Petitioner, Aubrey Dennis Adams, was convicted of first degree murder in a Florida court in 1978. Following the jury's recommendation, the trial judge imposed the death sentence. Direct appeals proved unsuccessful, Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982), as have subsequent petitions in state court seeking post-conviction and habeas corpus relief. Adams v. State, 456 So.2d 888 (Fla.1984). This is an appeal from the district court's denial of the petitioner's federal habeas petition. Adams v. Wainwright, No. 84-170-Civ-Oc-16 (M.D.Fla. Sept. 18, 1984). We affirm.

In March 1978, the body of an eight year old girl was discovered in a remote wooded area near Ocala, Florida. The petitioner's conviction for the young girl's murder was based on circumstantial evidence and incriminating statements he made to investigating officers. Physical evidence found near the body was similar to evidence found in the petitioner's home and automobile. In a written statement, the petitioner admitted that he had offered the victim a ride home from school, she had accepted, and he had driven in another direction. The petitioner remembered "being stopped somewhere and she was screaming and I put my hand over her mouth and she quit breathing." Verbally, the petitioner admitted removing the victim's clothes, using rope to tie her hands, and placing plastic bags over her body. When asked if he had any type of sexual relations with the victim, the petitioner said he thought he had tried but could not do it or could not bring himself to do it. The testimony of the officers indicates that the petitioner had difficulty remembering the details of the killing when questioned.

A. The Petitioner's Mental Competence to Stand Trial and be Sentenced.

The trial court granted a pretrial motion by the defense for an order allowing a private psychiatrist to enter the petitioner's prison and examine him. In a subsequent pretrial hearing on the State's motion for a separate psychological examination, the petitioner's attorney asserted that he knew of no evidence having been presented to the court to suggest incompetency and that, absent such evidence, it would be improper for the court to order an additional examination. The State's motion was denied. The petitioner did not claim mental incompetency or allege an insanity defense at trial. In the presentence report, however, the defense attorney is attributed with the statement that the petitioner had been unable to recall the details of the crime and this had impaired the petitioner's assistance in his defense. Moreover, the petitioner now proffers a psychological evaluation made after his conviction which purports to demonstrate that he suffers from catathymic amnesia, a mental disorder which prevents him from recalling traumatic experiences. Based on this recent evaluation, the petitioner contends that in 1978 he was incompetent to stand trial and be sentenced.

On motion for post-conviction relief, the Supreme Court of Florida summarily held that the petitioner's claim of mental incompetence was procedurally barred because he had failed to argue the claim in direct appeals to the state courts. Adams v. State, supra, 456 So.2d at 890, citing McCrae v. State, 437 So.2d 1388 (Fla.1983). No evidentiary hearing was held in state court to determine whether the petitioner was mentally incompetent at the time of trial and sentencing.

Binding precedent fully supports the petitioner's contention that the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), does not operate to preclude a defendant who failed to request a competency hearing at trial or pursue a claim of incompetency on direct appeal from contesting his competency to stand trial and be sentenced through post-conviction proceedings. See Zapata v. Estelle, 588 F.2d 1017, 1021 (5th Cir.1979); Nathaniel v. Estelle, 493 F.2d 794, 798 (5th Cir.1974); Bruce v. Estelle, 483 F.2d 1031, 1037 (5th Cir.1973). Indeed, as the Supreme Court stated in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." Id. at 384, 86 S.Ct. at 841; Zapata v. Estelle, supra, 588 F.2d at 1021; Bruce v. Estelle, supra, 483 F.2d at 1037. Therefore, the district court below erred in holding that the petitioner was procedurally barred from pursuing a claim of mental incompetency in a federal habeas corpus proceeding.

The district court's opinion attempts to distinguish Pate v. Robinson on factual grounds, noting that Robinson's sanity had been "very much at issue" throughout the criminal proceedings against him, while the petitioner in this case considered but rejected proffering an insanity plea. This factual difference does exist, but the district court's reasoning pretermits the initial conclusion in Pate v. Robinson and ignores subsequent decisions in this Circuit. The Supreme Court in Pate v. Robinson first reasoned that one who is incompetent cannot waive his right to a competency hearing. The secondary basis for its holding was that, "[i]n any event," waiver had not actually occurred because Robinson had made his sanity an issue throughout his trial. Pate v. Robinson, supra, 383 U.S. at 384, 86 S.Ct. at 841. Later decisions in this Circuit have applied the initial rationale of Pate v. Robinson in such a manner as to obviate the need for any inquiry into whether a convicted defendant who is alleging mental incompetency actually waived his right to a competency hearing at the time of his trial. These decisions have squarely held that waiver cannot occur. See Zapata v. Estelle, supra, 588 F.2d at 1021; Nathaniel v. Estelle, supra, 493 F.2d at 798; Bruce v. Estelle, supra, 483 F.2d at 1037.

