Pedro Medina, 39, executed
March 25, 1997 for the 1982 slaying of his neighbor Dorothy James,
52, in Orlando. Medina was the first Cuban who came to Florida in
Mariel boat lift to be executed in Florida. During his execution,
flames burst from behind the mask over his face, delaying Florida
executions for almost a year.
Pedro Luis Medina
(October 5, 1957 – March 25, 1997) was a Cuban refugee who was
executed in Florida for the murder of a former teacher; the
circumstances of his execution elevated objections to the use of
electrocution as a means of capital punishment.
Medina was among nearly 125,000 Cubans who came
to the United States during the 1980 Mariel boatlift. He was later
charged with and convicted of the 1982 stabbing murder of a former
teacher in Orlando. He was sent to Death Row at Florida State Prison
near the town of Starke in 1982.
Medina's last words before being executed on
March 25, 1997, were "I am still innocent". During the
administration of current, the electric chair known as Old Sparky,
malfunctioned, causing flames to shoot out of Medina's head.
In 1999, the state
of Florida heard a petition from Thomas Harrison Provenzano, another
death row inmate, that argued that the electric chair was a cruel
and unusual punishment.
proceedings, Glen Dickson, Medina's pastor, testified that he saw
the flames rising out of Medina's head, smelled an acrid smell and
saw Medina take three labored breaths after the electrical current
to the chair had been turned off and the strap holding him in it has
Assistant Superintendent of the Work Camp at Florida State Prison,
also testified. She said she saw Medina's left hand tighten as the
current was being applied. She corroborated Dickson's observation of
smoke and flames coming from Medina's head and a smell, which she
said was a burning smell.
that she also saw movements in Medina's chest after the current had
been turned off, but claimed it was contractions of the chest muscle
that did not imply breathing.
So. 2d at 86-87 (Shaw, J., dissenting).
"B. Medina's Execution
"Florida's electric chair malfunctioned again
during the execution of Pedro Medina on March 25, 1997, resulting in
another violent scene with smoke and flames spurting from the head-piece.
Unlike Tafero, Medina's eyebrows, eyelashes, and facial hair were
not burned off. However, Medina's head was charred and his face was
scalded. The trial court in Jones described the execution:
"When Pedro Medina was executed on March 25,
1997, the following events occurred. When the electrical current was
activated, within seconds . . . smoke emanated from under the right
side of Medina's head piece, followed by a 4 to 5 inch yellow-orange
flame which lasted 4 to 5 seconds and then disappeared. After the
flame went out, more smoke emanated from under the head piece to the
extent that the death chamber was filled with smoke--but the smoke
was not dense enough to impair visibility in or through the chamber.
The smoke continued until the electrical current was shut off in the
middle of the third cycle. Although several witnesses to the
execution tried to describe the odor of the smoke, only one witness,
Florida State Prison Superintendent Ronald McAndrews, described the
odor as burnt sponge . . .. This Court finds that the odor smelled
was burnt sponge, not burnt flesh.
"The physician's assistant, William Mathews,
examined Medina's body. At that time, Medina was not breathing or
exchanging air through his nostrils; his pupils were fixed and
dilated; and he had an agonal pulse and heart sounds. When the
physician's assistant was no longer able to detect any pulse or
heart sounds, the attending physician, Dr. Almojera, examined Medina
and pronounced him dead at 7:10 a.m. During Dr. Almojera's last
examination Medina's chest was seen to move two or three times in a
two to four minute period. A couple of witnesses thought Medina was
trying to breathe. Several witnesses did not describe it as
attempted breathing, but as a lurching, spasmodic movement, a
shudder, and outward not upward movement. No witness, particularly
those closest to Medina, could state that he was in fact breathing
or attempting to breathe.
"Jones, 701 So. 2d at 86 (Shaw, J.,
"As with Tafero's body, Medina's body also was
mutilated by the electrocution. The findings of the pathologists who
conducted the autopsy of Medina were summarized by the trial court
"1. The head had a ‘burn ring’ on the crown of
the head that was common in executions by judicial electrocution.
"2. Within the ‘burn ring’ there was a third
degree burn on the crown of the head, with deposits of charred
material. . .
"3. There was a first degree burn of the upper
front face and head, caused by scalding steam. . .Unlike the Tafero
execution, Medina had no burning of the eyebrows, eyelashes, or
small hairs of the face that would have resulted if the burning had
been the result of a flame rather than steam.
Pedro Medina is executed
"He was burning alive"
Foot-long flames shot out of his head during
By Kirstin Roberts -
April 11, 1997
at the Florida State Prison on March 24 strapped Pedro Medina into
an electric chair nicknamed "Old Sparky," sent 2,000 volts of
electricity into his body and watched as 12-inch long flames shot
out from his face and head.
"It was brutal,
terrible," said Michael Minerva, Medina's lawyer and an anti-death
penalty activist who witnessed the gruesome killing. "It was a
burning alive, literally."
Blue and orange fames
shot from Medina's head and burned for up to 10 seconds, filling the
execution chamber with smoke. The smell of burnt flesh filled the
Under pressure from the public
outcry that followed, Gov. Lawton Chiles asked for a review of the
state's execution procedures. But state officials tried to claim
that Medina suffered no pain when his face caught on fire.
"Old Sparky" does its job fine, according to state Attorney General
Bob Butterworth. "People who wish to commit murder, they better not
do it in the state of Florida because we may have a problem with our
electric chair," Butterworth bragged to reporters.
Gruesome executions are not new
in Florida or elsewhere. In 1990, when Florida killed Jesse Tafero,
six-inch flames erupted from his head when the electricity was
turned on. It took a total of three jolts of electricity to stop
Lethal injection, which is
viewed as a more "humane" way to kill, is equally barbaric. In 1992,
it took Arkansas prison officials almost an hour to find a suitable
vein on Rickey Ray Vector, a mentally retarded inmate, to administer
the lethal injection. Though they weren't allowed to view the scene,
witnesses could hear Vector's moans and screams throughout the
"The horror becomes more of a horror,"
Lorry Post, a New Jersey anti-death penalty activist, said of
Medina's execution. "If it were nice and clean and antiseptic, it
wouldn't come to people's attention. People are noticing. Even
before his execution, scores of people, including Pope John Paul II,
spoke out and organized against the killing of Medina, a mentally
ill Cuban refugee. Lindi James, the daughter of the woman Medina was
convicted of killing, was also active on his behalf. James said she
believed Medina was innocent of the killing and that her mother
would have opposed the execution in any case.
Medina's last words before being strapped into the electric chair
were "I'm still innocent."
