*2 FAY, CLARK, Before JOHNSON and Judges. Circuit CLARK, Judge: Circuit *3 Roy Allen Harich appeals from a final judgment denying of the district court petition for a writ of corpus. habeas We in part, part, affirm reverse and remand evidentiary hearing. for an charged Harich was under Florida law murder, degree first attempted with first murder, degree use of a firearm felony, commission of a and two counts of kidnapping. trial, In a bifurcated the jury guilty first found charges, defendant of all and then voted nine-three advise trial to impose penalty the death on the charge. imposed murder The trial court penalty murder, the death for the and sen- thirty years attempted tenced Harich to for murder, years using fifteen firearm, for thirty years and for kidnap- each two pings. direct appeal, inter alleged,
On
Harich
alia,
(1)
engaged in
improper closing arguments during the
guilt/innocence
sentencing phases; (2)
and
the trial court improperly
previous
allowed
ly suppressed evidence to be admitted dur
(3)
ing
sentencing phase;
the trial court
application
erred
its
statutory
circumstances;
(4) the trial
court did
not instruct the
tie
sentencing phase
vote
would be
for
imprisonment;
recommendation
life
(5)
and
capital sentencing
Florida
stat
ute is unconstitutional. The Florida Su
preme Court,
judge dissenting,
one
af
petitioner’s
firmed
conviction and sentence.
Harich
(Fla.1983),
missed the that same and de- girls accepted. petitioner’s request nied evidentiary for an hearing. quarter Petitioner drove them a pe- The district court denied about also mile, stopped for a but when request proba- titioner’s a certificate of Carlene asked if appeal. cause to she could use the He ble Harich took imme- bathroom. told the appeal granted girls they diate two get and his should out and walk request probable cause, way for a certificate of highway rest of the to the but that order staying they and entered an his execution should lie down behind the van while pending appeal. he away. they walking drove As were van, toward the of the back Deborah told
FACTS try plate Carlene to and see license number. The two then laid down on their Roy Harich came home from work at stomachs behind van. But as Deborah p.m. 4:00 on June 1981. He testified up plate, looked at the license Harich was p.m. that from that time until 9:00 upon holding gun, them. He was evening approximately he consumed wrapped towel to muffle marijuana cigarettes, cans beer and six sound of a begged and was shot. Carlene for “mildly drunk.” Trial their lives, II, petitioner but on shot her in the way 502-08. He was his back of home the head. then from a friend’s he He shot house when met Deborah Kelley gas alive, Carlene and Deborah Miller at a back the head. The still two were however, girls station in Daytona crying peti- Beach. The two and were when Harich, did not tioner know but after some discus- came back out of van with a they accepted sion a ride him with knife. He lifted head Deborah’s and cut pier they away where were to meet another at her throat. He then cut Carlene’s date, petitioned (1986), 1. Also requiring on this Harich the Su thus preme stay pending petition Court for a of execution Harich to file his habeas in the district petition petition their decision on the for certiorari. court while his for certiorari was still — U.S. -, request, pending. Court denied his throat, cord, (1) spinal and That severing her caus- his trial counsel’s ineffective- prosecutor’s closing ness argu- Harich then ing instantaneous death. during guilt/innocence phase ments away. drove deprive him voluntary combined of a Miraculously, Deborah not lose con- did very least, intoxication At defense. Carlene, checking she sciousness. After argues, ishe entitled to an evi- road, walked and toward the main crawled dentiary hearing issue of ineffec- stopping periodically to rest at side of tiveness. Finally, high- the road.2 she it to the made (2) evidentiary That is entitled to an way flagged passing down a motorist hearing show that trial counsel was got hospital.3 who her to the hospital, At ineffective because counsel failed ade- police Deborah told the that her attacker’s investigate quately present mitigat- Roy, name was and she described the man during ing sentencing I, his van. Trial Transcript, Vol. phase. key 228. She was the state’s witness at (3) prosecutor’s That several re- trial, and was able make an in-court during closing argument marks ren- petitioner. identification of the phases dered both trial fundamen- Harich was the witness the de- tally unfair. that, He fense. claimed due to the amount police, That Harich’s statements to drugs night of alcohol and he consumed the suppressed during which were murder, he was to recall unable guilt/innocence phase improperly December, events in detail until 1981. Ha- sentencing phase. admitted *5 rich testified that he read about murder (5) prosecutor That the the trial newspaper in police and heard that jurors court misled the as to their role in looking were for a man with a van which sentencing procedure, of violation closely Fearing resembled Harich’s van. Mississippi, Caldwell might suspect, that he abe he contacted a lawyer. According Harich, local defense to (6) statutory aggravating That the cir- agreed they go police he would to to cumstances, applied as in this are explain his innocent role in incident. unconstitutional. however, police, The arrested Harich be- erroneously That the in- fore he contacted them. Harich testified jurors majority structed the that a memory when finally that his became clear agree them had to in order to make a driving he remembered Carlene Debo- sentencing recommendation. rah into the marijuana. woods to look for denied, however, He sexually assaulting I. THE INTOXICATION DEFENSE killing Carlene denied Carlene and at- through- Harich maintained his innocence Instead, tempting to kill Deborah. he guilt/innocence phase out the of the trial. girls woods, claimed he drove out of He also testified that he drank fifteen cans dropped them off at a nearby convenience of beer marijuana ciga- and smoked seven approximately store at p.m., got 11:00 during preceding rettes the five hours his p.m. home 11:10 The incident was re- meeting with Carlene and Deborah. Ha- ported to police p.m. at 11:59 rich’s counsel used this information sev- arguments sup-
Harich raises several purposes during guilt/innocence eral port petition First, of his phase. whether, for a writ habeas he asked Harich condition, corpus: given his he was sexually attract- die, Thinking going emergency she was to Deborah 3. at- room doctor testiAed it was tempted to leave some She testified long evidence. that had as unbelievable Deborah survived Roy, she tried to either name write or courage as she did. Deborah Miller's and in- van, Angers the word sand with her comparable only encourag- will to are the live during stops. one of rest her When shown a ing aspects tragic of this case. trial, photograph of area she was unable positively identify to what she had written. any or Harich ed to either Carlene Deborah. of the State’s concerning witnesses Tran- responded that he not. Trial any was that, there drunkenness or Second, II, asked script, Vol. at 508. he but drunkenness in the situation you his Harich whether his intoxication caused you, have before I you, submit to even inability initial to recall details his that would not be a premedi- defense to night Harich with Carlene and Deborah. particular tated murder in this case. responded police