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Larry Eugene MANN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: History of pedophilia and psychotic depressions
Number of victims: 1
Date of murder: November 4, 1980
Date of arrest: 6 days after
Date of birth: June 9, 1953
Victim profile: Elisa Nelson, 10
Method of murder: A single blow to the head with a cement-encased steel pipe
Location: Pinellas County, Florida, USA
Status: Sentenced to death on March 26, 1981. Resentenced to death on January 14, 1983 and March 2, 1990. Executed by lethal injection in Florida on April 10, 2013
 
 

 
 
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Florida Supreme Court

 
opinion 68261 opinion 75952
 
 
opinion SC94885
 
 

 
 

Summary:

At approximately 10:30 a.m., 10-year-old Elisa Nelson was riding her bike to school. She was late for school because she had a dentist appointment that morning, and her mother had given her a note excusing her absence.

Elisa’s bicycle was found later that day in a ditch approximately one mile from Elisa’s school. Her body was found the next day after an extensive seach. She died from a skull fracture possibly caused by a single blow to the head.

The same day that Elisa disappeared, Mann attempted to commit suicide by slashing both of his forearms and stated that he had “done something stupid and needed help.” A month later, Mann asked his wife to retrieve his glasses from his 1957 Chevy pickup truck. Upon doing so, she found a bloodstained note that Elisa’s mother had written to excuse her from school. A friend of Mrs. Mann’s reported this finding to the police and that resulted in a search warrant of Mann’s truck and house. Inside the truck, a bloodstain was found with the same blood type as both Mann and Elisa.

Mann had a history of attempted suicides, pedophilia and psychotic depressions.

Citations:

Mann v. State, 420 So.2d 578 (Fla. 1982). (Direct Appeal)
Mann v. State, 453 So.2d 784 (Fla. 1984). (Direct Appeal - After Resentencing)
Mann v. State, 482 So.2d 1360 (Fla. 1986). (PCR)
Mann v. State, 603 So.2d 1141 (Fla. 1992). (Direct Appeal - After Resentencing)
Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988). (Federal Habeas)

Final / Special Meal:

Fried shrimp, fish and scallops, stuffed crabs, hot butter rolls, cole slaw, pistachio ice cream and a Pepsi.

Final Words:

None.

ClarkProsecutor.org


Florida Department of Corrections

DC Number: 077663
Name: MANN, LARRY E
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: Hazel
Height: 5'11"
Weight: 183 lbs.
Birth Date: 06/09/1953
Initial Receipt Date: 04/06/1981
Aliases: LARRY E MANN, LARRY EUGENE MANN

Current Prison Sentence History:

Offense Date-Offense-Sentence Date-County-Case No.-Prison Sentence Length

11/04/1980
1ST DG MUR/PREMED. OR ATT.
03/26/1981
PINELLAS
8008741
DEATH SENTENCE

11/04/1980
KIDNAP;COMM.OR FAC.FELONY
03/26/1981
PINELLAS
8008741
99Y 0M 0D


Florida executes man for 1980 murder of 10-year-old schoolgirl

Reuters.com

Apr 10, 2013

(Reuters) - Florida executed one of its longest-serving death row inmates on Wednesday for kidnapping and killing a 10-year-old girl in 1980. Larry Eugene Mann, 59, was pronounced dead from a lethal injection at 7:19 p.m. EDT (2319 GMT) at the Florida State Prison in Starke, the Florida Department of Corrections said. A last-minute appeal had been denied shortly before the execution.

Mann, a pedophile who had previously served time in prison for sexual battery, snatched Elisa Nelson from her bicycle as she pedaled to school on November 4, 1980, in the Gulf Coast town of Palm Harbor, according to court documents. He threw the bicycle in a ditch and drove the girl to an orange grove, where he beat her, stabbed her and crushed her head with a concrete-encased pole, trial evidence showed. Elisa had carried a note in her pocket explaining that she was late for school because she had a dental appointment. The blood-stained note was found in Mann's truck.

Mann was convicted of murder and sentenced to die in 1981, then received the death penalty again in 1990 after a federal court granted him a re-sentencing.

In an appeal rejected by the U.S. Supreme Court last week, Mann's lawyers argued that Florida's death penalty law failed to meet evolving standards of decency, in part because it allows a jury to recommend death by a simple majority rather than requiring unanimity. They also said Mann had been arbitrarily chosen for execution from among more than 400 Florida Death Row inmates, 94 of whom had exhausted their appeals.

Since his 1990 re-sentencing, Mann's case had been reviewed by dozens of judges and justices, according to Florida Attorney General Pam Bondi.


Larry Mann executed for Palm Harbor girl's 1980 killing

By Dan Sullivan - TampaBay.com

Wednesday, April 10, 2013

STARKE — Larry Eugene Mann, who crushed a little girl's skull 32 years ago, died Wednesday night as chemicals coursed through his veins. Mann was executed by lethal injection at Florida State Prison for the murder of 10-year-old Elisa Vera Nelson, whom he abducted one morning in 1980 as she rode her bicycle to school in Palm Harbor. He was pronounced dead at 7:19 p.m. He was 59.

Afterward, Jeff Nelson, Elisa's brother, stood in the light of a setting sun outside the prison, joining a crowd of about 50 people who turned out to offer support. Nelson, who was 12 when his sister was killed, thanked authorities for the capture and prosecution of Mann. He also thanked Gov. Rick Scott, who signed Mann's death warrant. For three decades, he said, lawyers have talked about how Mann has changed in prison, how he studied the Bible and prayed and expressed remorse. But no one ever talked about Elisa, he said. She had a cheeky grin and bested a little league team full of boys. She was a cheerleader and dancer who loved to play teacher and tutored neighborhood kids. She was a fun-loving fifth-grader with big blue eyes and shades of gold running through long, blond hair. She loved reading and learning and meeting new people. She tumbled through gymnastic lessons. At home, she hung posters of John Travolta on her bedroom wall. She had a cat named Smokey and a dog named Stupid. Her parents, David and Wendy Nelson, moved to Florida from Michigan in the early 1970s and started a successful construction business.

On the morning of Nov. 4, 1980, Wendy Nelson took her daughter to an orthodontist to be fitted with braces. She wrote a note to excuse Elisa's tardiness from class at Palm Harbor Middle School. Just after 10:30 a.m., Elisa pedaled off to school on her blue and silver bike. Elisa's parents reported her missing later that day and Pinellas sheriff's deputies launched a massive search. Nearly half of Palm Harbor turned out to help, one deputy later testified. Before sunset, a sheriff's helicopter spotted Elisa's bike in a drainage ditch north of the school. The next day, two men searching an isolated, weed-choked orange grove west of County Road 39 found her body beneath an avocado tree. Her throat had been cut, an autopsy showed, but she died from a single blow to the head from a concrete block.

The crime began to unravel after someone phoned a TV station and said authorities should look at Mann. Detectives later learned the call came from one of his neighbors, who had seen him washing dirt off the tires on his 1957 Chevrolet pickup shortly after Elisa went missing. It wasn't the first time Mann had been investigated for a violent crime. In 1973, in Mississippi, he forced his way into an apartment where a woman was baby-sitting a 1-year-old boy. He made the woman commit a sex act, threatening to harm the child if she didn't. He was later arrested and served time in prison. Before that, when he was a teen, Mann kidnapped a 7-year-old girl from a church parking lot and molested her. A forensic exam of Elisa's bike turned up a set of fingerprints under the seat and near the front tire. They belonged to Mann.

But the case's biggest break came a few days later when Mann's wife, Donna, went to his truck to retrieve his glasses. On the front seat, she found Wendy Nelson's note excusing Elisa for being late to school. It was stained with blood. She gave the note to detectives. They searched his truck and found blood and hair matching Elisa's inside the cab. A paint scraping from the rear bumper matched paint from Elisa's bike. And pieces of foam rubber from the front seat matched pieces stuck to Elisa's clothing. Prosecutors theorized that Mann abducted Elisa intending to molest her, but did not go through with it. When she tried to escape, he killed her. A jury convicted him of first-degree murder in April 1981 and recommended death by a 7-5 vote.

But legal errors led him to be resentenced twice — in 1983 and 1990. And appeals kept him alive on death row for more than three decades. Few men on death row had been there longer. In that time, lawyers argued, Mann changed. He corresponded with Sister Loretta Pastva, a nun and professor at Notre Dame College in Ohio, writing her more than 400 letters. "He realizes the seriousness of the thing he did," Pastva testified in a 1998 appellate hearing. "He is very sorry about it. He does not expect anything, any special treatment, but he would wish for some mercy."

Such thoughts stoked the ire of Elisa's surviving family. "It is glaringly apparent that there is something fundamentally flawed with a justice system that takes over 32 years to bring to justice a pedophile who confessed to kidnapping and murdering a 10-year-old girl," Jeff Nelson said. "Several juries of Mann's peers decided that his crime was so heinous that he should die for it. For the last 12,000 days, there have been arguments about pieces of paper that have no bearing on the facts of this case. … But there is never any deliberation about what he did to Elisa in that orange grove on that November morning." Earlier in the day, Mann prepared a written statement. It quoted Bible verse, Romans 6:23: "For the wages of sin is death: but the gift of God is eternal life in Christ Jesus our Lord."

Mann had a last meal of fried shrimp, fish and scallops, stuffed crabs, hot butter rolls, cole slaw, pistachio ice cream and Pepsi.

Twenty-one witnesses stared at their reflections in a rectangular window as the execution team prepared behind a brown curtain. At 7:03 p.m., the curtain rose. Mann lay strapped to a gurney. His bald white head peeked out the end of a white sheet that covered his body. An intravenous tube pierced his left arm. He lifted his head and looked through the window. He leaned back and gazed at the ceiling. A prison official asked if he wanted to say anything. "Uh, no, sir.," Mann said. The chemicals began flowing at 7:04. The witnesses watched in silence. Mann closed his eyes. His chest rose and fell. At 7:07, his mouth slipped open. His cheeks turned ashen. At 7:19, a man in a white coat appeared from behind a curtain. He lifted Mann's eyelids and shined a light. He put a stethoscope to his chest.

It was over in 15 minutes. The curtain closed.

*****

Execution nears for killer of Pinellas girl, possibly linked to more deaths

By Dan Sullivan

Sunday, April 7, 2013

PALM HARBOR — No one doubts what Larry Eugene Mann did the morning of Nov. 4, 1980. It has been well established, through forensic evidence, witness statements and Mann's own words — that he abducted 10-year-old Elisa Nelson as she rode her bicycle to school that Tuesday morning 32 years ago. Mann has never claimed he didn't snatch the blond-haired fifth-grader off a Palm Harbor street. He has never denied taking her to the orange grove where she was killed.

Still, years of legal wrangling has prolonged the dreadful story of one of the worst crimes in Pinellas County history. This week, the final chapter might finally be written. Barring a successful last-minute appeal, Mann will be strapped to a gurney at 6 p.m. Wednesday inside Florida State Prison and injected with a lethal cocktail of chemicals. It will mean justice for Elisa's family. But when the 59-year-old former well-driller draws his final breath, he may take with him knowledge of other murders that remain unsolved.

Two states and more than 500 miles away from the place where Elisa died, authorities in south Mississippi have scoured old case files in recent years, trying to link Mann to three of the area's cold cases from the 1970s. A Mississippi native, Mann lived in Pascagoula in that decade. Despite remarkable similarities to Elisa's case, authorities have never been able to say for certain that he committed any of the murders. "I just can't fathom that he had never done that before," said Pascagoula police Detective Darren Versiga. "Are there things he got away with? Absolutely."

• • •

On Feb. 1, 1973, Rose Marie Levandoski vanished after she left class to use a restroom at St. Martin Junior High School in southern Mississippi. Three weeks later, authorities found the 13-year-old's nude body floating in a river near Biloxi. She had been stabbed to death. In October of that year, Larry Mann forced his way into an apartment on Lanier Street in Pascagoula, where a woman was babysitting a 1-year-old boy, according to police. He grabbed the woman by the hair and forced her to her knees. If you don't give me what I want, Mann told the woman, I will take it from the baby. He forced her to commit a sex act on him. Police later caught up with Mann. He was convicted of sexual battery and burglary and sentenced to prison.

Two years later, Mann was living in a work-release camp, which allowed him limited access to the outside world while he served his sentence. On Sept. 24, 1975, Janie Sanders disappeared after walking home with classmates along Lanier Street in Pascagoula. A wildlife officer found the 16-year-old's body the same day, dumped in the woods near Grand Bay, Ala. She had been raped and stabbed. Even with numerous leads and a handful of other suspects, the Levandoski and Sanders cases both eventually went cold.

In 2009, Pascagoula police, who investigated the Sanders kidnapping, began to re-examine their unsolved cases. Detective Versiga looked for patterns of predatory behavior. He noted the obvious similarities with the Sanders and Levandoski slayings and the December 1978 murder of 20-year-old Debra Gunter, who was kidnapped from her job as a clerk at a Gautier, Miss., convenience store and found stabbed to death five days later. He learned of Mann and studied the Nelson case. "He is a predator," Versiga said. "Predators don't just wake up during the night and say, 'I think I'm going to go kill somebody today.' "

Mann once lived on Lanier Street in Pascagoula, Versiga said, where Sanders was last seen, and where he attacked the woman in the 1973 rape case. Despite exhaustive efforts, the detective was unable to determine if Mann was indeed involved in the other cases. "I have looked at him and I can't say he didn't do it," Versiga said. "He was in jail in '81 and a lot of things stopped after that."

• • •

In his years on death row, Mann has maintained he is no longer the violent sexual predator he was three decades ago. After Gov. Rick Scott signed his death warrant March 1, Mann's legal team filed a lengthy appeal with the state Supreme Court. In it, the attorneys noted Mann's spotless prison record, his status as a revered figure among prison guards and fellow inmates, and his in-depth studies of the Bible. They noted remorse he has expressed for killing Elisa, an act he once described as "the cross on which I am crucified daily."