2. Evidence of Mental Incompetence.

Although the petitioner is not procedurally barred in these habeas proceedings from challenging his mental competency, he is not automatically entitled to a hearing on this claim.1 The legal test for mental competency is whether, at the time of trial and sentencing, the petitioner had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and whether he had "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). As a matter of procedural due process, a criminal defendant is entitled to an evidentiary hearing on his claim of incompetency if he presents clear and convincing evidence to create a "real, substantial and legitimate doubt as to [his] mental capacity ... to meaningfully participate and cooperate with counsel...." Bruce v. Estelle, supra, 483 F.2d at 1043; see also Zapata v. Estelle, supra, 588 F.2d at 1021-22; Nathaniel v. Estelle, supra, 493 F.2d at 798. The standard of proof is high. The facts must "positively, unequivocally and clearly generate" the legitimate doubt. Bruce v. Estelle, supra, 483 F.2d at 1043; see also Pride v. Estelle, 649 F.2d 324, 326 (5th Cir.1981) (requiring "more than a showing by a preponderance of the evidence" that the petitioner might have been incompetent at the time of the state trial).

The district court below found that the petitioner had not presented sufficient evidence to create a "real, substantial, and legitimate doubt" as to his mental competence to stand trial and be sentenced. Therefore, he was not entitled to an evidentiary hearing. In reaching this conclusion, the district court considered the trial transcript and other supporting documents. No live testimony was taken. Our review of findings based on such a record is, nevertheless, constrained by the usual strictures of the clearly erroneous standard. Anderson v. Bessemer City, --- U.S. ----, ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); see Dothan Coca-Cola Bottling Co. v. United States, 745 F.2d 1400, 1402-04 (11th Cir.1984) (choosing the clearly erroneous standard where the lower court considered only transcript of prior trial and other documentary evidence). Under the proper standard of review, we agree with the finding of the district court, though not with its reasoning entirely.

In finding that the petitioner had failed to raise a real, substantial, and legitimate doubt as to his competency to stand trial, the district court noted the statement made by the petitioner's attorney at the pretrial hearing that he then knew of no evidence to suggest the petitioner was incompetent. This statement was made, but its importance is limited by the context. As of the date of the hearing, the psychological testing of the petitioner was not sufficiently complete for the attorney to conclude that no claim of incompetency would be raised. Indeed, the transcript of the hearing clearly reflects that the attorney had not yet determined whether raising such a claim would be appropriate.2 Therefore, the statement itself should be given little weight in deciding whether a doubt as to the petitioner's competency exists. By contrast, it is highly significant that the petitioner's counsel did not later claim during trial or sentencing that the petitioner was in fact incompetent. This failure to raise the competency issue is persuasive evidence that the petitioner's mental competence was not in doubt and therefore he is not entitled to an evidentiary hearing. E.g., Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979).

The district court also criticized the "self-serving" nature of the statement attributed to the petitioner's attorney in the presentencing report to the effect that the petitioner's ability to assist with his defense had been limited because he could not recall the details of the killing. We are not persuaded by this conclusory line of reasoning. More important to our decision to affirm the district court's finding is the limited nature of the statement itself.

While a defendant's inability to remember his participation in a crime may have some bearing on whether he is mentally incompetent, it is possible for a defendant to have no recall of his involvement in a crime and yet fully understand the proceedings against him and cooperate meaningfully with his attorney in his defense. The right not to be tried and sentenced unless mentally competent does not extend so far as to ensure total recall.

Finally, the district court below discounted the recent psychological evaluation diagnosing the petitioner as suffering from catathymic amnesia. As had the Florida Supreme Court on the petitioner's motion for post-conviction relief, the district court concluded that the new psychological evaluation reflected only the petitioner's present condition and shed little light on his condition at the time of trial and sentencing. On appeal, the petitioner argues that the evaluation is not limited in analysis to his present condition, but we find nothing in the record to support this contention. The evaluation does not even appear to have been made a part of the record on appeal, and thus we are unable to consider its content. We cannot say, then, that the district court's finding is erroneous. Having failed to raise a real, substantial, and legitimate doubt as to his competency to stand trial and be sentenced, the petitioner is not entitled to an evidentiary hearing on this claim.