following that he told Nor argued. say, had it been Like I I memory incomplete. his that his arrest argument. one have According testimony, to Harich’s he was Transcript, II, Trial (empha- Vol. at 677-78 not until sure of his innocence five months added). sis later, memory night’s when the Harich’s counsel discussed this issue his events became clear in mind. On cross- closing argument. his rebuttal ex- Counsel examination, Harich testified that did plained to arguing that he was usually heavily. not drink But when he did alternative theories of defense: heavily, drink said Harich it was not un- I say am you, here to on Roy behalf of fail memory period usual for for a Harich, time, lawyer, as his he says he is days and then return after several not Transcript, II, guilty any these months. Trial Vol. at 554. offenses. And, so, Okay. argue if I anything that prosecutor addressed the intoxi- that, sounds different than it as take during guilt/in- cation issue twice theory, it take as an part answer in phase. nocence he elicited argument. Mr. Smith’s But still I feel from Miller that did Deborah something said, that should be appear intoxicated the time because Mr. Smith commented on the they together. closing when During respect premeditated law with design. argument, contended that voluntary Harich’s intoxication II, Trial at 700-01. He defense: argue pre- went that intoxication can
Well, perhaps might finding your premeditation: come to clude a mind, might up on, well, later come But, suppose a man so drunk and so *6 drinking. there’s a lot of Does that take marijuana stoned out on that he can’t away premeditation? There was premeditate? Suppose What then? he’s some, recall, you though, even as Debbie capable rational, logical not of forming say thought did not she the Defendant thoughts, courses of conduct? Then was drunk. she thought She said he was premeditation where is if he can’t beers, only, sober. He had two while she premeditate? they was with him. That didn’t smoke So, you if find from that any pot. they get That couldn’t it dried Harich, Roy fact, in committed kill- that, least, out. So at her character- offense, ing, or other remember and ization, time, Defendant, at of that give effect, you will, if to the rules of intoxicated, he that was not nor had may be, they they law as given as will be drugs, he been from her observation. you to or as whether not could disagrees The Defendant that. with really premeditate plan design and and a He’s had lot of And he’s had beer. happened what here. drugs. regardless point But of which of II, Trial at 702. take, might you you view will still find Harich raises two that acts a in- distinct constitutional took such deliberate arguments relating time, voluntary intoxi- period tent and over a and that First, cation defense. that fail- voluntarily, alcohol was consumed counsel’s ure to ask an involuntarily, not instruction on the volun- that makes a defense, fact, tary difference, pot, if, that in intoxication counsel’s pot got smoked, adequately prepare present done failure to voluntar- ily, defense, so involuntarily, that drunken- constituted ineffective assist- ness, and there’s no requests been from ance of counsel. Harich an evi- evidentiary is entitled to
dentiary hearing prove that counsel’s Petitioner an true, hearing allegations, if his as taken fell constitutional standards actions below Sain, Townsend v. relief. might merit prejudiced failure and that counsel’s 745, 757, S.Ct. L.Ed.2d U.S. Second, Harich claims defense. (1963); Code v. Montgomery, regarding the prosecutor’s misstatements (11th Cir.1984). 1316, 1321-22 validity of intoxication legal voluntary fundamentally rendered his trial defense evaluating The standard for inef These claims be discussed unfair. two will is set fective assistance counsel claims in turn. Washington, forth in Strickland v. 104 S.Ct. the court must “determine Assistance Counsel. A. Ineffective circumstances, whether, light in of all the requests evidentiary hear- Petitioner acts or the identified omissions were out that his trial was un- ing to show range professionally wide com side the voluntary intoxication is a de- aware Id. petent at at assistance.” fense, law, premeditated Florida under function is “make the 2066. Counsel’s alleged igno- murder. As a result of this testing process par in the adversarial work law, alleges counsel: rance Still, prevent ticular case.” order to a (1) to seek a on vol- failed instruction post-trial inquiries intrusive into flood of intoxication;4 (2) object untary failed effectiveness, attorney strong there is the Florida misstated when presumption provided that counsel effec intoxication; regarding failed to law Id. 689-90, tive assistance. 104 S.Ct. at expert opinion impact of seek an on the. Second, the “defendant must show premedi- ability on Harich’s that, intoxication probability is a reasonable there errors, nor the dis- tate. Neither state courts unprofessional but for counsel’s evidentiary hearing proceeding held an trict court result of would have been Id. different.” at 2068. this case. intent, deny- which is 4. As the Florida Court noted in an essential element crime, ing corpus petition, any degree habeas Harich’s 484 So.2d does not reduce the n.*, pre-April version of the gravity (impair- at 1238 Florida Standard Cases tion for of the offense. Drunkenness Jury Instructions Criminal of the mental the use of ment faculties contained an instruc- affirmative defense arising drugs) other after the [sic] narcotics 2.11(c) intoxication. read Instruction of the intent an essential formation which is as follows: voluntarily of a crime and induced element aWhen purpose nerving offender to for the Defense (im- Voluntary drunkenness intoxication already planned does commit crime pairment of the mental faculties the use of degree nor excuse reduce the of the crime. drugs) or other does not excuse nor narcotics Intoxication Partial crime, justify the commission of but intoxi- (impairment intoxication Partial *7 by (impairment of the mental faculties cation by faculties or mental the use of narcotics drugs) may use of narcotics or other exist drugs) pas- merely other arouses the incapa- an is to such extent that an individual power or reduces sions of conscience nei- crime, forming of a ble thereby rendering an intent to commit mitigates guilt degree nor lessens the of if ther incapable person such wrong, right offender still knew the probable from specific committing a crime of which a intent act, consequences of his and was is an essential element. When forming specific capable of a intent commit (impairment to establish tends intoxication the crime. by mental faculties of narcotics or the burden is the other use reason, this did not sur- For some instruction drugs) degree, to this 1981 standard in- vive the amendments to the upon beyond the state a to establish reason- structions, although the de- other affirmative did, fact, doubt able that the defendant (alibi, entrapment, insanity, fense instructions sufficient use of his normal faculties to have be able is an essential element of the crime. self-defense) Not- were carried forward. to form and intent which entertain the withstanding the exclusion of the intoxication amendment, in the intoxication instruction 1981 Not a When Defense specific a defense to crimes in remains intent (impairment the mental Drunkenness State, See Gardner v. So.2d 91 Florida. 480 or the use of narcotics other faculties (Fla.1985); v. So.2d 1262 Linehan 476 drugs) go which does not the extent of (Fla.1985). making person forming incapable a