That is little consolation for Elisa's family, who have called for the death penalty since the day he was charged with her murder. For 32 years, they have watched and waited and hoped as Mann's first execution date was stayed, as his death sentence was twice vacated and reinstated. In the 1980s and 1990s, Elisa's mother, Wendy Nelson, was involved in victim advocacy issues, forming the League of Victims and Empathizers (LOVE). In 1994, she appeared in a campaign advertisement for Jeb Bush during his first run for governor. In the ad, Nelson accused then-Gov. Lawton Chiles of being soft on crime for not signing Mann's death warrant.

This month, the state Supreme Court denied Mann's last appeal. The Nelson family has declined to speak publicly since the latest death warrant was signed. "What we're pushing for is to have the law enforced," Wendy Nelson told a reporter in 1982. "Maybe there will be a little girl alive 10 years from now because of this."

Florida authorities have a sample of Mann's DNA in a database, making links to other crimes possible. Still, answers in the Mississippi cases may never be known. Hurricane Katrina destroyed much of the records and evidence there in 2005, Versiga said. "It would be nice if he decided to give a confession in the last few days here," he said. "He might want to cleanse his soul."


Florida executes man for 1980 murder of 10-year-old schoolgirl

Sun-Sentinel.com

April 10, 2013

(Reuters) - Florida executed one of its longest-serving death row inmates on Wednesday for kidnapping and killing a 10-year-old girl in 1980. Larry Eugene Mann, 59, was pronounced dead from a lethal injection at 7:19 p.m. EDT (2319 GMT) at the Florida State Prison in Starke, the Florida Department of Corrections said. A last-minute appeal had been denied shortly before the execution.

Mann, a pedophile who had previously served time in prison for sexual battery, snatched Elisa Nelson from her bicycle as she pedaled to school on Nov. 4, 1980, in the Gulf Coast town of Palm Harbor, according to court documents. He threw the bicycle in a ditch and drove the girl to an orange grove, where he beat her, stabbed her and crushed her head with a concrete-encased pole, trial evidence showed. Elisa had carried a note in her pocket explaining that she was late for school because she had a dental appointment. The blood-stained note was found in Mann's truck.

Mann was convicted of murder and sentenced to die in 1981, then received the death penalty again in 1990 after a federal court granted him a re-sentencing. In an appeal rejected by the U.S. Supreme Court last week, Mann's lawyers argued that Florida's death penalty law failed to meet evolving standards of decency, in part because it allows a jury to recommend death by a simple majority rather than requiring unanimity. They also said Mann had been arbitrarily chosen for execution from among more than 400 Florida Death Row inmates, 94 of whom had exhausted their appeals.

Since his 1990 re-sentencing, Mann's case had been reviewed by dozens of judges and justices, according to Florida Attorney General Pam Bondi.


Florida man executed in girl's 1980 slaying

By Brendan Farrington MiamiHerald.com

April 10, 2013

STARKE, Fla. -- Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces. Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980. Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke. He was 59.

The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal. The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began. There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them. Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher. He said she was a Girl Scout who would take in stray pets and donated money she earned to charity. She was a cheerleader who loved to dance and sing.

Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County. He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school. He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base. He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed." Earlier, Nelson's wife Debbie grasped his arm as Mann's sentence was carried out. Asked by the execution team leader if he had any final words, Mann said, "Uh,no sir." Elisa's parents, David and Wendy Nelson, watched in silence. Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.

Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.

In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid." They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote. While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals. His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death. Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days - over three times her entire life - making a mockery of our legal system," he said.

Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann.

Mann woke up at 6 a.m. and had his final meal at 10 a.m, including fried shrimp, fish and scallops, stuffed crabs, ice cream and a soda. His only visitors were his two lawyers and a spiritual adviser. His mood was calm and somber in the hours leading up to the execution time, said Department of Corrections spokeswoman Ann Howard. While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.

Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."


Larry Eugene Mann

Inmate: Mann, Larry
DC#: 077663

Last Action
08/09/02 USDC 02-1439 Habeas Corpus
08/16/02 USDC 02-1439 Case administratively closed
11/18/04 USDC 02-1439 Case reopened
01/18/05 USDC 02-1439 Amended
10/19/06 USDC 02-1439 Response
11/10/10 USDC-M 02-1439 Petition denied
12/09/10 USDC-M 02-1439 Motion to alter judgment filed
12/17/10 USDC-M 02-1439 Response filed
01/21/11 USDC-M 02-1439 Motion denied
02/22/11 USDC-M 02-1439 Application for Certificate of Appealability was filed
01/11/08 FSC 08-62 3.851 Appeal filed
05/27/08 FSC 08-62 Initial brief filed
06/30/08 FSC 08-62 Answer brief filed
02/06/09 FSC 08-62 Disposition affirmed
02/22/11 USCA 11-10855 Habeas Appeal filed
04/16/07 CC 8008741 (RS) 3.851 Motion filed
09/21/07 CC 8008741 (RS) Amended
11/21/07 CC 8008741 (RS) 3.851 denied
11/26/07 CC 8008741 (RS) SC

Last Updated: 2011-06-28 12:28:07.0

Case Summary

MANN, Larry Eugene (W/M)
DC# 077663
DOB: 06/09/53

Sixth Judicial Circuit, Pinellas County, Case# 80-8741
Sentencing Judge: The Honorable Philip A. Federico
Attorneys, Trial: Susan F. Schaeffer & Patrick D. Doherty – Private
Attorney, Direct Appeal: David A. Davis – Assistant Public Defender
Attorney, Collateral Appeals: Marie-Louise Parmer & Leslie Scalley – CCRC-M

Date of Offense: 11/04/80
Date of Sentence: 03/26/81
Date of Resentence (I): 01/14/83
Date of Resentence (II): 03/02/90

Circumstances of the Offense:

At approximately 10:30 a.m. on 11/04/80, 10-year-old, Elisa Nelson was riding her bike to school. She was late for school because she had a dentist appointment that morning, and her mother had given her a note excusing her absence. Elisa’s bicycle was found later that day in a ditch approximately one mile from Elisa’s school. A search party, which included police officers and community members, was initiated. Elisa’s body was found on 11/05/80. Elisa died from a skull fracture possibly caused by a single blow to the head. A cement-encased steel pipe was found lying next to the body. There were two lacerations approximately 3.5 and 4.5 inches along the girl’s neck. The medical examiner could not discern if the lacerations were made before or after the child’s death, but they were not the cause of death. There were no signs of molestation on the body.

The same day that Elisa disappeared, Larry Mann attempted to commit suicide by slashing both of his forearms. The police were summoned to help, and Mann stated to them that he had “done something stupid and needed help.” Mann was taken to the hospital were the doctor ruled that Mann had made a serious attempt to end his life. On 11/08/80, Mann asked his wife to retrieve his glasses from his 1957 Chevy pickup truck. Upon doing so, Mrs. Mann found the bloodstained note that Elisa’s mother had written to excuse her from school. A friend of Mrs. Mann’s reported this finding to the police and that resulted in a search warrant of Mann’s truck and house. Inside the truck, a bloodstain was found with the same blood type as both Mann and Elisa. On 11/10/80, Mann was arrested. Prior to the above incident, Mann had previously attempted suicide at least three or four times. Mann also has a history of pedophilia and psychotic depressions.

Trial Summary:

11/18/80 Defendant indicted on the following charges: Count I: First-Degree Murder, Count II: Kidnapping
11/20/80 Defendant entered a written plea of not guilty
03/19/81 Defendant found guilty on both counts
03/20/81 A majority of the jury recommended the death penalty.
03/26/81 The defendant was sentenced as follows: Count I: First-Degree Murder – Death, Count II: Kidnapping – 99 years to run consecutive to Count I.
09/02/82 Trial remanded to Circuit Court for resentencing by FSC
01/14/83 Order denying advisory jury panel
01/14/83 Defendant resentenced as follows: Count I: First-Degree Murder – Death Count II: Kidnapping – 99 years to run consecutive to Count I
04/02/88 Trial remanded to Circuit Court for resentencing by the USCA 11th Circuit
02/06/90 Upon advisory sentencing, the jury, by a 9-3 majority, voted for the death penalty.
03/02/90 Defendant was resentenced to death on Count I, First-Degree Murder.

Appeal Summary:

Florida Supreme Court – Direct Appeal
FSC# 60,569
420 So. 2d 578
05/04/81 Appeal filed
09/02/82 FSC affirmed the conviction but vacated death sentence
11/03/82 Rehearing denied
12/07/82 Mandate issued

Florida Supreme Court – Direct Appeal (RS 1)
FSC# 63,438
453 So. 2d 784
03/25/83 Appeal filed
05/24/84 FSC affirmed the conviction and sentence
08/30/84 Rehearing denied
10/12/84 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari
USSC# 84-5632
469 U.S. 1181
10/22/84 Petition filed
01/14/85 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8741
01/30/86 Motion filed
01/31/86 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 68,261
482 So. 2d 1360
02/01/86 Appeal filed
02/01/86 FSC affirmed trial court denial of the postconviction relief. The rehearing was denied.
02/10/86 Mandate issued

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 68,262
482 So. 2d 1360
02/01/86 Petition filed
02/01/86 Petition and rehearing denied
02/10/86 Mandate issued

United States District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 86-135
02/03/86 Petition filed
02/19/86 Petition denied

United States Court of Appeals, 11th Circuit – Petition for Habeas Corpus
USCA# 86-3182
817 F.2d 1471
03/19/86 Appeal filed
05/14/87 USCA denied relief for the conviction but reversed the sentence and remanded the case for resentencing
09/10/87 Vacated previous opinion and petition for rehearing in banc granted
12/14/87 Case reheard
04/21/88 USDA denied relief for the conviction but reversed the sentence and remanded the case for resentencing

United States Supreme Court – Petition for Certiorari filed by the State
USSC# 87-2073
489 U.S. 1071
06/19/88 Petition filed
03/06/89 Petition denied

Florida State Supreme Court – Direct Appeal (RS II)
FSC# 75,952
603 So. 2d 1141
05/04/90 Appeal filed
04/02/92 FSC affirmed the conviction and sentence
08/27/92 Revised opinion and rehearing denied
09/28/92 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari
USSC# 92-6757
506 U.S. 1085
11/25/92 Petition filed
01/19/93 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8471
04/28/94 Motion filed
04/22/96 Motion denied in part and evidentiary hearing granted
03/27/97 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 90,452
697 So. 2d 511
04/30/97 Appeal filed
06/25/97 Appeal dismissed

State Circuit Court – 3.850 Motion
CC# 80-8741
07/07/97 Motion filed
07/29/98 Motion denied on most issues but an evidentiary hearing was ordered
12/01/98 Evidentiary hearing held
01/13/99 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 94,885
770 So. 2d 1158
02/15/99 Appeal filed
09/28/00 FSC affirmed the trial court’s denial of the 3.850 Motion
10/31/00 Rehearing denied
11/27/00 Mandate issued

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 00-2602
794 So. 2d 595
12/20/00 Petition filed
07/12/01 Petition denied
09/05/01 Rehearing denied

United States Supreme Court – Petition for Writ of Certiorari
USSC# 01-7092
536 U.S. 962; 122 S. Ct. 2669; 153 L. Ed. 2d 843
11/28/01 Petition filed
06/28/02 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8471
08/06/02 Motion filed
10/22/02 Motion denied

United States District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 02-1439
08/09/02 Petition filed
08/16/02 Administratively closed
11/18/04 Case reopened
01/18/05 Petition amended
11/10/10 Petition denied
12/09/10 Motion to Alter Judgment filed
01/21/11 Motion denied
02/22/11 Certificate of Appealability filed

Florida Supreme Court – 3.850 Appeal
FSC# 03-394
868 So.2d 524
03/17/03 Appeal filed
02/02/04 FSC affirmed the trial court’s denial of the 3.850 Motion
04/26/04 Rehearing denied

State Circuit Court – 3.851 Motion
CC# 80-8741
04/16/07 Motion filed
09/21/07 Amended Motion filed
11/21/07 Motion denied

Florida Supreme Court – 3.851 Appeal
FSC# 08-62
01/11/08 Appeal filed
02/06/09 Disposition affirmed

United States Court of Appeals – Habeas Appeal
USCA# 11-10855 (Pending)
02/22/11 Appeal filed

Death Warrant:
01/07/86 Death Warrant signed by Governor Bob Graham
02/03/86 United States District Court, Middle District, granted a stay of execution

Clemency Hearing:
11/20/85 Clemency hearing denied

Factors Contributing to the Delay in Imposition of Sentence:
The main factor that has contributed to the delay in this case in the fact that Mann has been resentenced twice. Additional factors are the number of appeals that have been filed in addition to the 3.850 Motion that was filed on 04/28/94 was pending for three years and a Petition for Writ of Habeas Corpus that was pending for eight years in the United States District Court, Middle District.

Case Information:

Mann filed a Direct Appeal to the Florida Supreme Court on 05/04/81. Mann contended that the trial court improperly allowed into evidence the bloodstains found in his truck due to the fact that the blood type matched both him and the victim. The Court ruled that the trial court properly admitted this evidence and found the conviction free from substantive error. The conviction was affirmed. In regard to his sentencing, the Court found that the trial court improperly applied the aggravating factors of prior conviction of a felony involving violence and the homicide to have been committed in a cold, premeditated manner. The Court vacated the sentence and remanded the case to the trial court for a new sentencing proceeding without a jury.

Mann was resentenced to death by the Circuit Court on 01/14/83. He filed a Direct Appeal after resentencing to the Florida Supreme Court on 03/25/83. Mann contended that the Court’s original opinion barred the state from presenting additional evidence at the resentencing. The Court found no error and affirmed the sentence of death.

Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 10/22/84. The petition was denied on 01/14/84. Governor Graham signed a Death Warrant for Mann on 01/07/86. A 3.850 motion and a stay of execution were filed to the Circuit Court on 01/30/86. The motion and the stay of execution were denied on 01/31/86. On 01/31/86, Mann filed for a stay of execution pending the appeal on 01/31/86, the stay was denied on the same day. On 02/01/86 Mann filed a 3.850 appeal, a Petition for Writ of Habeas Corpus, and a stay of execution to the Florida Supreme Court. Mann’s main claim was ineffective trial counsel because of his attorney’s failure to object to statements made by the prosecutor during closing arguments of the penalty phase. The Court ruled that these comments did not constitute a reversible error. The Court denied the habeas and the stay and affirmed the trial court’s denial of the 3.850 motion on 02/01/86. No rehearing was allowed and a mandate was issued on 02/10/86.

On 02/03/86, Mann filed a petition for Writ of Habeas Corpus with the United States District Court, Middle District. The District Court granted the stay of execution on 02/03/86, but denied the Habeas on 02/19/86.

On 03/19/86, Mann filed Habeas Appeal to the United States Court of Appeals, Eleventh Circuit. Mann raised only one issue in reference to his conviction. He states that he was involuntarily absent from the jury’s presence when they were allowed to view the crime scene, which violated his rights under the 6th, 8th, and 14th Amendments. The USCA found this to be a harmless error and denied all relief as to his conviction. In regard to his sentence, Mann raised five issues. Three did not entitle Mann to relief, but the claim that the court diminished the jury’s sense of responsibility in imposing the death sentence entitled Mann to relief in the form of a resentencing proceeding. Due to this finding, the USCA stated that the need to render a comment on the fifth issue was moot. The sentence was reversed and the case was remanded to the circuit court for a new jury sentencing proceeding on 05/14/87. On 09/10/87 the previous opinion was vacated and a rehearing en banc was scheduled. The case was reheard en banc on 12/14/87, and a new opinion was issued on 04/02/88 again reversing the sentence and remanding the case to the circuit court for re-sentencing.

The State filed a Petition for Writ of Certiorari to the United States Supreme Court on 06/19/88. The petition was denied on 03/06/89. On 02/06/90, a jury recommended the death penalty by majority. Mann was resentenced to death on Count I, Murder in the First Degree on 03/02/90. Mann filed a Direct Appeal to the Florida Supreme Court on 05/04/90. The Court affirmed the sentence of death on 04/02/92. The rehearing was denied and a revised opinion was issued on 08/27/92. The Court again affirmed the sentence of death. A mandate was issued on 09/28/92. Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 11/25/92. The petition was denied on 01/19/93.

A 3.850 Motion was filed to the Circuit Court on 04/28/94. The motion was denied in part and an evidentiary hearing was granted. The motion was denied on 03/27/97. A 3.850 Appeal was filed in the Florida Supreme Court on 04/30/97. The appeal was dismissed and CCRC was directed to file an amended 3.850 motion within ten days on 06/25/97. An amended 3.850 Motion was filed to the Circuit Court on 07/07/97. The motion was granted in part and an evidentiary hearing was granted on 07/29/98. The evidentiary hearing was held on 12/01/98 and the motion was denied on 01/13/99. A 3.850 Appeal was filed in the Florida Supreme Court on 02/15/99. Mann raised ten issues. The Court found five to be procedurally barred and the remaining issues without merit. On 09/28/00, they affirmed the trial court’s denial of the 3.850 Motion. The rehearing was denied on 10/31/00, and the mandate was issued on 11/27/00.

Mann filed a Petition for Writ of Habeas Corpus on 12/20/00 to the Florida Supreme Court. The State claimed that the Florida Rule of Appellate Procedure 9.140 bars Mann’s Petition for Writ of Habeas Corpus. The Court did not bar the petition under Rule 9.140, but stated that as of 01/01/02, all petitions for extraordinary relief must be filed simultaneously with the initial brief appealing the denial of a rule 3.850 Motion. The Court accepted the Petition and addressed Mann’s five issues. The claims raised were either without merit, rejected, or procedurally barred; therefore, the Court denied the petition on 07/12/01. The rehearing was denied on 09/05/01. Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 11/28/01. The petition was denied on 06/28/02. Mann filed a 3.851 Motion to the State Circuit Court on 08/06/02. The motion was denied on 10/22/02.

On 08/09/02, Mann filed a Petition for Writ of Habeas Corpus to the United States District Court, Middle District. It was administratively closed on 08/16/02 due to pending cases in the Circuit Court. The case was reopened on 11/18/04. The petition was amended on 01/18/05. On 11/10/10, the petition was denied. A Motion to Alter Judgment was filed on 12/09/10, and it was denied on 01/21/11. A Certificate of Appealability was filed on 02/22/11. Mann filed a 3.850 Appeal to the Florida Supreme Court on 03/17/03. The Court affirmed the trial court’s denial of Mann’s 3.850 Motion. On 04/16/07, a 3.851 motion was filed with the State Circuit Court. Mann amended this motion on 09/21/07. This successive motion was denied 11/21/07. On 01/11/08, Mann filed a 3.851 Appeal to the Florida Supreme Court. On 02/06/09, the Florida Supreme Court affirmed disposition of the State Circuit Court. Mann filed a Habeas Appeal in the United States Court of Appeals on 02/22/11. This case is currently pending.

FloridaCapitalCases.state.fl.us


Mann v. State, 420 So.2d 578 (Fla. 1982). (Direct Appeal)

Defendant was convicted before the Circuit Court, Pinellas County, Philip A. Federico, J., of first-degree murder, with capital punishment imposed, and defendant appealed. The Supreme Court held that: (1) although defendant and victim had same blood type and enzymes, evidence that several bloodstains found at scene matched those found on seat of defendant's truck was relevant; (2) although evidence at sentencing phase of Mississippi burglary prosecution showed that during burglary defendant had committed sexual battery on an occupant that conviction did not constitute an aggravating circumstance of prior conviction of a felony involving use of threat or violence of person; (3) findings in regard to death sentence should be of unmistakable clarity; and (4) trial court improperly found homicide to have been committed in a cold, calculated, premeditated manner. Conviction affirmed; sentence vacated for new sentencing proceeding. Alderman, C.J., concurred in part and dissented in part with an opinion in which Adkins and Boyd, JJ., concurred.

PER CURIAM.

This is an appeal from a conviction of first-degree murder and a sentence of death. We have jurisdiction FN1 Art. V, § 3(b)(1), Fla.Const., and affirm the conviction but vacate the sentence.

On November 4, 1980 ten-year-old Elisa Nelson was abducted while bicycling to school after a dentist's appointment. Her bicycle was found later that day, and searchers found her body the following day. She died from a skull fracture and had been stabbed and cut several times. The afternoon of the 4th Mann attempted to commit suicide. The police took him to a hospital where he stayed several days. On November 8th Mann's wife, while looking in his pickup truck for his eyeglasses, found a bloodstained note written by Elisa's mother explaining her daughter's tardiness because of the dentist's appointment. The police obtained a warrant to search Mann's truck and home and arrested him on the 10th.

The jury convicted Mann of first-degree murder and recommended the death penalty. The trial court agreed with the recommendation, finding four aggravating factors FN2 and, possibly, one mitigating circumstance. FN3 On appeal Mann alleges one trial error and seven sentencing errors. FN2. Prior conviction of violent felony; felony murder; heinous, atrocious, and cruel; and cold, calculated, and premeditated. FN3. Psychotic depression and paranoid feelings of rage.

The claimed trial error is that the trial court should not have allowed into evidence the fact that several bloodstains found at the crime scene and on the seat of Mann's truck matched the bloodtype of and had the same type of enzymes as the victim. Mann agrees that such evidence would normally be admitted as relevant, but in this case his bloodtype and type of enzymes are the same as those of the victim. He argues, therefore, that this evidence tends to prove nothing, particularly since he presented evidence that he had, prior to the homicide, bled profusely in the truck from an injury. He argues that, since it is equally as likely that the blood was his as that of the victim, the bloodstains in the truck were irrelevant and should have been excluded.

The court properly admitted this evidence. Relevant evidence is evidence tending to prove a material fact and is admissible, except as provided by law. §§ 90.401, 94.402, Fla.Stat. (1979). The bloodstained note had been found in the truck; the fact of blood in the truck had some relevance whether it came from the victim or from Mann. If it were the victim's, it was evidence of her or her body being in the truck; if Mann's, it could explain the blood on the note. Either theory tended to prove some connection between Mann and the victim. In addition to this claimed trial error we have independently reviewed the record to assure ourselves of the propriety of the conviction. We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it. Mann's main arguments center upon the imposition of the death penalty. His first contention is that the trial judge allowed inadmissible testimony in connection with a prior felony conviction in Mississippi to be introduced into evidence, compounded that error when he found that Mann had been convicted of a burglary during the course of which he used violence, and then used that fact as an aggravating factor in his sentencing order.

One of the aggravating circumstances that a trial judge may consider in determining whether or not to impose the death penalty is set out in section 921.141(5)(b), Florida Statutes (1979): “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Mann had been convicted in Mississippi of the crime of burglary, an offense that, standing alone, would not fall within the foregoing definition. Lewis v. State, 398 So.2d 432 (Fla.1981). See Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

The facts adduced at the sentencing phase of the trial showed that during that burglary the defendant committed a sexual battery upon the occupant of the house he burglarized. Had he been convicted of that sexual battery, the aggravating factor would apply. We must determine whether on sentencing it is proper, in an effort to prove conviction of a prior felony involving the use or threat of violence, to show what actually transpired when the conviction itself was for a crime which, by itself, is not a crime involving the use of violence. Must the conviction itself have inherently included a prior jury's determination of violence, or is it enough to show a prior conviction and let the sentencing jury find, based upon the evidence, whether that prior conviction included violence? Section 921.141(5)(b) does not contain the “during which” language utilized by the trial judge. We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence. The record of Mann's conviction, as presented to this Court, does not disclose a conviction of a crime of violence. We hold that a prior conviction of a felony involving violence must be limited to one in which the judgment of conviction discloses that it involved violence.FN4 On the record in this case the trial judge improperly found prior conviction of a felony involving violence. FN4. Such as a conviction under § 810.02(2)(a), Fla.Stat.

Another area of concern is the trial judge's attention to Mann's evidence in mitigation. This is particularly significant because it relates to the properly found aggravating circumstance of the crime being especially heinous, atrocious, and cruel. There is frequently a significant connection between the grossness of a homicide and the perpetrator's mental condition. A psychiatrist testified that Mann's mental condition was of such a nature that he was under the influence of extreme mental or emotional disturbance when he committed this atrocity and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. § 921.141(6)(b), (f). Although this witness was cross-examined, his opinions were neither rebutted nor contradicted by another witness. The trial judge's reference to the testimony is:

The only mitigating circumstance apparent to the Court which is based solely upon the opinion of Dr. Alfred Fireman, a local psychiatrist, is that the defendant suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges. From this we are unable to discern if the trial judge found that the mental mitigating circumstances did not exist. If so it appears that he misconstrued the doctor's testimony. On the other hand, he may have found them to exist and weighed them against the proper aggravating circumstances. We, however, cannot tell which occurred. The trial judge's findings in regard to the death sentence should be of unmistakable clarity so that we can properly review them and not speculate as to what he found; this case does not meet that test.

We also find that the trial court improperly found the homicide to have been committed in a cold, calculated, premeditated manner. § 921.141(5)(i). The state's evidence failed to support finding this aggravating circumstance. See Jent v. State, 408 So.2d 1024 (Fla.1981). We find Mann's other sentencing challenges to be without merit.

The conviction is affirmed, but the sentence is vacated. The trial court is directed to conduct a new sentencing proceeding without a jury. It is so ordered. OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur. ALDERMAN, C.J., concurs in part and dissents in part with an opinion, with which ADKINS and BOYD, JJ., concur.

ALDERMAN, Chief Justice, concurring in part, dissenting in part.

I concur with the affirmance of Mann's conviction for first-degree murder, but I dissent to the reversal of his death sentence and the remand for a new sentencing hearing. I believe the trial court properly found the aggravating circumstance that Mann was previously convicted of a felony involving the use or threat of violence to the person. This previous crime was described by the trial court as follows:

In 1973 the defendant was convicted of the crime of burglary in Mississippi during the course of which, through threats and actual physical force, he had the victim perform fellatio upon him resulting in his ejaculation in her mouth. That victim, Deborah Richards (now Deborah Johnson), was produced by the State to testify in the penalty phase of this trial as to the above facts. The force used involved choking, hair pulling and throwing the victim across the room. The defendant was sentenced to nine (9) years imprisonment and was paroled after serving four (4) years.

Although burglary will not necessarily be a crime of violence as contemplated by this aggravating circumstance, in the present case the State proved beyond a reasonable doubt that the felony of burglary for which Mann was previously convicted involved “the use or threat of violence.” The trial court, in its findings in support of the death penalty, clearly delineated an adequate factual basis for a finding of this aggravating circumstance. I disagree with the majority's holding that this aggravating circumstance was improperly found to exist. It is not a necessary predicate to this aggravating circumstance that the judgment of conviction of the prior felony disclose that it involved violence as suggested by the majority. Rather, it is sufficient that the State prove beyond a reasonable doubt, as it did in this case, that the defendant was previously convicted of another felony and that while committing that felony the defendant used or threatened to use violence to another person.

