Davis v. Singletary , 119 F.3d 1471 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 94-2872
________________________
D. C. Docket No. 92-251-CIV-J-20
ALLEN LEE DAVIS,
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, JR.,
Secretary, Florida
Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 11, 1997)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Allen Lee Davis was convicted and sentenced to death in
Florida for the brutal murders of Nancy Weiler, her ten-year-old
daughter Kristina, and five-year-old daughter Katherine. The
murders occurred in the Weiler home in Jacksonville, Florida, on
May 11, 1982.
In denying Davis' petition for a writ of habeas corpus, 28
U.S.C. § 2254, the district court issued a detailed opinion
thoroughly discussing the extensive procedural history of the case,
the relevant facts, and the legal issues Davis raised in the
district court. See Davis v. Singletary, 853 F. Supp. 1492 (M.D.
Fla. 1994). Because that opinion is published, except where
necessary we will not repeat here what has been said there. Most
of the issues Davis has raised before us on appeal from the
district court's denial of habeas relief concern his death
sentence, but some go to the validity of his murder convictions.
We will first address those guilt stage issues.
I. THE GUILT STAGE ISSUES
A. THE INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM RELATING TO THE
INSANITY DEFENSE
Although he raised additional ones in the district court, 853
F. Supp. at 1509-10 n.7, in this Court Davis presses only two guilt
stage ineffective assistance of counsel issues.
2
The first such claim Davis presses here is that trial counsel
was ineffective for failing to investigate and present an insanity
defense. In support of that claim, Davis proffered to the district
court a report of Dr. Harry Krop, a licensed psychologist, who
stated his opinion that Davis had been insane at the time of the
offense in 1982. Dr. Krop's report was generated in 1986, which
was three and one-half years after Davis was convicted. See 853 F.
Supp. at 1543. Davis contends that the allegations of his
complaint, backed up by Dr. Krop's report, at least entitled him to
an evidentiary hearing on the issue.
However, we have held that a habeas petitioner is not entitled
to an evidentiary hearing on a claim, even one supported by an
affidavit, where the record conclusively establishes that he is not
entitled to relief on that claim. See Spaziano v. Singletary, 36
F.3d 1028, 1037 (11th Cir. 1994) (holding the district court had
not erred in denying an evidentiary hearing, because "the record
trumps the Schwarz affidavit and conclusively shows that this claim
is without merit"); see also Bolender v. Singletary, 16 F.3d 1547,
1565 n.25 (11th Cir. 1994) (rejecting an affidavit that was
inconsistent with what a review of the record revealed); Stano v.
Dugger, 901 F.2d 898, 899 (11th Cir. 1990) ("The petitioner will
not be entitled to an evidentiary hearing when his claims
are...'contentions that in the face of the record are wholly
incredible.'") (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97
S.Ct. 1621, 1629 (1977)). Here, the record of Davis' prior state
court proceedings, including his trial, and the record of the
3
three-day evidentiary hearing the district court held on related
issues involving Davis' mental state, collectively refute this
claim to such an extent that Davis is not entitled to an
evidentiary hearing on it. See, e.g., 853 F. Supp. at 1530-48.
Davis was originally represented by two assistant public
defenders, who had to withdraw because of a conflict of interest.
Experienced criminal defense attorney Frank Tassone was then
appointed to represent Davis. During the course of a number of
interviews, Davis, though uninvited to do so, told Tassone the
details of the crime. When asked at the evidentiary hearing in the
district court what Davis had told him about why he had picked the
Weilers to rob, and what had happened once Davis was inside their
home, Tassone testified:
He noted that Mr. Weiler's -- excuse me that
Mr. Davis's mother and stepfather resided next
door or within two houses of the Weiler home.
He had noticed that Mr. Weiler traveled a lot,
he didn't know what type of work he did.
He noted that there were two children that
were in the home with Mrs. Weiler. And I
believe this occurred late in the afternoon.
He entered the home, and prior he had taken a
handgun that his stepfather had in the
kitchen. He indicated that, I think, he
surprised and confronted Mrs. Weiler and the
children and attempted to engage them in some
conversation. She essentially ordered Mr.
Davis out of the house, at which point Mr.
Davis -- and I'm not too sure of the scenario,
which occurred first, either hit Mrs. Weiler
with the weapon. I remember him telling me
that Mrs. Weiler told her children to run.
And then he told me that, how one of the
children was killed in the bedroom.
H.Tr. at 123-24. Tassone further testified that Davis had related
to him how he killed one of the children:
4
She was bound with her hands behind her back,
that she was hit, I believe, in the head with
the barrel of the gun, or the grips on the
gun, and I believe she was then shot.
. . . .
I think there was substantial crying and
screaming by the children. I can't remember
if there was any other conversation.
Id. at 124. Davis told Tassone "the gory details of a rather
grizzly homicide scene." Id. at 196-97. He also told Tassone why
he had committed the crime:
When Mr. Davis first talked to me about that,
he said something snapped after he got inside
the house. In subsequent conversations he
indicated that he felt that there were items
in the house that could be taken. And I think
that was from the nature of the neighborhood,
that it was an upper middle class
neighborhood.
Id. at 124-25. Davis described to attorney Tassone how he had
disposed of the murder weapon, and what had happened to the Nikon
camera he stole from the house. See id. at 125.