1089 ing challenging during the effectiveness informed tactical decision. When We can not, however, guilt/innocence phase, defendant must reach the merits of Harich’s that, given claim assist- the absence of a record show but for the ineffective on this point. has ance, had a No court heard from would have reasonable regarding trial counsel his decisions in guilt. pur as to his doubt suing Harich’s defense. Without such a objections pe The state raises several hearing, this court cannot assume that the request hearing. titioner’s for a actively pursue failure to the intoxication pursue decision one at counsel’s defense defense was a tactical decision. See Porter expense of another defense is a tactical 930, Wainwright, (11th v. 805 F.2d 935 questioned by not be decision which should Cir.1986) (without the benefit of an eviden Strickland, reviewing court. 466 See tiary level, hearing at we could 689-90, 2066; U.S. 104 at Corn at S.Ct. v. conclude attorneys’ present failure to (11th Zant, 549, Cir.1983), F.2d 561 708 mitigating decision); evidence was a tactical denied, 1220, 2670, cert. 467 104 S.Ct. Zant, 977, (11th Thomas v. 697 F.2d 982 (1984), 81 375 L.Ed.2d vacated on other Cir.1983)(state finding that counsel’s — U.S. -, 3326, grounds, “apparently conduct was an tactical deci (1986); L.Ed.2d 732 v. Driv United States sion” is not entitled to deference where er, 248, (7th Cir.1986). F.2d 254-55 “that determination was made ab argues state chose to of any sence direct evidence as to what closing argu raise the intoxication issue strategy counsel’s was and as to ment, chose but not to stress such a de whether counsel’s decision reason given inconsistency pri fense its with able”); Estelle, 232, Johnson v. mary defense of factual innocence. The (whether (5th Cir.1983) n. aban court, holding district without an evidentia doned defense was meritorious under the ry hearing, found that counsel’s failure to facts as known counsel was a matter pursue the intoxication defense “was an conjecture; impugning “without counsel’s actual trial tactic used defense counsel.” integrity professionalism we must con Record, Tab at 3. clude that in the absence of a record the reasonable, instances, It is in some undeterminable”), truth of issue ignore counsel to certain defenses in order denied, See, strengthen e.g., Songer others. See also Code Wainwright, F.2d 790-91 (where Montgomery, 725 F.2d low Cir.1984)(counsel not ineffective for failure er courts have found necessary facts to raise self-defense where such defense determination ineffective assistance required proof would have of defendant’s claim, court must remand for an evidentia past drug use principal and where the de- ry hearing). premeditation). Indeed, fense was lack of Second, argues the state that since especially true where the defenses innocent, Harich testified that he was Driver, are inconsistent. F.2d complain cannot pur counsel did not (“defense 254-55 reasonably counsel could sue a defense inconsistent with that testi strength have concluded that [de- mony. preempts When defendant claim to innocence would have fendant’s] attorney’s strategy by insisting par that a dissipated by arguing
been followed, ticular defense no claim of part of a conspiracy to [defendant] ineffectiveness can be made. Mitchell v. *8 cocaine, part distribute but that he not (11th Kemp, 886, Cir.1985); 762 F.2d 889 charged conspiracy in indict- Strickland, Foster v. 707 F.2d ment”). defense, Foregoing a viable how- (11th Cir.1983), denied, 993, ever, only can if be considered “tactical” 2375, 104 80 S.Ct. L.Ed.2d 847 This is an decision. informed preemption court cannot find that such claim Harich’s that counsel misunder- strategy in place took case this without stood scrutiny the law closer than evidentiary hearing. deserves nothing There is in petitioner challeng- would be available to a the record to indicate counsel con- 1090 defense, pursuing the
sidered
intoxication
alternative theories of defense. The evi-
disa-
nothing
conflicting
to indicate that Harich
dence is
as to whether Harich
greed
using intoxication as an alterna-
drunk at the
with
time of the crime. The
theory
defense.
friend
tive
whom he had
drinking
with
been
witness,
was not called as a
nor is there
persuasive argument
most
The state’s
any indication that he was
interviewed
that, assuming counsel misunderstood the
counsel. Harich contends that if counsel
law, counsel’s failure to consider the intoxi
had understood the law he would have ad-
prejudicial
in
cation defense was
justed his
accordingly.
defense
In such a
such a defense
case because
avail
case,
rely solely
we cannot
on the evidence
law,
on
facts.
Florida
“the
able
Under
actually presented to determine whether
degree
intoxication defense to first
murder
counsel
failing
pur-
was ineffective for
merely
is not available
when the assailant
instance,
sue the intoxication defense. For
engaged
drinking prior
has
in substantial
Harich claims
if
counsel properly un-
to the incident or is even intoxicated but
law, expert
derstood the
testimony would
the assailant is so
when
intoxicated
have been offered
guilt/in-
that he
intent
is unable
form an
to kill.”
phase
nocence
explain
the effects of
1190,
Wiley Wainwright,
v.
793 F.2d
1194
ability
premeditate.
alcohol on his
Dr.
(11th Cir.1986) (citing
State,
Leon v.
186
testified,
Elizabeth McMahon
during the
(Fla.
Dist.Ct.App.1966)).
So.2d 93
3d
See
sentencing phase, that alcohol
drugs
State,
Linehan v.
476 So.2d
could have caused Harich to commit acts he
(Fla.1985) (“evidence
consump
of alcohol
incapable
was otherwise
of committing.
prior
tion
of a
commission
crime does
Further,
might
have called as a
not,
itself,
giving
mandate the
witness Harich’s friend
supposedly
who
regard
instructions with
voluntary
intox
drank
marijuana
beer and smoked
with Ha-
ication”).
Supreme Court,
The Florida
in
day
rich on the
of the murder. An
denying
request
eviden-
Harich’s
for an evidentia
tiary hearing
required in
in
ry hearing,
case
found that “trial counsel’s con
order to determine whether the record con-
duct was
range
profes
outside the
[not]
reasonably
tains all
assistance,
available
sionally competent
given the ev
support of an intoxication
defense.5
presented
idence
in this
which includ
ed Harich’s
that he left the vic
doWe
not have sufficient evidence
tim alive at a convenience store.” Harich
to hold that counsel was ineffective for his
(Fla.1986).
v.
484 So.2d
pursue
failure to
the intoxication
defense
initially
We note
that the Florida court’s
this case. Nor do we have sufficient evi
finding
provided
that counsel
deny
effective as- dence to
In
writ.
cases where a
binding
sistance is not
petitioner
this court. Kim-
raises a colorable claim of inef
—
Morrison,
-,
assistance,
melman v.
106 fective
and where there has not
(1986);
Strick-
been a state or
hearing
federal
on this
Washington,
claim,
land v.
466 U.S. at
we must remand to the district court
(ineffectiveness
S.Ct. at 2070
evidentiary
is a mixed for an
hearing.
e.g.,
Code
question
fact). Next,
of law and
we
Montgomery,
1321-22;
note
v.
725 F.2d at
Wi
nothing
that there is
in state or
ley
federal law
Wainwright,
v.
F.2d
precludes
Cir.1983);
a defendant
raising
Estelle,
from
Johnson v.
1091 Zant, Thomas v. 1449, (11th Cir.1985) (5th Cir.1983); (prosecu F.2d F.2d 697 1458-59 Cir.1983).6 closing argument tor’s (11th which he cited 977 supreme
two state
court
cases
years
urge
over 100
old to
the jury not to
Misconduct.
