voiced community, makes the decision into be sentencing jury misled Fi- Florida request penalty. the death lieving unimportant.10 Un nally, traditionally depicted as the its role could, desired, on a re- 10 Florida it so if administer 8. The trial made this statement orig capital sentencing sentencing. scheme in which Riley’s appeal direct On Florida, sentence, played Spaziano no role. See v. supreme resen- inal court ordered 3154, 3165, 447, 465, 82 L.Ed.2d tencing ground that the trial the nonstatutory aggravating (1984) factors, ("[T]here impera is no constitutional considered of decid tive that Riley violation of state law. im- sentence should be (Fla.1978). whether the death resentencing accom is, however, posed_”). The fact matter plished empaneling At a new without existing Florida that under the scheme in Riley resentencing, judge permitted sentencing responsibil capital does share in mitigating evidence. The introduce additional ity. jury's is a Because the appeal. Ri resentencing affirmed on direct deci in the ultimate (Fla.), critical factor ley function, sion, like function of sentencer, pursuant to be evaluated must court, eighth This amendment standards. cases, has dynamics, partly various contexts in federal habeas It is at least because of these surmise, if a sentencer it were Court of treated example, in purposes. For interpreted legislative intent un- for constitutional Florida has Dugger, Cir. derlying requiring 837 F.2d 1469 Jackson the death statute 1988), eighth is give great weight jury's we amendment to the held that sentencing jury in is violated when a Florida recommendation.

1455 circumstances, later, danger a real ex A prosecutor der such few moments re- resulting ists that a death sentence will be peated point stronger in terms: part at on based least the determination you You understand do not impose the of a decisionmaker that has been misled as penalty; that is not on your shoul- responsibility. to the nature of its Such a Again, ders .... up decision rests sentence, because it results from formula here with the Judge Federico. involving a factor that an tainted You will have the opportunity after impermissible death, bias in favor of neces everything heard there is to hear to eighth sarily violates the re amendment make a recommendation to him. But it quirement reliability sentenc legally your shoulders, not on though. ing. See Adams v. 804 F.2d Wainwright, It is not ultimate decision. You act Cir.1986), modified, 1532 816 regard advisory capacity (11th Cir.1987), granted, F.2d 1493 only. — —, 99 L.Ed.2d prosecutor repeated point again (1988). 267 afternoon, in a dialogue with two ve-

III. niremen: Having determined You ... understand that the ultimate jury plays a substantive role under Court; rests with the scheme, capital sentencing we turn it’s the jury’s responsibility? question whether the in this During closing argument at the conclusion case was misled as its role so trial, guilt phase prosecu- petitioner’s render sentence invalid under again tor once informed the that “[t]he eighth begin amendment. We awith matter of ultimately rests with thorough examination of the trial record. Court.” [the] After the rendered its verdict of A. jurors guilty, temporarily excused The first reference to the from the courtroom while the court and selected, made as the being dur- counsel made preliminary preparations for ing counsel’s voir dire the venire. The sentencing phase of the trial. At that following: said the time, defense requested counsel The recommendation that make to returned, jury, when it be instructed Judge por- sentencing] Federico [the court that its recommendation simply tion the trial is a recommenda- great weight.” be “entitled tion, and he is not bound it. He grant request: court refused to impose per- whatever sentence the law Well, goes THE COURT: I think mits. He will have been here and will saying. have listened to without know if testimony all him- don’t I need to self. instruct them that is so. that, once necessarily holding structed it finds the do victim’s murder not read these cases as to have been committed under cir that a Caldwell violation could never occur in a cumstances, presumed appro death is to be Smith, (no Florida case. See So.2d at priate sentence. provided violation “the Caldwell instruc- properly importance tions role”); stress date, Supreme Court of Florida has To (no Pope, So.2d Caldwell grant claims. See refused relief significance long "as violation [the State, 853, 855-58, So.2d Combs Fla.L.Weekly State, stressed”). jury’s] adequately (1988); 143-44 Grossman v. event, we not bound state 833, 839-40, Fla.L.Weekly 525 So.2d application court’s federal constitutional State, 129-30 Foster v. 518 So.2d principles. pronounce- We look to that court’s 901, 901-02 (Fla.1987); Smith v. ments to determine the nature of the sen- (Fla.1987); Aldridge 503 F.2d tencing process; independently decide how (Fla.1987); Pope Wainwright, per- applies the federal Constitution to claims — (Fla.1986), denied, 804-05 process taining to that as thus defined.