By the time Tassone entered the case, Davis' prior attorneys
had arranged for him to be examined by Dr. Ernest Miller, a
qualified forensic psychiatrist who had conducted thousands of
forensic evaluations over the course of his career. 853 F. Supp.
at 1547; H.Tr. at 251. They selected Dr. Miller because he was a
leading expert in the area, and they respected his opinion. H.Tr.
at 247-48.
After thoroughly interviewing, examining and testing Davis,
once with the use of sodium Amytal, and conducting neurological
screening and administering an electroencephalogram, Dr. Miller
5
concluded that Davis had a normal I.Q., was competent to stand
trial, "[c]ertainly he was not psychotic," H.Tr. at 253-270, and
there was no insanity defense for him. See 853 F. Supp. at 1537-
38. Miller's diagnosis was that Davis was an antisocial
personality, and that he also had a psychosexual disorder,
pedophilia, which means that "children are the primary sexual
object of Mr. Davis." H.Tr. at 272-73. The crime was not, in Dr.
Miller's opinion, the product of insanity but instead was the
product of Davis' desire for money; he had chosen the house he did
because it looked like a good place to rob. H.Tr. at 265, 271.
Even after receiving the unequivocally negative report from
Dr. Miller, Tassone persisted in his effort to build a mental state
defense. He successfully moved the court to appoint a neurological
expert, because he "wanted to make absolutely certain that there
was no type of chronic or congenital brain damage or brain
dysfunction that Mr. Davis was suffering from." H.Tr. at 150-51.
As a result of Tassone's efforts, the court appointed Dr. Glenn
Pohlman, a neurologist. After examining, testing, and questioning
Davis in detail, Dr. Pohlman issued a written report finding that
Davis was normal in all respects except for reduced hearing due to
a large amount of ear wax. Otherwise, Dr. Pohlman found Davis had
a "normal neurological examination, a normal neurological history
and...a normal electroencephalogram." 853 F. Supp. at 1537-38.
Even in the face of Dr. Miller's and Dr. Pohlman's reports,
Tassone went further. "Out of an abundance of caution," he moved
the court to appoint yet another expert, a psychologist or another
6
psychiatrist to examine and evaluate Davis. That motion was
denied. H.Tr. at 154. Tassone made that effort even though Davis
had never said anything to indicate he was mentally impaired.
H.Tr. at 128-131.
In spite of all Tassone did, Davis contends that he rendered
ineffective assistance of counsel because he did not produce and
utilize expert opinion testimony, such as that outlined in Dr.
Krop's report. If given an evidentiary hearing, Davis argues he
could prove Dr. Krop's opinion that Davis was insane at the time of
the offense and thereby establish that attorney Tassone rendered
ineffective assistance in this respect. No evidentiary hearing is
necessary to demonstrate that this contention is meritless. First,
we have held more than once that the mere fact a defendant can
find, years after the fact, a mental health expert who will testify
favorably for him does not demonstrate that trial counsel was
ineffective for failing to produce that expert at trial. See,
e.g., Horsley v. State of Alabama , 45 F.3d 1486, 1495 (11th Cir.
1995) ("That experts were found who would testify favorably years
later is irrelevant."); Elledge v. Dugger, 823 F.2d 1439 (11th Cir.
1987). Second, attorney Tassone's futile efforts to develop an
insanity defense in this case exceed the efforts of attorneys in
other cases where we have rejected ineffective assistance claims
relating to insanity defense. See, e.g., Bertolotti v. Dugger, 883
F.2d 1503, 1509-15 (11th Cir. 1989); Stephens v. Kemp, 846 F.2d
642, 652-53 (11th Cir. 1988).
7
Third, and this goes to the prejudice component of the inquiry
as well, Dr. Krop's opinion concerning Davis' mental state is based
upon premises that are clearly false. For example, one of the
premises Dr. Krop bases his opinion on is that Davis "is genuinely
1
unable to recall the offense." Krop Rpt. at 9. That is simply
not true. It is undisputed Davis recounted the crime in detail to
Tassone. Because of his ethical duty not to present a defense
based upon what he personally knew to be a lie, Tassone could not
have used at trial Dr. Krop's opinion, founded as it is on a
falsehood. As Tassone testified, putting on expert testimony that
depended on Davis' statements to the expert that he did not
remember the crime "would have presented a major ethical problem
should that have occurred, on my part." H.Tr. at 225. The duty to
render effective assistance of counsel does not include the duty to
present false or misleading testimony. See Williams v. Kemp, 846
F.2d 1276, 1281 (11th Cir. 1988) ("In light of the admission by
Williams, [his attorney's] decision not to produce contrary
testimony merely fulfilled his ethical obligation to refrain from
producing false or misleading evidence," and did not constitute
ineffective assistance.).
Another false basis of Dr. Krop's opinion about Davis' mental
state at the time of the crime is, in what Dr. Krop described as,
"his lack of motive for committing such an offense." Krop Rpt. at
9. Davis did have a motive for the crime: he had been out of work
1
We cite Dr. Krop’s report, which is attached as Appendix A to
Davis’ habeas petition, as “Krop Rpt.”
8
for two weeks, and he needed money. He picked the house he did
because it looked like it would be easy to rob. H.Tr. at 124-25,
265, 271.
