*1 compel state officials brought to actions holding sub- faculty Philosophy ment of legal are barred duties not their reasons, perform For these jobs. equal stantially sovereign immunity. by constitutional court com- the district find that cannot we University, 514 So.2d Troy State v. Stark weight it probative in the error clear mitted second (Ala.1987). Appellant's 46, 50 sala- appellant’s of analyses assigned to the compel defend- complaint seeks amended expert. ry professor- upon a full her to confer ants no However, has Jones defendant ship. Jurisdiction D. Pendent professor. appellant to promote ability to 8, 1985, the March By order dated recognizes shows, appellant and record appellant’s claims dismissed court district recom- makes complaint, that Jones in her contends Appellant law. state based on finally ap- either are mendations which its discretion abused court district Thomas. Dr. Joab disapproved by proved jurisdiction. pendent refusing to exercise err in did court not Accordingly, district consistently been disagree. “It We lawsuit. See from dismissing him is a jurisdiction pendent recognized that University, 514 So.2d Troy State v. Stark plaintiff’s discretion, of of doctrine (Ala.1987). in considera lies justification Its right. economy, convenience judicial tions of CONCLUSION are litigants; these fairness fa- prima to establish Appellant failed hesitate court federal present a employment discrimination cie claims....” over state jurisdiction exercise non- sex, appellees articulated on based v. America Mine Workers United pro- for failure reasons discriminatory 1130, Gibbs, 383 U.S. appel- Therefore, hold that her. we mote (1966). After consid L.Ed.2d appel- to demonstrate failed lant has forth United set the factors eration of pro- in their against her discriminated lees Gibbs, America Mine Workers of addition, appellees decisions. motional le additional determined court district mini- for the justifiable reasons established the likelihood increase gal theories Norvin existing between disparity pay mal that dismissal confusion reasons For the appellant. Richards fairness economy and judicial promote district above, judgment of the stated dis cannot conclude We litigants. court pen exercise to not decision court’s trict abuse an constitutes jurisdiction dent AFFIRMED. this case. discretion Immunity Sovereign E. com amended second
Appellant's allega of contract breach
plaint contained Douglas against defendant tions asserted Arts and College of Jones, Dean STEWART, Roy Allen individual official and Sciences, in both Petitioner-Appellant, May By dated order capacities. dismissed court the district Secretary, DUGGER, As L. Richard Although no rea the lawsuit. Jones Corrections, State Department of dismissal, for the in that order stated son is Florida, Respondent-Appellee. appears in reasoning court’s the district 86-5800. No. that de stated it is order wherein earlier in his official is dismissed Jones fendant Appeals, Court United States of sover law Alabama capacity based on Circuit. Eleventh capaci in his individual immunity and eign 9, 1988. June appel representations oral ty based no contract plaintiff had lant’s We any individual defendant.
claim with law, that, under cognizant Alabama *2 porch on her Haizlip out Mrs.
p.m. waived She [sic] Stewart. and saw home fixed into her him him, invited he Shortly thereafter him a sandwich. gold stole her bathroom went Mrs. cabinet. medicine watch *3 bathroom the into going Haizlip, after defendant, apparently confronted watch, whereupon Stew- stolen about the Haizlip un- Mrs. pummelled and art beat ribs, and head. face her mercifully about was tear- defendant doing, the soWhile ultimately the un- clothing and ing lay on body. As she her from derwear face, moan- bleeding her floor, from noises,” the defendant “making ing and De- Greene, Asst. Public Sp. H. Robin with her sexual intercourse forcibly had Gables, Fla., petitioner-ap- for fender, Coral her tear as to so so vicious in a manner pellant. thereupon fas- The vagina. defendant it Fla., attached an iron Mia- cord with of a Atty. Gen. tened Fox, Asst. Calvin tightly on neck, pulled her around Fla., respondent-appellee. mi, for leaving a her strangled thereby and cord her neck. ligature mark on vic- testified examiner The medical ribs, multiple eight broken suffered tim Judge, and RONEY, Chief Before broken. larynx was contusions, her and Judges. KRAVITCH, Circuit HILL thigh, her on identified was A mark bite was mark a bite to be appeared and what Judge: HILL, Circuit stains blood There were her breast. on federal brought and bed- Roy living Allen Stewart room disarray in the of challenging indicating his sentence house, petition habeas of her area room claims running four for her forth sets petition fighting and His death. was victim trial by the made relief; (1) left the victim comments The life. in jury of hands. on his role diminished blood judge scene with Mississippi, 472 v. of violation 26, at 3-4. 