Saved in time to be
Texas death-row prisoner David Lee
Herman was rushed to the hospital April 1 after he slashed his
wrists and throat with a razor blade. Doctors saved Herman's life--just
in time for his execution in the electric chair two days later on
This is not the first time prison
officials have saved the life of a person they're about to kill.
In 1995, an Oklahoma inmate was rushed to the hospital to have his
stomach pumped after overdosing on lethal drugs. Doctors worked
quickly enough so that prison officials could execute him the same
United States Court of Appeals
For the Eleventh Circuit
59 F.3d 1095
Pedro MEDINA, Petitioner-Appellant,
Harry K. SINGLETARY, Florida Department of Corrections,
July 17, 1995
Appeal from the United
States District Court for the Middle District of
Before DUBINA, BLACK
and CARNES, Circuit Judges.
BLACK, Circuit Judge:
Pedro Medina, a
Florida inmate who was convicted of first-degree
murder and sentenced to death, appeals the district
court's denial of his petition for a writ of habeas
corpus. Medina contends that his conviction and/or
sentence were invalid on thirteen constitutional
grounds. We affirm the district court's denial.
Medina came to the
United States from Cuba in 1980 as part of the
Mariel boatlift when he was nineteen years old. He
was released from a Cuban mental hospital
immediately before leaving Cuba. Medina lived in the
Orlando area and was befriended by Dorothy James. In
late 1981, Medina moved to Tampa.
James was found
dead in her Orlando home on April 4, 1982. She had
been gagged, stabbed multiple times, and left to die.
Early in the morning of April 8, 1982, Medina was
found asleep in James' automobile at a rest stop on
I-10 near Lake City and was arrested for theft of
The next day,
Detective Daniel Nazarchuk, a detective
investigating the murder of James, interviewed
Medina in the Lake City jail about the automobile
and the murder. Medina was arrested and indicted for
the murder of James.
psychiatric evaluation and was examined by two
psychiatrists. Each determined that Medina met the
statutory criteria for competency to stand trial. A
competency hearing, at which Medina testified, was
held the day before trial. The court found that
Medina was competent to stand trial.
Medina was tried
before a jury March 15-18, 1983, and was convicted
of first-degree murder and auto theft. He was
sentenced to five years' imprisonment for the auto
theft conviction. The jury, by a 10 to 2 vote,
recommended the death penalty for the murder
The trial court
found two aggravating circumstances--the murder was
"especially heinous, atrocious, and cruel" and was "committed
for pecuniary gain"--and a single mitigating
circumstance--Medina had "no significant history of
prior criminal activity." See Fla.Stat. Sec.
921.141. The court found that the aggravating
circumstances outweighed the mitigating circumstance
and sentenced Medina to death.
Medina appealed to
the Florida Supreme Court, which affirmed both the
conviction and sentence. Medina v. State, 466 So.2d
1046 (Fla.1985). Medina then filed a motion for
postconviction relief pursuant to Fla.R.Crim.P.
3.850. The trial court determined that twelve of his
fourteen claims were or could have been raised on
direct appeal and were therefore procedurally
The court held an
evidentiary hearing on the other two claims:
withholding of material, exculpatory evidence by the
state in violation of Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
ineffective assistance of counsel during the
sentencing phase in that counsel failed to
investigate and present compelling and available
mitigation evidence. The trial court denied all
relief and the Florida Supreme Court affirmed the
denial. Medina v. State, 573 So.2d 293 (Fla.1990).
Medina filed a state petition for a writ of habeas
corpus and the Florida Supreme Court denied the
petition. Medina v. Dugger, 586 So.2d 317 (Fla.1991).
Medina filed a
federal petition for a writ of habeas corpus
alleging numerous constitutional violations. The
petition was denied by the district court and is the
subject of this appeal.
II. THE CLAIMS
On appeal, Medina
raises thirteen claims, some of which consist of
several separate issues. We find that only three of
these claims merit discussion
and will discuss each individually.
A. The Statement Claim
that the statement given to Nazarchuk on April 9,
1982, should not have been admitted at trial because
Nazarchuk violated Medina's constitutional right to
remain silent when he continued the interview after
Medina indicated that he did not wish to talk.
Medina further alleges that the error in admitting
the statement was not harmless even though the
statement was exculpatory because the state offered
no direct evidence of his guilt and "distracted
attention from the lack of direct evidence by
suggesting that Mr. Medina's statements were 'incredible.'
The state responds
that, under the circumstances of this case, Medina's
invocation of his right to remain silent was
ambiguous and that it was reasonable for Nazarchuk
to seek to clarify Medina's response. The state
further responds that admission of the statement, if
error, was harmless error because the statement was
exculpatory, because Medina testified at trial, and
because Medina was not put on the witness stand
merely to counteract the April 9 statement but to
explain "just why he was found in the victim's car
with a knife that could have killed her."
custodial interrogation, a suspect "indicates in any
manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation
must cease." Miranda v. Arizona, 384 U.S. 436,
473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).
exercise of his option to terminate questioning [a
suspect] can control the time at which questioning
occurs, the subjects discussed, and the duration of
the interrogation. The requirement that law
enforcement authorities must respect a person's
exercise of that option counteracts the coercive
pressures of the custodial setting.... [T]he
admissibility of statements obtained after the
person in custody has decided to remain silent
depends under Miranda on whether his "right to cut
off questioning" was "scrupulously honored."
Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326, 46
L.Ed.2d 313 (1975).
officers are not required to terminate an
interrogation unless the invocation of the right to
remain silent is unambiguous. Davis v. United States,
--- U.S. ----, ----, 114 S.Ct. 2350, 2355, 129 L.Ed.2d
"[A]n accused's postrequest responses to further
interrogation may not be used to cast retrospective
doubt on the clarity of the initial request itself."
Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490,
495, 83 L.Ed.2d 488 (1984) (emphasis in original).
The Supreme Court
has suggested, however, that "an accused's request
... may be characterized as ambiguous or equivocal
as a result of events preceding the request or of
nuances inherent in the request itself." Id.
The inquiry as to
whether a suspect's invocation of his right to
remain silent was ambiguous or equivocal is an
objective one. Davis, --- U.S. at ----, 114 S.Ct. at
2355. "A suspect must articulate his desire to cut
off questioning with sufficient clarity that a
reasonable police officer in the circumstances would
understand the statement to be an assertion of the
right to remain silent." Coleman v. Singletary, 30
F.3d 1420, 1424 (11th Cir.1994), cert. denied, ---
U.S. ----, 115 S.Ct. 1801, 131 L.Ed.2d 727 (1995).
See also Davis, --- U.S. at ----, 114 S.Ct. at 2355.
Thus, "[t]he determination of whether a suspect's
right to cut off questioning was scrupulously
honored requires a case-by-case analysis."