The majority acknowledges that the trial court properly found as aggravating circumstances that the capital felony committed by Mann was especially heinous, atrocious, or cruel and that the murder was committed while Mann was engaged in a kidnapping. The majority, however, expresses concern about the trial court's attention to Mann's evidence in mitigation. It notes that there is frequently a significant connection between the grossness of a homicide and the perpetrator's mental condition. In this case, the trial court, in support of its finding that this murder was especially heinous, atrocious, or cruel, explained that the victim, a 10-year-old girl, sustained a 3 1/4-inch cut on the right side of her neck and a 4 1/2-inch cut on the left side of her neck, which cuts produced great pain and severe bleeding and that the victim was conscious for at least several minutes before elapsing into unconsciousness due to loss of blood. The court further stated that death was produced as the result of a massive skull fracture caused by blunt trauma. This was a proper finding. The heinousness, atrociousness, or cruelness of Mann's acts is determined on the basis of what Mann did and its effect on the victim. Diminished mental capacity does not abrogate this aggravating factor. A legally sane but mentally ill defendant who commits an especially heinous, atrocious, or cruel murder will have this aggravating factor weighed against him even though his mental illness contributed to the heinousness, atrociousness, or cruelness of his actions. Evidence of his mental condition is only to be considered in determining whether a mitigating circumstance is proven. Such evidence is not relevant in determining whether the murder is especially heinous, atrocious, or cruel.

In the present case the trial court considered the evidence offered in mitigation as to defendant's mental or emotional disturbance and expressly found as the sole mitigating factor that Mann suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges. It then weighed this mitigating factor against the aggravating factors and found that the aggravating factors far outweighed the mitigating.

Even if the trial court's finding that this murder was committed in a cold, calculated, and premeditated manner was not proven beyond a reasonable doubt by the State, as the majority holds, the elimination of this aggravating factor from the weighing process does not require a reversal of the death sentence. The court validly found that Mann had been previously convicted of another felony involving the use or threat of violence to the person, that the murder was committed while Mann was engaged in a kidnapping, and that the murder was especially heinous, atrocious, or cruel. These aggravating circumstances, coupled with the jury's recommendation of death, are more than sufficient to outweigh the very weak mitigating circumstance found in this case and to warrant imposition of the death penalty. This case should not be remanded for resentencing.

I not only would affirm Mann's conviction but also would affirm his sentence of death. ADKINS and BOYD, JJ., concur.


Mann v. State, 453 So.2d 784 (Fla. 1984). (Direct Appeal - After Resentencing)

Defendant was convicted in the Circuit Court, Pinellas County, Philip A. Federico, J., of first-degree murder, with capital punishment imposed, and defendant appealed. The Supreme Court, 420 So.2d 578, affirmed conviction but vacated sentence and remanded for new sentencing proceeding. On remand, the Circuit Court again sentenced defendant to death, and he appealed. The Supreme Court held that: (1) evidence was sufficient to support finding of aggravating circumstance of previous conviction of violent felony; (2) introduction of additional evidence at resentencing was proper; and (3) finding that three established aggravating circumstances outweighed single mitigating circumstance supported death sentence. Affirmed.

PER CURIAM.

A jury convicted Mann of first-degree murder and kidnapping and recommended the death penalty. The trial court sentenced Mann to death for the murder and to ninety-nine years for the kidnapping. On appeal we affirmed the convictions, but vacated the death sentence and remanded for resentencing. Mann v. State, 420 So.2d 578 (Fla.1982). On remand the trial court conducted a new sentencing proceeding without a jury and again sentenced Mann to death. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution and affirm the death sentence.

In Mann's original sentencing proceeding the state introduced a copy of a conviction showing that Mann had been convicted of burglary in Mississippi. The state also presented evidence (testimony of the victim) to show that Mann committed a sexual battery upon the occupant of the house he burgled. Relying on this conviction and supporting evidence, the trial court found that the aggravating circumstance of previous conviction of a violent felony had been established. § 921.141(5)(b), Fla.Stat. (1979). On appeal we held that the trial court had erroneously found this aggravating circumstance because burglary is not a crime of violence on its face. 420 So.2d at 580. We also held that the trial court had improperly found the establishment of another aggravating circumstance and that we could not tell what the trial court found regarding the mitigating evidence that Mann presented. We therefore vacated the sentence and remanded for resentencing.

On resentencing the trial court deleted the second improper aggravating factor and specifically found in mitigation that Mann suffered from psychotic depression and feelings of rage. The court also again found that the prior Mississippi conviction established the aggravating factor of previous conviction of a violent felony. We hold that this aggravating circumstance has now been established.

Besides relying on the evidence presented in the first sentencing proceeding, at resentencing the state introduced a copy of a Mississippi indictment charging Mann with burglary both with the intent to commit unnatural carnal intercourse and that he did commit that crime against a named female person. Mann now claims that our first opinion precluded the state from presenting additional evidence. We disagree. Our remand directed a new sentencing proceeding, not just a reweighing. In such a proceeding both sides may, if they choose, present additional evidence. Moreover, as we stated previously: “We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence.” Id. at 581. The state remedied this omission on resentencing, and the proof-the indictment, the conviction, and the victim's testimony-establishes a prior conviction of a violent felony.

In aggravation the trial court also again found the murder to have been committed during the course of a kidnapping and to have been especially heinous, atrocious, and cruel. He found that the three established aggravating circumstances outweighed the single mitigating circumstance and again sentenced Mann to death. Compare Adams v. State, 412 So.2d 850 (Fla.1982) (eight-year-old girl strangled, mitigating circumstances of emotional disturbance outweighed by aggravating circumstances). We find no error and affirm the sentence.

It is so ordered. ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


Mann v. State, 482 So.2d 1360 (Fla. 1986). (PCR)

Petitioner, who was scheduled for execution, sought postconviction relief. The Circuit Court, Pinellas County, Philip A. Federico, J., denied petitioner's motion for relief. Defendant appealed, and filed petition for habeas corpus in the Supreme Court. The Supreme Court held that: (1) evidentiary hearing was not required on petition for postconviction relief; (2) trial judge did not abuse his discretion by not having oral argument on postconviction relief petition; (3) it was not appropriate in collateral attack on death sentence to attempt to collaterally attack petitioner's prior conviction of a crime of violence in a foreign jurisdiction; and (4) it was proper to fail to delay execution of sentence prior to ruling in that jurisdiction on collateral attack on the prior conviction. Order denying postconviction relief affirmed; habeas corpus denied; stay of execution denied.


Mann v. State, 603 So.2d 1141 (Fla. 1992). (Direct Appeal - After Resentencing)

Conviction for murder and kidnapping was affirmed, but sentence of death was reversed by the Florida Supreme Court, 420 So.2d 578. Following reimposition of death penalty, Florida Supreme Court affirmed, 453 So.2d 784. Petition for habeas corpus was denied by the United States District Court for the Middle District of Florida, Elizabeth A. Kovachevich, J., and appeal was taken. The Court of Appeals, 817 F.2d 1471, 828 F.2d 1498, 844 F.2d 1446, reversed and remanded with instructions to set aside death sentence unless state afforded new sentencing proceeding. Defendant was sentenced to death in the Circuit Court, Pinellas County, James R. Case, C.J., and he appealed. The Supreme Court held that: (1) detective's testimony was harmless on remorse issue, even if it was comment on right to remain silent; (2) prosecutor's closing argument that psychologist suggested that defendant's actions were more excusable because he was “child molester” and “pervert” was permissible; and (3) any error in instruction on felony-murder aggravator of murder being committed during kidnapping was harmless. Affirmed.

PER CURIAM.

Larry Mann appeals his death sentence imposed on resentencing. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm.

A jury convicted Mann of kidnapping and first-degree murder in the death of a ten-year-old girl, and the trial court sentenced him to death. This Court affirmed the conviction, but remanded for resentencing. Mann v. State, 420 So.2d 578 (Fla.1982).FN1 On remand the trial court again sentenced Mann to death, and this Court affirmed. Mann v. State, 453 So.2d 784 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). After the signing of his death warrant in 1986, Mann filed a motion for postconviction relief with the trial court and a petition for writ of habeas corpus with this Court. This Court affirmed the trial court's denial of relief and denied the habeas petition. Mann v. State, 482 So.2d 1360 (Fla.1986). Mann received a stay of execution in the federal system, however, and the circuit court of appeal eventually decided that his jury had been misinformed as to its role in sentencing and directed that he be resentenced. Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989). FN1. The facts are set out in this original opinion.

Numerous witnesses testified at the new penalty phase. Among other people, the lead detective of the investigation and several technicians testified as to the circumstances of the crime. The medical examiner described the victim's injuries and told the jury that she died from a skull fracture after being cut and beaten. Mann had been convicted of burglary in Mississippi, and his victim testified to the circumstances of that crime to prove that it was a crime of violence. Several family members and other people testified in Mann's behalf, describing his life, how they thought he had grown as a person since being imprisoned, and his expressions of remorse for committing this murder. A psychologist opined that Mann is an alcoholic and a pedophile but had no brain damage. She also thought that the statutory mental mitigators FN2 should be applied to Mann. On cross-examination she stated that Mann abducted the victim because he wanted to molest her. In rebuttal the prosecution presented a psychologist, who testified that Mann is a pedophile and substance abuser, that he is antisocial, and that the mental mitigators did not apply in this case. Two other witnesses testified that they received no indication that Mann was drunk the morning he committed this crime.

FN2. The mental health mitigators are: “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance” and “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” § 921.141(6)(b), (f), Fla.Stat. (1989).

After hearing all of the testimony, the jury recommended that Mann be sentenced to death. In his written findings the trial judge found that Mann had a prior violent felony conviction, that he committed this murder during the commission of a felony, and that this murder was especially heinous, atrocious, or cruel. The judge found that no statutory mitigators had been established, but that the following nonstatutory mitigators had been: Mann suffered from psychotic depression and feelings of rage against himself because of strong pedophilic urges; Mann had been an exemplary inmate; he had a long history of alcohol and drug dependency; he had demonstrated great remorse; he had developed his artistic talents; and he had maintained a relationship with his family and friends. Characterizing these mitigators as “unremarkable,” however, the judge found that they did not outweigh the aggravators and that the death penalty was appropriate.

In response to a question on cross-examination the detective who investigated this case stated: “We went [to the hospital] to question Mr. Mann and, of course, there was no statement given.” Mann argues that this answer was an impermissible comment on his right to remain silent and that it undermined the cornerstone of his mitigating evidence, i.e., his remorse. Considering the circumstances that prompted the comment, we do not think so, but, assuming the statement constituted a comment on silence, cf., Jackson v. State, 522 So.2d 802 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 153 (1988), it was harmless. Mann's wife testified that she was not sure of Mann's remorse until after his death warrant was signed in 1986. Two of his former attorneys testified to Mann's being remorseful, but they only met him after the death warrant had been signed. The trial judge verbally concluded that the warrant triggered Mann's remorse, but found and considered that remorse as a nonstatutory mitigator. Thus, there is no reasonable possibility that the detective's statement contributed to Mann's sentence, and it was harmless beyond reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

During closing argument, the prosecutor talked about the defense psychologist's testimony and stated: “She is arguing and suggesting to you on the witness stand because this man is a child molester and a pervert, that his actions are somehow more excusable than a person that is not a child molester and a pervert.... This is actually the best she can do.” Mann now claims that this argument turned his being a pedophile into an improper nonstatutory aggravator and denigrated his psychologist's opinion that the statutory mental health mitigators applied to him. We disagree.

As we have stated before: “The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). It is clear from the record that the prosecutor made these statements to negate the psychologist's conclusion that the statutory mental mitigators applied to Mann. Merely arguing a conclusion that can be drawn from the evidence is permissible fair comment. After hearing the evidence and the instructions, it was the duty of the judge and jury to decide the weight to be given to the evidence and testimony, and there was no impropriety here. FN3 Cf. Lucas v. State, 568 So.2d 18 (Fla.1990); Williamson v. State, 511 So.2d 289 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988); Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988).

FN3. Mann relies on Garron v. State, 528 So.2d 353 (Fla.1988), where we found the prosecutor's attempts to discredit insanity as a legal defense to be reversible error. Garron, however, is factually distinguishable from the instant case because no such misbehavior occurred here.

Mann argues that the instruction on previous conviction of a violent felony improperly relieved the prosecution of having to prove that aggravator beyond a reasonable doubt, but did not object to the instruction on this ground in the trial court. This argument, therefore, has not been preserved for appeal. Tillman v. State, 471 So.2d 32 (Fla.1985). There is also no merit to this claim because the evidence showed the Mississippi burglary to have been a crime of violence. No improper shifting of the burden of proving an element of a crime occurred here,FN4 nor did any error. FN4. Hildwin v. Florida, 490 U.S. 638, 640, 109 S.Ct. 2055, 2056-57, 104 L.Ed.2d 728 (1989) (an aggravator “is not an element of the offense but instead is ‘a sentencing factor that comes into play only after the defendant has been found guilty.’ ”) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986)).

In instructing the jury on the felony-murder aggravator of murder being committed during a kidnapping, the judge stated: In order to establish kidnapping, the State must prove the following three elements beyond a reasonable doubt. (1) Larry Eugene Mann forcibly, secretly or by threat confined, abducted or imprisoned Elisa Nelson against her will. (2) That Larry Eugene Mann had no lawful authority. (3) Larry Eugene Mann acted with intent to inflict bodily harm upon or to terrorize the victim or facilitate the commission of a lewd and lascivious or indecent assault on a child under the age of 14.