1979 July dated Order Sentence 2633, 231 86 L.Ed.2d 320, 105 S.Ct. U.S. of 1986, governor 19, September On aof (2) (1985), improper exclusion (Stewart’s death warrant signed a Florida Illinois, 391 Witherspoon v. of violation subse- was execution second). Stewart’s 1770, L.Ed.2d 776 510, 88 S.Ct. U.S. 7, on October to occur scheduled quently of (3) (1968), ineffective assistance collat- various commenced Stewart 1986. (4) discrimination sentencing, and racial court; previous a in state eral attacks federal penalty. The imposing proved had collateral attacks of round state four relief court denied district claims were After Stewart’s unsuccessful. affirm. We claims. state by Florida time second rejected a ha- this federal surrounding courts, Stewart’s commenced The Stewart facts Stewart’s sufficiently On October detailed proceeding. conviction beas States United state denying order denied Court’s petition was Florida Circuit District the Southern relief: Court District habeas however, court, district The Florida. Margaret Haizlip, a woman victim, cause probable certificate granted a stature, late sev- her physical of small stay execution. denied but appeal, Florida pioneer of enties, South was had court district fact that of the view home across Stew- living a small cause probable certificate granted a 10:00 About temporary residence. art’s 348, 415, 419, 482, 490, 506, execution. stay appeal, granted we 566. On at F.2d 395 Wainwright, eighteen least occasions the trial Stewart re- 22-3; Cir.1986); Rule Eleventh Circuit see ferred to the fact that death can Estelle, 463 U.S. appropriate circumstances. Barefoot L.Ed.2d 1090 298, 299, 302, 309, 397, 400, 407, 441, Id. at 458, 461, 463, 479, 480, 513, 518, 526, 527, IMPLICATING I. COMMENTS 550; (comments see also id. at 567-68 MISSISSIPPI CALDWELL V. counsel). specifically in- during formed voir dire that would be Legislative Predetermination A. required weigh aggravating mitigat- the Sentence during circumstances contends that Stewart comments phase. Furthermore, Id. at diminished the role voir dire aggravating terms mitigating circum- v. Mis violation Caldwell *4 stances were defined voir dire. Id. 320, 2633, sissippi, 472 U.S. 105 S.Ct. 86 at significantly, jury 530-33. Most the was dire, During L.Ed.2d 231 voir the legislature informed the has en- following question trial court asked the guidelines acted as to when the sentence of juror: 203, 213, 347, appropriate. death is at briefly, let me ask Just 348, 371, 563. No error occurred in this ques- to ask this punishment. We have regard. tion, ... because this one those legislature cases where the has said that penalty appropriate pen- Advisory Jury B. The Role of the
the death is the alty. however, analysis, Our Caldwell does Transcript Trial at 409. claims the Stewart During not end here. the course of review- impact compounded of this was statement ing Stewart, by the claim raised Caldwell judge’s jury the earlier comment to the this court noticed other occasions where proper assume that: “You will that all the counsel, prosecutor, defense and proper evidence and the law will be judge the trial touched on functions of the presented you.” Id. at 358-59. jury asserted which have been as argues judge’s implicating
Stewart the effect of the in Caldwell a manner different suggested by comment was to instruct the that the from that which had been appropriateness requested supplemen- of his execution had al- The court Stewart. issue; ready legislature. briefing been decided the state tal on this those briefs have trial, however, In the context of the entire received and We con- been considered. it is clear that the were under no no violation occurred. clude that impression. Although such the trial indulge may inappropriate It not be judge’s question prospective juror elementary discussion of the and brief inartfully phrased, in- trial parties dur- aspirations interests and (1) convey message tended to that the of a for the trial of a the selection legislature penal- had determined the death capital case. ty appropriate be the narrow class of Beyond question, the defendant would aggravating homicides which circum- prefer jury those in the to have on the (2) present, prosecutor stances are that the community oppose the death present aggra- intends to evidence of such misgivings imposition. or have about its vating case, (3) circumstances in this and seeking penal- the death Where the state is jury may impose aggra- that the death advocate, pre- ty, prosecutor, would vating mitigating outweigh circumstances appropri- find fer those who be dire, Throughout circumstances. voir penalty. ate jury was informed that not all murders call ju- capital punishment During prospective finding questioning and that a dire, guilt degree learned as to first much can be murder does rors voir inclinations, 275, 344, predilections, and require a verdict of death. Id. at about their 1490 per impair substantially or “prevent Some biases. and convictions held
deeply in accord juror aas duties of his formance opposed to they are indicate oath,” his instructions with ance does juror prospective A disqualified. Wain juror would disqualified become alone reason 412, 424, 105 S.Ct. Witt, 469 U.S. wright 38, v. 100 Texas, U.S. 448 serve, v. Adams (footnote (1985) 841 83 L.Ed.2d (1980); Wither 581 2521, L.Ed.2d 65 S.Ct. Adams, U.S. omitted), 448 (quoting 510, 88 S.Ct. Illinois, U.S. 391 spoon State, 2526); Campbell v. see S.Ct. 100 it can (1968), but L.Ed.2d 1770, 20 (Fla.1969), dis cert. 873, 876-77 So.2d being 227 things that, other said fairly be Florida, Campbell nom. sub missed to have desire would equal, the L.Ed.2d U.S. prosecutor serve juror 1985). (West 913.13 (1970); Fla.Stat.Ann. § or her. him misgivings about expressed prospective aWhen eliminating pro- ways of two There on voir disapproval Each jury. final spective advocate, has as trial