Christopher v. Florida, 824 F.2d 836, 840 (11th
ultimate issue of voluntariness is a legal question
requiring independent federal determination," "[w]e
normally give great deference to the factual
findings of the state court." Arizona v. Fulminante,
499 U.S. 279, 287, 111 S.Ct. 1246, 1252, 113 L.Ed.2d
302 (1991) (quotations omitted). If the state court
held a full and fair hearing on the issue raised by
the habeas petition, and the record fairly supports
the factual findings of the state court, the federal
courts presume the factual findings to be correct.
28 U.S.C.A. Sec. 2254(d) (West 1994); Weeks v.
Jones, 26 F.3d 1030, 1034 (11th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 1258, 131 L.Ed.2d
137 (1995); Cave v. Singletary, 971 F.2d 1513, 1516
We review the
district court's findings of historical fact for
clear error, even when the district court's findings
are drawn solely from documents, records, or
inferences from other facts. Spaziano v. Singletary,
36 F.3d 1028, 1032 (11th Cir.1994), cert. denied,
--- U.S. ----, 115 S.Ct. 911, 130 L.Ed.2d 793
(1995). "If the district court's account of the
evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not
reverse it." Id. (quoting Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct.
1504, 1511, 84 L.Ed.2d 518 (1985)).
3. Factual and
On April 9, 1982,
Medina was interviewed at the Lake City jail by
Detective Daniel Nazarchuk, the Orange County deputy
sheriff in charge of the investigation of Dorothy
James' murder. Detective Diane Payne, also from
Orange County, was with Nazarchuk but did not
actively participate in the interview.
As was the normal
practice, the interview with Medina consisted of two
parts: (1) an initial, unrecorded interview to get
everything in perspective so that the recorded
interview could follow a logical order
and (2) the subsequent recorded interview. The
initial interview lasted approximately thirty to
forty-five minutes and the recorded interview lasted
approximately one hour. The recorded interview
followed immediately after the unrecorded interview,
with no break between the two.
preliminary interview, Nazarchuk explained to Medina
why he and Payne had come to Lake City. He explained
that they were police officers, that Medina was in
jail because he had been found in James' car which
had been stolen, and that James "was deceased as a
result of a homicide." Nazarchuk also advised Medina
of his rights by reading a standard Miranda card to
him. He told Medina that all questioning would stop
if Medina did not want to talk to them. Medina
indicated that he understood his rights and that he
was willing to talk with the detectives. Medina
talked freely with the detectives, denying any
knowledge about the death of James and denying that
he had stolen the car.
lengthy preliminary conversation with Medina about
James, the car, and Medina's actions, and believing
that Medina was willing to continue to talk about
the case, Nazarchuk started a tape recorder. He
asked Medina if it was all right to have the tape
recorder on, stated that they were police officers
investigating the James case, and again advised
Medina of his rights by reading them from the
asked Medina if he wanted to talk to the detectives,
Medina responded in the negative. Nazarchuk
immediately asked, "You don't want to talk to us or
you do want to talk to us?" because, as he explained
at trial, he "wasn't too sure what [Medina] meant by
no [and] asked him to clarify it." Medina then
indicated that he wanted to continue the interview.
Two separate and
independent state hearings were held on whether the
recorded interview should be suppressed. During
Medina's preliminary hearing in the county court,
Judge Gary L. Formet heard testimony from Nazarchuk
and reviewed the transcript of the tape. Immediately
before Medina's trial in the state circuit court,
Judge Rom W. Powell heard testimony from both
Nazarchuk and Medina and listened to the tape while
reviewing the transcript.
At both hearings,
Nazarchuk testified that during the unrecorded
interview, Medina indicated that he understood his
rights as read to him, but he refused to sign the
rights waiver card because he could not read English.
Nazarchuk further testified that Medina indicated
that he would talk to them at that time, that Medina
showed no hesitancy in speaking with them, and that
Medina talked freely with them both before and after
they began recording the interview.
acknowledged that, during the recorded interview,
Medina answered "No" to the question of whether he
wanted to talk at that time. Nazarchuk testified,
however, that it was not clear to him whether Medina
did or did not want to talk.
At the pretrial
hearing, Medina testified that he did not understand
everything Nazarchuk told him regarding his rights.
Medina also testified that, before the tape recorder
was turned on, they had a "long conversation" and "I
did say that I didn't want to talk to him. I wanted
to know who he was by, you know. He went around the
bush, you know. He never told me who he was."
Both state judges
found that Medina's indication that he did not want
to talk to the detectives was not a clear invocation
of his right to remain silent and that Medina
reinitiated the interview after Nazarchuk asked a
clarifying question. Judge Formet found that Medina
was "freely conversing with [Nazarchuk]" before the
tape recorder was turned on and that:
circumstances, the totality that we're looking at
here ..., in fact, it was not clear in the mind of
the detective that there had been a refusal or an
assertion of his right to remain silent and I think
based upon the preliminary leading up to that, that
is a normal reaction. It is not clear to me, having
read this, that this is a definite and clear
assertion of his right to remain silent. I find
nothing wrong with the follow-up question....
Judge Powell found
that "the transcript ... [was] accurate with the
tape" and that "when [Medina] talked to Nazarchuk
off the tape, that is to say before the tape was
turned on, he made statements and never asserted his
right to remain silent." Judge Powell denied the
motion to suppress the April 9 statement and the
tape was played for the jury during Medina's trial.
On direct appeal,
the Florida Supreme Court noted that "[a] ruling on
a motion to suppress is presumptively correct."
Medina v. State, 466 So.2d 1046, 1049 (Fla.1985).
The Court then ruled that "the suppression hearing
testimony supports the court's finding the statement
to have been made freely and voluntarily." Id. at
The district court
determined that the April 9 statement was freely and
voluntarily made because Medina did not "positively
and adequately assert his right to discontinue the
questioning," because he "volunteered the statements
after the police attempted to clarify whether [he]
wanted to continue the interrogation," and because
there was no coercion by the investigators. The
district court also noted that if the trial court
erred in admitting the April 9 statement, the error
was harmless because the statement was exculpatory
and because Medina testified at trial denying any
involvement in the crime.
Initially, we note
that Medina has not challenged the adequacy of the
state court hearings on the admissibility of the
April 9 statement. Both hearings were full and fair
and addressed the specific issue raised in the
petition for a writ of habeas corpus: Whether
Nazarchuk violated Medina's right to remain silent.
Three of the factual findings of the state courts
are pertinent to the issue of whether Medina invoked
his right to remain silent. We will, therefore,
examine these three factual findings to determine if
they are fairly supported by the record.