—, We you Court and to I think it is. the render the Court COUNSEL]: [DEFENSE opinion your advisory upon based would ask— de- The reason ag- as termination to whether sufficient something I That’s THE COURT: to gravating justify circumstances exist they recom- make their do to after need imposition penalty, give great mendation, I it will and sufficient circum- weight. n outweigh any aggravat- stances exist to know, but COUNSEL]: [DEFENSE to exist. circumstances found they so know know that they need to just— there up not we’re The court’s instructions also included the the standard I think following THE COURT: statements: them that it is bring home to instructions of The fact that the determination wheth- know, you they, important very [d]o you majority er or of not recommend regard to without due hastily or act of death or sentence of life im- proceedings, of these gravity prisonment this case can be reached carefully weigh and sift they should single you ballot should not influence suf- I think that’s the evidence. consider hastily regard to to act or without due ficient. gravity proceedings. of Before these apparent under- Notwithstanding his ballot, carefully you you weigh, should function, sentencing jury’s standing evidence, all of sift and consider they jurors when judge informed it, stake, realizing is at that a human life final to the courtroom returned “[t]he your bring to bear best punishment be shall as to what decision upon the sole issue which is submitted this solely imposed rests time, you majority at this of whether repeated point court.” De- your number recommend that argu- closing final statement to death or to life fendant be sentenced ment at conclusion imprisonment. phase: reading in- After the court finished suggesting is that I’m What structions, to retire and ordered imposition responsibility ultimate returned, When the make a decision. Judge Philip rests with of the sentence a recommendation death. it announced position in That is his sworn Federico. polled and then dismissed. everything you He’s heard system. bailiff had declared that After the “[t]he opportuni- heard. He have have courtroom,” left the ty imposes he to learn more before record, court, remarked, for the that “[t]he community, as I think this sentence. weight required by great will give to represented by jury, should jury.” the recommendation of the prerogative imposing the him the he penalty, if that’s what ultimate- B. ly in this case. required feels read its instructions claims,

The court then reviewing our task the fol- instructions included First, twofold. we must determine wheth- jury’s sen- lowing regarding the statements comments er tencing function: they “minimize the were such that responsibility for determin- it is sense of gentlemen