dire, prosecutor, a limited entitled case is side dis- that this demonstrating interest can an strikes peremptory number being juror, great is so approval any jurors without eliminate law, is unwilling to follow unable 913.08 § Fla.Stat.Ann. reason. stated hand, defense other theOn disqualified. (West 3.350 1985); Fla.R.Crim.P. (West remain wishing to have counsel, trial Supp.1987). interested serve, *5 qualified very valuable these conserve to prefers that, juror the statement developing from prefers and therefore strikes peremptory circumstances, juror’s re- the certain under eliminated be person undesirable the that might punishment capital vis-a-vis luctance peremptory. aof expenditure the without could, in juror the so that overcome by be accomplished be this can Sometimes capital case, favor of vote posited is some juror prospective the demonstrating that 913.03, punishment.1 913.- Fla.Stat.Ann. §§ disqualified. 1985). the (West address background, 13 we that With Missis v. down laid of law rule disqualifications. variety of are There 2633, L.Ed. 320, 105 86 S.Ct. U.S. 472 sippi, only with however, concerned arewe Here, subject the has been (1985)which 231 2d pro- the resulting from disqualification
the respect court with in this lively discussion pun- capital feelings about juror’s spective tri Florida sentencing phase the the to to opposition juror’s If ishment. Cald procedure.2 capital trial furcated it would strong that is so penalty death beyond and prove its case must State "[t]he that tendencies natural reviewing here While 1. Id every doubt." reasonable two to the exclusion representing of counsel and inclinations prosecu- this surprising that not case, that It is in mind 168-69. bear at we sides jurors into ill- prospective moral is under mislead the state not representing tor did lawyer also, bring disqualified the true out compulsion, were legal that statements advised be not anyone defendant unwillingness that sentence to see it constitutionally facts to their due guaranteed any deprived of death. up attorney to this lived right. prosecuting he told dire example, voir at duty. For 1471, 1481-83 Dugger, 817 F.2d v. See Mann ... does “indictment jurors that vacat opinion Cir.1987), reh’ggranted and (11th guilty," Trial is the defendant mean that Mann, Cir.1987); 817 (11th ed, F.2d 1498 828 ... 167; Florida "the State of Transcript that J., dissenting); id. at (Fay, 1483-86 F.2d at indictment," id.; de- "the that prove the must concurring); J., Ha (Clark, specially 1489-90 now, presumed fendant, right as he sits here 1082, 1098-1101 Wainwright, F.2d 813 rich v. defendant, every id.; innocent," "the that vacat opinion Cir.1987), reh’ggranted and (11th case, with the courtroom enters criminal presumption 1497 Dugger, 828 F.2d v. Harich nom. ed sub 168; innocence,” that id. Wainwright, F.2d 804 Cir.1987); v. (11th Adams being upon defendant look "you must reh’g Cir.1986), (11th 1526, 1528-33 modified no innocent, you’ve heard because presumed 1493, 1494- F.2d Dugger, 816 v. Adams nom. sub very point clear." to make that want I evidence. Dug Cir.1987) granted sub nom. cert. 1501 jury state "[t]he that prosecutor told Id The U.S. —, — 99 Adams, S.Ct. 108 ger v. does defendant proof. The the burden Wainwright, v. (1988); Funchess 267 L.Ed.2d also stated anything." He prove not have
1491 jurors required peremptory to exercise a who be strike is to the effect rule well’s juror longer in the serve to remove that and no upon to are called must be misled capital peremptory available to phase of a remove some responsibility is believing their might more into other attractive the law. Our really is under less than it to the defense than to the state. There- rule of the Caldwell discussions fore, recent important defense it was fact that the func from the have resulted unequivocally that the not state Florida, capital case in in a tion of not, any he or she could circumstanc- concerned, sentencing is is not insofar as es, vote favor of the death (West 1985); 921.141 final. Fla.Stat.Ann. § may reasonably expected It that the (Fla. State, 518 So.2d v. Foster sensitivity deciding of a to the task of State, 1987); 446 So.2d Herring v. ap- life versus death rises as the decision (Fla.1984), cert. denied sub nom. finality. juror opposed A proaches to the Florida, 989, 105 S.Ct. Herring U.S. penalty death feel able consider (1984); Thompson L.Ed.2d 330 being advising it be while State, 328 So.2d Under unwilling participat- unable or to consider law, penalty jurors, after Florida death Indeed, imposition. in its final that is guilty first-degree finding the defendant Caldwell, Adams, teaching Harich murder, required and consider to hear Therefore, it in the and Mann. became aggra touching upon any further evidence best interest defendant’s who circumstances, mitigating vating circum expressed reluctance be crime, defendant, stances, and the informed and advised that the verdict advisory verdict favor of 4hen return advisory ulti- would be but an verdict with impris in favor of life sentencing resting responsibility for mate eligibility parole for 25 onment without upon judge. juror opposed A to the years. judge presiding at the trial willing penalty, to follow the law but may actually imposes the sentence which advisory jury, may well as a member of an circumstances, be, agreeable under certain than one for a be better Thus, advisory verdict or different. *6 penalty opposed who