Prosecutorial
B.
mercy
imposing
sentencing
consider
prosecutor, dur
contends that the
Harich
denied,
cert.
misleading
prejudicial),
and
closing
Florida
ing
argument, misstated the
— U.S. -,
3333,
106 S.Ct.
92 L.Ed.2d
regarding
as a
voluntary
law
intoxication
(1986).
relief,
739
In
to
order
obtain
how
is,
degree
to
murder.
of
defense
first
It
ever, petitioner
must
that:
the
show
course,
for
to mis
improper
prosecutor
the
law;
fact misstated the
See United
jury.
state
the law to the
(2) the misstatement
rendered the trial fun
Berry,
v.
193,
States
627
F.2d
200
unfair. Accord Dobbs v.
damentally
denied, 1113,
Cir.1980),
Kemp, 790 F.2d
101
(11th Cir.1986)
1504
United
(1981);
S.
(prosecutor’s
Ct.
L.Ed.2d
misstatement
of law did not
Hammond,
v.
States
249-50
fundamentally
given
render
trial
unfair
the
Kemp,
(8th Cir.1981).
Drake
obscurity
improper
of the
implication,
Cf.
remanding
dissent
that
case
contends
this
fendant was intoxicated
of the
time
crime
evidentiary hearing
contrary
request
jury
if
for an
to
a
instruction
the evidence
Gardner,
defendant,
Washington,
so
mandate of Strickland
warrants.
In
who
times,
We
L.Ed.2d
stabbed his victim over 50
testified that
disagree.
day
on
the dissent stresses the fact that
of the crime he consumed three and
voluntary
proposed
intoxication defense was
of
one-half cans
beer
smoked several mari-
juana
addition,
testimony
cigarettes.
inconsistent with Harich’s
he did
a state witness
testified,
"eyes
high”
crime.
not commit the
however,
Harich also
testified that the defendant’s
looked
beer,
long
that he drank fifteen cans of
after the crimes were committed. The
marijuana cigarettes,
smoked several
and for
night
concluded that
evidence was suffi-
memory
jury question
no
several months had
of the
of
cient to raise a
on the issue of
Furthermore,
convincing eyewitness
voluntary
the
timony
crime. Given
tes
intoxication.
the court
victim,
surviving
ability
closing
we
deter
cannot
noted that counsel’s
to
a
make
mine,
having
argument regarding
impact
without
the benefit of counsel’s
of
intoxication
testimony,
ability
premeditate
whether counsel as a trial
tactic
on
to
defendant’s
was not a
jury
abandoned the intoxication defense in order to
sufficient substitute for a
“The
instruction.
strengthen
argue
the factual
innocence defense.
fact that Gardner’s counsel could
in-
his
State,
(Fla.
Dist.Ct.App.
jury
Price v.
preme
reviewing
proffered
after
Thus,
cy.8
since Harich
made an
has
insuf-
evidence,
mitigating
concluded that “there
showing
prejudice,
ficient
there is no
probability
no
result
is
reasonable
that the
evidentiary hearing
need to remand for an
of this trial would have been
had
different
respect
with
this issue.
presented.”
the evidence been
Harich
State,
tested each of the bility his constitutionality protected circumstances with and defended each proposed mitigating He silence. Petitioner does not direct circumstances. pointed out young, any specific that Harich was a first comment made quality closing argument King against distin case on was based circumstantial Strickland, guishes King this case from evidence. Such cases said to be more (11th Cir.1983), F.2d 1481 vacated and remand likely penalty leniency, candidates for and thus reconsideration, ed 2651, 467 U.S. finding prejudice likely. for is more also (1984), adhered to on re was, against F.2d at 1464. The case mand, (11th Cir.1984), 748 F.2d de course, eyewitness testimony based on the nied, 85 L.Ed.2d Deborah Miller and thus case was not a King, In counsel called a former likely leniency. candidate employer guard, prison neglected and a but distinguishable This case also from Porter v. long-term acquaintances two call of the defend Wainwright, Cir.1986), addition, closing argument ant. "may counsel's which the court declined to follow the good." have done harm more than jury’s imprisonment. life recommendation of F.2d at 1491. This combination of errors result Prejudice easily is more shown override finding in a ed of ineffective On assistance. Id. cases because deference shown to the Court, remand from the this court recommendation. opinion, noting adhered to our earlier Try else,
prosecutor, but the comment which one else. to choose someone person, silence is if arguably myste- refers defendant's even it is an unknown following: person. you “The State’s witnesses are If rious can’t do that too thing well, not known and that try up One then just known. to muddle you. told The first time get was as Defendant everyone waters hidden story, the first time he has among that he told the keying forest trees instead of issues____ situation, to tell the entire come forward in my At that time II, Trial yesterday.” I lawyer. career was defense Since *12 changed at I always 670. then have sides. But I very found that wise his words were and prosecutor may impeach not very accurate. post-arrest a with his silence. defendant II, at Transcript, Trial Vol. 660. 610, Ohio, 426 96 Doyle v. S.Ct. (1976). prosecutor’s 49 91 A process L.Ed.2d state governed Harich’s due claim is — “(1) objectionable is if either: the U.S. -, ment Wainwright, Darden v. prosecution manifest intention was L.Ed.2d In post- Darden, to draw attention the defendant’s although prosecutor’s closing the silence; jury arrest the could infer argument clearly improper, there was ‘naturally necessarily’ it and that was a process no due violation because the com comment deprive on the defendant’s silence.” did ments not defendant of fair Diezel, States v. prosecutor’s United in trial.9 The comments the (5th Cir.1979). prosecutor’s present statement nearly case not were as inflamma peti in not this case did draw attention tory prosecutor’s in as comments Dard post-arrest tioner’s silence. him Petitioner prose en.10 Harich’s contention self testified that he did not come forward cutor’s remarks about defense counsel ren immediately with his version after his ar fundamentally dered his trial unfair at the if, memory rest because of loss. Even as guilt/innocence stage is meritless. noted, Supreme the Florida Court com improper,” on
ment
it was
“border[ed]
B. Sentencing Phase.
State,
prejudicial.
Harich v.