First, both state
courts found that during the preliminary, unrecorded
interview, Medina made statements and never asserted
his right to remain silent. The record supports this
conclusion. Medina talked freely and without
hesitation about his activities. For a period of
approximately thirty to forty-five minutes, he
discussed his activities with Nazarchuk. He told
Nazarchuk that he was not in James' car but was
thrown into the car by the Florida Highway Patrol,
that he had not been in Orlando since December of
1981, that he had hitchhiked from Tampa, that he was
given a ride by two white people who took him to the
Lake City vicinity, and that he fell asleep and the
white people were gone when he awoke. Medina also
told Nazarchuk that he did not know anything about
Second, the state
trial court found that the transcript accurately
reflects the recorded conversation between Nazarchuk
and Medina. The transcript of the recorded interview
indicates that Medina replied "No" when asked if he
wanted to talk to the detectives at that time. The
transcript uses the word "No" to indicate Medina's
response to several different questions: (1) when
asked whether he wanted to consult with or talk to
an attorney or to have one present during the
interview, Medina replied "No"; (2) when asked
whether anyone had threatened or coerced him to make
a statement or had encouraged him to talk to the
detectives, Medina replied "No"; and (3) when asked
whether he wanted to talk to the detectives, Medina
When we listened
to the tape, however, what we heard indicates that
the specific word used by Medina in reply to each of
these questions was different. When asked whether he
wanted to talk to an attorney, Medina clearly
replied "No." When asked whether he had been
threatened or encouraged to make a statement, Medina
clearly replied "Nah." When asked whether he wanted
to talk to the detectives, Medina's reply was
neither the clear "No" nor the clear "Nah" that he
had used in response to the previous questions.
Although we find
that the transcript does not exactly reflect the
recorded portion of the conversation as we heard it,
we also find that there was sufficient evidence to
conclude that none of the questions was answered in
the affirmative. We therefore hold that the record
fairly supports the factual finding of the state
court and that Medina replied "No" when asked
whether he wanted to talk to the detectives at that
Third, the county
court, in the preliminary hearing, found that during
the recorded conversation, Nazarchuk was not sure
whether Medina had asserted his right to remain
silent. The record supports the state court's
finding. But, whereas the state court found that
Nazarchuk subjectively believed that Medina's
response was ambiguous, we must determine whether
Nazarchuk's belief was objectively reasonable.
As indicated above,
Medina talked freely and at length with Nazarchuk
before the tape recorder was turned on. Medina did
not object to having the tape recorder started, made
no objection to further conversation, and clearly
replied "Yes" when asked "Is it okay to have the
tape recorder going?" Nazarchuk fully expected
Medina to continue talking after the tape recorder
was turned on. In the context of Medina's
willingness to talk during the preliminary interview
and willingness to have the tape recorder turned on,
and in light of the expectation that the interview
would continue on tape, it was reasonable for
Nazarchuk, as it would have been for any officer,
not to understand what Medina meant when he answered
The broader issue
which this Court must decide, however, is whether
"No" can ever be ambiguous or equivocal or whether
we should adopt a per se rule that a suspect's
response of "No" when asked if he wants to talk to a
police officer means the officer cannot go forward
The Supreme Court
has suggested that "events preceding the [response]"
or "nuances inherent in the [response] itself" can
create ambiguity and make the response equivocal,
see Smith, 469 U.S. at 100, 105 S.Ct. at 495, as has
this Court, see Henderson v. Singletary, 968 F.2d
1070, 1073 (11th Cir.) (noting that the
determination that a defendant had not invoked his
right to remain silent was "bolstered by" the
defendant's earlier statement that he might be
willing to talk later), cert. denied, --- U.S. ----,
113 S.Ct. 621, 121 L.Ed.2d 554 (1992); Delap v.
Dugger, 890 F.2d 285, 291-93 (11th Cir.1989) (finding
that the suspect's questions about how much longer
the interview would last and when he could leave,
taken in context, were not an invocation of his
right to remain silent), cert. denied, 496 U.S. 929,
110 S.Ct. 2628, 110 L.Ed.2d 648 (1990).
have also indicated that a court must consider the
entire context in determining whether a suspect has
invoked his or her constitutional rights. See, e.g.,
United States v. Johnson, 56 F.3d 947, 955-56 (8th
Cir.1995) (noting that the court should consider the
defendant's statements "as a whole to determine
whether they indicate an unequivocal decision to
invoke the right to remain silent"); United States
v. Scurlock, 52 F.3d 531, 536-37 (5th Cir.1995) (finding
that the defendant's comment that she needed a
lawyer, taken in context, which included the
defendant's previous admission of involvement in the
crime as well as her previous agreement to give a
recorded statement, was not a clear invocation of
her right to counsel); Lord v. Duckworth, 29 F.3d
1216, 1220-21 (7th Cir.1994) (finding that
defendant's statement, "I can't afford a lawyer but
is there anyway [sic] I can get one?" taken in
context, which included a previous "lengthy, tape-recorded
statement to the police," was, "at best," ambiguous);
United States v. Quiroz, 13 F.3d 505, 512 (2d
Cir.1993) (indicating that the refusal of a suspect
to sign a Miranda waiver form until he had spoken
with his attorney might create an ambiguity as to
the scope of the request if the officers had known
that the suspect had previously answered questions
without requesting counsel); Nash v. Estelle, 597
F.2d 513, 519 (5th Cir.) (en banc)
(finding that a request for an attorney during a
tape-recorded interview was equivocal, in part
because the defendant, during a previous, unrecorded
interview, confessed and the assistant district
attorney "began the conversation with the
expectation that [the defendant] would repeat his
confession"), cert. denied, 444 U.S. 981, 100 S.Ct.
485, 62 L.Ed.2d 409 (1979).
We decline to
adopt a per se rule. Taking into consideration the
events preceding Medina's response, Medina's "No"