Dr. Krop also based his opinion upon the premise that, "such
an act of violence is absolutely uncharacteristic of his
personality," Krop Rpt. at 9-10, which is characterized by “his
history of nonassertive behavior." Krop Rpt. at 9. Putting aside
the fact that Davis had a history of child molestation )) most
people would think child molestation is assertive behavior )) Davis
previously had been convicted of "robbery, attempted robbery, and
use of a firearm during commission of a felony." Davis v. State,
461 So. 2d 67, 71 (Fla. 1984). The armed robbery conviction was
for holding up a victim making a night deposit at a bank. See
H.Tr. at 124. The attempted armed robbery conviction resulted from
Davis staking out a residence with plans to commit a robbery of the
people who lived there; he had a revolver and stocking mask when
caught before he could commit the crime. See id. at 124-25. Those
convictions were in addition to the involuntary manslaughter
conviction and fifteen-year sentence for which he was on parole at
the time of this crime. See id. at 124. Moreover, on another
occasion, which did not result in a conviction, Davis had robbed an
oil company employee at gunpoint. See id. at 126. He had once
destroyed some machinery at work in a fit of anger, and in an
unrelated episode he had deliberately driven another motorist off
the road. See id. at 85-86. Dr. Krop was either ignorant of the
9
most salient facts about Davis’ behavioral history, or he has a
peculiar definition of “nonassertive behavior.”
Even if Dr. Krop had been available at trial to testify as
indicated in his affidavit, and putting aside for the moment the
ethical obstacles to use of that testimony, Tassone would have been
foolish to use Dr. Krop's testimony. As Tassone stated at the
evidentiary hearing, "I'm not going to put on any testimony if I
think in cross-examination that the state is going to slaughter
that particular witness." H.Tr. at 211. It is readily apparent
from what is in the record that the guilt stage ineffective
assistance claim based upon Tassone's failure to develop and
present an insanity defense is utterly without merit. No
additional evidentiary hearing is necessary to determine that.2
B. THE INEFFECTIVE ASSISTANCE OF
COUNSEL
CLAIM RELATING TO THE HYPNOTIZED WITNESS
The other guilt stage ineffective assistance claim that Davis
presses on appeal concerns attorney Tassone's failure to attempt to
2
Davis and his present counsel complain that the district
court misread the part of his petition involving this claim as
being a mere introduction to other claims. To a large extent, that
is their fault, because they filed a 313-page petition that is far
from a model of clarity. As we have warned before, "Attorneys who
cannot discipline themselves to write concisely are not effective
advocates, and they do a disservice not only to the courts but also
to their clients." Spaziano, 36 F.3d at 1031 n.2. Moreover, if
the district court misinterpreted this claim, Davis and present
counsel should have pointed that out in the nineteen- page motion
to alter or amend that they filed. They did not. Finally, Davis
cannot have been harmed by any failure of the district court to
focus on this claim as a separate claim, because this Court's scope
of review is de novo, we have focused on it as a separate claim,
and we have dealt with it accordingly.
10
exclude the testimony of a witness for the prosecution because she
had been hypnotized to refresh her recollection, and his failure to
attempt to impeach her testimony on that basis. After conducting
an evidentiary hearing on this claim, the district court rejected
it. See 853 F. Supp. at 1525-29.
As for Tassone not attempting to exclude the witness'
testimony, the district court held that it was not professionally
deficient for Tassone to fail to anticipate that the law in Florida
would be changed in the future to bar the admission of hypnotically
induced testimony. See 853 F. Supp. at 1526-28. Not only did the
Florida Supreme Court decision altering the law in that regard come
two full years after the trial of this case, but that decision was
given prospective effect only. See id. at 1527-28. The
correctness of the district court's holding on this issue is
confirmed by our decision in Spaziano. Presented with materially
identical facts, we reached the same holding there the district
court did here. See Spaziano, 36 F.3d at 1038-39.
As for Tassone's failure to attempt to impeach the witness'
testimony because she had been hypnotized, Tassone testified that
if he had attempted to present evidence about the dangers of
hypnotically induced testimony, he would have lost the right to
open and close arguments to the jury. See 853 F. Supp. at 1527.
An attorney who testified as an expert witness for Davis at the
evidentiary hearing indicated that he would have done it
differently, but he conceded that this decision of Tassone’s was
based upon a legitimate tactical consideration. H.Tr. at 260.
11
Moreover, as the district court pointed out, bringing to the jury's
attention the fact that a prosecution witness had been hypnotized
would have run the risk of bolstering that witness' testimony in
the eyes of the jury. See 853 F. Supp. at 1528. We reached the
same conclusion in Spaziano, holding that counsel's strategic
decision not to attempt to impeach a witness on grounds that the
witness had been hypnotized was a reasonable one. See 36 F.3d at
1039-41. That holding applies here.
C. THE GUILT STAGE CLOSING ARGUMENT CLAIMS
Davis claims that in closing argument at the guilt stage the
prosecutor improperly commented on his silence, referred to non-
record evidence, misrepresented the testimony of prosecution
witnesses and the argument of defense counsel, vouched for the
credibility of witnesses, and stated the prosecutor's personal
opinion. These contentions were thoroughly considered and
discussed by the district court, see 853 F. Supp. at 1557-65, and
we agree with its conclusion that Davis is not entitled to habeas
relief based on them. To the extent Davis contends his trial
counsel was ineffective for failing to object to various
prosecutorial comments and arguments, that claim, too, is without
merit.