The indictment charged the petitioner with premeditated murder. Felony murder was not alleged. However, the verbal charge given the jury during the guilt-innocence proceedings listed, as "murder in the first degree," both premeditated murder and felony murder, with the latter being defined as killing during the commission of, or an attempt to commit, "rape,3 ... abominable and detestable crime against nature or kidnapping...." The Florida statute prohibiting abominable and detestable crimes against nature had been declared unconstitutional before the petitioner's trial. Franklin v. State, 257 So.2d 21 (Fla.1971). The jury returned a general verdict finding the petitioner guilty of murder in the first degree, without specifying whether the crime was premeditated or whether it simply occurred while the petitioner was committing or attempting to commit one of the enumerated felonies.

In Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931), the Supreme Court held that a conviction cannot be upheld if (1) the jury was instructed that a guilty verdict could be returned with respect to any one of several listed grounds, (2) it is impossible to determine from the record on which ground the jury based the conviction, and (3) one of the listed grounds was constitutionally invalid. Citing Stromberg, the petitioner claims that the trial court's reference to an invalid crime, when coupled with the jury's general verdict, necessitates a reversal.4

The district court below reiterated the Florida court's conclusion as to the sufficiency of the evidence before approaching this claim correctly by examining the jury instructions and the closing arguments made at trial and asking whether, under the circumstances, the jury could only have considered and found premeditated murder. The district court concluded that the record left no uncertainty as to the ground on which the verdict rested. That ground was premeditated murder. After reviewing the transcript of the trial, particularly the closing arguments at the guilt-innocence phase and the trial court's instructions, we agree.

The trial court's reference to the capital felony of killing during the commission of or an attempt to commit rape, a crime against nature, or kidnapping as murder in the first degree appears early in the instructions as part of what were, in essence, statutory definitions.5 The actual and controlling charge came later in the instructions, when the trial court told the jurors that, if the elements of homicide were found, their next task would be to determine its degree. At this point, premeditated murder was the only killing stated to constitute murder in the first degree.6

After instructing the jury that killing during the commission of, or an attempt to commit, rape or kidnapping constituted murder in the first degree, the trial court failed to define the elements of these underlying felonies. The petitioner here contends that the incomplete instruction so infected the guilt-innocence phase of his trial as to violate due process, in that it deprived him of the right to have the jury decide whether each element of the crime had been proved beyond a reasonable doubt.8 See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); cf. Glenn v. Dallman, 686 F.2d 418 (6th Cir.1982) (vacating a conviction where the trial court had omitted in its instructions an essential element of the only crime charged; harmless error rule held inapplicable).

However, since we have already determined that the jury considered and found only premeditated murder, given the particular circumstances of this trial, the incomplete instruction did not deprive the petitioner of his right to have a fully informed jury decide guilt or innocence. The petitioner does not claim that the trial court improperly instructed the jury as to the necessary elements of proof for a finding of premeditated murder. Failing to inform the jury as to the elements of the felonies incorrectly mentioned but not charged in the indictment and not considered or found by the jury does not constitute reversible error.

We hold that the incomplete jury instruction did not so infect the entire sentencing proceeding that the penalty ultimately imposed violates the petitioner's due process rights. See Henderson v. Kibbe, supra, 431 U.S. at 154-55, 97 S.Ct. at 1736-37. However, we reject as a rationale for this holding the broad notion that the merely advisory role of the sentencing jury under Florida law renders any given error in a sentencing proceeding non-constitutional in stature. This approach was recently noted but appropriately not followed by a panel of this Court in Proffitt v. Wainwright, 756 F.2d 1500, 1502 (11th Cir.1985) (citing Spaziano v. Florida, --- U.S. ----, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)).