be- not rests responsibility the final as sentence sentencing serving on a final lieves he is 921.141 upon judge. Fla.Stat.Ann. § case, counsel did jury. In this defense (West 1985). understanding of probe deeply into the painfully redundant back- With by ju- sentencing procedure those Florida ground, we turn to the case at bar. Dur- expressed opposition to the had rors who prospective jurors voir dire were indi- undertaking their prevent penalty, probing vidually questions put submitted to vote in favor saying they could never judge, prosecutor, to them the and by calling their atten- the death of Responses ranging defense counsel. not they would the fact that tion to spectrum personality across the of human Trial sentence. See finally responsible for prospective were elicited. A number of 222, 223, 242, 552. Transcript at jurors expressed great reluctance to im- blush, are appears that we first it At pose anyone the death on no mat- and its paradox. Caldwell with a faced clearly guilty gruesome capital ter how right of progeny indicate a constitutional person crime that be shown to be. up made jury defendant to have things, In the nature defense counsel impressed and are aware of persons who genuine seeing exhibited a interest to it sen- responsibility of their heavy qualified that such a remained with hand, On the other Wither- jury verdict. trying serve so that tence prospec- of a the exclusion jurors spoon would include one or more of those forbids ex- or, alternative, if he or she has prosecutor in the for cause would tive J., 1443, 1445 Cir.1986) (Johnson, dissenting), (11th Cir.1986), denied, 788 F.2d cert. 693-94 denied, S.Ct. 475 U.S. 475 U.S. 90 L.Ed.2d cert. (1986); Wainwright, Thomas v. 788 F.2d L.Ed.2d personal philosophies or sonal beliefs reservations general pressed af- convictions personal moral implies that clearly penalty; this the death sitting in of a human you fect [sic] selection in the participating a defendant religious philosophical beliefs?” being, is entitled capital trial jury Bouquio question, Mrs. response biases, attitudes, pre- and probe the mental reluctance vis- some definite indicated had jurors and is prospective of the dilections Transcript capital punishment. Trial a-vis predi- whose jurors to rehabilitate entitled 170-172. best inter- defendant’s in the are lections on voir dire responses motion, first ests but whose her own On n. 3 at See she had the disqualification. it known that likely made indicate Thibodeau Bouquio. did Mrs. as reservations same attorney had state's After the at 172. paradox apparent this resolve We counsel, Mr. Gold- interrogated, defense prospec and jurors simply that stating prospec- question the stein, was allowed misled. Jurors jurors tive dialogue Mrs. Thibo- with jurors. His tive penalty are the death towards disinclined was as follows: deau that, believing into misled not to be Thibodeau, Mrs. GOLDSTEIN: MR. returns a ver law, jury if the Florida not sit you rather you stated that penalty the de the death favor dict jury. on Those automatically doomed. fendant if real- anybody, I don’t think advisory Florida, an could, in return really [sic], wants soles ly their searched penalty so in favor of verdict making decisions position in a to be responsibili the final long theirs was upon to make called you to be like have qualified to serve considered ty, must be go society to But, for our order here. respon had final though, even function, duty. We we have a and such a ver they could not return sibility, got duty. hand, function the other dict. On you Do understand? jurors must of the individual jury and Yes. THIBODEAU: MRS. of the law. by misstatement not be belittled you you think Do GOLDSTEIN: MR. entitled to have The defendant is conceptions aside put those of the that the results fully aware a deci- evidence make listen to the play impor will sentencing deliberations experiences your personal sion based on process. The part tant interpret whatever backgrounds and of the the function law in Florida vis-a-vis you or here is laid out before evidence case sentenc judge and the hear, sit testimony whatever A clear statement ing is not arcane. people other eleven there back with *7 If not unconstitutional. it is law as exists not guilty verdict of arrive a potential dispute as any areas there be guilty? paraphrased should be how the law to I could. THIBODEAU: MRS. may safely said that inquiry, it be voir dire you you Do think THE COURT: put jurors by the the use of the version do that? counsel, infra, as set out will defendant’s Yes, I could. MRS. THIBODEAU: rights of the defendant. not violate I say? you did What THE COURT: approach taken this case you. didn’t hear may discerned from interro- be defendant I could. MRS. THIBODEAU: witness, typical of a number gations of one you under- Do MR. GOLDSTEIN: pro- a A Mrs. Thibodeau was of others. find the you stand, is it put upon parties at the spective juror murder, degree first guilty of state, Attorney Counsel for voir dire. in there go have you even would Godwin, interrogating another had been youDo capital punishment. discuss Bouquio. array, Mr. member of Mrs. that? understand group an entire had asked Godwin Yes. MRS. THIBODEAU: any “any per- or not of them had whether You MR. GOLDSTEIN: have followed The first burden MR. GOLDSTEIN: your the law all of life? prove first the State has to the one murder. degree MRS. THIBODEAU: Yes. you understand that?