Ladies appropriateness of death.” Cald- duty now the Court as to advise well, punishment 105 S.Ct. at imposed what be 472 U.S. at Second, would have such of murder if the comments the Defendant for his crime told, effect, “whether the the first As we must determine degree. been sufficiently punishment correct- the final this case decision to what prosecutor.” impression left imposed shall be is the ed F.2d judge. However, Kemp, 829 your duty McCorquodale it is Cir.1987). follow law which now will a trial court does not When correct the verdict would be “automatically misleading comments as to the sen Technically, reviewable.” this statement role, tencing the state has violated the de an was accurate statement of Mississippi eighth rights amendment fendant’s be law—death sentences are automatically re- impri the the cause state’s by Supreme viewed the Court Mississip- comments; the matur those effect the pi under Miss.Code Ann. 99-19-105. The § actually as if the trial in same court had statement, mischief was that the unéx- prosecutor’s structed the that the com plained, likely would been misunder- represented ments a correct statement of by jurors meaning stood the that their Kemp, the law. See Tucker v. 802 F.2d judgment call appropriateness on the of a 1293, (11th Cir.1986) (en banc), 1295 cert. really sentence did not matter. We — denied, —, 1359, 107 U.S. 94 are faced with a similar situation here. (1987). L.Ed.2d 529 When a trial court prosecutor repeatedly told the attempt does make some to correct the that task was to render an “advisory” prosecutor’s misleading comments, the recommendation. As with “automatically question becomes whether the corrective Caldwell, reviewable” this character- would, in statement the mind of a reason accurate, technically ization is at least in juror exposed able who had been to the the sense that the penalty Florida death comments, misleading misap correct the statute “advisory.” contains the term prehension that comments would in However, danger exists jurors, ultimately duce. Because our focus is on they because were body unaware of the the trial court’s our mode re actions,11 requires law that trial view similar used review weight jury recommendation, to the claims based on erroneous instructions. importance misinformed as to the of their Cf Jernigan, Lamb v. 683 F.2d . danger call. The is particularly (11th Cir.1982) (court 1339-40 must here, strong nothing because in the com- consider effect of erroneous instruction on meaning mon “advisory” of the term would juror light reasonable “in of the remainder suggest layman charge trial”), entire any would in be way by bound the recom- denied, 103 S.Ct. indeed, mendation; the common (1983). meaning L.Ed.2d 496 suggest of the term would precisely the In this the comments contrary. prosecutor they were such that would mis Moreover, prosecutor here the lead at least stated to confuse as to the jurors impos- nature of its twice sentencing responsibility un burden of der ing penalty Florida law. It bears emphasizing your was “not on prosecutor Caldwell stated repeatedly ju- shoulders.” He told the McCorquodale, 11. As we noted judge approved well was fact the trial — comments_”), say any prosecutor’s Court did not in Caldwell that mislead U.S. —, ing prosecutor comment would consti L.Ed.2d reversal; ground tute ‘[sjuch comments, for "rather it stated that uncorrected, might noted, so 12. As we have of the mislead- number if left affect the fundamental fairness of sentenc ing comments were made before the Eighth selected, blush, proceeding as to violate the Amend during voir At dire. first one ” McCorquodale, (quot ment.’ F.2d at might stage think that such comments at that Caldwell, 2645). All U.S. at 105 S.Ct. at proceeding the trial would benefit the defend- Thus, proper focus might prospective juror whether the trial ant. One think that personal court’s actions were sufficient to correct strong who holds reservations about misimpression would, created com upon hearing the death that he Caldwell, ments. See also at responsible deci- will sion, be (”[T]he suggestion S.Ct. at 2641-42 express uncorrected be those reserva- less inclined to might open ultimate determi ultimate result tions court. The presents prosecutor nation of death will rest with others be that the would be disabled from added); danger....”) (emphasis jurors excusing prospective intolerable for cause some who Kemp, properly Tucker v. 802 F.2d Cir. excusable under otherwise 1986) (en banc) Illinois, ("Of importance Witherspoon critical in Cald imposing only potentially responsibility for corrective statement rors judge. Addi- court came when the court instruct rested sug- jurors proceed note that tionally, they ed the judge, jurors that regard gested gravity” “due the matter authority, legal position as a weigh, because of “carefully and should sift and con make than evidence, more able it, realizing sider the and all of As decision. appropriate stake, life is bring that a human Caldwell, this kind noted statement, judgment.” bear best This jurors, who are induces suggestion conclude, posed did we not cure harm very situation and “placed in a unfamiliar by the court’s other actions. The state un- very difficult and make a called on to change anything ment do if would little delegate wrongly choice,” to comfortable juror’s misapprehension about the effect Caldwell, sentencing responsibility. their decision; only instructs at 2641-42. We at jurors they approach their task statements, prosecutor’s conclude that best, with care and deliberation. At it like misrepresent the na- together, considered ly jurors left some confused to their jury’s critical role under the ture of the proper role. We therefore conclude that Such scheme.13 actions, rea by the court’s as considered uncorrected, comments, undoubt- if exposed who juror sonable had been juror’s responsibil- edly sense minimize comments, prosecutor’s misleading did not creating danger of in favor ity, “a bias thus impression correct the false created Adams, 804 F.2d at penalty.” Caldwell, at those comments. Cf. 7, 105 (prosecutor’s 340 n. 2645 n. 7 S.Ct. at prong of our in- Turning to the second later statements did not retract or under judge’s quiry, conclude we misimpression mine created ear impres- the false comments did correct statements). lier Because the overall ef prosecutor. The trial court sion left was fect the court’s actions to dimmish re- specifically defense counsel’s denied responsibility re sense with properly quest informed as role, petitioner’s gard to its sen Moreover, himself to its role. eighth tence is invalid under the amend sentencing decision stated that the final ment. judge of “solely rested put judge expressly The trial court.” IV. prosecutor’s pre- imprimatur court’s on conclusion, we reverse the district misleading by saying vious statements corpus told, court’s of the writ habeas denial jurors “[ajs you have been petitioner’s claim. regard with Caldwell punishment to what the final decision as court the case to the district of the We remand imposed shall be setting with instructions issue writ judge.” Thus, (11th Cir.1986), (1968). might mod 1531 n. 7 one 804 F.2d ified, think, (11th Cir.1987), grant misleading ultimate- comments could 816 F.2d 1493 — ed, U.S. —, ly from L.Ed.2d 267 have a beneficial effect the defendant’s point of view. potential for some Even if there were the II, supra. part 13. See benefit, marginal dangers in Cald- outlined well that were would remain. The statements jurors suggesting to the isolated; 14. statement during made dire were not voir single important was a isolat- their role was they solely prospec- were not directed jurors those during made defense counsel ed statement expressed tive who had reservations prosecutor’s light re- Rather, selection. they penalty. about the death throughout proceedings peated suggestions collectively, jurors prospective made before the unimportant, jury's role was purportedly at a time when the outlining jurors when the heard jury. satisfied that the role of the This told,” they under- judge say have been recognized "as past made that comments por- be the prior sentencing phase stood the reference to can establish a Wainwright, trayal role. their Caldwell violation. See Adams v. petitioner s sentence unless aside shoulders. The ultimate decision rests Judge a new with petitioner State affords Federico.