Mann now argues that the underlined portion of paragraph (3) was improper because it conformed to neither the allegations nor the proof. This argument overlooks his psychologist's testimony that Mann kidnapped the girl because he wanted to molest her. In any event, any error in this instruction is harmless because Mann had been convicted of kidnapping the victim, and the judge and jury knew of that conviction. After the jury made its recommendation, the trial judge received numerous letters urging him to resentence Mann to death as well as letters from Mann's family requesting mercy. At sentencing he put those letters in the record, gave the defense and the prosecution time to read them, and stated: “The Court will make it perfectly clear, then, at this point, that whatever conclusions the Court has reached in this matter, [were] reached independent of any correspondence that I have received from either position; either from [Mann's] family or from the victim's or friends of the victim's [family].” Mann now argues that the letters advocating the death sentence constituted improper victim-impact evidence and that the court's ex parte consideration of the letters violated Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).FN5 As previously stated, “judges are routinely exposed to inadmissible or irrelevant evidence but are disciplined by the demands of the office to block out information which is not relevant to the matter at hand.” Grossman v. State, 525 So.2d 833, 846 n. 9 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). The judge made it clear that he did not rely on these letters in sentencing Mann. Thus, there is no merit to this claim. FN5. Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977), held that due process is violated “when the death sentence was imposed, at least in part, on the basis of information which [the defendant] had no opportunity to deny or explain.”

There is likewise no merit to Mann's argument that the judge's finding regarding remorse is not sufficiently clear. The judge clearly and unambiguously found and considered Mann's remorse in mitigation. Mann's real complaint is that the judge did not give greater weight to his remorse, but the weight to be given a mitigator is left to the trial judge's discretion. Campbell v. State, 571 So.2d 415 (Fla.1990). Mann was originally adjudged guilty of first-degree murder on January 14, 1983. The instant judge executed a second judgment on March 2, 1990, and Mann argues that, because his original conviction has never been disturbed, the second judgment is unnecessary. We agree that the judgment dated January 14, 1983 is still valid and that the second one is extraneous.

Because we find no reversible error, we affirm Mann's sentence of death. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.


844 F.2d 1446

Larry Eugene MANN, Petitioner-Appellant,
v.
Richard L. DUGGER, Secretary, Florida Department of
Corrections, Respondent- Appellee.

No. 86-3182.

United States Court of Appeals,
Eleventh Circuit.

April 21, 1988.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, and EDMONDSON, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

Petitioner, Larry Eugene Mann, is a Florida death row inmate. In 1981, petitioner was convicted of first degree murder and kidnapping.1 At the conclusion of the sentencing phase of petitioner's trial, the jury recommended the death penalty. The trial judge followed the recommendation and entered a sentence of death.

On direct appeal, the Supreme Court of Florida affirmed the conviction but vacated the sentence and ordered a new sentencing proceeding without a jury.2 Mann v. State, 420 So.2d 578 (Fla.1982). The trial court reimposed the death penalty, and, on direct appeal from the resentencing, the supreme court affirmed. Mann v. State, 453 So.2d 784 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). Petitioner thereafter moved the trial court to vacate the judgment and sentence pursuant to Fla.R.Crim.P. 3.850. He also petitioned the supreme court for writ of habeas corpus. The trial court denied the Rule 3.850 motion, and the supreme court affirmed, at the same time denying petitioner's request for habeas relief. Mann v. State, 482 So.2d 1360 (Fla.1986).

Petitioner then instituted this habeas corpus action in the district court. In his petition, he attacked his conviction and sentence on several grounds. As one ground for attacking the sentence, petitioner contended that he was entitled to resentencing under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because the prosecutor and trial judge had made comments that had likely diminished the sentencing jury's sense of responsibility with respect to its role in the sentencing process.3 The district court denied relief on all grounds. We reverse and hold that petitioner is entitled to relief on the Caldwell claim.4 We accordingly order the district court to grant the writ setting aside petitioner's death sentence unless the state provides petitioner a new sentencing proceeding before a newly empaneled jury.

II.

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is best understood in the context of its facts. The case involved a challenge to a death sentence imposed pursuant to the Mississippi capital sentencing scheme. Mississippi affords capital defendants a bifurcated trial. After the jury renders a verdict of guilty, the trial court convenes a sentencing proceeding before the same jury. The jury then renders a verdict of either death or life imprisonment, and the trial court enters a sentence in accordance with the jury's verdict. If the jury renders a verdict of death, the sentence is automatically reviewed by the Supreme Court of Mississippi. Miss.Code Ann. Sec. 99-19-105; Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976). In conducting its review, that court applies a presumption of correctness to the sentencing jury's verdict. Caldwell v. State, 443 So.2d 806, 816 (Miss.1983) (Lee, J., dissenting). Under Mississippi law, the supreme court may overturn a death sentence in three situations only: (1) where the sentencing jury's verdict was so arbitrary as to be "against the overwhelming weight of the evidence," Williams v. State, 445 So.2d 798, 811 (Miss.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985); (2) where the evidence of statutory aggravating circumstances, required for the imposition of the death penalty, was so lacking that a "judge should have entered a judgment of acquittal notwithstanding the verdict," id.; or (3) where the sentence is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Id.

In Caldwell, the petitioner, Bobby Caldwell, contended that his death sentence was invalid under the eighth amendment because the sentencing jurors had been led to believe that the responsibility for determining the sentence rested not with them but with the appellate court that would later review the case. The facts supporting the claim were as follows. In closing argument before the sentencing jury, defense counsel entreated the jurors to show mercy and remarked that "[y]ou are the judges and you will have to decide [Caldwell's] fate. It is an awesome responsibility, I know--an awesome responsibility." Caldwell, 472 U.S. at 324, 105 S.Ct. at 2637. The prosecutor then sought to downplay the effect of counsel's argument by telling the jurors that "your decision is not the final decision ... [y]our job is reviewable." Id. at 325, 105 S.Ct. at 2637. Defense counsel objected to this statement, but the trial court overruled the objection, commenting that "it [is] proper that the jury realizes that it is reviewable automatically as the death penalty commands." Id., 105 S.Ct. at 2638.

The United States Supreme Court held that Caldwell's sentence was invalid under the eighth amendment because it rested on "a determination made by a sentencer who ha[d] been led to believe that the responsibility for determining the appropriateness of the defendant's death rest[ed] elsewhere." Id. at 328-29, 105 S.Ct. at 2639. The Court reasoned that the eighth amendment's need for reliability in capital sentencing required that capital sentencers "view their task as a serious one of determining whether a specific human being should die at the hands of the State." Id. at 329, 105 S.Ct. at 2640. The jurors, having been told that their decision was "automatically reviewable," were misled into believing that their judgment call on the evidence would be reviewed de novo. Thus, because the jury's sense of responsibility had likely been diminished as a result of the comments by the prosecutor and the court, the sentencing decision did not meet the standard of reliability required by the eighth amendment. Id. at 341, 105 S.Ct. at 2646.

In the present case, the attorney general argues that Caldwell is inapplicable because the Florida sentencing jury, unlike the Mississippi sentencing jury, is not the actual sentencer under the state capital punishment scheme. Under the Florida statutory scheme, the jury weighs the evidence of aggravating and mitigating circumstances presented during the sentencing phase of the defendant's trial, and then makes a recommendation of either life imprisonment or death. Fla.Stat. Sec. 921.141(2) (1985).5 That recommendation, the attorney general asserts, is always subject to rejection by the trial judge, who must under Fla.Stat. Sec. 921.141(3) independently weigh the aggravating and mitigating circumstances before entering a sentence. Because the trial judge plays this role in sentencing, the attorney general argues, Caldwell error does not occur when the jury is told that sentencing responsibility lies elsewhere.

At first blush, the attorney general's argument has some appeal. It is true that the trial court independently weighs the aggravating and mitigating circumstances and actually enters the sentence. It is also true that the statute describes the sentencing jury's function as that of "render[ing] an advisory opinion to the court." The legislature's use of the term "advisory," considered in a vacuum, could be viewed as evincing a legislative intent that the sentencing jury play a role which, in the final analysis, is in fact largely meaningless. In common parlance, we often associate the term "advisory" with the term "nonbinding"; "advice," in the minds of most people, is something that a decisionmaker may follow or reject as he or she sees fit. In analyzing the role of the jury, however, we cannot operate in a vacuum. Rather, we must look to how the Supreme Court of Florida, the final interpreter of the death penalty statute, has characterized that role.

A.

A review of the case law shows that the Supreme Court of Florida has interpreted section 921.141 as evincing a legislative intent that the sentencing jury play a significant role in the Florida capital sentencing scheme. See Messer v. State, 330 So.2d 137, 142 (Fla.1976) ("[T]he legislative intent that can be gleaned from Section 921.141 [indicates that the legislature] sought to devise a scheme of checks and balances in which the input of the jury serves as an integral part."); see also Riley v. Wainwright, 517 So.2d 656, 657 (Fla.1987) ("This Court has long held that a Florida capital sentencing jury's recommendation is an integral part of the death sentencing process."); Lamadline v. State, 303 So.2d 17, 20 (Fla.1974) (right to sentencing jury is "an essential right of the defendant under our death penalty legislation"). In the supreme court's view, the legislature created a role in the capital sentencing process for a jury because the jury is "the one institution in the system of Anglo-American jurisprudence most honored for fair determinations of questions decided by balancing opposing factors." Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); see also McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (the jury's recommendation "represent[s] the judgment of the community as to whether the death sentence is appropriate"); Chambers v. State, 339 So.2d 204, 209 (Fla.1976) (England, J., concurring) (the sentencing jury "has been assigned by history and statute the responsibility to discern truth and mete out justice").

To give effect to the legislature's intent that the sentencing jury play a significant role, the Supreme Court of Florida has severely limited the trial judge's authority to override a jury recommendation of life imprisonment. In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), the court held that a trial judge can override a life recommendation only when "the facts [are] so clear and convincing that virtually no reasonable person could differ." That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge's attempt to override a jury recommendation of life. See, e.g., Wasko v. State, 505 So.2d 1314, 1318 (Fla.1987); Brookings v. State, 495 So.2d 135, 142-43 (Fla.1986); McCampbell v. State, 421 So.2d 1072, 1075-76 (Fla.1982); Goodwin v. State, 405 So.2d 170, 172 (Fla.1981); Odom v. State, 403 So.2d 936, 942-43 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Neary v. State, 384 So.2d 881, 885-88 (Fla.1980); Malloy v. State, 382 So.2d 1190, 1193 (Fla.1979); Shue v. State, 366 So.2d 387, 390-91 (Fla.1978); McCaskill v. State, 344 So.2d 1276, 1280 (Fla.1977); Thompson v. State, 328 So.2d 1, 5 (Fla.1976).

The attorney general argues that although the trial court may be required under Tedder to give deference to a jury recommendation of life, it is in no way similarly bound to give deference to a jury recommendation of death. Since a Florida sentencing jury can therefore never play a substantive role in imposing a death sentence, the attorney general contends, Caldwell can never be implicated in a Florida case.

One problem with this argument is that its central premise--that the sentencing jury plays no substantive role in imposing a death sentence--is contradicted by numerous pronouncements by the Supreme Court of Florida. The issue of what deference is due a jury recommendation of death would arise most directly when the jury recommends death and the trial judge rejects the recommendation and imposes life imprisonment. Such cases never appear before the supreme court, however, because the state cannot appeal a sentence of life imprisonment. See State v. Dixon, 283 So.2d 1, 8 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Nonetheless, the issue has arisen in cases where the jury recommends death, the trial court imposes death, and the defendant contends on direct appeal that the trial court improperly weighed the aggravating and mitigating circumstances. In one such recent case, Smith v. State, 515 So.2d 182 (Fla.1987), the supreme court held that "[a]lthough we find that one of the five aggravating circumstances relied on by the trial court was invalid, we approve the death sentence on the basis that a jury recommendation of death is entitled to great weight and there were no mitigating circumstances to counterbalance the four valid aggravating circumstances." Id. at 185 (emphasis added). In LeDuc v. State, 365 So.2d 149 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979), the supreme court stated that "[t]he primary standard for our review of death sentences is that the recommended sentence of a jury should not be disturbed if all reasonable data was considered, unless there appear strong reasons to believe that reasonable persons could not agree with the recommendation." Id. at 151 (citing Tedder ) (emphasis added). See also Middleton v. State, 426 So.2d 548, 552-53 (Fla.1982) (approving trial court's imposition of death sentence and reiterating in conclusion that jury had recommended death), cert. denied, 463 U.S. 1230, 103 S.Ct. 3573, 77 L.Ed.2d 1413 (1983); Francois v. State, 407 So.2d 885, 891 (Fla.1982) (same), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); Enmund v. State, 399 So.2d 1362, 1373 (Fla.1981) (same), rev'd on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); cf. Grossman v. State, 525 So.2d 833, 839 n. 1, 13 Fla.L.Weekly 127, 133 n. 1 (Fla. 1988) ("We have ... held that a jury recommendation of death should be given great weight."). On one occasion, the supreme court went so far as to suggest that the trial judge's role in sentencing is merely to articulate findings in support of the jury's sentencing decision. See Provenzano v. State, 497 So.2d 1177, 1185 (Fla.1986) ("[T]he trial judge does not consider the facts anew. In sentencing a defendant, a judge lists reasons to support a finding in regard to mitigating or aggravating factors."), cert. denied, --- U.S. ----, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987).