II. THE SENTENCE STAGE ISSUES
A. THE AGGRAVATING CIRCUMSTANCES JURY
INSTRUCTIONS CLAIM
12
In imposing death sentences upon Davis for each of the three
counts for which he was convicted, the trial court found that five
statutory aggravating circumstances were applicable to all three
murder counts, and that one additional aggravating circumstance was
applicable to the murder count involving the youngest victim. See
461 So. 2d at 71. On direct appeal, the Court upheld the
applicability of the five statutory aggravating circumstances for
all three murders, but held that the sixth one, which had been
found only in the case of the youngest victim's murder, was not
applicable. See id. at 72. The Florida Supreme Court nonetheless
affirmed Davis' death sentences, because "[s]triking one of the
aggravating circumstances leaves five valid ones for each count,
with nothing in mitigation." Id.Davis claims that the jury instructions given on three of the
five statutory aggravating circumstances that were applied in his
case were deficient, thereby rendering those three vague and
overbroad in this case. The three aggravators Davis attacks on
these grounds are: the especially heinous, atrocious or cruel
circumstance; the cold, calculated, and premeditated circumstance;
and the during the course of a felony circumstance.
The district court held that this claim was procedurally
barred, see 853 F. Supp. at 1583-84, and the parties sharply
disagree about the correctness of that holding. However, we need
not reach the hotly disputed procedural bar issue, because as Davis
effectively concedes, relief on this aggravating circumstance jury
instruction claim is due to be denied on other grounds. Involving
13
as it does alleged error occurring at only the advisory jury
sentencing stage, this claim is dependent upon retroactive
application of Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926(1992). We held in Glock v. Singletary, 65 F.3d 878, 890 (11th
Cir. 1995) (en banc), that retroactive application of the Espinosa
decision is barred by the Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060 (1989) doctrine. Therefore, as Davis conceded at oral
argument, the Glock decision forecloses this claim regardless of
whether the claim is procedurally defaulted or has merit. Since
oral argument the Supreme Court has reached the same conclusion
that we did in Glock, holding in Lambrix v. Singletary, 117 S. Ct.
1517, 1524-31 (1997), that Espinosa announced a new rule of law
that does not fit within either of the two exceptions to the Teague
doctrine.3
We are, of course, aware of the Supreme Court’s admonition in
Lambrix that the question of whether a claim is procedurally barred
“ordinarily” should be decided before any Teague issues relating to
that claim are addressed. However, the Supreme Court qualified
that admonition, making it something in the nature of a presumption
instead of an invariable rule. The Court acknowledged that
“[j]udicial economy might counsel giving the Teague question
priority, for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural bar issue involved
3
We withheld our decision in this appeal pending two decisions.
Lambrix was one of them, and Lindh v. Murphy, No. 96-6298, 1997 WL
338568 (U.S. June 23, 1997), was the other.
14
complicated issues of state law.” 117 S. Ct. at 1523. That is the
situation we have. The Teague issue could not be more easily
resolvable against Davis, because the Supreme Court decided
precisely the same issue against habeas petitioners in Lambrix
itself. Given that, and the fact that the procedural bar issues
relating to this particular claim are somewhat complicated,
judicial economy dictates that we rest our decision about the
Espinosa claim on the Teague doctrine, just as the Supreme Court
did in its Lambrix decision. We do so, holding that Davis’
aggravating circumstances jury instruction claim is Teague barred.
B. THE INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM RELATING TO MITIGATING
CIRCUMSTANCES
Davis claims that his trial counsel rendered ineffective
assistance by failing to adequately investigate, develop, and
present mitigating circumstances relating to Davis' mental and
emotional health, and his social-history. The district court held
an evidentiary hearing on this claim, made detailed factfindings
concerning it, and denied the claim. See 853 F. Supp. at 1529-36.
We affirm the denial of relief on this claim for the reasons
discussed at length in the district court’s opinion; we make only
one correction.
Our one correction involves one part of one sentence of the
district court’s opinion. In discussing counsel’s decision to
limit the amount of background evidence presented, the court
referred to “background information which counsel would reasonably
15
want to preclude the jury from hearing,” and it gave as examples
“incidents of pedophilia, prior arrests and convictions.” Id. at
1535. However, as the district court’s opinion itself points out
on the page before the one containing that statement, during cross-
examination of two of the sentence stage witnesses whom counsel did
present, “the prosecutor was able to bring out the fact that
Petitioner previously had been convicted for armed robbery and
twice for involuntary manslaughter.” Id. at 1534. It remains
true, however, that counsel was able to keep from the jury any
mention of Davis’ acts of child molestation.
Davis acknowledges that preventing the jury from learning
about his acts of child molestation “does reflect a strategic
concern,” Appellant’s Br. at 43, but he argues that it was not a
reasonable one. However, his own expert witness at the evidentiary
hearing, Robert Link, disagreed. Although attorney Link testified
that he personally would have put in mitigating background evidence
at the risk of the jury learning about Davis’ child molestation
activities, he also testified that lawyers could reasonably
disagree about that strategic choice. See id. at 1527. Link was
right, attorneys could reasonably disagree over the matter.
Neither strategic choice is outside the wide range of reasonable
professional assistance. See, e.g., Waters v. Thomas, 46 F.3d
1506, 1511-12 (11th Cir. 1995).
C. THE CLAIM THAT THE EVIDENCE WAS
INSUFFICIENT TO SUPPORT THE COLD,
CALCULATED AND PREMEDITATED
AGGRAVATING CIRCUMSTANCE
16
Davis claims that the sentencing court’s reliance upon the
“cold, calculated and premeditated” aggravating circumstance
violated the Eighth Amendment, because no rational factfinder could
find the elements of that circumstance to have been proven beyond
a reasonable doubt. The State persuaded the district court that
this claim was procedurally barred from federal habeas review, see
853 F. Supp. at 1583-84, but it has not persuaded us of that.
On direct appeal, the Florida Supreme Court addressed,
apparently sua sponte, the issue of whether there was sufficient
evidence in the record to support the five aggravating
circumstances the trial court had found. See 461 So. 2d at 71-72.