Do You MR. GOLDSTEIN: wouldn’t have now, following law, problems would THIBODEAU: Yes. MRS. you? they prove If do MR. GOLDSTEIN: easy MRS. It THIBODEAU: is not an murder, they degree then first decision. and all to come back here have Nobody have brought and then MR. GOLDSTEIN: ever said back Hopefully, you recom- it won’t make prove you you is. have to But, it, the decision. if it comes to all capital punishment. mend Judge you wants to know is will Now, is a you understand that that do simple follow the law? It is as as that. not sentenc- recommendation? You are your You it life. have followed There anything. the defendant wouldn’t, now, you right? is no reason that? you Do understand (No response.) MRS. THIBODEAU: make a upon is to you All are called at 240-43. recommendation. you
Do understand? summary, conclude that we Stew Right. complain, petition MRS. THIBODEAU: in a art is not entitled to corpus, jurors’ for federal habeas recommenda- MR. GOLDSTEIN: That responsibility was sense of verdict may carry any weight may or tion by having advisory nature diminished Judge. you Do understand with the role called to their attention jury’s of the that? on voir dire. Defense counsel made com THIBODEAU: You can recom- MRS. end, and did not ments directed toward say if six out of the eleven that we mend object to similar comments made is fine? want him electricuted [sic] Addressing judge. prosecutor and the trial Fine. The other MR. GOLDSTEIN: at voir dire probably benefi this issue five, obviously, said no. defense, in that it increased cial to the Now, your you, make recommendation juror opposed to the probability that a Judge. Judge does not have pro A empaneled. it. she to follow She can do whatever bring himself spective juror who could wants. might never impose you Do understand that? ability to himself the theless find within MRS. THIBODEAU: Yes. Making recommend you MR. Do think GOLDSTEIN: jury’s role clear advisory nature handle that? can greater likeli at voir dire thus results If MRS. THIBODEAU: I to. opposed to the death person that a hood MR. GOLDSTEIN: You could follow jury; serve on penalty may nevertheless law, right? clearly ally of the person is such a Right. MRS. THIBODEAU: defense.3 Witherspoon juror. questioning performing his duties as this line of
3. Since voir dire is defense, *8 express potentially venireperson more beneficial must we can that a teaches prosecutor a where the penalty envision situation object would general objections in to the death than questions by 522, to defense counsel as to 391 U.S. at be excluded for cause. order to juror death-scrupled potential a whether could excluded, potential a be at 1777. To S.Ct. 88 pen- vote to recommend the death nevertheless "unmistakably that his clear” juror must make it alty advisory arrangement. the Florida under strong penalty so objections to the death case, objection in this As there was no such we (1) voting for a they prevent his would do not decide whether it is a defendant’s consti- circumstances, any under of death sentence right pursue questioning tutional to this line of impartial of the (2) evaluation his with interfere However, objection by prosecution. over as 21, S.Ct. at guilt. n. 88 Id. at 522-23 defendant's supra, discussed a defendant is entitled to in- jury’s advisory of the The nature n. 21. 1777 quire juror's opposition whether a to the death sentencing procedure the Florida role under penalty prevent impartially him from 1494 upon proceeding. psychological A He relies a OF EXCLUSION
II. IMPROPER
years
four
after his
conducted
JUROR
examination
POTENTIAL
concludes Stewart had
conviction which
that the exclusion
contends
Stewart
mentally ill his entire life. Stewart
been
(Tom Gillis)
potential
for cause of a
to
that witnesses were available
also claims
Witherspoon.