The issue of what deference is due a jury recommendation of death has also arisen in cases where the jury recommends death, the trial judge imposes death, and the defendant claims on direct appeal that the trial judge gave undue deference to the jury's recommendation. The Supreme Court of Florida has consistently indicated in such cases that no error occurs when the trial judge gives due weight to the jury recommendation of death. In Garcia v. State, 492 So.2d 360 (Fla.), cert. denied, --- U.S. ----, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986), for instance, the judge stated in his instructions to the jury that their recommendation "would not be overruled unless there was no reasonable basis for it." Id. at 367. The jury returned a recommendation of death and the trial court entered a sentence of death. On direct appeal, the defendant claimed, citing the trial court's instructions to the jury, that the judge had mistakenly given weight to the jury's recommendation of death. The supreme court disagreed and affirmed the death sentence: "There is no error; this is the law. It is appropriate to stress to the jury the seriousness which it should attach to its recommendation and, when the recommendation is received, to give it weight." Id. (emphasis added). See also Rogers v. State, 511 So.2d 526, 536 (Fla.1987) (no merit to appellant's contention that trial court gave undue weight to jury's recommendation of death where record reflects that "the court has weighed relevant factors and reached its own independent judgment about the reasonableness of the jury's recommendation."), cert. denied, --- U.S. ----, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988).6

The supreme court's understanding of the jury's sentencing role is illustrated by the way it treats sentencing error. In cases where the trial court follows a jury recommendation of death, the supreme court will vacate the sentence and order resentencing before a new jury7 if it concludes that the proceedings before the original jury were tainted by error. Thus, the supreme court has vacated death sentences where the jury was presented with improper evidence, see Dougan v. State, 470 So.2d 697, 701 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986), or was subject to improper argument by the prosecutor, see Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). The supreme court has also vacated death sentences where the trial court gave the jury erroneous instructions on mitigating circumstances or improperly limited the defendant in his presentation of evidence of mitigating circumstances. See Thompson v. Dugger, 515 So.2d 173, 175 (Fla.1987); Downs v. Dugger, 514 So.2d 1069, 1072 (Fla.1987); Riley v. Wainwright, 517 So.2d 656, 659-60 (Fla.1987); Valle v. State, 502 So.2d 1225, 1226 (Fla.1987); Floyd v. State, 497 So.2d 1211, 1215-16 (Fla.1986); Lucas v. State, 490 So.2d 943, 946 (Fla.1986); Simmons v. State, 419 So.2d 316, 320 (Fla.1982); Miller v. State, 332 So.2d 65, 68 (Fla.1976). In these cases, the supreme court frequently focuses on how the error may have affected the jury's recommendation. See, e.g., Riley, 517 So.2d at 659 ("If the jury's recommendation, upon which the judge must rely, results from an unconstitutional procedure, then the entire sentencing process necessarily is tainted by that procedure."); Valle, 502 So.2d at 1226 ("[U]nless it is clear beyond a reasonable doubt that the erroneous exclusion of evidence did not affect the jury's recommendation of death, the defendant is entitled to a new jury recommendation on resentencing."); Dougan, 470 So.2d at 701 (death sentence vacated and resentencing ordered where supreme court could not "tell how the improper evidence and argument may have affected the jury"); Teffeteller, 439 So.2d at 845 (death sentence vacated and resentencing ordered where supreme court could not "determine that the needless and inflammatory comments by the prosecutor did not substantially contribute to the jury's advisory recommendation of death"). Such a focus would be illogical unless the supreme court began with the premise that the jury's recommendation must be given significant weight by the trial judge. Once that premise is established, a focus on how the error may have affected the jury's recommendation makes sense: if the jury's recommendation is tainted, then the trial court's sentencing decision, which took into account that recommendation, is also tainted.

Finally, we note that the Supreme Court of Florida has ordered resentencing in cases where the trial court excused a prospective juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See, e.g., Chandler v. State, 442 So.2d 171, 173-75 (Fla.1983). Under Witherspoon and its progeny, a state violates a capital defendant's right to trial by impartial jury when it excuses for cause a prospective juror who has voiced conscientious objections to the death penalty, unless the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 857, 83 L.Ed.2d 841 (1985). Witherspoon assumes, of course, that the jury will play a substantive role in the sentencing decision. By applying Witherspoon to vacate death sentences, then, the Supreme Court of Florida implicitly acknowledges that the jury plays a substantive role under the Florida capital sentencing scheme.

Thus, in various ways, the Florida case law evinces an interpretation of the death penalty statute that requires a trial judge to give great weight to a jury's sentencing recommendation. As our review of the case law shows, that requirement applies as to both recommendations of life imprisonment and recommendations of death.

B.

In analyzing the role of the sentencing jury, the Supreme Court of Florida has apparently been influenced by a normative judgment that a jury recommendation of death carries great force in the mind of the trial judge. This judgment is most clearly reflected in cases where an error has occurred before the jury, but the trial judge indicates that his own sentencing decision is unaffected by the error. As a general matter, reviewing courts presume that trial judges exposed to error are capable of putting aside the error in reaching a given decision. The Supreme Court of Florida, however, has on occasion declined to apply this presumption in challenges to death sentences. For example, in Messer v. State, 330 So.2d 137 (1976), the trial court erroneously prevented the defendant from putting before the sentencing jury certain psychiatric reports as mitigating evidence. The jury recommended death and the trial judge imposed the death penalty. The supreme court vacated the sentence, even though the sentencing judge had stated that he had himself considered the reports before entering sentence. The supreme court took a similar approach in Riley v. Wainwright, 517 So.2d 656 (Fla.1987). There, the defendant presented at his sentencing hearing certain nonstatutory mitigating evidence. The trial court instructed the jury that it could consider statutory mitigating evidence, but said nothing about the jury's obligation under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), to consider nonstatutory mitigating evidence. The jury recommended death and the trial judge imposed the death penalty. In imposing the death sentence, the trial judge expressly stated that he had considered all evidence and testimony presented.8 On petition for writ of habeas corpus, the supreme court ordered the defendant resentenced. The court held that the jury had been precluded from considering nonstatutory mitigating evidence, and that the trial judge's consideration of that evidence had been "insufficient to cure the original infirm recommendation." Id. at 659 n. 1.

In light of the disposition of these cases, it would seem that the Supreme Court of Florida has recognized that a jury recommendation of death has a sui generis impact on the trial judge, an impact so powerful as to nullify the general presumption that a trial judge is capable of putting aside error. We do not find it surprising that the supreme court would make this kind of normative judgment. A jury recommendation of death is, after all, the final stage in an elaborate process whereby the community expresses its judgment regarding the appropriateness of a death sentence. The process begins with the legislature, which broadly defines the class of cases for which capital punishment is appropriate. Then, in the particular case, the prosecutor, who is electorally accountable to the community, makes the decision whether to request the death penalty. Finally, the jury, traditionally depicted as the conscience of the community, makes a judgment about the appropriateness of death in light of aggravating and mitigating circumstances. Thus, by the time the case comes before the judge for the actual imposition of sentence, it has already been filtered through three levels of community sentiment, each level less porous than the preceding one.9 It would indeed be surprising were the trial judge, who in Florida is also an electorally accountable official, not powerfully affected by the result of that process.

C.

In light of the case law, we conclude that the Florida jury plays an important role in the Florida capital sentencing scheme. The case law reflects an interpretation of the death penalty statute that requires the trial court to give significant weight to the jury's recommendation, whether it be a recommendation of life imprisonment or a recommendation of death. The case law also reflects, we think, an insightful normative judgment that a jury recommendation of death has an inherently powerful impact on the trial judge.

Because the jury's recommendation is significant in these ways, the concerns voiced in Caldwell are triggered when a Florida sentencing jury is misled into believing that its role is unimportant.10 Under such circumstances, a real danger exists that a resulting death sentence will be based at least in part on the determination of a decisionmaker that has been misled as to the nature of its responsibility. Such a sentence, because it results from a formula involving a factor that is tainted by an impermissible bias in favor of death, necessarily violates the eighth amendment requirement of reliability in capital sentencing. See Adams v. Wainwright, 804 F.2d 1526, 1532 (11th Cir.1986), modified, 816 F.2d 1493 (11th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988).

III.

Having determined that the sentencing jury plays a substantive role under the Florida capital sentencing scheme, we turn to the question whether the jury in this case was misled as to its role so as to render petitioner's sentence invalid under the eighth amendment. We begin with a thorough examination of the trial record.

A.

The first reference to the jury's role was made as the jury was being selected, during counsel's voir dire of the venire. The prosecutor said the following:

The recommendation that you make to Judge Federico in [the sentencing] portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all the testimony himself.

A few moments later, the prosecutor repeated this point in stronger terms:

You understand you do not impose the death penalty; that is not on your shoulders.... Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only.

The prosecutor repeated the point again that afternoon, in a dialogue with two veniremen:

You ... understand that the ultimate responsibility rests with the Court; that it's not the jury's responsibility?

During closing argument at the conclusion of the guilt phase of the trial, the prosecutor once again informed the jury that "[t]he matter of sentencing ultimately rests with [the] Court."

After the jury rendered its verdict of guilty, the jurors were temporarily excused from the courtroom while the court and counsel made preliminary preparations for the sentencing phase of the trial. At that time, defense counsel requested that the jury, when it returned, be instructed by the court that its sentencing recommendation would be "entitled to great weight." The court refused to grant the request:

THE COURT: Well, I think that goes without saying. I don't know if I need to instruct them that that is so.

[DEFENSE COUNSEL]: I think it is. The reason we would ask--

THE COURT: That's something that I need to do after they make their recommendation, and I will give it great weight.

[DEFENSE COUNSEL]: I know, but they need to know that so they know we're not up there just--

THE COURT: I think the standard instructions bring home to them that it is very important that they, you know, [d]o not act hastily or without due regard to the gravity of these proceedings, that they should carefully weigh and sift and consider the evidence. I think that's sufficient.

Notwithstanding his apparent understanding of the sentencing jury's function, the judge informed the jurors when they returned to the courtroom that "[t]he final decision as to what punishment shall be imposed rests solely with the judge of this court." The prosecutor repeated the point in the final statement of his closing argument at the conclusion of the sentencing phase:

What I'm suggesting to you is that the ultimate responsibility for the imposition of the sentence rests with Judge Philip Federico. That is his sworn position in the system. He's heard everything you have heard. He may have the opportunity to learn more before he imposes a sentence. I think this community, as represented by this jury, should give to him the prerogative of imposing the death penalty, if that's what he ultimately feels is required in this case.

The court then read its instructions to the jury. The instructions included the following statements regarding the jury's sentencing function:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed on the Defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the Court and render to the Court an advisory opinion based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty, whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

The court's instructions also included the following statements:

The fact that the determination of whether or not a majority of you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment upon the sole issue which is submitted to you at this time, of whether a majority of your number recommend that the Defendant be sentenced to death or to life imprisonment.

After the court finished reading the instructions, it ordered the jury to retire and make a decision. When the jury returned, it announced a recommendation of death. The jury was polled and then dismissed. After the bailiff had declared that "[t]he jury has left the courtroom," the judge remarked, for the record, that "[t]he court, as required by law, will give great weight to the recommendation of the jury."

B.

In reviewing Caldwell claims, our task is twofold. First, we must determine whether the prosecutor's comments to the jury were such that they would "minimize the jury's sense of responsibility for determining the appropriateness of death." Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646. Second, if the comments would have such effect, we must determine "whether the trial judge in this case sufficiently corrected the impression left by the prosecutor." McCorquodale v. Kemp, 829 F.2d 1035, 1037 (11th Cir.1987).

When a trial court does not correct misleading comments as to the jury's sentencing role, the state has violated the defendant's eighth amendment rights because the court has given the state's imprimatur to those comments; the effect is the same as if the trial court had actually instructed the jury that the prosecutor's comments represented a correct statement of the law. See Tucker v. Kemp, 802 F.2d 1293, 1295 (11th Cir.1986) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987). When a trial court does make some attempt to correct the prosecutor's misleading comments, the question becomes whether the corrective statement would, in the mind of a reasonable juror who had been exposed to the misleading comments, correct the misapprehension that the comments would induce. Because our focus is ultimately on the trial court's actions,11 our mode of review is similar to that used to review claims based on erroneous jury instructions. Cf. Lamb v. Jernigan, 683 F.2d 1332, 1339-40 (11th Cir.1982) (court must consider effect of erroneous instruction on reasonable juror "in light of the remainder of the charge and the entire trial"), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

In this case, the comments by the prosecutor were such that they would mislead or at least confuse the jury as to the nature of its sentencing responsibility under Florida law. It bears emphasizing that the prosecutor in Caldwell stated only that the jury's verdict would be "automatically reviewable." Technically, this statement was an accurate statement of Mississippi law--death sentences are automatically reviewed by the Supreme Court of Mississippi under Miss.Code Ann. Sec. 99-19-105. The mischief was that the statement, unexplained, would have likely been misunderstood by the jurors as meaning that their judgment call on the appropriateness of a death sentence did not really matter. We are faced with a similar situation here. The prosecutor repeatedly told the jury that its task was to render an "advisory" recommendation. As with "automatically reviewable" in Caldwell, this characterization is technically accurate, at least in the sense that the Florida death penalty statute contains the term "advisory." However, the danger exists that the jurors, because they were unaware of the body of law that requires the trial judge to give weight to the jury recommendation, were misinformed as to the importance of their judgment call. The danger is particularly strong here, because nothing in the common meaning of the term "advisory" would suggest to the layman that the trial judge would in any way be bound by the recommendation; indeed, the common meaning of the term would suggest precisely the contrary.

Moreover, here the prosecutor stated to the jurors twice that the burden of imposing the death penalty was "not on your shoulders."12 He repeatedly told the jurors that the responsibility for imposing sentence rested with the trial judge. Additionally, we note that the prosecutor suggested to the jurors that the trial judge, because of his position as a legal authority, was more able than the jury to make the appropriate sentencing decision. As the Supreme Court noted in Caldwell, this kind of suggestion induces jurors, who are "placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice," to delegate wrongly their sentencing responsibility. Caldwell, 472 U.S. at 333, 105 S.Ct. at 2641-42. We conclude that the prosecutor's statements, considered together, misrepresent the nature of the jury's critical role under the Florida capital sentencing scheme.13 Such comments, if uncorrected, would undoubtedly minimize a juror's sense of responsibility, thus creating "a danger of bias in favor of the death penalty." Adams, 804 F.2d at 1532.