proceeding before a newly empaneled ^{[*] [*] [*] [*] [*] [*]} Again, up that decision rests REVERSED and here REMANDED. with Judge with Federico. will You have the opportunity after CLARK, Judge, specially Circuit everything heard there is to hear to concurring: amake recommendation to him. But it Judge Tjoflat's opinion I with concur legally your shoulders, is not which that there Mann case finds though. It is not ultimate deci- concur violation. also regard sion. You act in an advis- Judge specially Tjoflat’s concurring opinion ory capacity only. in Harich which concludes that there is no added). (emphasis 817 F.2d at 1489 panel in Caldwell violation. I was on the Following judge’s are the comments at something both cases and wrote with re beginning sentencing proceed- spect in to issue each case. Caldwell ing: Dugger, F.2d See Mann punishment for this crime is either (11th Cir.1987),and Wainwright, Harich v. death or life imprisonment. The final 1082, 1089, 1098(11th Cir.1987). 813 F.2d punishment decision toas what shall be have read record both of the cases solely imposed rests of agree Judge Tjoflat and the oth However, this court. requires the law concurring ers with him there is you, to render an court meaningful difference. advisory sentence as to what sentence case,

In a Caldwell-type it is essential imposed should be on the defendant. jury’s perception that one determine the of added). (emphasis Id. It is clear from the during its role phase of the prosecutor above that and the court is, trial. That jurors’ was the collective misled the its responsibility. sense of responsibility lessened when asked thought jury by prose- last left with the to decide whether life or death was the closing argument cutor in his appropriate penalty. depends The answer replayed his earlier statements: analysis particular on an facts and suggesting you I’m What is that the circumstances of each case. The trial court imposition ultimate for the may explain role, advisory to the Judge of Philip the sentence rests with long significance “as of jury’s] [the Federico. That position sworn adequately recommendation is stressed.” system. everything you He’s heard Wainwright, Harich v. 813 F.2d opportuni- have heard. He have the (11th Cir.1987) (quoting Pope v. Wain- ty imposes to learn more he before wright, (Fla.1986)). 496 So.2d 798 sentence. Mann, prosecutor Transcript made the fol- at 2439. The foregoing flagrant lowing during statements the voir dire ex- misstatement was fol- by Judge amination: lowed soon thereafter Federico’s The recommendation that Judge have been here and will have listened to ever sentence the law all simply ^[*] bound Federico ^[*] testimony recommendation, it. He may ^[*] himself. portion ^[*] permits. you impose ^[*] of and he is make He what- ^[*] will following: instructions now what ment shall be the final decision as to what the first Ladies defendant for your duty punishment and Gentlemen degree. imposed jury, As his crime should be advise you which included is the have been of murder imposed court as responsi- punish- told, it is on you impose bility judge. However, understand your do not it is [Y]ou penalty. your duty That is not the law will now be to follow which advisory opinion an render to cumstances and render by the advisory opinion based penalty the court of the death applicability as to upon determination.... Nothing said in this case. was which added). Clearly (emphasis imply to the its recommen 817 F.2d at role of their was perception jurors’ superfluous impor dation was statement prosecutor’s by the minimized was lessened tance decision trial court’s endorsement and then the a recommendation. the fact that was “as have been said the court when record, one Upon examination of con attorneys did not defense told....” the seriousness of the cludes closing in their the role address advisory adequately communicat making judge's that the clear arguments, prosecutor. As men ed court and misde- reference tioned the discussion the Mann jurors’ role. scription of the Court has stated that this ease indicate The circumstances accurately explain the re comments which danger intolerable there was an spective functions be- jury recommended the long permissible under “as as the its recom- it did not understand that cause significance jury’s] [the would, extent, to some bind mendation Pope adequately stressed.” Wain particular ju- result. The trial court to (Fla.1986). wright, 496 So.2d 798 compelling evidence heard rors psychotic depres- from that Mann suffered distinguishing Mann and Ha- between sion, he committed this crime dur- and that rich, necessary analyze it is the context rage. They pedophilic fit ing a made in which the statements are attempted commit suicide told that Mann respect jury’s responsibility sense shortly after the by slashing his forearms its decision. In Mann there He had committed. had at- crime been prose- by were number statements past. in the tempted several times suicide jurors’ perception cutor which reduced the day came to his aid on the police When duty, duty judge’s of their vis-a-vis the and murder, said he had Mann done of the gave in the court’s comments Mann em- help. something stupid and needed At the phasis to what said. sentencing hearing, psychiatrist testified However, in v. Dugger, Harich [Harich the crime while un- that Mann committed very 844 F.2d there is little which 1464] influence of an extreme mental or der the point prosecu- by one can that was said victim, The 10a emotional disturbance. jury. Judge feelings tor that would have misled the year-old girl, his intensified instincts, guilt regarding pedophilic pages his in 1483-84 re- Vance his dissent at rage channeling thus self-destructive prosecutor. one cites statement act Faced with diffi- into an of violence. statements in that dissent balance decision, suscep- jurors quite cult judge quotations from what the trial suggestion tible to a in and statements read told those “not shoulders.” decision was on [their] instructions and the context of total in case improper comments this cre- not reduce comments of both counsel do danger” ad- ated the “intolerable that the importance during the of the role visory jury gave its recommendation with- page 1476 of his phase. At truly understanding proper out role. concurrence, points special Judge Tjoflat in the respect With the identical issue judge trial and de- statements out ease, prosecutorial judicial and Harich emphasize impor- counsel which fense in this case did not minimize the comments Similar juror’s responsibility. of the tance no jury. The statements went role in the Mann trial. statements are found explaining than further Thus, joining the I no in trouble respective judge functions of the and the writ be issued in Mann that majority evidence, told listen to the granted, and also weigh unless a new mitigating cir concurring agree in majority with the Harich I majority’s analysis of be denied. petition judge the role of the determining