violation
constituted a
a
4
defense counsel who could have “evoked
unambiguous
comments
The venireman’s
response”
jury had
sympathetic
from the
“prevent or
views
ly
his
show that
contacted
counsel.
been
defense
performance
his
impair the
substantially
his
accordance
in
with
strategic
duties
a
decision
Trial counsel
a
Wainwright v.
his oath.”
light
instructions
of the
nature
that in
atrocious
846,
424, 105
412,
Witt,
S.Ct. at
avoiding
at
offense,
469 U.S.
chance of
Stewart’s
finding by
the trial
factual
if
seed of
852.
was
some
the death
perform
could not
doubt,
venireman
that this
rea
insufficient to constitute
even
capital case
as a
in a
responsibility
doubt,
placed
be
in the minds
could
sonable
Sumner
given deference under
repeatedly
be
has
rec
jury.
of the
This court
1303,
597,
Mata,
591,
102 S.Ct.
v.
U.S.
argument may
455
ognized
impact
such an
see
(1982);
Wain
1307,
Such
evidence which Stewart
cumulative. The
understand no set of circumstances that
presented
have
you
impose
been
penalty,
any
now claims
could
or
effect on
not have had an
why you
other reason
don’t want to serve
jury?
their verdict.
on this
mean,
MR.
I
GILLIS:
the Manson
IM-
RACIALLY DISCRIMINATORY
IV.
case, I would think about it hard in some-
OF THE DEATH PENALTY
POSITION
thing
But,
just
like that.
I
don’t think I
could.
claims that
Finally, Stewart
racially
dis
But, you
MR. SHERMAN:
would consid-
criminatory
in the state of Florida.
manner
er it in the Manson case?
light
Supreme
Court’s recent deci
Sure, would,
MR.
I
I
GILLIS:
but
don’t
— U.S. —,
McCleskey Kemp,
sion in
think that—
(1987),
land, (11th Cir.1984). n. 2 734 F.2d don’t think that I could do it. herein, For the reasons set forth you think could THE COURT: You don’t judgment the district court is do it? AFFIRMED. But, you are not sure? MR. SHERMAN: say you fair to have Would it be APPENDIX maybe you then hear the facts and Gillis, you THE COURT: Mr. consider it? Is that a fair statement? questions heard all of the the attor- Yes, sir. MR. GILLIS: asking neys have been and the— Gillis, you envi- MR. STELZER: Mr. can Yes, MR. GILLIS: Your Honor. any circumstances this case sion set of THE COURT: Now seated— person you where could look MR. GILLIS: I don’t believe that, he sen- say “I recommend that punishment at all. chair.” tenced to death in the electric any THE COURT: Under facts or cir- you Can do that? cumstances? gross gorey I Mr. If saw Gillis: No, MR. GILLIS: ma’am. pictures. THE COURT: Let us take it in the two say? did he THE COURT: What part question. gorey If I saw a lot MR. GILLIS: you your feelings Do feel my stomach and pictures turned capital punishment prevent you from I everything, guess I could. reaching guilt a decision or inno- makes Wihat if the law MR. STELZER: cence of the in the trial? first all, and in gorey pictures at no mention of MR. GILLIS: No. gorey nothing to do with law it has you will rec- pictures
THE or not COURT: Do feel there are no as to whether circumstances, imprisonment? no matter how ommend death or life atrocious
1496 Judge,
KRAVITCH, Circuit dissenting: to the object I will SHERMAN: MR. majority The I dissent. Respectfully, question. the form violation that a Caldwell concluded improper. Sus- is Form COURT: THE defend- benefits the during voir dire made tained. capital speculates that majority The ant. your you form Can STELZER: by MR. error voir Caldwell profits to death it will relate whether opinion misleading comments about own because dire law even if the the law capital follow sen- and in the penalty, responsibility jury's the you think? what than possibility that totally different the tencing process is increase is penalty death to the opposed juror think that really don’t I GILLIS: MR. contrary is to This conclusion empaneled. except penalty deserves any case in Adams Caldwell, our decision to that. I said when stuttered on—I case. of this facts and Wainwright,1 did he say? What COURT: THE held Court Caldwell, Supreme the you said. Say what STELZER: MR. constitutionally impermissible “it is that (No response.) MR. GILLIS: a determination sentence death rest led to has been who sentencer by a made said, I want you Say what THE COURT: determin responsibility the believe that it. hear the defendant’s appropriateness ing the tell, Your Would MR. STELZER: v. Mis Caldwell elsewhere.” rests death you made. Honor, comment 320, 105S.Ct. 472 U.S. sissippi, Honor. object, I Your MR. SHERMAN: offending com (1985). 