437 So.2d
Petitioner contends that several of the
(Fla.1983).
agree
We
with the Florida prosecutor’s closing
remarks
Court,
Supreme
petition
and
we reject
thus
phase
First,
penalty
improper.11
er’s constitutional claim.
prosecutor
expertise
stressed his own
Next, petitioner complains
suitability
penalty
as to the
death
in
prosecutor improperly argued
prosecutor
that defense
this
prefaced
case. The
his
class,
lawyers,
argument
as a
closing
by noting
are
to be trusted
that:
they
discovery practices
because
abuse
and
fact,
years
In
in the
which
thirteen
I
by confusing juries.
learn win cases
At
position,
been
have
in this
a hun-
over
beginning
argument,
prose
his
thirty-nine, forty
mag-
dred
cases of this
given
cutor told the
some
about
advice
with,
nitude that I have been associated
lawyer:
to him a defense
four,
it’s
been on
five
and now
occa-
said,
you
He
if
are ever
involved
sions which have come to the conclusion
degree
defending
stage
first
murder
this
proceeding
is one in
person, always put the
on
you
blame
some-
which the
come
State must
before
guard
prison
Court
9. The
made
clear that Darden was not a
end
at
other
of that
leash.”
applying
"harmless error” case. Before
"harm
at
n.
12.
error,"
less
Court
assumes there has been a
Darden,
constitutional violation.
because the
argument
11. The state’s
these claims are
unfair,
fundamentally
trial was not
there was
by procedural
barred
default
without merit.
—
Darden,
no constitutional violation.
U.S. at
petition-
The Florida
Court addressed
- n.
We re lawyer. marks And was to turn sentencing pro did not so infect the himself murder, ceeding suspicion as to undermine arrest for not to our confidence give vital outcome. See v. information. We know his in- Strickland Wash 668, ington, 2052, and, apprehended 104 2068 tent was to be (1984).12 Brooks, therefore, prejudicial As in ef- circum- another Brooks, Strickland, 12. applicable In we held that the Court’s of im- was in the context Brooks, analysis proper prosecutorial argument. "fundamental fairness” the con- ineffectiveness, text of counsel announced in F.2d at 1401-02. den,
stance,
the murder
commit-
2472 (appropriate
because
was
S.Ct. at
stan-
avoiding
prosecutorial
intention
ted with the
of ...
dard
review for
miscon-
claim
escaping
any possi-
corpus
from
duct
on habeas
detection or
“the narrow
process,
one
the due
ble
situation.
not the broad
custodial
supervisory power”) (quoting
exercise of
Ill,
Trial
Peti-
at 871-73.
Donnelly
DeChristoforo,
allegedly improper
tioner asserts that this
L.Ed.2d
argument
only
“virtually the
evi-
(1974)); Brooks, 762 F.2d at
Our
presented
on
dence”
this
review this case is
determine whether
such,
factor and as
the sentence cannot
prosecutor’s
comment
sen-
rendered the
specifically
does
stand. The state
ad-
tencing proceeding fundamentally unfair.
issue,
broadly
dress
but
contends
Second, the jury was well
Ha-
aware that
prosecutor’s
preju-
none of the
remarks
sought
rich
counsel as soon as he
feared
appellant.
diced the
might
suspect.
be a
Harich’s own testimo-
McDonald,
620 F.2d
United States
ny
established the facts mentioned
(5th Cir.1980),13
predecessor
our
prosecutor during
closing
argument.14
prosecutor’s
held that a
reference
The fact that
already
aware
sought
prior
fact that defendant
sought
counsel before his ar-
the execution
a search
was im-
warrant
distinguishes
rest
this case from Mc-
proper.
in McDonald was Donald, where
prosecutor’s
comments
attempting
to convince the
draw an
jury’s
source of information
inference that the defendant
his attor-
issue. A similar
distinction
ney destroyed
prior
search.
significant
found
United States v.
former Fifth Circuit
held that “[c]om- Mack,
Cir.
AUnit
penalize
ments that
a defendant for the
*14
1981). Mack,
Apr.
jury
In
the fact that the
right
exercise of his
to counsel and that
aware that
represented
was
defendant was
also strike
core
at the
can-
defense
by
lawyers
several
rendered
prosecu-
not be considered harmless error.”
Id.
tor’s reference to that fact
er-
harmless
(emphasis added).
Similarly, although
prosecu-
ror.15 Id.
distinguish
Several facts
from
McDonald
unwarranted,
remark in
tor’s
this case was
this case.
was a direct
McDonald
sentencing
its effect on the
proceeding was
appeal from federal
conviction whereas
profound
not so
confi-
as to undermine our
this case is a collateral
on a
attack
state
in the
Contrary
dence
outcome.
petition-
prosecutorial
conviction.
Our review
ar-
argument,
challenged
er’s
remark was
gument
corpus
state habeas
cases
only
is
prove
not
evidence offered to
that
more limited than our direct
petitioner
review of mis-
committed this
avoid
crime to
prosecutors.
conduct
below,
federal
See Dar-
lawful arrest. As is discussed
this
Prichard,
13.
him,
City
Bonner v.
ment ac- Ill, Trial at 862-63. tivities did not the fairness of the affect claim regarding Petitioner’s state sentencing proceeding. prosecutor’s ment is meritless. The com Finally, appellant claims that regarding ment Dr. McMahon’s testimony misled as to miti supported by the record and does not gating circumstances “substantial im confuse the legal distinction between insan pairment,” age of the defendant.16 ity and impairment. substantial His com challenged following: statement is the regarding ment the defendant’s age, while stretching mitigating record, somewhat
Another
circumstance ...
outside the
merely
attempt
ap
any
whether or not
Defendant could
to rebut
claim
year
that a 22
old
preciate
criminality
especially
defendant is
his conduct
See,
mercy.
entitled to
require
e.g.,
and conform the
conduct
Mason v.
(Fla.1983) (trial
impaired.
judge
quote
agreed
her
which she
comment did not
from
render
report,
sentencing proceeding
her
opinion
was that was her
funda
mentally
unfair.
suffering
from
dis
ease
defect
of the mind such that he
IV. ADMISSION OF STATEMENTS
appreciate
was unable to know and
*15
DURING SENTENCING PHASE
quality
consequences
nature and
or
of
his behavior and
wrong.
know that it was
During
guilt/innocence phase,
the
tri-
the
McMahon,
doubt,
So that Dr.
without
judge
al
excluded several statements made
has testified he knew the difference at by Harich
County
to Volusia
Sheriff’s In-
crime,
right
the time of the
of
and vestigators Vail and Burnsed. These state-
wrong, and he could
the
understand
na ments were
they
excluded because
consequences
ture and
of
act.
his
So obtained in violation of Harich’s
and
Fifth
mitigating circumstance,
that
I
the
would
rights. The
judge
Sixth Amendment
trial
you,
applicable.
submit
How did, however,
prosecutor
allow the
intro-
ever,
you
it exists before
to consider.
during
duce these
the sentenc-
statements
age
ing phase
the Defendant.
I
think
the trial.