It held that the evidence was sufficient to support all of the
aggravating circumstance findings, except for one: the one about
the murder having been committed to avoid or prevent an arrest.
The Florida Supreme Court specifically held that the evidence Davis
entered the victim’s home armed with a pistol and rope, which he
used to bind one of the victims, was “sufficient to support the
court’s finding of cold, calculated and premeditated in
aggravation.” Id. at 72. That is a ruling on the merits of the
issue.
It is true, as the district court pointed out, that the state
collateral court subsequently held in Davis’ second Rule 3.850
motion proceeding that this same claim was “time barred and as a
procedurally barred claim that should have, if preserved, been
raised on direct appeal,” 853 F. Supp. at 1584. The district court
also noted, see id., that the Florida Supreme Court affirmed that
17
procedural default holding when Davis appealed from the denial of
his second Rule 3.850 motion, see Davis v. State, 589 So. 2d 896,
898 (Fla. 1991).
The point remains, however, that the Florida Supreme Court
squarely addressed and rejected the merits of this aggravating
circumstance claim on direct appeal. It did so even though Davis
apparently did not raise the issue at trial or on appeal. The
State does not contend that in order to preserve a claim already
rejected on the merits by the Florida Supreme Court, a defendant is
required to raise the claim again in a state collateral proceeding.
Florida law does not require that.
It is settled that once the state courts have ignored any
procedural bar and rejected a claim on the merits SS not in the
alternative but as the only basis of decision SS that claim is not
barred from federal habeas review. See, e.g., Remeta v.
Singletary, 85 F.3d 513, 516 (11th Cir. 1996) (“the Sykes
procedural default rule does not preclude federal habeas review of
a petitioner’s constitutional claim if the state court adjudicates
the federal claim on the merits”); Alderman v. Zant, 22 F.3d 1541,
1549 (11th Cir. 1994) (“should a state court reach the merits of a
claim notwithstanding a procedural default, the federal habeas
court is not precluded from considering the merits of the claim”);
Mann v. Dugger, 844 F.2d 1446, 1448 n.4 (11th Cir. 1988) (en banc)
(“Since the Supreme Court of Florida therefore chose not to enforce
its own procedural default rule, federal habeas review of the claim
is not barred.”). Once a state supreme court on direct review has
18
eschewed a procedural default bar and based its disposition solely
on a rejection of the merits of a claim, no amount of procedural
bar holdings as to that claim in future proceedings will suffice to
bar the claim from federal habeas review.4
Turning now to the merits of this claim, we hold it has none.
In sentencing Davis to death, the trial court made these findings
of fact:
The Defendant killed three innocent
people in the sanctity of their home. He took
the life of Nancy Weiler by beating her about
the head and neck with a pistol and with such
frequency and force as to break not only the
trigger guard but to break the wooden grip and
metal frame of the handle. Her skull was
crushed in several places and the skin of her
face and head was broken and bruised almost
beyond recognition. Any one of most of the
approximately 25 blows would have been
sufficient to kill. The Defendant beat Nancy
Weiler in an atrocious, cruel and brutal
manner and continued to do so even after she
must have lost consciousness.
The Defendant took the wrists of Kristina
Weiler and bound them with rope behind her
back. As she lay on the bed he fired a bullet
into her chest. While helpless, bound and
wounded and kneeling before him, the Defendant
shot her in the head at point blank range and
thus took her life from her.
The Defendant shot Katherine Weiler in
her back as she tried to escape the same
brutality she must have seen the Defendant
inflict on her sister and mother. After she
4
We do not mean to imply that subsequent state court
pronouncements concerning an issue may not be considered in order
to clarify the true nature of an earlier ambiguous holding about
that issue, but here the Florida Supreme Court’s holding on direct
appeal was not of an ambiguous nature. It was an unvarnished
holding on the merits.
19
was dead he beat her with sufficient force to
crush her skull.
No one will ever know, with certainty,
the order of the death of Nancy, Kristy or
Kathy. Nor will we ever know the total extent
of the pain and terror they experienced. Yet
the aftermath of the Defendant’s work leaves
no doubt that the greatest pain and the
starkest terror were suffered by them in their
dying.
Added to the actual physical pain they
each experienced was the horror the second and
third to die experienced in seeing the others
so brutally abused.
. . . .
Homicide is the killing of one human
being by the act, procurement or commission of
another. The Defendant killed each victim in
this case. Prior to doing so he formed a
conscious intent to kill if he were thwarted
or found out in his act of burglary. This
intent was evidenced by taking his father’s
pistol and some rope with him as he entered
the Weiler home. In a cold and calculated and
premeditated manner as to what to do under any
circumstance he prepared to do exactly what he
did - murder. There is or was no pretense of
moral or legal justification as to any of the
deaths he caused.
Those findings of fact are all supported by the evidence and
provide ample basis for finding that the homicide was committed in
a cold, calculated and premeditated manner without any pretense of
moral or legal justification.