The jury's role in an advisory sentencing proceeding is critical. A verdict recommending life imprisonment establishes an important set of parameters beyond which the trial judge may exercise his discretion in reaching a sentence of death only if "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

Not every error in instruction, however, will be so prejudicial as to require resentencing. An incomplete instruction is less likely to prejudice the defendant than one which is substantively incorrect. See Henderson v. Kibbe, supra, 431 U.S. at 155, 97 S.Ct. at 1737. The latter misstates the applicable law; the former is consistent with the applicable law but simply fails to set it forth in full detail. Moreover, a claim of prejudice is particularly remote where the defendant did not object to the instruction's lack of completeness when the opportunity arose. Id. Such is the status of the petitioner's claim here. The jury instruction at sentencing was not substantively erroneous, just incomplete. The petitioner's counsel did not object or move for further instructions.

The evidence fully supports the trial court's finding that the murder occurred during the commission of, or an attempt to commit, rape and kidnapping. Under these circumstances, the possibility that the jury would have reached a different verdict and thereby altered the sentencing parameters "is too speculative to justify the conclusion that constitutional error was committed." Id. at 157, 97 S.Ct. at 1738; cf. Westbrook v. Zant, 704 F.2d 1487, 1501 (11th Cir.1983) (Under Georgia law, and "[u]nder the facts in this case, the trial court was required to do no more regarding the applicable statutory aggravating factors than to repeat the exact statutory language.").

In affirming the sentence, the Florida Supreme Court added: (1) the victim knew the petitioner and could have identified him if permitted to live, and (2) the petitioner had hidden the victim's body. Adams v. State, supra, 412 So.2d at 856. The district court below concluded: "The aggravating factor of avoiding arrest was not found in this case simply because the victim's body was hidden;9 rather, the evidence supports the finding that death was preceded by kidnapping and rape and that the victim was murdered to prevent [the petitioner's] discovery and conviction for these felonies." Adams v. Wainwright, supra, No. 84-170-Civ.-Oc-16, Op. at 10-11.

Citing a recent Florida Supreme Court decision, Doyle v. State, 460 So.2d 353 (Fla.1984), in which the court reversed a finding of this same aggravating factor in a rape-murder context, the petitioner asserts that no meaningful basis exists for distinguishing between cases involving a real avoidance motive for killing and cases not involving this motive. Without such a basis, argues the petitioner, the imposition of the death penalty in the present case, to the extent it is based on this aggravating factor, is arbitrary and hence unconstitutional. See Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976).

In holding that the State had not proved the latter aggravating factor beyond a reasonable doubt, the Florida Supreme Court stated in Doyle: "It is a tragic reality that the murder of a rape victim is all too frequently the culmination of the same hostile-aggressive impulses which triggered the initial attack and not a reasoned act motivated primarily by the desire to avoid detection." Doyle v. State, supra, 460 So.2d at 358. Based on this statement, the petitioner argues that the victim's death in this case resulted from an impulsive manual strangulation which was an integral part of the attempted rape of the victim and not a reasoned act motivated by a desire to avoid detection and arrest.

In essence, the petitioner's argument is that by finding the aggravating factor, killing during the commission of actual or attempted rape, a trial court is prevented from finding as an additional aggravating factor that the killing was motivated by a desire to avoid detection and prevent arrest. Doyle, however, did not hold that these two aggravating factors were mutually exclusive in every case involving both murder and rape.

Moreover, unlike Doyle, the present case involves a charge of kidnapping as well as rape. The type of hostile-aggressive impulses associated with rape are not as readily implicated in a kidnapping case. The rape and murder in Doyle occurred as part of a single incident of impulsive violence committed at one location. Under these circumstances, the court was appropriately skeptical of the State's attempt to infer an avoidance motive for killing from the simple fact that a rape had occurred. By contrast, the kidnapping here involved transportation of the victim from one location to another and entailed the commission of deliberate acts to avoid detection.11

These acts resulted in the victim's death. Killing during the commission of kidnapping and killing motivated by a desire to avoid detection of the kidnapping can comprise separate aggravating factors in the same case.12 See, e.g., Stevens v. State, 419 So.2d 1058, 1064 (Fla.1982); Card v. State, 453 So.2d 17, 24 (Fla.), cert. denied, --- U.S. ----, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

We have reviewed the portions of the record relevant to each of these claims, and, applying the test announced by the Supreme Court in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm the denial of habeas corpus relief on this ground. None of the claims involved both professional conduct that was unreasonable under the circumstances and a reasonable probability that, but for the challenged conduct, the result of the particular proceedings would have been different. Id. at ----, 104 S.Ct. at 2064-69, 80 L.Ed.2d at 693-99. The claims were argued in a cursory fashion in the briefs of both parties and deserve only summary treatment here.