whether a Caldwell violation occurred. (citing See ante at 1456 McCorquodale v. FAY, Judge, dissenting, in Circuit Kemp, 1035, 1037(11th 829 F.2d Cir.1987)). RONEY, Judge, which Chief HILL and The trial steps should take to correct EDMONDSON, Judges, join: Circuit impression made when a respectfully, I con- Most dissent from the inaccurate jury's statements diminish a in majority opinion clusion reached sense of responsibility sentenc merit in the there is Caldwell claim case, case. judge’s such a a trial presented by petitioner. Our court is response negate potential curative could issuing opinions in Dugger Harich v. However, case, Caldwell violation. in this lengthy this case which contain discussions there no need for such correction they claims and are to how misimpression since no given. had been join Judge evaluated. statement Florida, prose comments made Tjoflat special in his concurrence Harich cutor which emphasize “advisory” question that: “The relevant under Cald- or indicate that jury is well is whether remarks made trial less- making a jury's “recommendation” to judge, ened sense of to- determining support ward its role do not whether the a Caldwell claim. See Ha penalty appropriate.” From our rich v. Wainwright, 844 F.2d at 1473-74 perspective (en as members of the Cir.1988) banc); Combs v. Appeals, necessarily involves a case (Fla. Fla.L.Weekly approach case with detailed review of the 1988). Under Florida's death stat entire record of case. bot- advisory. ute the role is After receiv line, however, tom subjective is the reac- recommendation, jury's tion of each individual to the lan- weigh independently aggra must guage and text the record. In this vating circumstances my opinion that no Caldwell violation sentence.1 render occurred. Phrased the words of the purpose It no serves to dwell on the word question,” “relevant this record convinces ‘advisory’ as does [or ‘recommendation’] me that none the the judge, remarks of majority, the proce- because that is the lessened, prosecutor or defense counsel in by dural structure the established Flor- any way, jury’s the responsibility sense of ida statutes. The as the verdict to in deciding toward its role whether or not appropriate advisory. sentence is The penalty. the appropriate question is jury whether the was some- majority trial, The pros- finds that at understanding an how erroneous ecutor misled the as to its responsibility. of its by (1) stating its sentence recom- Dugger, F.2d Mann advisory, (2) mendation was the ulti- Cir.1987) J., (Fay, dissenting) (panel opin- imposition mate for ion). Such comments are neither inaccu- sentence rests judge. majori- misleading. nor rate ty also concluded judge that the trial did Moreover, prosecutor in this case the impression not correct the false left during prosecutor. made the controversial comments my See ante section III. opinion, suggestion voir dire support record does not coun- these defense findings. discussing prosecutor sel. (1985). 1. See Fla.Stat. § 921.141 428 U.S. 96 S.Ct. 49 L.Ed.2d 913 authority Court held division of be- Spaziano, Court made reference judge tween under the to the fact that Florida death statute constitutional. by the court. entitled to some deference Florida, Spaziano See 465-66, at 3164-65. 468 U.S. at Florida, Proffitt ju- fencing.2 The followed this prospective with penalty concerns of the venire stated member gave one suggestion rors when an accurate the defend- to find he unable would be summation of role under the Florida sen- lead a death could guilty ant if it system.3 supplemented Defense counsel The attor- Transcript at 105. tence. Trial explanation stating conference a side-bar neys then held find the that should defendant conference judge. At this defense murder, degree of first guilty in- suggested that someone counsel jury’s sentencing recom- system of the bifurcated form the great weight.4 mendation sen- guilt and to determine in Florida used conference, mercy a coun- make recommendation of During defense 2. the side-bar Court. sel stated: you The recommendation that make think, all, just like to I would have I first of Judge portion Federico in this of the trial is gentleman try right to rehabilitate this recommendation, simply he is earlier for cause statements who made these may impose by it. He whatever sen- right bound perhaps the—we should and try permits. the law He will have been respect. tence I think him in this to rehabilitate understanding here and will have listened all of testi- opinion, not he is of fact, that, mony system, if he himself. rendered bifurcated verdict, Transcript guilty in and of itself Trial at 106-108. penalty. would take care 4.During following that, dire the occurred: somebody voir told he should be think can, fact, phases; that he it's different two Only guilty of mur- [DEFENSE COUNSEL]: fact, guilty if verdict that's the return requires penalty. And der one a death there verdict; op- appropriate he have the and will only two the Court has: One alternatives opinion. portunity That voice his chair; death in the the other is life electric satisfy it. years mandatory twenty-five awith minimum Transcript at 106. Trial eligible parole. person before the becomes people get lot of the idea that if I think a prose- During portion dire the of the voir sentence, get somebody gets they a life out in cutor stated: years. seven benefit, only ... but for the Not degree in a first murder. That isn't the case prospective rest of the members benefit of the life, carry a a minimum It does maximum jump me ahead a little bit and let mandatory twenty-five years per- before some clarification. The law in see if I can do eligible. That is the alternative son becomes provides that in a trial for the State of Florida has, of those two. one offense, first such murder discretion, judge's Is or is [JUROR]: stages actually degree, have two two law? proceedings. phases of the By COUNSEL]: [DEFENSE guilt phase or the first relates you return a verdict has two choices if point, At of the Defendant. innocence degree. prosecu- Like [the murder first against puts on its case chief the State said, go advisory render an back and tor] attempt Defendant in convince you people is the opinion to what believe Nelson, guilty murdering he is Elisa that beyond sentence, appropriate believe every and to the exclusion of reason- appropriate or the sentence is death Florida, jury, The has the able doubt. opportunity you appropriate the sentence whether believe go and deliberate that to back to twenty-five mandatory is life with minimum Obviously, jury if to be issue. the finds him years. innocent, so, they say come and back and he Now, disregard just do he and doesn't out of the courtroom and that’s the end walks is, required he to. He whatever wants of that. great weight, give your but to your permitted to overrule recom- he is also hand, If, on the other this ultimate- ... do so he he mendation desires if feels ly the con- at the conclusion of State's only he still law he should. But can under the victs, says walks back into the courtroom and things. The law does not those two do one of degree, guilty he is of murder in the first discretion. him other begins separate portion of the there then to, ultimately, if Mr. Mann con- He has jury panel proceeding in front of the same degree, say, I first of murder in the victed testimony being and evidence with additional presented, death, life, you to or the minimum again time at which —these twenty-five years. mandatory That’s the of brought matters that were not atten- Okay? options Does that he has. prior two portion in the of the trial. tion everybody up? understand Does opportunity clear that go then has delib- the back and that? erate whether or not come back and will of thorough transcript A the trial Because I prosecutor review believe that the did prose- counsel and the jury, reveals defense mislead the I do not find neces- equal emphasis sary on the placed cutor adviso- determine whether the judge’s addition, ry jury.5 of role the both law- comments sufficiently curative. I yers jurors note, however, they indicated to the if judge’s state- guilty degree found the defendant first ments were not misleading. judge ex- murder, judge ultimately plained deter- role the Florida mine appropriate penalty.6 sentencing scheme.