231 86 L.Ed.2d by prose were in Caldwell ments I stut- I said was All MR. GILLIS: argument, closing trial and cutor that. I said tered when Adams, how heldWe dire. at voir Oh, see. I COURT: THE made dur misleading comments ever, that reporter court attorneys Will the 804 Caldwell violate can dire voir bar. side please come is the court’s dire n. Voir at 1531 7. F.2d explain opportunity to respective first for the and counsel’s (Thereupon, Counsel dire voir jury. At approached reporter court parties and the impression” about “first following proceedings their obtain the bench this im sentencing process, had:) were influence undoubtedly retains pression Challenge for cause. MR. STELZER: the case. rest Your Hon- Objection, MR. SHERMAN: distinguish attempts majority don’t think was I the end he said at All or. mis- arguing that Adams think penalty doesn’t death —he role as a about its Stewart’s informing death for the vote that he beneficial probably “was capital sentencer anyone. it is deserved think He doesn’t agree. I cannot At the defense.” crime, consider could he an atrocious Under obtain might a defendant Any benefit it. opposed to the aof empaneling by the he finally said He COURT: THE neutralized probably is he penalty, but impose the vote wouldn’t receives misinformation Charles Man- facts of said that her task. his or importance son, could. he point stresses this Indeed, majority Defense, Mr. Gillis states, objections “A Over it when impose bring himself excused cause. find with- nevertheless at 436-39. 267 L.Ed.2d —, S.Ct. Cir.1986), modified, (11th F.2d 1. 804 — Cir.1987), granted, U.S. cert. F.2d 1493 *11 potentially ben- on the than dwell Rather the recommend ability to the himself error, I would of Caldwell effects eficial original). (emphasis penalty.” death misleading statements that misleading simply conclude why precisely is result This the its role in jury about violate Caldwell. the to dire at voir comments Dugger, by counsel made recently in Mann are that process observed We defense banc), (en that Cir.1988) eighth amendment but the F.2d do not violate merely not do cases capital of Florida the rubric juries as error under raised must Florida sentence; of the law a recommend assistance counsel. Caldwell ineffective jurors’ the give to judge trial the requires species prejudicial particular is a error Furthermore, “the weight. great decision a trial or by prosecutor a made comment recognized has of Florida Supreme Court error. See It is state-induced judge. has a death jury recommendation a that is 1640. Caldwell Caldwell, at 105 S.Ct. judge, on the trial impact generis mi mis- attorney’s by a defense implicated not nullify gener- the as to powerful so impact penally death the leading about comments capable is judge a trial that presumption al fifth than, example, the any more Mann, at 844 F.2d error.” putting aside at- by a defense implicated is amendment to influenced juror is Florida If a 1454. to his failure client’s torney’s comment ability to recom- the himself” “find within the intuition reflects testify. Caldwell he labors penalty because mend to special comments jurors pay heed that misconception about a state-induced prosecutor because judge and by the made been task, has Caldwell nature the authority of represent the persons those argue that It is farfetched violated. attorney not does A defense.” defense ally of the the state. is “an juror a such inappropri- position, occupy same the im- by defense counsel made comments ate the about theories majority’s Even concerns. constitutional plicate different violations of Caldwell effect beneficial trials, not they were in this misleading in some comments applicable only If the majority discusses The attor- case. defense by Stewart’s made had been Thibo- empaneling length some to af- in the decision concur ney, I would about reservations deau, expressed majority’s court. district firm the suc- prosecutor Yet the however, “[djefense that states, opinion least challenged for cause cessfully com- object to similar did not ... expressed because persons other eight trial and the by prosecutor ments about, the to, reservations or opposition of the An examination 3507.3 At judge.” Jackson, penalty: trial prosecutor that record reveals 287, Johnson, Tr. 280, Bouquio, Tr. Tr. misleading the violated Caldwell 376, Gillis, Hill, Tr. Bross, Tr. Tr. court stated: dire, the trial At voir jury. McRae, 559. Tr. Tr. Dykes, ais only if there event, if and In the sugges- majority’s refutes record thus degree of first crime for the conviction a substantial received that Stewart tion hear- subsequent is a murder, there then law at misstatements from the boon jury is which the as to trial second dire. voir This desire acts. defendant’s for the Cald- majority not consider also does 2. The very receptive to [assurances] not jurors who do make the those can influence error well express opposition error freely” because punishment err capital more it can Caldwell, every may intention elsewhere. A corrected voir dire. will be judgment legislature’s following the at 2641. may feel punishment but capital propriety of case, ques- that, particular of a facts on the object does attorney’s failure The defense 3. punishment is warranted of whether tion reaching merits prevent us from danger