First, neither the scope of the investigation of the petitioner's mental competency nor his attorney's decision not to pursue a claim of incompetency prejudiced the outcome of the petitioner's case.14 Before trial, the petitioner's attorney arranged for an examination of the petitioner by a private psychiatrist for the purpose of determining whether an insanity defense could be proffered. This examination uncovered no basis for an incompetency claim.

In any event, no prejudice resulted from the inclusion of these lesser degree crimes as part of the instruction, and hence no prejudice resulted from the attorney's failure to object. In reaching this holding, we are aware that Florida's rules of criminal procedure have been altered since the date of the petitioner's trial to require a trial court to charge only on lesser degrees that are supported by the evidence. See In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981); Fla.R.Crim.P. 3.490.

The petitioner claims that, under the old rules, instructing on lesser degree homicides not supported by the evidence invited jurors to disregard their oaths at the guilt-innocence phase and arbitrarily find guilt of a lesser degree in some cases but not in others, depending upon whether they felt the death penalty was an inappropriate sentence. See Roberts v. Louisiana, 428 U.S. 325, 334-36, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976) (invalidating Louisiana statute that mandated death penalty whenever jury returned a guilty verdict of first degree murder).

The possibility that in another case the jury could, under similar circumstances, find a particular defendant guilty of a lesser degree of homicide and thus preclude any consideration of the death penalty for that defendant does not mean the petitioner in the present case was sentenced to death arbitrarily. The sentencing phase of the petitioner's trial afforded him full opportunity to present mitigating evidence and pleas for mercy. Nevertheless, the jury recommended the death penalty. Not having been prejudiced by the instruction, the petitioner cannot claim that the outcome of his case would have been different had his attorney raised an objection.

Third, from a review of the record it is evident that the attorney did not fail to develop and present in mitigation evidence of the petitioner's mental condition at the time of the murder. As noted by the district court below, several witnesses, including a psychiatrist, testified in relation to the petitioner's state of severe emotional stress. Accordingly, the trial court found as one of three mitigating factors that the murder had been committed while the petitioner was under the influence of extreme mental or emotional disturbance. Clearly, then, the petitioner's attorney provided reasonably effective assistance of counsel on this issue.

In actuality, however, the sentencing instructions given in this case neither expressly nor implicitly foreclosed the jury's ability to exercise mercy and recommend a life sentence even though no mitigating factors were present. To the contrary, after listing and defining the statutory aggravating factors enumerated in Florida's capital punishment statute, and before listing possible mitigating factors and describing their function generally, the trial court stated that the jurors were duty-bound to recommend a sentence of life imprisonment if, in their opinion, the aggravating factors found were not "sufficient" to justify imposing the death penalty.

That sufficient aggravating factors must exist before the death penalty could even be considered an appropriate sentence, thereby triggering the jury's consideration of mitigating evidence, was made clear by three additional references to this requirement elsewhere in the instructions. In sum, the sentencing instructions the trial court gave in this case would encompass the broadest exercise of a jury's discretion in mercifully recommending a life sentence. There simply was no such exercise of discretion here. See Tucker v. Zant, 724 F.2d 882, 891-92 (11th Cir.1984); Westbrook v. Zant, supra, 704 F.2d at 1502-03. Since the instruction was adequate, the failure of the petitioner's attorney to object did not deprive him of effective assistance of counsel.

The jury is presumed to have followed the trial court's express instructions that each aggravating factor found and relied upon in recommending the death penalty be proved beyond a reasonable doubt and that only the evidence presented at the sentencing hearing be considered. The simple assertion that the court's listing of aggravating factors not supported by the evidence made these factors appear to be present and thus misled the jury into concluding that they were indeed present fails to overcome this strong presumption. Since the instruction itself did not result in prejudice, the attorney's failure to object did not constitute ineffective assistance.

Finally, the attorney's failure to object to an instruction which omitted the statement that a tie vote among jurors would mandate a recommendation of life imprisonment did not prejudice the outcome of the sentencing proceeding. A similar claim was rejected by this Court in Henry v. Wainwright, 743 F.2d 761, 763 (11th Cir.1984), because the defendant could not show that the jury was ever equally divided. Likewise, the petitioner here has not established that the jury was in fact split six-to-six. Bound by precedent, we hold that the instruction did not alter the outcome of the petitioner's sentencing proceeding and therefore no prejudice resulted from the attorney's failure to object.

*****