Defense counsel’s numerous judge comments The trial essentially repeated the regarding jury’s advisory explanations given by indicate lawyers. He agreed that he explanations given told the its determination of the prosecutor judge. appropriate and the trial This penalty would serve as a rec- my strengthens prose- conviction that ommendation.7 judge also stated that accurately cutor stated the although Florida law and the final determination ap- of the Therefore, did not mislead the propriate am penalty court, rested with the unable find that duty state- had a appropri- recommend the Caldwell violation. ments created ate in this case.8 One of the trial (THEREUPON, prospective jurors indi- are here to determine is not he lives affirmatively.) cated among us. The issue he is whether lives. (emphasis added). Transcript Trial at 163-64 Transcript Trial at 1331. prosecutor "advisory” 5. The used the words or judge 7. The trial made several references to the (or thereof) "recommendation” derivatives dur- advisory nature of the sentence. These phases two of the trial. These included during post comments occurred verdict instruc- dire, during comments made voir see Trial tions, Transcript during see Trial at 108, 109, 110, 211, Transcript at sentencing phase, initial instructions of the see during closing argument 1252-1253, Transcript during Trial at 1319, 1326, phase. Transcript See Trial at 1327. sentencing phase. final instructions of the See By comparison, the defense counsel used Transcript Trial at 1344-1351. just terms these as often. These included com- dire, during ments made see voir Trial Tran- During 8. the initial instructions the sentenc- (for script at 163-64 text of this comment see ing phase judge stated: 171, 173, 272, 273, 4), supra note and dur- ing closing argument sentencing phase. of the jury, you Members have found the 1331, 1338, 1341, Transcript See Trial at guilty 1342. degree. Defendant of murder in the first punishment for this crime is either death notes, majority As the made imprisonment. life The final decision as to judge three references to the final deci- punishment imposed what shall be rests sole- sion maker. These include comments twice However, ly court. dire, during Transcript made voir see Trial requires you, jury, law render to the 110-111, 285, during closing argu- and once advisory punish- Court an sentence as what sentencing phase. ment See Trial Tran- imposed upon ment should be the Defendant. script at 1330. Transcript Trial at 1252. counsel, however, The defense also indicated During final instructions choosing the burden be- phase, stated: tween a life sentence. See Trial gentlemen Ladies and it is now 164-165>(for comment, Transcript at text of this your duty to advise the Court as to what 4). During supra see argument note his final punishment imposed De- phase, again defense counsel fendant crime murder in first spoke judge’s responsibility as sentencer: told, degree. youAs have been the final deci- begin very beginning, To at the here issue punishment imposed sion as to what shall be lives, my computation, man whether this However, judge. age eighty-five prison before he your duty to follow the law which will now eligible parole can be or whether he dies. you by be to man, Court render This can sentence this in addition advisory opinion upon your based twenty-five years mandatory, minimum aggra- determination as to whether sufficient he can sentence him addition to that nine- vating justify impo- ty-nine years circumstances exist to kidnapping on the and retain jurisdiction penalty, thirty-three sition of the death whether sufficient over him for of those years prevent outweigh his release circumstances exist to or his considera- release, it, approxi- any aggravating tion mately as I understand circumstances found to exist. So, year you upon 2039. the issue that Your verdict should be based evi- re- before