was ambiguous and did not clearly indicate his
desire to remain silent. Nazarchuk, uncertain as to
what Medina meant, immediately asked a single,
clarifying question: "You don't want to talk to us
or you do want to talk to us?" Medina's response to
that question indicated that Medina had not invoked
his right to remain silent and the interview
We therefore hold
that Medina did not unambiguously and unequivocally
invoke his right to remain silent and that the
continued interview did not violate Medina's right
to remain silent. To prohibit a clarifying question
under the circumstances which Nazarchuk faced on
April 9, 1982, would "transform the Miranda
safeguards into wholly irrational obstacles to
legitimate police investigative activity." Mosley,
423 U.S. at 102, 96 S.Ct. at 326.
B. The Competency Claims
that (1) his right to procedural due process was
violated when the trial court refused to conduct a
competency hearing during trial despite indicia that
Medina was incompetent to proceed and (2) his right
to substantive due process was violated because he
was, in fact, tried while mentally incompetent. He
also alleges that the mental health evaluations
performed at the time of his trial were
professionally inadequate. He alleges that, because
he presented clear and convincing evidence raising a
real, substantial, and legitimate doubt about his
competence, he is entitled to a postconviction
The state responds
that Medina had a "full and fair" competency hearing
the day before his trial began; that the procedural
due process claim based on the need for an
additional competency hearing was procedurally
defaulted because Medina did not raise the issue on
direct appeal although he did raise another
competency issue; that the facts known to the trial
court were not sufficient to raise a bona fide doubt
as to Medina's continuing competence; that there is
no evidence that the court-appointed mental health
experts performed an inadequate investigation; that
the court, which made the actual decision about
Medina's competence, was aware of Medina's
background, his history of mental health problems,
and his jail medical records at the time the
decision was made; and that Medina has not presented
facts sufficient to create substantial doubt about
his competence, entitling him to an evidentiary
The Due Process
Clause of the Fourteenth Amendment prohibits states
from trying and convicting mentally incompetent
defendants. James v. Singletary, 957 F.2d 1562,
1569-70 (11th Cir.1992) (citing Pate v. Robinson,
383 U.S. 375, 384-86, 86 S.Ct. 836, 841-42, 15 L.Ed.2d
815 (1966); Dusky v. United States, 362 U.S. 402, 80
S.Ct. 788, 4 L.Ed.2d 824 (1960)). The test for
determining competence to stand trial is "whether [a
defendant] has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding--and whether he has a rational as well
as factual understanding of the proceedings against
him." Dusky, 362 U.S. at 402, 80 S.Ct. at 789.
A petitioner may
make a procedural competency claim by alleging that
the trial court failed to hold a competency hearing
after the defendant's mental competence was put at
issue. Pate, 383 U.S. at 385, 86 S.Ct. at 842. To
prevail on the procedural claim, "a petitioner must
establish that the state trial judge ignored facts
raising a 'bona fide doubt' regarding the
petitioner's competency to stand trial." James, 957
F.2d at 1572 n. 15 (citing Fallada v. Dugger, 819
F.2d 1564, 1568 (11th Cir.1987)). Even if a
defendant is mentally competent at the beginning of
his trial, the trial court must continually be alert
for changes which would suggest that he is no longer
competent. Drope v. Missouri, 420 U.S. 162, 180, 95
S.Ct. 896, 908, 43 L.Ed.2d 103 (1975).
Although there are
"no fixed or immutable signs which invariably
indicate the need for further inquiry to determine
fitness to proceed," "evidence of a defendant's
irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial
are all relevant." Id.
"a rebuttable presumption of incompetency upon a
showing by a habeas petitioner that the state trial
court failed to hold a competency hearing ...
despite information raising a bona fide doubt as to
the petitioner's competency," James, 957 F.2d at
1570, but the petitioner bears the burden of showing
that "objective facts known to the trial court were
sufficient to raise a bona fide doubt," Reese v.
Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert.
denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410
(1979). A Pate claim "can and must be raised on
direct appeal" because an appellate court hearing
the claim "may consider only the information before
the trial court before and during trial." James, 957
F.2d at 1572.
A petitioner may
make a substantive competency claim by alleging that
he was, in fact, tried and convicted while mentally
incompetent. Id. at 1571. In contrast to a
procedural competency claim, however, "a petitioner
raising a substantive claim of incompetency is
entitled to no presumption of incompetency and must
demonstrate his or her incompetency by a
preponderance of the evidence." Id.
A petitioner who
presents "clear and convincing evidence" creating a
"real, substantial and legitimate doubt" as to his
competence to stand trial is entitled to a hearing
on his substantive incompetency claim. Id. at 1573 (quoting
Fallada, 819 F.2d at 1568 n. 1).
entitlement to a postconviction evidentiary hearing
on a substantive competency claim, "the standard of
proof is high [and] the facts must positively,
unequivocally, and clearly generate the legitimate
doubt." Card v. Singletary, 981 F.2d 481, 484 (11th
Cir.1992) (quotations omitted), cert. denied, ---
U.S. ----, 114 S.Ct. 121, 126 L.Ed.2d 86 (1993).
A presumption of
correctness attaches to a state court's finding of
competence and a federal habeas court must determine
that the finding is not "fairly supported by the
record" before it may overturn the state court's
decision. Maggio v. Fulford, 462 U.S. 111, 117, 103
S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983); Card, 981
F.2d at 484 n. 5 (citing Demosthenes v. Baal, 495
U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990)). A
district court's determination that there is
insufficient evidence to generate a substantial and
legitimate doubt as to a petitioner's competence to
stand trial is reviewed for clear error. Card, 981
F.2d at 483-84.
manifestation of mental illness demonstrates
incompetence to stand trial; rather, the evidence
must indicate a present inability to assist counsel
or understand the charges." Id. at 487-88 (quoting
United States ex rel. Foster v. DeRobertis, 741 F.2d
1007, 1012 (7th Cir.), cert. denied, 469 U.S. 1193,
105 S.Ct. 972, 83 L.Ed.2d 975 (1985)). Similarly,
neither low intelligence, mental deficiency, nor
bizarre, volatile, and irrational behavior can be
equated with mental incompetence to stand trial.
McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.1976).
The fact that a defendant has been treated with anti-psychotic
drugs does not per se render him incompetent to
stand trial. Fallada, 819 F.2d at 1569.
competence of a defendant is called into question,
the defendant is entitled, "at a minimum, ... [to]
access to a competent psychiatrist who will conduct
an appropriate examination." Ake v. Oklahoma, 470
U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53
(1985). He does not, however, have "a constitutional
right to choose a psychiatrist of his personal
liking or to receive funds to hire his own." Id. Nor
is he entitled to a favorable psychiatric opinion.
Martin v. Wainwright, 770 F.2d 918, 935 (11th
Cir.1985), modified in unrelated part, 781 F.2d 185,
cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d
281 (1986). In Florida, a defendant who raises the
issue of his competence is entitled to examination
by "no more than 3, nor fewer than 2" mental health
experts. Fla.R.Crim.P. 3.210(b).
If a state
prisoner fails to raise a claim in state court, or
attempts to raise a claim in an improper manner, and
state procedural rules preclude the state courts
from hearing the merits of the claim, then the
federal habeas court is also precluded from hearing
its merits, absent a showing of cause and prejudice.
Wainwright v. Sykes, 433 U.S. 72, 80, 97 S.Ct. 2497,
2503-07, 53 L.Ed.2d 594 (1977). "[W]here the state
court correctly applies a procedural default
principle of state law, Sykes requires the federal
court to abide by the state court's decision."
Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.),
cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d
68 (1990). To show cause for procedural default, the
petitioner must demonstrate that some objective
factor external to the defense impeded the effort to
raise the claim properly in state court. Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91
L.Ed.2d 397 (1986).