Investigator
Vail
testimony,
appearance,
at least the
would testified that Harich
he
said
remembered
16.
recognizes
following
statutory
potential
Florida
extreme
duress
under the
domina-
(1)
mitigating
person; (6)
capacity
circumstances:
the defendant has
tion of another
of the
significant
prior
history
activity;
no
appreciate
criminality
criminal
defendant
his
(2)
capital felony
was committed while the
conduct or to conform his conduct to the re-
quirements
substantially impaired;
defendant
mental or emotional
under the influence of extreme
of law was
disturbance; (3)
age
the victim
and
of the
defendant
the time of
participant
921.141(6).
jury
was a
in the defendant’s conduct or
the crime. Fla.Stat.Ann.
§
act; (4)
statutorily
consented to the
accomplice
the defendant was an
is not
gating
limited the
miti-
enumerated
capital felony
may
committed
circumstances
consider
evi-
person
participation
mitigation
another
and was rela-
dence in
it deems relevant. Hall v.
minor; (5)
tively
Wainwright,
(11th Cir.1984).
the defendant acted under
leaving Kelley disposed weap- Deborah Miller and Carlene Harich also of the murder lying away as drove on. behind the van II, from the scene. Trial Vol. We persuaded argu- are not Harich’s Investigator Burnsed testified that investigators’ testimony ment questioned regarding
when Harich was sentencing jury showed the that Harich weapon, whereabouts of his Harich stated during had lied guilt/innocence to them that he thrown it “must have out of the phase and he therefore deserved to die drainage of the into the window van ditch because he of bad moral character. next to the dirt road.” Id. at 761. First, it jury is clear that the all disbelieved testimony Harich’s trial about his role appeal, On direct Florida the murder. That withheld the fur- held, Court state does deny, and the disposed ther gun fact that he could the trial admission of court’s unconsti- have had minimal effect on the tutionally during obtained evidence the sen- jury’s opinion trustworthiness, to his as tencing phase was error. Harich v. if jury improperly even considered this That So.2d 1085-86. court did non-statutory as a aggravating factor. however, conviction, not reverse Harich’s Second, given graphic eyewitness testi- the error because found that was harm- mony style as to the execution killing beyond less a reasonable doubt. The dis- ease, extremely we find it unlikely that agreed apparently trict court with this con- imposed the death sentence was in this clusion, “nothing noting that [Vail judge case because jury believed anything said shed new for the Burnsed] Harich was a liar. The admission of the judge that was not already consider Vail testimony during and Burnsed the sen- trial____” I, brought Record, out at tencing phase beyond was harmless rea- Tab 12 at 5. sonable doubt. agree analyses We with the V. MISLEADING THE JURY AS TO Sergeant the courts Wall below. testified ITS PROPER ROLE IN THE during guilt/innocence phase as to Ha- SENTENCING PROCESS rich’s statement that he remembered driv ing away girls’ seeing lying bodies Petitioner contends that one statement Therefore, Investigator behind the van. prosecutor and several statements merely Vail’s cumulative. by the advisory trial court misled the jury hand, Bumsed’s testimony, the other as to its in the sentencing pro- critical role was the disposal cess, first mention Harich’s in violation of Mississip- Caldwell v. weapon. murder Under the pi, circum 86 L.Ed.2d stances, (1985).17 dowe not think that the admission 231 Specifically, of this testimony sentencing affected the told voir dire that its sen- decision. The knew that tencing the murder decision awas recommendation and weapon had not been found. Given pronounces their the “court whatever sen- *16 finding murder, I, that Harich committed this tence it sees Trial Transcript, fit.” Vol. it would not surprise have come as a 74-75.18 The trial court made several 17. The argued quate ground. procedural state has that this claim is barred state Adams v. Wain- procedural Wainwright wright, Cir.1986). the rule of default 1531 n. 6 Sykes, (1977). Adams, S.Ct. petition- As is evident from id. at n. petitioner’s decided Caldwell was after prejudice prong Sykes er satisfies the of when dismissed, appeal peti- direct was and before presents a meritorious Caldwell claim. Ac- post-conviction proceeding. tioner instituted his cordingly, since there was cause for the failure attempt claim, Petitioner’s to raise this issue in his proceed to raise the we will Caldwell to a rejected state collateral attack because of discussion of the merits of this claim in of lieu appeal. his failure to raise on direct deciding Under guise Sykes the under the merits of a facts, similar we held that prejudice have there was cause inquiry. for failure to raise the Caldwell claim on direct appeal explained prosecutor and that the court’s state failure to enter- The the of bifurcation tain post-conviction proceeding proceedings capital this claim in a in cases and then told the that, independent jury sentencing phase: does not constitute an and ade- in the guilt/in- degree told, you statements the murder. As have similar been phase. began, punishment the trial the the final decision what Before as to nocence duty imposed it is jury jury’s responsibility told the the shall be is the court innocence, guilt Judge; however, “it your but that the it is duty to determine to judge’s job to determine what a the law given the follow which will now be is to you be if the sentence would the defendant Court and render to proper the Court advisory sentence, In its instructions guilty.” upon is Id. at 178. an based your jury guilt phase, at the of the to the end determination as to whether sufficient statement, repeated the court above the justi- circumstances exist to II, Transcript, and also fy imposition Trial Vol. penalty the of the death noted: mitigating whether sufficient cir- outweigh any cumstances exist to you aggra-
I will now inform the maximum vating possible circumstances found to and minimum sentences in exist. penalty case. The is for the court to advisory Your sentence should be responsible You are not for the decide. upon the you based evidence which have penalty your in because ver- way trying guilt heard while the or innocence dict____ of the Defendant and the evidence which presented you has been in pro- these at 735-36. Id. ceedings. The trial court returned this theme Ill, Trial at 914. sentencing phase. the Before state case, began jurors its told the court We must decide whether these state following: ments created the danger” “intolerable I you, charge
As advised of the minimize “advisory” when that the chose jury role, given you law was at the the importance rendering conclusion of its thus punishment jury’s this crime unreliable the recommendation of imprisonment either death or life without the death sentence. See Caldwell v. Mis possibility twenty-five parole 320, 105 sissippi, years. (1985); decision final as to what L.Ed.2d Adams v. Wain punishment imposed solely (11th Cir.1986). shall wright, be rests F.2d 1526 Our However, upon judge of this court. inquiry is whether jury the role requires you, law jury, ren- point minimized these comments to the advisory jurors der the court likely sentence as have shirked punishment what imposed responsibility deciding should be their that Harich upon penalty. defendant. the death deserved We do not challenged believe that the comments mis added). (emphasis Id. at 754-55 importance led as to the of its jurors then told the their decision advisory role. should be based their balancing on of the mitigating circumstances Caldwell, ju- told the case. After sentencing rors that their decision was au- presented, jury, the court instructed tomatically by the Mississippi reviewable pertinent part, as follows: Court, shifting thus the sense of gentlemen jury, responsibility
Ladies it is appellate from the your duty now as to to advise the Court courts. The court reversed conviction punishment imposed constitutionally what should “it is impermissi- because upon for his Defendant crime of first- ble to a death rest sentence a determina- part very a recommendation to the Court. [Y]ours serious proceeding.” statement, and a serious *17 pronounces The Court whatever sentence Immediately Id. at 74. after this recommendation, yours giv- sees fit. But ais prosecutor the noted that the sen- ing some the direction to Court as to what the phase tencing proceeding upon is not "a based circumstances show. emotion, sympathy upon any pro- or based it is I, Immediately Trial 74-75. law, ceeding upon based and law facts.” Id. at statement, prior to this the warned 75. jury sentencing phase very the that the “is a 1100 1529,
tion
been led
made
a sentencer who has
Id. at
See also Porter v. Wainwright,
930,
(11th Cir.1986) (under
responsibility
to
for deter-
805 F.2d
936
believe that the
law,
judge
for
reject
Florida
“in order
to
mining
of the defend-
appropriateness
the
jury’s
imprison
recommendation
life
S.Ct.