judge’s last comments importance tired reinforced HARICH, Roy Allen jury’s task: Petitioner-Appellant, determination of wheth- fact you recommend a majority er or not a DUGGER, Secretary, Richard of life im- of death sentence Department Corrections, in this case can be reached prisonment Respondent-Appellee. you not influence single should ballot regard hastily or without due

to act No. 86-3167. proceedings. Before gravity of these ballot, carefully weigh, you you should Appeals, United States Court of evidence, and all of sift and consider the Eleventh Circuit. human is at realizing that a it, life April stake, your judg- bring to bear best issue which is sub- upon ment the sole time, you at this of whether a

mitted

majority number recommend the Defendant be sentenced to death imprisonment.

or to life Transcript (emphasis

Trial at 1348-1349

added). closing instruction Such a

impress upon importance sentencing process.

their role aspect of cases of this sort

One other

troubles me. Jurors are a cross section of They average are our

our communities. differing degrees

citizens with of edu-

cation, experiences sophistication, government. My experience with

views of

juries they approach convinces me that great

such service with dedication and involving question In cases

awareness.

of whether or not the death imposed, great concern and seriousness literally purpose permeates the court- Jurors, judges, sleep like

room. lose totally preoccupied doing

are what is We,

right and correct under the law.

judges, should be slow to assume that such

men and women have somehow de- been astray.

railed or led record,

Finding nothing in this con- when

sidering entirety, such in its that would responsibili-

mislead or tend to diminish the

ty deny relief. (There trying Transcript

dence which Trial at 1344-44 two con- heard while Defendant, guilt or transcript innocence of the and evi- pages numbered secutive presented dence which 1344.). has been proceeding.

Case Details

Case Name: Larry Eugene Mann v. Richard L. Dugger, Secretary, Florida Department of Corrections, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 21, 1988

Citation: 844 F.2d 1446

Docket Number: 86-3182

Court Abbreviation: 11th Cir.