Under Florida law,
a petitioner is not entitled to collateral relief
for a claim which could or should have been raised
at trial and, if preserved, on direct appeal of the
judgment and sentence. Tejada v. Dugger, 941 F.2d
1551, 1556 (11th Cir.1991) (citing Fla.R.Crim.P.
3.850), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199,
117 L.Ed.2d 439 (1992). The Sykes procedural default
rule does not, however, preclude review on the
merits of a postconviction incompetency claim, even
if the claim was not raised on direct appeal. Adams
v. Wainwright, 764 F.2d 1356, 1359 (11th Cir.1985) (citing
Pate, 383 U.S. at 384, 86 S.Ct. at 841), cert.
denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805
3. Factual and
Medina requested the appointment of two
psychiatrists "to determine his mental state at the
time of the commission of the offense charged and
further to determine his present competence to
assist his counsel in the preparation of his defense."
The request noted Medina's history of mental
problems and suggested that he "appears to suffer
from mental infirmity to the extent it's difficult
to prepare a defense."
appointed two psychiatrists, Dr. Arturo Gonzalez and
Dr. J. Lloyd Wilder, as experts to examine Medina to
determine whether he was competent to stand trial.
The psychiatrists jointly examined Medina at the
Orange County jail on January 14, 1983. They
conducted "a typical psychiatric clinical diagnostic
examination" during an interview which lasted
approximately two hours, "obtaining a history and
doing a mental status examination."
reported that Medina "answer[ed] questions promptly
with coherency and relevancy" and was "well oriented
as to time, place and person." He relayed Medina's
past history, including his background in Cuba and
his history of mental health problems. Dr. Gonzalez
stated his opinion that "the defendant meets the
statutory criteria for competency to stand trial"
and detailed the reasons for his opinion. He further
stated that "Medina should be able to relate to his
attorney in a relevant and coherent fashion" and
that "he is capable of coping with the stress of
incarceration prior to his trial without any
significant deterioration in his mental status."
report also relayed information about Medina's
background history. The report noted that Medina's "impaired"
fund of general information was "a product of his
education and background rather than any mental
illness" and that Medina's talk of God sitting next
to him was "more of a religious or pseudo-religious
experience in time of trouble than a hallucination
or delusion." Dr. Wilder stated that, in his opinion,
meets the criteria
listed in your order quoted from 918.15(1) of the
Florida Statutes, which includes appreciation of
charges, range and nature of possible penalties,
understanding of the adversary nature of the legal
process, and capacity to disclose to his attorney
pertinent facts surrounding the alleged offense.
Also his ability to relate to his attorney and
assist his attorney in planning a defense, his
capacity to realistically challenge prosecution
witness, and his ability to manifest appropriate
At the hearing on
pretrial motions, Medina moved for an additional
psychiatric examination because "under the Florida
Rules of Criminal Procedure, Rule 3.210, the
Defendant may have three (3) psychiatrists examine
him to determine competency." Counsel argued that
Medina had "some deep seated problems" and "some
severe emotional problems." In response, the court
noted: "If there had been a split of opinion between
the psychiatrists ... I would appoint a third one to
resolve it or see which way he would go." As there
was no split, the court denied the motion.
hearing was held before the trial judge the day
before Medina's trial began. Both parties stipulated
that the reports from the two psychiatrists be
considered as evidence for the purposes of the
hearing. Medina testified at the competency hearing.
He relayed to the court an incident of sleep-walking
when he was approximately five years old; an
incident of hospitalization for depression when he
was sixteen or seventeen years old and was denied
admission to college; and a second incident of
hospitalization in a mental hospital when he was
eighteen years old during which he was released at
night but taken back during the day for treatment.
In response to
questions from the court, Medina described his
personal reading and his educational activities
while in jail, including taking classes to pass the
GED and to learn English. Medina's jail medical
records were also admitted into evidence.
In reviewing the
medical records, counsel for Medina called the
court's attention to the time in August 1982 when
Medina was placed under suicide watch, but the court
noted several entries where Medina had exhibited no
strange or unusual behavior. During the hearing,
Medina's counsel renewed his motion for a third
psychiatric examination, arguing that the reports
from the previously appointed psychiatrists did not
detail how the criteria for legal competence were
met. The motion was denied.
Based on the
evidence presented, the court found Medina to be
competent to stand trial. Specifically, the court
noted that, while testifying, Medina appeared "to be
rational, understanding, certainly able to
transcript confirms several instances of courtroom
behavior on the first and second days of trial which
Medina alleges reflect his mental incompetence.
Additionally, on the morning of the second day,
before Medina was brought into the courtroom, the
officers guarding Medina reported that he was "loud,
boisterous, and hostile;" that it took three
officers to restrain him that morning; that over the
past months he had been very unpredictable, calm for
several days and then very hostile to other inmates
and officers; that he usually calmed down when
placed in chains or shackles; and that it appeared
that he had a very violent temper which could be set
off by "the least little thing." Counsel again moved
for an additional psychiatric exam and the court
denied the motion.
indicated that Medina would create a disturbance in
the courtroom if brought in at that time but
suggested that in thirty minutes or an hour he might
not be a problem. Co-counsel, who left the courtroom
to check on Medina, reported that Medina was "agitated"
but that he said he would calm down and behave. The
court ordered that Medina be put in restraints and,
if he was calm, be brought to the courtroom. Medina
was brought to the courtroom.
On the fourth day
of trial, against advice of counsel, Medina
testified on his own behalf. He admitted that he had
been at James' home on the night she was killed but
denied any involvement in her death. He testified
coherently about his activities on the evening of
the murder and following the murder up to the time
of his arrest.
He stated that he
thought James had been killed by three Cubans who
were looking for him. Medina concluded by stating
that he had chosen to testify so that he could tell
the jury the truth about what had happened. Medina
also testified coherently on his own behalf during
the penalty phase of his trial.
On direct appeal,
Medina raised only one competency issue: whether the
trial court erred in denying his motion for
examination by a third psychiatrist. The Florida
Supreme Court found that the trial court had not
abused its discretion in denying the motion "after
two experts had already found Medina competent."
Medina v. State, 466 So.2d 1046, 1048 n. 2 (Fla.1985).
In his Rule 3.850
Motion to Vacate, Medina raised several competency
Prior to the evidentiary hearing, the trial court
found that the competency claims, as well as certain
other claims, were "without merit because they were
or could have been raised by direct appeal."
hearing was limited to two issues: whether a Brady
violation had occurred and whether counsel was
ineffective for failing to present nonstatutory
mitigating evidence, including evidence of Medina's
mental health. Three mental health experts testified
that Medina was psychotic. Dr. Joyce Carbonell, who
met and evaluated Medina in September 1988, and Dr.