D. THE CLAIM CONCERNING THE FLORIDA
SUPREME COURT’S PURPORTED FAILURE TO
CONDUCT A HARMLESS ERROR ANALYSIS
AFTER STRIKING ONE OF THE FIVE
AGGRAVATING CIRCUMSTANCES
20
The Florida Supreme Court held that one of the five
aggravating circumstances the trial court found SS that the homicide
was committed for the purpose of avoiding or preventing a lawful
arrest SS was not applicable, because the evidence failed to meet
the legal standard for that circumstance. See 461 So. 2d at 72.
The court cited for that holding its prior decisions in Riley v.
State, 366 So. 2d 19 (Fla. 1978), and Menendez v. State, 368 So. 2d
1278 (Fla. 1979). Those decisions held that “the mere fact of a
death is not enough to invoke this factor when the victim is not a
law enforcement official,” Riley, 366 So. 2d at 22, “unless it is
clearly shown that the dominant or only motive for the murder was
the elimination of witnesses,” Menendez, 368 So. 2d at 1282.
Davis, of course, has no quarrel with the holding that it was
error to find the aggravating circumstance in this case, but he
does complain about what the Florida Supreme Court did, or failed
to do, about the error. Instead of vacating and remanding for
further sentence proceedings in the trial court, the Florida
Supreme Court affirmed the sentence with this explanation:
“Striking one of the aggravating circumstances leaves five valid
ones for each count, with nothing in mitigation. We therefore
affirm both the convictions and the sentence of death.” 461 So. 2d
at 72.
Davis claims that action by the Florida Supreme Court entitles
him to habeas relief from his sentence under a combination of
Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114 (1992); Stringer
v. Black, 503 U.S. 222, 112 S. Ct. 1130 (1992); Parker v. Dugger,
21
498 U.S. 308, 111 S. Ct. 731 (1991), and Clemons v. Mississippi,
494 U.S. 738, 110 S. Ct. 1441 (1990). The district court did not
address the merits of this claim, but instead held that the claim
was procedurally barred. See 853 F. Supp. at 1582-83. Davis
contests that holding, even though he does not deny that he failed
to raise this specific issue in his rehearing petition to the
Florida Supreme Court or in any of the state collateral pleadings
he filed. Davis puts forward two reasons why his failure to raise
this issue at any time in state court should not bar it from habeas
review.
First, Davis contends that the Florida Supreme Court addressed
this issue on direct appeal, and for that reason would not have
entertained it again thereafter. The fatal flaw in that reasoning
is that it confuses the basis for the claim (the Florida Supreme
Court’s treatment of the erroneous aggravating circumstance) with
the claim itself (that the court’s treatment violated the
Constitution). See 853 F. Supp. at 1582. Davis never suggested to
the Florida Supreme Court or any other state court that it was
error to affirm his death sentence after one of the aggravating
circumstances was found to be unsupported by the evidence. Putting
aside the fact that Davis failed to raise the claim in his
rehearing petition to the Florida Supreme Court, the district court
was correct that he could have raised the claim at least in his
first state collateral proceeding. See id. at 1583.
The second argument Davis makes against application of the
procedural bar in this case is based on Clemons and Sochor. He
22
characterizes those two decisions as not imposing a requirement
that “capital petitioners” present state courts with what he calls
“another challenge to the state supreme court’s actions” underlying
this type of claim. There are two problems with that contention.
The first problem is that both decisions were rendered on direct
appeal, and it is not readily apparent that the independent-and-
adequate state law ground doctrine that confines the Supreme
Court’s jurisdiction in direct appeals from state supreme courts is
coterminous with the procedural default doctrine that limits
federal habeas corpus review. The second problem with Davis’
contention is that we are unconvinced either Clemons or Sochor
stand for the proposition that even on direct review there is no
necessity for raising in the state supreme court any errors in that
court’s treatment of an erroneous aggravating circumstance.
Neither of those two decisions held that. Neither of them focused
on whether a defendant must argue in the state supreme court that
its own action in response to an unsupported aggravating
circumstance was error before that issue can be raised in federal
court. We do not even know that the defendants in Clemons and
Sochor failed to preserve the issue in the state supreme courts.
In view of these circumstances, we will not infer from the direct
appeal decisions in Clemons and Sochor a rule of law applicable to
federal habeas review, especially not a rule contrary to what we
understand procedural default law to be.
23
E. THE SENTENCE STAGE PROSECUTORIAL
ARGUMENT CLAIM
The district court thoroughly discussed and rejected Davis’
claim that the prosecutor’s closing argument at the sentence
hearing violated the Eighth and Fourteenth Amendments, and that his
counsel’s failure to object more extensively to that argument
violated the Sixth Amendment. See 853 F. Supp. at 1569-74. We
affirm the district court’s holdings on these issues for the
reasons set out in its opinion.
F. THE CALDWELL V. MISSISSIPPI CLAIM
Davis contends that prosecutorial comments coupled with
judicial comments and jury instructions combined to diminish the
jury’s sense of responsibility in violation of Caldwell v.
Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985). The district
court held that this claim is not procedurally barred, 853 F. Supp.
at 1555, a holding the State does not contest before us. Turning
to the merits, the district court discussed the relevant law and
facts at some length before rejecting the claim. See id. at 1555-
57.
Instead of supplanting the district court’s explanation of why
Davis’ Caldwell claim fails, we will supplement it. We begin with
the applicable law. As the district court pointed out, two key
decisions setting out Caldwell law are en banc decisions of this
Court issued on the same day in Mann v. Dugger, 844 F.2d 1446 (11th
Cir. 1988) (en banc), and Harich v. Dugger, 844 F.2d 1464 (11th
Cir. 1988) (en banc). The district court reasoned that the facts
24
of the present case made it more like Harich, a case in which the
claim was rejected, than it was like Mann, a case in which the
claim was held to have merit. See 853 F. Supp. at 1557.