Turning to the second prong of our inquiry, we conclude that the trial judge's comments did not correct the false impression left by the prosecutor. The trial court specifically denied defense counsel's request that the jury be properly informed as to its role. Moreover, the judge himself stated that the final sentencing decision rested "solely with the judge of this court." The trial judge expressly put the court's imprimatur on the prosecutor's previous misleading statements by saying to the jurors that "[a]s you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge."14

The only potentially corrective statement by the court came when the court instructed the jurors that they should proceed with "due regard to the gravity" of the matter and should "carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment." This statement, we conclude, did not cure the harm posed by the court's other actions. The statement would do little if anything to change a juror's misapprehension about the effect of the jury's decision; it only instructs the jurors that they should approach their task with care and deliberation. At best, it likely left some jurors confused as to their proper role. We therefore conclude that the court's actions, as considered by a reasonable juror who had been exposed to the prosecutor's misleading comments, did not correct the false impression created by those comments. Cf. Caldwell, 472 U.S. at 340 n. 7, 105 S.Ct. at 2645 n. 7 (prosecutor's later statements did not retract or undermine the misimpression created by the earlier statements). Because the overall effect of the court's actions was to diminish the jury's sense of responsibility with regard to its sentencing role, petitioner's sentence is invalid under the eighth amendment.

IV.

In conclusion, we reverse the district court's denial of the writ of habeas corpus with regard to petitioner's Caldwell claim. We remand the case to the district court with instructions to issue the writ setting aside petitioner's death sentence unless the State affords petitioner a new sentencing proceeding before a newly empaneled jury.

REVERSED and REMANDED.

*****

CLARK, Circuit Judge, specially concurring:

I concur with Judge Tjoflat's opinion in the Mann case which finds that there was a Caldwell violation. I also concur with Judge Tjoflat's specially concurring opinion in Harich which concludes that there is no Caldwell violation. I was on the panel in both cases and wrote something with respect to the Caldwell issue in each case. See Mann v. Dugger, 817 F.2d 1471, 1489 (11th Cir.1987), and Harich v. Wainwright, 813 F.2d 1082, 1089, 1098 (11th Cir.1987). I have read the record in both of the cases and agree with Judge Tjoflat and the others concurring with him that there is a meaningful difference.

In a Caldwell-type case, it is essential that one determine the jury's perception of its role during the sentencing phase of the trial. That is, was the jurors' collective sense of responsibility lessened when asked to decide whether life or death was the appropriate penalty. The answer depends on an analysis of the particular facts and circumstances of each case. The trial court may explain to the jury its advisory role, "as long as the significance of [the jury's] recommendation is adequately stressed." Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir.1987) (quoting Pope v. Wainwright, 496 So.2d 798 (Fla.1986)).

In Mann, the prosecutor made the following statements during the voir dire examination:

The recommendation that you make to Judge Federico in this portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all of the testimony himself.

* * *

* * *

[Y]ou understand you do not impose the death penalty. That is not on your shoulders. The ultimate decision rests with Judge Federico.

* * *

* * *

Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only.

817 F.2d at 1489 (emphasis added).

Following are the judge's comments at the beginning of the sentencing proceeding:

The punishment for this crime is either death or life imprisonment. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury render to the court an advisory sentence as to what sentence should be imposed on the defendant.

Id. (emphasis added). It is clear from the above that the prosecutor and the court misled the jury as to its responsibility. The last thought left with the jury by the prosecutor in his closing argument at sentencing replayed his earlier statements:

What I'm suggesting to you is that the ultimate responsibility for the imposition of the sentence rests with Judge Philip Federico. That is his sworn position in the system. He's heard everything you have heard. He may have the opportunity to learn more before he imposes a sentence.

Transcript at 2439. The foregoing flagrant misstatement by the prosecutor was followed soon thereafter by Judge Federico's instructions to the jury, which included the following:

Ladies and Gentlemen of the jury, it is now your duty to advise the court as to what punishment should be imposed on the defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the court and render to the court an advisory opinion based upon your determination....

817 F.2d at 1490 (emphasis added). Clearly the jurors' perception of their role was minimized by the prosecutor's statement and then the trial court's endorsement when the court said "as you have been told...." The defense attorneys did not address the role of the jury in their closing arguments, making clear that the judge's reference was to the prosecutor's misdescription of the jurors' role.

The circumstances of this case indicate there was an intolerable danger that the jury recommended the death penalty because it did not understand that its recommendation would, to some extent, bind the trial court to a particular result. The jurors heard compelling mitigating evidence that Mann suffered from psychotic depression, and that he committed this crime during a fit of pedophilic rage. They were told that Mann attempted to commit suicide by slashing his forearms shortly after the crime had been committed. He had attempted suicide several times in the past. When the police came to his aid on the day of the murder, Mann said he had done something stupid and needed help. At the sentencing hearing, a psychiatrist testified that Mann committed the crime while under the influence of an extreme mental or emotional disturbance. The victim, a 10 year-old girl, intensified his feelings of guilt regarding his pedophilic instincts, thus channeling his self-destructive rage into an act of violence. Faced with a difficult decision, the jurors were quite susceptible to a suggestion that the sentencing decision was "not on [their] shoulders." The improper comments in this case created the "intolerable danger" that the advisory jury gave its recommendation without truly understanding its proper role.

With respect to the identical issue in the Harich case, the prosecutorial and judicial comments in this case did not minimize the role of the jury. The statements went no further than explaining to the jury the respective functions of the judge and jury. The jury was told to listen to the evidence, weigh the aggravating and mitigating circumstances and render an advisory opinion as to the applicability of the death penalty in this case. Nothing was said which would imply to the jury that its recommendation was superfluous or that the importance of the jury's decision was lessened by the fact that it was only a recommendation. Upon examination of the record, one concludes that the seriousness of the jury's advisory role was adequately communicated by the court and prosecutor. As mentioned in the discussion of the Mann case, the Florida Supreme Court has stated that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell "as long as the significance of [the jury's] recommendation is adequately stressed." Pope v. Wainwright, 496 So.2d 798 (Fla.1986).

In distinguishing between Mann and Harich, it is necessary to analyze the context in which the statements are made with respect to the jury's sense of responsibility for its sentencing decision. In Mann there were a number of statements by the prosecutor which reduced the jurors' perception of their duty vis-a-vis the judge's duty, and the court's comments in Mann gave emphasis to what the prosecutor had said. However, in Harich [Harich v. Dugger, slip op. page at 2704, 844 F.2d 1464] there is very little to which one can point that was said by the prosecutor that would have misled the jury. Judge Vance in his dissent, at pages 1483-84 recites one statement by the prosecutor. The balance of the statements in that dissent are quotations from what the trial judge told the jury and those statements read in the context of the total instructions and comments of both counsel do not reduce the importance of the jury's role during the sentencing phase. At page 1476 of his special concurrence, Judge Tjoflat points out statements by the trial judge and defense counsel which emphasize the importance of the juror's responsibility. Similar statements are not found in the Mann trial.

Thus, I have no trouble in joining the majority in Mann that the writ be issued unless a new trial is granted, and also concurring with the majority in Harich that the petition be denied.

*****

FAY, Circuit Judge, dissenting, in which RONEY, Chief Judge, HILL and EDMONDSON, Circuit Judges, join:

Most respectfully, I dissent from the conclusion reached in the majority opinion that there is merit in the Caldwell claim presented by the petitioner. Our court is issuing opinions in Harich v. Dugger and in this case which contain lengthy discussions of Caldwell claims and how they are to be evaluated. I join in the statement of Judge Tjoflat in his special concurrence in Harich that: "The relevant question under Caldwell is whether remarks made at trial lessened the jury's sense of responsibility toward its role of determining whether the death penalty is appropriate." From our perspective as members of the Court of Appeals, this necessarily involves a case by case approach with detailed review of the entire record of any given case. The bottom line, however, is the subjective reaction of each individual judge to the language and text of the record. In this case, it is my opinion that no Caldwell violation occurred. Phrased in the words of the "relevant question," this record convinces me that none of the remarks of the judge, prosecutor or defense counsel lessened, in any way, the jury's sense of responsibility toward its role in deciding whether or not death was the appropriate penalty.

The majority finds that at trial, the prosecutor misled the jury as to its sentencing role by stating that (1) its sentence recommendation was advisory, and (2) the ultimate responsibility for imposition of the sentence rests with the judge. The majority also concluded that the trial judge did not correct the false impression left by the prosecutor. See ante section III. In my opinion, the record does not support these findings.

I agree with the majority's analysis of the role of the trial judge in determining whether a Caldwell violation occurred. See ante at 1456 (citing McCorquodale v. Kemp, 829 F.2d 1035, 1037 (11th Cir.1987)). The trial judge should take steps to correct the impression made when a prosecutor's inaccurate statements diminish a jury's sense of responsibility in a capital sentencing case. In such a case, a trial judge's curative response could negate a potential Caldwell violation. However, in this case, there was no need for such a correction since no misimpression had been given.

In Florida, comments made by the prosecutor which emphasize the "advisory" role of the jury or indicate that the jury is making a "recommendation" to the judge, do not support a Caldwell claim. See Harich v. Wainwright, 844 F.2d at 1473-74 (11th Cir. 1988) (en banc); Combs v. State, 525 So.2d 853, 13 Fla.L.Weekly 142 (Fla. 1988). Under Florida's death penalty statute the jury's role is advisory. After receiving the jury's recommendation, the trial judge must independently weigh the aggravating and mitigating circumstances and render sentence.1

It serves no purpose to dwell on the word 'advisory' [or 'recommendation'] as does the majority, because that is the procedural structure established by the Florida statutes. The jury's verdict as to the appropriate sentence is advisory. The question is whether the jury was somehow given an erroneous understanding of its responsibility.

Mann v. Dugger, 817 F.2d 1471, 1485 (11th Cir.1987) (Fay, J., dissenting) (panel opinion). Such comments are neither inaccurate nor misleading.

Moreover, in this case the prosecutor made the controversial comments during voir dire at the suggestion of defense counsel. The prosecutor was discussing death penalty concerns with the prospective jurors when one member of the venire stated that he would be unable to find the defendant guilty if it could lead to a death sentence. Trial Transcript at 105. The attorneys then held a side-bar conference with the judge. At this conference the defense counsel suggested that someone should inform the jury of the bifurcated system used in Florida to determine guilt and sentencing.2 The prosecutor followed this suggestion and gave the jury an accurate summation of its role under the Florida system.3 Defense counsel supplemented the prosecutor's explanation by stating that should the jury find the defendant guilty of first degree murder, the judge would give the jury's sentencing recommendation great weight.4

A thorough review of the trial transcript reveals that defense counsel and the prosecutor placed equal emphasis on the advisory role of the jury.5 In addition, both lawyers indicated to the jurors that if they found the defendant guilty of first degree murder, the judge would ultimately determine the appropriate penalty.6

Defense counsel's numerous comments regarding the jury's advisory role indicate that he agreed with the explanations given by the prosecutor and the trial judge. This strengthens my conviction that the prosecutor accurately stated the Florida law and did not mislead the jury. Therefore, I am unable to find that the prosecutor's statements created a Caldwell violation.

Because I believe that the prosecutor did not mislead the jury, I do not find it necessary to determine whether the trial judge's comments were sufficiently curative. I note, however, that the trial judge's statements were not misleading. The judge explained to the jury its role in the Florida sentencing scheme.

The trial judge essentially repeated the explanations given by the lawyers. He told the jury that its determination of the appropriate penalty would serve as a recommendation.7 The judge also stated that although the final determination of the appropriate penalty rested with the court, the jury had a duty to recommend the appropriate penalty in this case.8 One of the trial judge's last comments before the jury retired reinforced the importance of the jury's task:

The fact that the determination of whether or not a majority of you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment upon the sole issue which is submitted to you at this time, of whether a majority of your number recommend that the Defendant be sentenced to death or to life imprisonment.

Trial Transcript at 1348-1349 (emphasis added). Such a closing instruction had to impress upon the jury the importance of their role in the sentencing process.

One other aspect of cases of this sort troubles me. Jurors are a cross section of our communities. They are our average citizens with differing degrees of education, sophistication, experiences and views of government. My experience with juries convinces me that they approach such service with great dedication and awareness. In cases involving a question of whether or not the death penalty should be imposed, great concern and seriousness of purpose literally permeates the courtroom. Jurors, like judges, lose sleep and are totally preoccupied with doing what is right and correct under the law. We, as judges, should be slow to assume that such men and women have somehow been derailed or led astray.

Finding nothing in this record, when considering such in its entirety, that would mislead or tend to diminish the responsibility of the jury, I would deny relief.

*****

1

Petitioner's criminal conduct is described in Mann v. State, 420 So.2d 578 (Fla.1982)

2

The operation of the Florida capital sentencing scheme is explained in part II. See supra note 5 and accompanying text. Here, on petitioner's direct appeal, the Supreme Court of Florida held that the trial judge had improperly found two aggravating circumstances under Fla.Stat. Sec. 921.141(5) and had failed to specify with sufficient clarity his conclusions regarding mitigating factors, as required by Fla.Stat. Sec. 921.141(6). Mann v. State, 420 So.2d 578, 581 (Fla.1982). Accordingly, the supreme court ordered resentencing by the trial judge. Because the errors identified by the supreme court pertained only to the trial judge's findings, and not to defects before the sentencing jury, resentencing before a new jury was not deemed necessary

3

Petitioner has already had one resentencing, pursuant to an order by the Supreme Court of Florida. See supra note 2 and accompanying text. That resentencing was accomplished without empaneling a new jury; in resentencing petitioner, therefore, the trial court used the recommendation of the original sentencing jury. That being the case, we must examine the original jury sentencing proceeding in determining whether petitioner's sentence is valid under the eighth amendment

4

We affirm the district court's disposition of the remaining claims. Those claims are described in the panel opinion. See Mann v. Dugger, 817 F.2d 1471 (11th Cir.), vacated, 828 F.2d 1498 (11th Cir.1987)

The attorney general argues that petitioner's Caldwell claim is barred by procedural default because petitioner failed to raise the claim on direct appeal of his conviction and sentence. We find that the claim is not procedurally barred. Although petitioner failed to raise the claim on direct appeal, he did raise it in his Rule 3.850 motion. The circuit court denied that motion and petitioner appealed to the Supreme Court of Florida. In disposing of the appeal, the supreme court stated that its review of the record "clearly and conclusively refute[d] any claim that there was any constitutional infirmity in the trial." Mann v. State, 482 So.2d 1360, 1362 (Fla.1986) (emphasis added). We interpret this statement as indicating that the supreme court considered the merits of each claim in petitioner's Rule 3.850 motion, including the Caldwell claim. 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. See Oliver v. Wainwright, 795 F.2d 1524, 1528-29 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987); Campbell v. Wainwright, 738 F.2d 1573, 1576-77 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106 S.Ct. 1652, 90 L.Ed.2d 195 (1986); Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983).