Dorita Marina, who met and evaluated Medina in June
and July 1987, are clinical psychologists who based
their evaluations on various psychological tests and
defense records, as well as on interviews with
Medina. Dr. Marina believed that Medina suffered
from paranoid schizophrenia.
Dr. Stephen Teich,
who met and evaluated Medina in the fall of 1988, is
a forensic psychiatrist who based his evaluation
primarily on an interview with Medina but also
reviewed defense records to answer questions he had
after the interview. Dr. Teich believed Medina's
psychosis was based on depression but he was unable
to rule out schizophrenia.
At the hearing,
the mental health experts were not allowed to
testify as to Medina's competence to stand trial
because that issue had previously been found to be
without merit. Medina, however, proffered the
written report of Dr. Marina. After detailing the
materials which she used in evaluating Medina,
reviewing his background, and stating her
observations and the results and interpretations of
the various tests she administered, she stated her
conclusions and recommendations.
regard to his competence to stand trial, she stated:
"It appears that though this individual had a
factual understanding of the charges against him, he
lacked a rational ability to aid counsel in his
defense.... There is a substantial probability that
this individual was incompetent to stand trial at
the time his trial was held." She further stated:
"In my professional opinion, Mr. Medina was and is
incompetent to stand trial under the criteria of
The trial court
denied the Rule 3.850 motion. The Florida Supreme
Court agreed, finding that the competency issues
were "procedurally barred because they, or
variations of them, had been raised on direct
appeal," and affirmed the trial court's denial of
the motion. Medina v. State, 573 So.2d 293, 294-95 (Fla.1990).
In his state
petition for a writ of habeas corpus, Medina again
raised several competency issues.
Medina admitted that "he raised his competency ...
issues on direct appeal and in his motion for
postconviction relief." Medina v. Dugger, 586 So.2d
317, 318 (Fla.1991). The court found that the
competency issues were procedurally barred. Id.
In his federal
petition for a writ of habeas corpus, Medina alleged
that he was incompetent and was convicted and
sentenced in violation of his constitutional rights
when the trial court "refused to conduct a
competency hearing during trial, refused to appoint
a mental health expert, and accepted professionally
inadequate mental evaluations over the objection of
In support of his
competency claims, Medina pointed to the mental
health evidence from his Rule 3.850 hearing. The
district court found that "all of the issues raised
in [his competency] claim, except the issue
regarding the appointment of a third expert, are
procedurally barred" because the Florida Supreme
Court had determined that the claims were
procedurally defaulted. The district court also
found that Medina had not shown cause or prejudice
that would excuse the default and that the record
would not support "either prong of the cause/prejudice
district court found that the competency issues were
without merit. Noting that "[t]he report of Dr.
Marina does not unequivocally and clearly generate a
legitimate doubt as to [Medina's] competency to
stand trial," the district court found that Medina "failed
to generate a real, substantial and legitimate doubt
as to his competence to stand trial." The district
court also found that, as required by Florida law,
the trial court appointed two experts and "there is
no indication that the appointed experts performed
an inadequate investigation."
4. Analysis and
On direct appeal,
Medina raised only one competency claim: that he was
entitled to evaluation by a third mental health
expert. He did not raise his procedural competency
claim that he was entitled to a Pate hearing during
the trial. Although the Pate claim was raised by
Medina in his Rule 3.850 motion and in his state
habeas petition, the Florida Supreme Court held that
the claim was procedurally defaulted because it
could have been raised on direct appeal and was not.
Medina has not shown cause for the procedural
default, and we are therefore prohibited, under
Sykes, from considering the merits of Medina's
procedural due process claim that a second
competency hearing should have been held during
Medina did not
raise, on direct appeal, his substantive competency
claim that he was tried while incompetent. His
substantive claim, however, is not subject to
procedural default and must be considered on the
merits. We hold that he has not presented clear and
convincing evidence creating a real, substantial,
and legitimate doubt as to his competence to stand
trial, that he is not entitled to an evidentiary
hearing, and that his substantive competency claim
is without merit.
The trial court's
finding that Medina was competent to stand trial is
presumed to be correct and may not be overturned if
it is fairly supported by the record. The trial
court had reports from two independent psychiatrists
finding that Medina was competent to stand trial.
The trial court also heard testimony from Medina
himself. Medina spoke rationally and with
understanding, describing his background as well as
the educational activities in which he had
participated while in jail.
Although there was
evidence that Medina had experienced mental problems
in the past, both in Cuba and in jail, this evidence
did not support a finding that Medina was
incompetent at the time of the competency hearing.
The trial court's finding of competence is fairly
supported by the record before the court at the time
of the decision.
entitlement to an evidentiary hearing on his
postconviction claim of incompetence, Medina must
present evidence that "positively, unequivocally,
and clearly" generates legitimate doubt as to his
competence at the time of his trial. Card, 981 F.2d
at 484. Medina alleges that the requisite doubt is
created by evidence of his behavior during trial, by
evidence from three mental health experts who
testified at his Rule 3.850 hearing, and by evidence
that the two pretrial mental health evaluations were
Medina did, at
times, misbehave during his trial. He also responded
appropriately to the court's reprimands, behaved
appropriately during much of the trial, and
testified coherently and rationally on his own
Carbonell nor Dr. Teich testified as to Medina's
competence to stand trial. Dr. Marina did state in
her report that she believed Medina was incompetent
to stand trial. Her evaluation, however, conducted
four years after Medina's trial, is in direct
contradiction to the evaluations performed by Drs.
Gonzalez and Wilder shortly before Medina's trial.
acknowledging that she had seen the two
psychiatrists' reports, Dr. Marina refused to state
that the reports were wrong.
She also indicated that Medina was not psychotic all
the time but had periods when he was lucid and
related to others and that he had a factual
understanding of the charges against him.
presented no evidence to show that the evaluations
by Drs. Gonzalez and Wilder were professionally
inadequate. None of the mental health experts who
testified at the Rule 3.850 hearing suggested that
the evaluations were inadequate, although all had
reviewed the evaluations and considered them along
with other information in reaching their own
specifically asked if the psychiatric reports were
wrong, Dr. Marina replied "I do not know about
psychiatrists." Medina suggests the evaluations
performed by Drs. Gonzalez and Wilder were
inadequate because the psychiatrists relied solely
on a self report by Medina, did no testing, were
provided no background material, provided no
diagnosis, and did not individually discuss the
discussed the background information provided by
Medina during the interview; both stated that Medina
was hospitalized in Cuba at a mental hospital; both
itemized the statutory competency criteria and
specifically stated that Medina met them. Although
neither psychiatrist stated a diagnosis, there was
no reason for either to do so because (1) they were
not asked to "diagnose" Medina and (2) they found
that Medina was both competent to stand trial and
competent at the time of the alleged offense.