We agree with that conclusion and would add to the legal
analysis only an observation about how the law relating to Caldwell
claims has developed since Mann and Harich. In both of those en
banc decisions the Court at least implied that a prosecutorial or
judicial comment or instruction could constitute Caldwell error
even if it was a technically accurate description under state law
of the jury’s actual role in capital sentencing. See Mann, 844
F.2d at 1457; Harich, 844 F.2d at 1475 (plurality opinion).5 Those
implications cannot survive the Supreme Court’s subsequent holdings
that in order “to establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law,” Romano v.
Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 2010 (1994) (quoting
Dugger v. Adams, 489 U.S. 401, 407, 109 S. Ct. 1211, 1215 (1989)).
“The infirmity identified in Caldwell is simply absent” in a case
where “the jury was not affirmatively misled regarding its role in
5
Judge Tjoflat’s opinion in Harich describes him as “specially
concurring,” and refers to Judge Fay’s opinion as “the majority.”
See 844 F.2d at 1475. However, as to the Caldwell issue, Judge
Tjoflat’s opinion was joined by four other judges (Kravitch,
Hatchett, Anderson, and Clark), whereas Judge Fay’s opinion was
joined by only three other judges (Roney, Hill, and Edmondson).
There were two dissents on that issue (Vance and Johnson).
Therefore, the split was 5-4-2, and Judge Tjoflat’s opinion was the
plurality opinion of the en banc court on the Caldwell issue.
25
the sentencing process.” Romano, 512 U.S. at 9, 114 S. Ct. at
2010.
To the extent of any inconsistency between our Mann/Harich
pronouncements and the Supreme’s supervening ones, of course, we
are required to heed those of the Supreme Court. See, e.g.,
Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996); Leach v.
Pan American World Airways, 842 F.2d 285, 286 (11th Cir. 1988).
Thus, it is clear that the references to and descriptions of the
jury’s sentencing verdict in this case as an advisory one, as a
recommendation to the judge, and of the judge as the final
sentencing authority are not error under Caldwell. Those
references and descriptions are not error, because they accurately
characterize the jury’s and judge’s sentencing roles under Florida
law.
There were remarks made during the course of the trial that
considered in isolation would cause concern about whether the
jury’s sense of its actual responsibility in the sentencing process
under Florida law might have been diminished. See 853 F. Supp. at
1556-57. Our decisions, however, teach that such remarks must be
considered in the context of the entire trial. We emphasized that
point in Waters v. Thomas. See 46 F.3d 1506, 1523-24 (11th Cir.
1995) (“Whether [the] two statements viewed out of context might
have undermined the jury’s sense of responsibility is an issue we
need not decide.”) (en banc); see also Harich, 844 F.2d at 1475(plurality opinion) (“[A] proper analysis of a Caldwell claim
26
requires evaluation of how a reasonable juror would have understood
the court’s statements in the context of the entire trial.”).
The district court set out many of the relevant facts
concerning this issue. See 853 F. Supp. at 1556-57. We add some
others drawn from the voir dire process. During voir dire, the
venire persons were death-qualified, see Witherspoon v. Witt, 391
U.S. 510, 517, 88 S. Ct. 1770, 1774 (1968), and the questions they
were asked for that purpose brought home to them the importance of
the jury’s role in sentencing. For example, this colloquy occurred
between the prosecutor and a venire member:
[PROSECUTOR]: And if you went back in
there and in the advisory phase and you were
convinced under that law and the fact that an
appropriate sentence would be death, would you
recommend it? Could you recommend it?
[PROSPECTIVE JUROR]: Didn’t you say,
though, that the Judge would decide what the
penalty was not I?
[PROSECUTOR]: Yes, and I am glad you
brought that up. It’s a two-phase but the
fact that it’s merely a recommendation from
the jury, please don’t think that that’s
unimportant; it is very important. The
recommendation from the jury for or against
the death penalty, the law won’t require you
to do something that is a nullity, it’s
important but it’s not binding on the Judge.
The Judge makes the final decision of life or
death if there is a conviction; do you
understand that?
[PROSPECTIVE JUROR]: Uh-huh.
[PROSECUTOR]: So, it’s still a very
somber responsibility that you have to make a
recommendation. Now, my question is: Could
you recommend death if you believed it was
appropriate under the facts of the law?
27
[PROSPECTIVE JUROR]: If I feel that he is
guilty, I’d vote guilty or not guilty, I can
do that regardless f the consequences.
[PROSECUTOR]: And if you believed that he
deserved the electric chair under the facts,
you would vote for the electric chair?
[PROSPECTIVE JUROR]: Well, I don’t put it
that way.
[PROSECUTOR]: Well, that is the way I
have to put it. I know it’s hard question and
I don’t want you to think I am brow beating
you but they are hard questions because it’s a
serious difficult problem but the question is:
could you vote for death?
[PROSPECTIVE JUROR]: Right at this point
before I know whether he is guilty or not?
[PROSECUTOR]: No. I am not asking you to
make up your mind now; I am not asking you to
make up your mind now whether he is guilty; I
am not asking you to make up your mind if you
would vote death. I am asking you if the
facts and if the law indicate that death would
be the appropriate penalty, could you then
vote for death?
[PROSPECTIVE JUROR]: I guess so. I don’t
know; I don’t really know. I will put it that
way. I don’t really know that that’s fair.