5

Section 921.141 provides:

(1) Separate proceedings on issue of penalty.--Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment.... The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.... In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6)....

(2) Advisory sentence by the jury.--After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and

(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

(3) Findings in support of sentence of death.--Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and

(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

....

(4) Review of judgment and sentence.--The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida....

(5) Aggravating circumstances.--Aggravating circumstances shall be limited to the following:

(a) The capital felony was committed by a person under sentence of imprisonment.

(b) The defendant was previously convicted of another felony or of a felony involving the use or threat of violence to the person.

(c) The defendant knowingly created a great risk of death to many persons.

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual battery, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or cruel.

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

(6) Mitigating circumstances.--Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c) The victim was a participant in the defendant's conduct or consented to the act.

(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the capital sentencer may not be precluded from considering evidence of nonstatutory mitigating factors.

6

Ross v. State, 386 So.2d 1191 (Fla.1980), is not inconsistent with the proposition that the trial judge must give great weight to a jury recommendation of death. In Ross, the jury recommended death and the trial judge imposed a death sentence, indicating in his findings that he was bound by the jury's recommendation. Id. at 1197. The Supreme Court of Florida ordered resentencing, stating that although a jury recommendation of death "should be given great weight and serious consideration," id., this trial judge had given the recommendation "undue weight," id. at 1193, by abdicating his statutory duty to make an "independent judgment" about the aggravating and mitigating circumstances. Id. at 1198

7

The Supreme Court of Florida has permitted resentencing without a jury where the error in the original proceeding related to the trial court's findings and did not affect the jury's recommendation. See, e.g., Menendez v. State, 419 So.2d 312, 314 (Fla.1982); Mikenas v. State, 407 So.2d 892, 893 (Fla.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Magill v. State, 386 So.2d 1188, 1191 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); Fleming v. State, 374 So.2d 954, 959 (Fla.1979). Such were the circumstances in this very case. See supra note 2

8

The trial judge made this statement on a resentencing. On Riley's direct appeal of his original sentence, the supreme court ordered resentencing on the ground that the trial judge had considered nonstatutory aggravating factors, in violation of state law. Riley v. State, 366 So.2d 19 (Fla.1978). The resentencing was accomplished without empaneling a new jury. At the resentencing, the trial judge permitted Riley to introduce additional mitigating evidence. The resentencing was affirmed on direct appeal. Riley v. State, 413 So.2d 1173 (Fla.), cert. denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982)

9

It is at least partly because of these dynamics, we may surmise, that the Supreme Court of Florida has interpreted the legislative intent underlying the death penalty statute as requiring the trial judge to give great weight to the jury's recommendation

10

Florida could, if it so desired, administer a capital sentencing scheme in which the jury played no role. See Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984) ("[T]here is no constitutional imperative that a jury have the responsibility of deciding whether the death sentence should be imposed...."). The fact of the matter is, however, that under the existing scheme in Florida the jury does share in capital sentencing responsibility. Because the jury's recommendation is a critical factor in the ultimate sentencing decision, the jury's function, like the function of any capital sentencer, must be evaluated pursuant to eighth amendment standards. This court, in various contexts in federal habeas cases, has treated the Florida jury as if it were a sentencer for constitutional purposes. For example, in Jackson v. Dugger, 837 F.2d 1469 (11th Cir.1988), we held that the eighth amendment is violated when a Florida sentencing jury is instructed that, once it finds the victim's murder to have been committed under aggravating circumstances, death is presumed to be the appropriate sentence

To date, the Supreme Court of Florida has refused to grant relief on Caldwell claims. See Combs v. State, 525 So.2d 853, 855-58, 13 Fla.L.Weekly 142, 143-44 (1988); Grossman v. State, 525 So.2d 833, 839-40, 13 Fla.L.Weekly 127, 129-30 (1988); Foster v. State, 518 So.2d 901, 901-02 (Fla.1987); Smith v. State, 515 So.2d 182, 185 (Fla.1987); Aldridge v. State, 503 F.2d 1257, 1259 (Fla.1987); Pope v. Wainwright, 496 So.2d 798, 804-05 (Fla.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). We do not read these cases as necessarily holding that a Caldwell violation could never occur in a Florida case. See Smith, 515 So.2d at 185 (no Caldwell violation provided "the jury instructions properly stress the importance of the jury role"); Pope, 496 So.2d at 805 (no Caldwell violation "as long as the significance of [the jury's] recommendation is adequately stressed"). In any event, we are not bound by a state court's application of federal constitutional principles. We look to that court's pronouncements only to determine the nature of the sentencing process; we independently decide how the federal Constitution applies to claims pertaining to that process as thus defined.

11

As we noted in McCorquodale, the Supreme Court did not say in Caldwell that any misleading comment by the prosecutor would constitute ground for reversal; "rather it stated that '[s]uch comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment.' " McCorquodale, 829 F.2d at 1037 (quoting Caldwell, 472 U.S. at 340, 105 S.Ct. at 2645). Thus, the proper focus is on whether the trial court's actions were sufficient to correct the misimpression created by the prosecutor's comments. See also Caldwell, 472 U.S. at 333, 105 S.Ct. at 2641-42 ("[T]he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger....") (emphasis added); Tucker v. Kemp, 802 F.2d 1293, 1295 (11th Cir.1986) (en banc) ("Of critical importance in Caldwell was the fact the trial judge approved of the prosecutor's comments...."), cert. denied, --- U.S. ----, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987)

12

As we have noted, a number of the misleading comments were made before the jury was selected, during voir dire. At first blush, one might think that such comments at that stage of the trial proceeding would benefit the defendant. One might think that a prospective juror who holds strong personal reservations about the death penalty would, upon hearing that he will not be responsible for the sentencing decision, be less inclined to express those reservations in open court. The ultimate result might be that the prosecutor would be disabled from excusing for cause some prospective jurors who would otherwise be properly excusable under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Thus, one might think, the misleading comments could ultimately have a beneficial effect from the defendant's point of view

Even if there were the potential for some marginal benefit, the dangers outlined in Caldwell would remain. The statements that were made during the voir dire were not isolated; they were not directed solely at those prospective jurors who had expressed reservations about the death penalty. Rather, they were made before the prospective jurors collectively, at a time when the prosecutor was purportedly outlining the role of the jury. This court has recognized in the past that comments made prior to the sentencing phase can establish a Caldwell violation. See Adams v. Wainwright, 804 F.2d 1526, 1531 n. 7 (11th Cir.1986), modified, 816 F.2d 1493 (11th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988).

13

See part II, supra

14

The only statement suggesting to the jurors that their role was important was a single isolated statement made by defense counsel during jury selection. In light of the prosecutor's repeated suggestions throughout the proceedings that the jury's role was unimportant, we are satisfied that when the jurors heard the trial judge say "as you have been told," they understood the reference to be the prosecutor's portrayal of their role

1

See Fla.Stat. Sec. 921.141 (1985). The Supreme Court held that the division of authority between the jury and the trial judge under the Florida death penalty statute is constitutional. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Spaziano, the Court made reference to the fact that the jury's recommendation is entitled to some deference by the trial court. 468 U.S. at 465-66, 104 S.Ct. at 3164-65

2

During the side-bar conference, defense counsel stated:

I think, first of all, I would just like to have the right to try to rehabilitate this gentleman who made these for cause statements earlier and perhaps the--we should have a right to try to rehabilitate him in this respect. I think he is of the opinion, not understanding the bifurcated system, that, in fact, if he rendered a guilty verdict, that that in and of itself would take care of the penalty.

I think he should be told by somebody that, in fact, it's two different phases; that he can, in fact, return a guilty verdict if that's the appropriate verdict; and he will have the opportunity to voice his opinion. That may satisfy it.

Trial Transcript at 106.

3

During this portion of the voir dire the prosecutor stated:

Not only for your benefit, ... but for the benefit of the rest of the prospective members of the jury, let me jump ahead a little bit and see if I can do some clarification. The law in the State of Florida provides that in a trial for a capital offense, such as murder in the first degree, we actually have two stages or two phases of the proceedings.

The first phase relates to the guilt or the innocence of the Defendant. At that point, the State puts on its case in chief against the Defendant in an attempt to convince the jury that he is guilty of murdering Elisa Nelson, beyond and to the exclusion of every reasonable doubt. The jury, in Florida, has the opportunity to go back and to deliberate that issue. Obviously, if the jury finds him to be innocent, they come back and say so, and he walks out of the courtroom and that's the end of that.

....

... If, on the other hand, this jury ultimately at the conclusion of the State's case, convicts, walks back into the courtroom and says that he is guilty of murder in the first degree, there then begins a separate portion of the proceeding in front of the same jury panel with additional testimony and evidence being presented, at which time you again--these matters that were not brought to your attention in the prior portion of the trial. The jury then has the opportunity to go back and deliberate whether or not you will come back and make a recommendation of mercy to the Court.

The recommendation that you make to Judge Federico in this portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all of the testimony himself.

Trial Transcript at 106-108.

4

During voir dire the following occurred:

[DEFENSE COUNSEL]: Only guilty of murder one requires a death penalty. And there are only two alternatives the Court has: One is death in the electric chair; the other is life with a minimum mandatory twenty-five years before the person becomes eligible for parole. I think a lot of people get the idea that if somebody gets a life sentence, they get out in seven years.

That isn't the case in a first degree murder. It does carry a maximum of life, a minimum mandatory of twenty-five years before a person becomes eligible. That is the alternative the judge has, one of those two.

[JUROR]: Is that the judge's discretion, or is that by law?

[DEFENSE COUNSEL]: By law, the judge only has two choices if you return a verdict of murder in the first degree. Like [the prosecutor] said, you go back and render an advisory opinion as to what you people believe is the appropriate sentence, whether you believe that the appropriate sentence is death or whether you believe the appropriate sentence is life with a minimum mandatory twenty-five years.

Now, he just doesn't disregard that and do whatever he wants to. He is, by law, required to give your recommendation great weight, but he is also permitted to overrule your recommendation if he desires to do so and he feels under the law he should. But he can still only do one of those two things. The law does not give him any other discretion.

He has to, ultimately, if Mr. Mann is convicted of murder in the first degree, say, I sentence you to death, life, or the minimum mandatory of twenty-five years. That's the only two options he has. Okay? Does that clear that up? Does everybody understand that?

(THEREUPON, the prospective jurors indicated affirmatively.)

Trial Transcript at 163-64 (emphasis added).

5

The prosecutor used the words "advisory" or "recommendation" (or derivatives thereof) during two phases of the trial. These included comments made during voir dire, see Trial Transcript at 108, 109, 110, 211, 283, 285, and during the closing argument of the sentencing phase. See Trial Transcript at 1319, 1326, 1327

By comparison, the defense counsel used these terms just as often. These included comments made during voir dire, see Trial Transcript at 163-64 (for text of this comment see supra note 4), 171, 173, 272, 273, 274, and during closing argument of the sentencing phase. See Trial Transcript at 1331, 1338, 1341, 1342.

6

As the majority notes, the prosecutor made three references to the judge as the final decision maker. These include comments twice made during voir dire, see Trial Transcript at 110-111, 285, and once during the closing argument of the sentencing phase. See Trial Transcript at 1330

The defense counsel, however, also indicated that the judge had the burden of choosing between a death and a life sentence. See Trial Transcript at 164-165 (for text of this comment, see supra note 4). During his final argument of the sentencing phase, defense counsel again spoke of the judge's responsibility as sentencer:

To begin at the very beginning, the issue here is whether this man lives, by my computation, to the age of eighty-five in prison before he can be eligible for parole or whether he dies. This judge can sentence this man, in addition to the twenty-five years minimum mandatory, he can sentence him in addition to that ninety-nine years on the kidnapping and retain jurisdiction over him for thirty-three of those years to prevent his release or his consideration for release, as I understand it, to approximately the year 2039. So, the issue that you are here to determine is not whether he lives among us. The issue is whether he lives.

Trial Transcript at 1331.

7

The trial judge made several references to the advisory nature of the jury's sentence. These comments occurred during post verdict instructions, see Trial Transcript at 1236, during the initial instructions of the sentencing phase, see Trial Transcript at 1252-1253, and during the final instructions of the sentencing phase. See Trial Transcript at 1344-1351

8

During the initial instructions of the sentencing phase the trial judge stated:

Members of the jury, you have found the Defendant guilty of murder in the first degree. The punishment for this crime is either death or life imprisonment. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.

Trial Transcript at 1252.

During the final instructions to the jury in the sentencing phase, the judge stated:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed on the Defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the Court and render to the Court an advisory opinion based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty, whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist. Your verdict should be based upon the evidence which you have heard while trying the guilt or innocence of the Defendant, and evidence which has been presented to you in this proceeding.

Trial Transcript at 1344-44 (There are two consecutive pages in the trial transcript numbered as 1344.).

 

 

 
 
 
 
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