ant’s death
elsewhere.” 105
rests
ment, the
justifying
facts
death sentence
convincing
be so
must
clear and
that virtu
a situation where the
Caldwell involved
ally
person
no reasonable
could
to
differ as
jury
as to
sentenc-
was misled
its role as a
appropriateness
the
penalty”).
the
death
Adams,
er. In
held that
man-
we
Caldwell
clearly
The trial
the
court Adams
led
of a
where an
dates the reversal
conviction
jury to believe
moral responsibility
that the
impor-
advisory jury is misled as to the
imposing
for
the death sentence rested
jury’s
tance
role in the
of its role.19 “[T]he
upon
solely
judge
the trial court. The trial
sentencing process
Florida
is
crucial
so
jury
instructed the
disregard
could
responsibility
that dilution
its sense of
recommendation,
jury’s
the
even if
jury
the
for its recommended sentence constitutes a
imprisonment.
recommended life
This
Adams,
violation
of Caldwell.”
clearly
law,
misstated the Florida
which
advisory jury
at 1530.
that the
It is vital
for
allows
of the jury’s
override
life
fully
gravity
the
sentenc-
understand
its
upon
recommendation
a clear and con-
ing
the
judge
decision because
trial
not
vincing showing
it was
erroneous.
disregard
simply
jury’s
free to
recom-
State,
908,
322
See Tedder v.
So.2d
910
mendation.
we noted in
As
Adams:
(Fla.1975). Furthermore,
the trial court
judge
Although
trial
...
inde-
must
jury
told the
that:
weigh
pendently
and
part
conscience
of it as to wheth-
“[T]his
mitigating
sen-
circumstances and render
you’re
put
or
going
er
to
the man
tence,
recommendation,
jury’s
not,
your
death
that is
decision to
represents
judgment
of the communi-
only my
make. That’s
decision to make
ty
as to whether
death sentence is
my
and it has to
It
be on
conscience.
given case,
appropriate in a
is entitled
yours.”
cannot be on
great
State,
weight, McCampbell
421
Adams, 804
attempts
F.2d at 1528. Such
1072,
(Fla.1982)
curiam),
(per
So.2d
1075
the jury
weight
shield
from the full
may
rejected by
judge
and
the trial
advisory responsibility
its
are forbidden
only if
are
the facts
“so clear and con-
Caldwell.
vincing
virtually
per-
no reasonable
son could differ.”
Tedder v.
prosecutorial
The
judicial
and
com
908,
(Fla.1975)
curiam).
So.2d
(per
ments
this case did not minimize the role
judge’s
This
limitation
exercise
jury.
The statements went no fur
jury
provides
pro-
override
a “crucial
explaining
jury
ther than
respec
tection” for the defendant. Dobbert v.
judge
tive functions of the
jury.
Florida,
2290,
evidence,
jury
told to
listen
(1977).
53 L.Ed.2d
weigh
mitigating
cir-
penalty
provides
19. Florida’s death
statute
sentence
death is based. Fla.Stat. § 921.-
First,
proceedings
capital
bifurcated
141(3). Finally,
cases.
judgment
of conviction and
jury
must determine whether the defendant
subject
sentence of death is
to automatic review
Second,
guilty
capital
of a
crime.
if the
in the
Court of Florida. Fla.Stat.
guilty,
defendant is found
the court conducts a
921.141(4).
§
separate sentencing proceeding to determine
authority
division of
between the
appropriate penalty
whether the
or life
is death
judge
penalty
the trial
Florida
under the
death
921.141(1).
imprisonment.
§
Fla.Stat.
The sen-
upheld against
statute has been
constitutional
tencing phase
subphases.
consists of
three
Florida,
challenge. See, Spaziano v.
468 U.S.
mitigating
ag-
considers the
(1984);
104 S.Ct.
L.Ed.2d 340
Prof-
gravating
advisory
evidence and renders an
sen-
Florida,
fitt
921.141(2).
tence to the
ond,
Fla.Stat. §
court.
Sec-
Spaziano,
L.Ed.2d
the Court
accept
decides
trial court
whether
jury’s
reference
made
to the fact that the
recom-
jury’s
recommended sentence.
If
mendation is entitled to some deference
sentence,
impose
decides to
the death
it must set
court.
court to review the
to evi-
This
as so
sentencing
construed, provides adequate
dence considered
court.
guidance
The concern of these cases is that the sen-
sentencing
both to the
court and to the
tencing jury and court consider all relevant
advisory jury.
capital
While most
murders
mitigating evidence. That concern
sat-
require premeditation,
the Florida courts
in
isfied
this case.
921.141(5)(i)
have
require
construed
§
greater degree
premeditation
and cold
Aggravating
B.
Circumstances.
required
bloodedness than is
to obtain a
degree
first
murder
conviction. See
“Cold, Calculated,
and Premeditat-
State,
1260,
(Fla.)
Brown v.
473 So.2d
1268
ed”
(“[cold,
places
factor
a limita
calculated]
Petitioner attacks Fla.Stat.
921.-
§
tion on
premeditation
the use of
as an
141(5)(i)
applied
both on its face and as
aggravating
in
circumstance
the absence of
provision
this case. This
allows the sen
setting
some quality
apart
the crime
from
tencing
aggravating
court to find an
cir
premeditated murder”),
mere ordinarily
cumstance where “the ... homicide ...
—
denied,
U.S. -,
607,
cert.
106 S.Ct.
cold, calculated,
was committed in a
(1985).
88 L.Ed.2d
limiting
585
Given this
premeditated
any pretense
manner without
construction,
921.141(5)(i)
facially
is a
§
legal justification.”
of moral or
Petition
aggravating
valid
circumstance because it
aggravating
er’s claim is that this
circum
genuinely
persons
narrows the class of
eli
stance
genuinely
does not
narrow the class
gible
penalty.
for the death
v.