Maybe after it’s all over.
[PROSECUTOR]: But have you an open mind
about it?
[PROSPECTIVE JUROR]: Yes.
Tr. 588-90. Not only did that particular venire person become a
member of the jury, but this colloquy, like others we will quote,
occurred in the presence of the other venire members. Tr. 535,
543-44, 670-71.
Throughout the voir dire process, the prospective jurors were
asked if they “could recommend death in the appropriate case,”
28
“recommend the death penalty if the facts and the law indicate that
the death sentence would be the appropriate sentence,” “follow the
law and the evidence in [the case] and recommend death,” or
“recommend that a man be sentenced to death by electrocution,” and
so forth. Tr. 591-97, 693-700, 745, 748-49, 781. When asked if
she could vote for death, if the facts justified it, one
prospective juror responded as follows:
[PROSPECTIVE JUROR]: That is a hard
question.
[PROSECUTOR]: It’s not intended to be
easy. It is hard. It’s hard to ask and hard
to answer because it’s an unpleasant subject
but could you vote to recommend death if the
facts and the law convince you that it is
justified and authorized under the law, could
you vote to sentence a man to the electric
chair or recommend that?
[PROSPECTIVE JUROR]: I don’t think so.
Tr. 592-93. When another prospective juror indicated some
opposition to the death penalty, this exchange occurred:
[PROSECUTOR]: If the facts and the law,
and Judge Harding kindly interceded a minute
ago and pointed out that he will read you,
tell you the law of the death penalty phase,
if we get to it; if this defendant is
convicted, he will tell you what the law is
and he will tell you basically that there are
eight or nine aggravating circumstances as a
matter of law that you are to consider if they
are present and only you can decide whether
they are present, and mitigating factors that
are present and you weigh those and decide if
the aggravating factors outweigh the
mitigating factors, and the question is: could
you follow that law and could you vote death
if you were convinced under the appropriate
law and evidence that it was appropriate under
the law and the facts?
29
[PROSPECTIVE JUROR]: It’s a somber
responsibility but, under the law, I think I
could.
[PROSECUTOR]: We all feel that way.
Could you do that?
[PROSPECTIVE JUROR]: Yes.
Tr. 596.
Later, another prosecutor asked some other prospective jurors,
who had been put in the jury box in order to finish out the
selection process, about their views on the death penalty. His
questioning included this:
[PROSECUTOR]: Okay. Now, assuming you
did, in fact, find an individual guilty of
first degree murder and then you had to sit
through what we call the penalty phase and
evidence was presented to you and the Court
charged you as to what the law was and the
facts and the law both indicated that death
would be the appropriate sentence, could you
come back out here and could you say that this
defendant, Judge Harding, should be put to
death, could you do that under the appropriate
circumstances?
Tr. 698. Most said yes, but some said no. Tr. 698-700, 737-38,
741-43.
When an additional group of the venire members were put into
the jury box to be questioned, some expressed their opposition to
the death penalty and were questioned about how that would affect
them as jurors. While addressing the group, the prosecutor gave
this explanation to the group and further questioned one venire
person who had earlier indicated some reluctance about whether she
could ever vote for a death sentence:
[PROSECUTOR]: Back to that awful subject
that you have heard so much about which we
30
must talk about; namely, death, the death
penalty.
. . . .
We told you before that the case goes
along and it’s a two-part trial providing a
bifurcated trial and if there is a conviction
of first degree murder of any one of the three
counts of first degree murder, then there will
be a second phase and that second phase would
be solely for the purpose of getting a
recommendation from the jury for either life
or death. The only reason you have for the
second phase.
Now, [prospective juror], that is
important. We say that it is only advisory
but, as I told the jury earlier and told you
all earlier this morning, that doesn’t mean
that it isn’t important and the law as to what
that recommendation is is very somber, very
important and very significant.
Knowing that your recommendation could be
the vote that might cause the defendant to die
in the electric chair, do you believe under
the law and the evidence that the death
penalty was justified under the law and the
evidence, could you cast a vote to put him in
the electric chair and recommend that he die
by electrocution?
Tr. 740-41. Of one venire person, the prosecutor followed up:
[PROSECUTOR]: You wouldn’t under any
circumstances, you would not be able to vote
the determination that that defendant die in
the electric chair, no matter what the
evidence showed in the advisory stage, is that
correct?
[PROSPECTIVE JUROR]: Yes.
Tr. 742.
All of the jurors went through the death-qualification process
during voir dire, and it is one part of the context in which other
statements and descriptions of the jury’s role in the death
31
sentencing process must be considered. We have considered not just
these but all of the statements, remarks, and instructions about
their sentencing role that the jurors heard from the beginning of
the trial until the sentence verdict was returned, and we have
considered them in the context of the entire trial process. Having
done so, we agree with the district court that the jury’s sense of
responsibility for its advisory sentence recommendation was not
undermined; there was no Caldwell violation. See 853 F. Supp. at
1556-57.
III. THE INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL CLAIM
Davis claims that his counsel rendered ineffective assistance
on appeal by failing to raise in the Florida Supreme Court certain
issues relating to his death sentence. After studying the briefs
and the part of the record relating to this issue, we are in
agreement with the district court’s discussion about it, see 853 F.
Supp. at 1548-51, and conclude that Davis’ contentions are without
merit.
IV. CONCLUSION
The district court’s judgment denying the petition for a writ
of habeas corpus is AFFIRMED.
32