Wilder specifically stated that Medina's "impaired"
fund of general information was not the result of
any mental illness. Finally, Medina fails to
appreciate the difference between psychological
evaluations and psychiatric evaluations and the
different methods used by the two professions:
psychologists perform and rely upon the results of
psychological tests; psychiatrists do not, although
they may consider tests performed by others along
with other information in reaching their conclusions
as did Dr. Teich.
The evidence fails
to meet the high standard required for an
evidentiary hearing on the postconviction claim of
incompetence in that it does not "positively,
unequivocally, and clearly" generate doubt as to
Medina's competence to stand trial.
Card, 981 F.2d at 484. The district court did not
err in determining that Medina "failed to generate a
real, substantive and legitimate doubt as to his
competence to stand trial." He is not entitled to an
evidentiary hearing and his substantive competency
claim is without merit.
C. The "Heinous,
Atrocious, or Cruel" Aggravating Factor Claim
that Florida's "heinous, atrocious, or cruel"
aggravating factor is vague and overbroad and that
the vagueness and overbreadth were not cured by a
limiting instruction to the jury during sentencing.
The state responds
that Medina never presented this claim to the state
courts, that the state courts would find that the
claim is procedurally barred because Medina did not
propose a limiting instruction and did not object to
the instruction which was given to the jury, and
that the claim is therefore procedurally defaulted
for federal habeas purposes.
Amendment requires that a capital sentencer's
discretion be channelled and limited so as to
minimize the risk of imposing the death penalty in a
wholly arbitrary and capricious manner. See Maynard
v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853,
1858, 100 L.Ed.2d 372 (1988).
permit imposition of the death penalty upon a
finding that the murder was "especially wicked, evil,
atrocious, or cruel," must be accompanied by further
instruction narrowing the jury's discretion. See
Stringer v. Black, 503 U.S. 222, 227-28, 112 S.Ct.
1130, 1135, 117 L.Ed.2d 367 (1992); Espinosa v.
Florida, --- U.S. ----, ----, 112 S.Ct. 2926, 2928,
120 L.Ed.2d 854 (1992)
In Florida, a
capital defendant who does not challenge the "heinous,
atrocious, or cruel" instruction "either by
submitting a limiting instruction or making an
objection to the instruction as worded ... is
procedurally barred from complaining of the
erroneous instruction." Beltran-Lopez v. State, 626
So.2d 163, 164 (Fla.1993), cert. denied, --- U.S.
----, 114 S.Ct. 2122, 128 L.Ed.2d 678 (1994). See
also, Hardwick v. Dugger, 648 So.2d 100 (Fla.1994).
Even a pretrial
motion objecting to the vagueness of the "heinous,
atrocious, or cruel" factor is not sufficient to
preserve an objection to the instruction if the
party did not object after the court instructed the
jury and did not make an advance request for a
specific instruction. Sochor v. Florida, 504 U.S.
527, 534 n. **, 112 S.Ct. 2114, 2120 n. **, 119 L.Ed.2d
326 (1992) (citing, among others, Harris v. State,
438 So.2d 787, 795 (Fla.1983), cert. denied, 466
U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984)).
If a state
prisoner "fail[s] to exhaust state remedies and the
court to which [he] would be required to present his
claims in order to meet the exhaustion requirement
would now find the claims procedurally barred, ...
there is a procedural default for purposes of
federal habeas," Coleman v. Thompson, 501 U.S. 722,
735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640
(1991), and the federal habeas court is precluded
from hearing the merits of the claim, absent a
showing of cause and prejudice, Wainwright v. Sykes,
433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d
3. Factual and
Before his trial
began, Medina filed a motion to declare Fla.Stat.
unconstitutional. Medina argued that the section of
the statute enumerating the aggravating and
mitigating circumstances was vague and overbroad.
Specifically, Medina argued that the "heinous,
atrocious, or cruel" aggravating factor was
overbroad because "[a]lmost any capital felony would
appear especially cruel, heinous and atrocious to
the layman." The motion was denied.
During the charge
conference for the sentencing portion of Medina's
trial, the state requested the "especially wicked,
evil, atrocious, or cruel" charge. Although counsel
for Medina objected to including the instruction
because this murder was no more "atrocious or cruel
than any other first degree murder," she did not
object to the wording of the instruction and did not
suggest a limiting instruction. The court instructed
the jurors that they should consider "whether the
crime for which the defendant is to be sentenced was
especially wicked, evil, atrocious, or cruel." After
the jury left the courtroom to deliberate, the court
asked, "Does counsel approve of the instructions and
the advisory sentence form?" Counsel for Medina
replied, "Yes, sir." At no time during trial, either
during the charge conference or after the charge was
given, did Medina offer a limiting instruction on
the "heinous, atrocious, or cruel" aggravating
factor or object to the constitutionality of the
instruction as given.
On direct appeal
to the Florida Supreme Court, Medina argued that the
trial court erred in denying his motion to declare
Fla.Stat. Sec. 921.141 unconstitutional. Medina also
argued that the statute was vague and overbroad.
Medina did not, however, attack the specific
instruction given to the jury. Citing Peavy v.
State, 442 So.2d 200 (Fla.1983), the Florida Supreme
Court found that the issue of the constitutionality
of the Fla.Stat. Sec. 921.141 had previously been
decided against Medina's contentions. Medina v.
State, 466 So.2d 1046, 1048 n. 2 (Fla.1985).
In his federal
petition for a writ of habeas corpus, Medina
objected to application of the "heinous, atrocious,
or cruel" aggravating factor because "the facts and
law do not support a finding that the death occurred
in a heinous, atrocious or cruel manner." He
supported this allegation by suggesting that the
"error was compounded when the jury instructions
failed to limit the jury's discretion."
The trial court
instructed the jury with the language rejected by
the Supreme Court in Espinosa, and the jury was not
provided any narrowing instructions. Medina, however,
never requested a limiting instruction. In fact,
Medina's counsel specifically approved the
instructions given to the jury. Medina never raised
the issue of a limiting instruction on direct
appeal, in his Rule 3.850 motion for postconviction
relief, or in his state habeas petition.
issue was not addressed in the state courts, we hold
that it would be procedurally barred because Medina
did not request a limiting instruction and did not
object to the instruction as given. The claim is
therefore procedurally defaulted for purposes of
federal habeas corpus and, as Medina failed to even
suggest any cause or prejudice, this Court is
precluded from addressing the merits of the claim.
None of Medina's
claims warrants relief. The district court did not
err in denying his petition for a writ of habeas