that very real is a vety There close. is principles of claim under Stewart’s to vote be influenced such claim The Caldwell procedural bar. jury’s that the if he believes of life death instead Stewart’s time of "reasonably at the available” a sen- advisory. when merely "Even decision is Dugger, 816 See Adams April 1979. trial is that death tencing jury is unconvinced F.2d at might nevertheless punishment, it appropriate disapproval message’ of extreme wish to ‘send Do understand asked, is, your say the recom- same which already guilt determined mendation does not or inno- have to be followed defendant, cence of judge]. recommend It is peo- all that twelve [the recommendation, ple [it] out here could recommend to [the Court, is, me, Judge, what judge] proper sentence would be sentence should be to the crime imprisonment life and she could still im- *12 degree of first murder. pose or vice versa. Tr. 565.8 repeated The court the Caldwell error trial, the second so called a majority several times sentencing hearing, at the jurors recommends, vote of the jury: when it told the again repeat I only a recommen- [it] punishment Final decision as to what Court, dation to this whether the sen- imposed shall solely rests with the tence for the defendant should be death judge court, is, me; upon that imprisonment or life without possibility of parole however, twenty-five requires for for years. you, the law that jury, render to the Court advisory dire, prosecut- Later voir Tr. 111.4 punishment sentence as to what should attorney stated: Stelzer imposed upon the defendant. asking in this case is The State I make no bones will seeking We are ... it whatsoever. about recommendation, you because don’t you told, As have been the final deci- pass in Florida to sen- right have the punishment sion as to what should be anybody. tence on responsibility is a the trial 201;5 206. later dur Tr. see also Tr. Still however, judge; your duty it is to follow dire, prosecutor Godwin asked the ing voir given you by law which will now be array: the Court and render to the Court an your recom- you Do understand advisory upon aggra- sentence based a recommen- which would be mendation vating you circumstances which find to majority jury, dation of exist. accept the recommenda- Court 2275-76; prose- Tr. see also Tr. 2442. The reject the recommendation. tion or closing argument: cutor stated to inform judge The continued Tr. 392.6 purpose you is not to have sentence death sen- its verdict anybody anything. In all due re- binding: would not be tence all, spect you you don’t have that first, which trial, unlike The second right. right That is reserved to the vote, jurorsf] a unanimous must be person. one It is not me or Mr. Gold- majority as to only a must be vote Judge stein. It is Lenore Nesbitt. She recommendation, only a recom- it is guidance, needs you and that is what Court, whether mendation for, seeing are here to tell her—after imprison- life be death sentence Florida, if, laws of whether under the — parole for possibility without ment being laws of the State Florida after years. twenty-five represented you, type this is the Finally, prosecutor Tr. 476.7 case that calls for a recommendation of Stelzer told a group prospective jurors: alternate capital punishment. Thibodeau, Salapatas, Capote,
4. Jurors present point. and Lin- 6. Juror Johnson was at this Tr. present judge 471. demann were when the made these remarks. Tr. 471. Gailey present 7. Juror was when the these remarks. Tr. 509. prospective juror actually 5. At least one served, Salapatas, present point. was at this Tr. present, 8. Two of the alternates Hernandez, Martell and were chosen to serve. it is so, advisory sentence —and your If Judge Nesbitt advisory —because wrong, she does you thinks you are she thinks it.
have to If follow imposing a sentence wrong in capi- sentence recommend a you —if overrule can punishment tal —she imprison- punishment put life ment. me excerpts convince 2394-95. These
Tr. prosecutor misin court and in sen their role jurors
formed told their
tencing. were recommendation, “merely” a
decision *13 They were judge. binding on the
not at requires the law that Florida
never told weight great give judge to trial even, in Ha
jury’s recommendation (11th Cir. F.2d 1464 Dugger, 844
rich v. sentencing banc), 1988) (en jury’s “very to the out vital”
verdict would and would decision
come court. See direction” to the
“giv[e] some J., at 1475. Under
id., Tjoflat, Opinion under our decisions Harich, Mann,
Adams, Stewart resentenced. Trigo TRIGO, Jr., and Car Elvira
Luis C. surviving Heirs to Trigo, as all men deceased, Trigo, Luis C. Estate
Plaintiffs-Appellants, COR INSURANCE DEPOSIT
FEDERAL (FDIC), corporation or PORATION existing law ganized and America, Defend States
the United
ant-Appellee.
No. 87-5064. Appeals, Court States
United Circuit.
Eleventh 23, 1988.
June