Cf. Proffitt
persons eligible
penalty
for the death
Florida,
242, 252-56,
428 U.S.
96 S.Ct.
is,
degree
because first
murder
defini
2960, 2968,
(1976) (Florida
doubt that the dominant of the kill motive
ing was the avoidance of lawful arrest.
VII. SENTENCING INSTRUCTIONS
We follow the Florida court’s conclu-
The trial
jury
court instructed the
Adams,
sions. As we discussed in
764
sentencing
its
recommendation must
1366,
F.2d at
Doyle does not stand for the
majority
be a
decision.
appeal,
On direct
921.141(5)(e)is,
proposition that
as a mat-
§
recognized
the Florida
Court
law, inapplicable
ter
in cases where a
this was a misstatement of Florida law.
Instead,
rape.
proper
murder follows a
State,
See Harich
So.2d at 1086. In
application
depends
of this factor
on the
fact, majority
required
vote is not
for a
particular
facts and circumstances of the
life recommendation. Rose v.
Here,
Adams,
case.
as in
the murder fol-
521,
(Fla.1982),
denied,
So.2d
kidnapping
lowed a
as well as a sexual
S.Ct.
Finally, petitioner challenges
petitioner’s
to determine whether
application
921.141(5)(h).
of Fla.Stat.
rendered ineffective assistance
§
provision provides
respect
defense,
This
for an
with
to the intoxication
capital felony
so,
circumstance where
legal consequence
and if
of such a
aspects
pier,
trip
All other
(where
determination.
to the woods
Harich
are affirmed.
opinion below
marijuana
growing),
had
picking mari-
leaves,
juana
spreading the marijuana
PART,
AFFIRMED IN
REVERSED IN
leaves on the hood in an unsuccessful at-
PART, AND REMANDED.
tempt
(said
to have them dry
to have taken
FAY,
Judge, dissenting in part,
Circuit
itself),
driving
about
hour
spot
concurring
part:
where
girls
perform
Harich forced the
acts,
the sexual
shootings,
cuttings
concurring
Judge
in most of
While
what
and the return to town all took time.
court,
I
Clark has written
most
my opinion, defense counsel would
respectfully
have
dissent from the conclusion
attempt
been foolish to
My personal
reached in section IA.
defend on a
conclu-
theory
sion is that defense counsel was not inef-
that Harich was so “bombed” or
fective.
“out of it” that he was unable to form a
mental
yet
intent and
drive his vehicle and
contended
trial that he did not
engage in all of these activities.
commit
these horrible crimes. The
proved
believed otherwise. Deborah Miller
Strickland v. Washington, 466 U.S.
to be a most credible witness and made her
sets
in-court identification.
is easy
It
to under-
forth
regarding
the standard
claims of inef-
why
jury rejected
stand
the far-fetched
fectiveness of counsel.
*22
story
by
including
told Harich
“delayed
A convicted defendant’s claim that
ability” to
evening
recall the events of that
counsel’s assistance was so defective as
dropped
he
girls
and that
had
off at a
require
reversal of a conviction or
store about 11:00 P.M.
death
components.
sentence has two
Defense counsel was faced with an ex-
the defendant must show that
tremely difficult situation. His client de-
performance
counsel’s
was deficient.
committing
nied
the offenses. He main-
requires
This
showing that counsel made
evening
tained that he remembered the
errors so serious that counsel was not
concerning
testified
his version of what
functioning
guaranteed
as the “counsel”
transpired
girls.
while he was
with
two
by
the defendant
the Sixth Amendment.
suggest
To
that Harich was so
Second, the defendant must show that
drunk that he could not have “intended”
performance
the deficient
prejudiced the
consequences
proved
of these
by
acts
requires
defense.
showing
This
strong evidence would
totally
have been
counsel’s errors were so serious as to
contrary
undermining
position
to and
deprive
trial,
the defendant of
fair
.a
being
Although
taken
Harich himself.
trial whose result is reliable. Unless a
inconsistent and alternative
may
defenses
showings,
defendant makes both
it can-
raised, competent
trial counsel know
not be said that the conviction or death
absolutely
reasonableness is
mandato-
sentence resulted from a breakdown in
ry
hopes
if
credibility
one
to achieve
with
adversary
process that renders the
jury.
result unreliable.
By handling
did,
way
the matter the
he
Id.
The record also convinces me that that such post-trial Strickland intrusive more pursuit strenuous of the intoxication inquiry nothing will do encourage but defense would have been futile. The proliferation challenges. events of such described Deborah Miller Id. at took an period extended of time. The S.Ct. at 2066. It also renders conversation gas (to held meaningless at the station presumption compe- which Harich van), had driven his group surrounding representation. ride to a tence such Id. Harich tried he to convince the
was not with when Carlene and Deborah repulsive
these committed. crimes were
The jury did not believe him. he Now lawyer claims his should have defended RONEY, Judge, FAY, Before Chief
him
grounds
capacities
on the
that his
Judge,
Circuit
*,
and DUMBAULD Senior
so
diminished that
didn’t know what he
Judge.
District
morning
was doing.
Monday
quarter-
Such
backing
guessing
is precisely
second
ON REMAND FROM THE SUPREME
what the
Court has said should
COURT OF THE UNITED STATES
not be
allowed.
entitled to
try
strategy simply
a different
because his
BY THE COURT:
first failed.
opinion
rendered
this court in this
affirm,
I
to,
would
denial of matter, United States v. Merchants Na
relief.
Mobile,
tional Bank
remanded the district court for tion in accord with the order of the Su preme Court of the United States dated January opinion 1987 and the Court in the case Jersey Shore State States, U.S. -, Bank v. United America, UNITED STATES of L.Ed.2d 800 Plaintiff-Appellant, MERCHANTS NATIONAL BANK OF
MOBILE, Defendant-Appellee. America,
UNITED STATES of
Plaintiff-Appellee, MERCHANTS NATIONAL BANK OF SARASOTA, Petitioner, CITY OF MOBILE, Defendant-Appellant. 84-7513, Nos. 84-7522. ENVIRONMENTAL PROTECTION Thomas, AGENCY and Lee M. Appeals,
United States Court of Respondents. Eleventh Circuit. No. 85-3655.
April 1987. United Appeals, States Court of Gordon, Christian, Mobile, Brock B. Alan Eleventh Circuit. Ala., for Merchants Nat. Bank. Sessions, III, J.B. Atty., J. Edward April Vulevich, Jr., Mobile, Ala., Wolf, Lance J.
Atty., Div., Dept, Justice, Tax Glenn L.
Archer, Gen., Div., Atty. Dept, Asst. Tax
Justice, Chief, Michael Paup, L. Appellate
Section, Katz, Farley Wynette Hewett, J.
Washington, D.C., for U.S.
* Dumbauld, vania, Honorable sitting by designation. Edward Senior U.S. Dis- Judge trict Pennsyl- the Western District of