Florida executes Manuel Valle for the killing of a Coral Gables police officer in 1978

By Patricia Mazzei - MiamiHerald.com

September 28, 2011

STARKE -- Manuel Valle was executed by lethal injection Wednesday at Florida State Prison for fatally shooting a Coral Gables police officer and wounding another one 33 years ago during a traffic stop. His execution had been scheduled for 4 p.m., but the U.S. Supreme Court delayed it for almost three hours to review — and ultimately reject — Valle’s last-ditch petition to block it.

Valle was convicted in 1978 for murdering Officer Louis Pena, who had pulled Valle over for running a red light. Valle, then 27 years old and driving a stolen Camaro, shot Pena, 41, in the neck and backup Officer Gary Spell in the back before fleeing. He was caught two days later.

Amid retrials and repeated hearings, Valle spent more than three decades on Death Row, one of the longest-serving condemned inmates in Florida. Gov. Rick Scott signed Valle’s death warrant — the governor’s first — on June 30. But the courts delayed it twice, pushing back the execution by eight weeks.

When Valle was declared dead at 7:14 p.m. Wednesday, two of Pena’s daughters, Jeneane Skeen of Fort Myers and Lisa Pena of Miami, tearfully hugged in the front row center of the witness chamber. “At this point, it’s beyond closure and it’s beyond justice,” Skeen, surrounded by a dozen relatives and now-retired Gables cops, told reporters after the execution. “We finally got revenge on the lowlife piece of human waste that murdered our father.” Valle’s family, which did not witness the execution, declined to speak to reporters through his lawyers. One of his lawyers and a Catholic chaplain did sit in the witness chamber, next to Pena’s daughters.

Valle became the first Florida inmate executed using pentobarbital, a sedative, as the first of three drugs in the state’s lethal injections. His lawyers had questioned the drug change from the previous anesthetic, sodium thiopental, saying pentobarbital was untested to render an inmate unconscious.

For Valle, the day began when he awoke at 5:32 a.m. He visited through a glass barrier with three sisters, two nieces, a brother-in-law, and his daughter, Rebecca, who was 2 years old when her father was arrested. Later, Rebecca, one of Valle’s sisters and a niece spent an hour with him — with physical contact. By noon, Valle was alone. He showered and dressed in black trousers and a white shirt. He ate most of his last meal: fried chicken breast, white rice, garlic toast and peach cobbler. He drank a Coke. He met with the chaplain. He took diazepam to ease his nerves. And then he sat in his cell and waited.

About 3:30 p.m., the nation’s high court issued its delay to consider an appeal from Valle’s lawyers, who argued Valle did not receive an appropriate shot at clemency and should be granted a stay of execution. After almost three hours, the court denied the stay. The execution was rescheduled for 6:55 p.m. When the brown curtain of the execution chamber went up at 6:56 p.m., Valle, who refused a second anti-anxiety drug, lay still with his eyes closed, occasionally adjusting his feet and legs. His arms, about 45 degrees from his body, were restrained by brown straps. A white sheet covered him from the neck down. The warden, Timothy Cannon, asked Valle whether he had any last words. “No, I don’t,” Valle said.

The execution began at 6:58 p.m. After the pentobarbital was administered, Valle opened his eyes wide, shifted his feet, turned to the warden and said something inaudible to the witnesses. Valle then tilted his head slightly to the left and closed his eyes. For a few moments, he blew air out his mouth as his lips quivered. By 7:01 p.m., Valle no longer appeared to be moving. His mouth, initially parted on the right side, slowly opened. The witness chamber remained silent. At 7:13 p.m., a man in a white coat with a red stethoscope around his neck entered the room, listened for Valle’s heartbeat and checked his eyes. The warden spoke briefly into a telephone on the wall, which had maintained an open line to the governor’s office since 3:25 p.m. “The sentence of the state of Florida vs. Manuel Valle was carried out at 7:14 p.m.,” Warden Cannon told the witness room. The brown curtain came down.

Valle executed for killing Coral Gables police officer

Tampa Bay Online

September 28, 2011

RAIFORD -- A man convicted of killing a Coral Gables police officer during a traffic stop 33 years ago has been executed at the Florida State Prison. Manuel Valle, 61, was given a lethal injection and pronounced dead at 7:14 p.m. Wednesday, the governor's office reported.

The process began at 6:56 p.m. when a curtain opened, allowing family members of slain officer Louis Pena and others in a witness room to see Valle with a white sheet placed over him. His arms and face were exposed. He appeared calm and relaxed. When the first drug was administered, Valle raised his feet, turned his head toward the team warden and said something that could not be heard in the witness room. He then yawned, placed his head back down, closed his eyes and made movements with his mouth as if he was snoring. At 7:04 p.m. the team warden, Timothy Cannon, lightly tapped Valle. A doctor walked into a room at 7:13 p.m. and examined Valle. By 7:14 p.m., the team warden was informed that Valle was dead.

Jeneane Skeen, who was 13 when her father was killed, sat in the front row, occasionally blinking rapidly and tightened her lips as she watched Valle. Once Valle was pronounced dead, Skeen held back tears as she smiled and hugged her sister, Lisa Pena. Other relatives consoled each other. Afterward, Skeen read a statement criticizing the process that allowed Valle to remain alive 33 years after the killing, saying Valle's rights were put before her father's. “This is not justice, for 33 years people have asked us if the death penalty will really bring us closure, at this point it's beyond closure and it's beyond justice. We finally got revenge on the lowlife piece of human waste that murdered our father. Officer Louis Pena finally got his rights.”

Valle was the first Florida inmate to be executed using the state's newly revised mix of lethal drugs, a concoction that faced legal challenges which twice delayed carrying out the death sentence.

Valle fatally shot Pena on April 2, 1978, after Pena stopped Valle for a traffic violation while driving a stolen car, according to court records. He also shot fellow officer Gary Spell, who survived and then testified against Valle in court. Spell testified that when he arrived the day of the shooting, Valle was seated in Pena's patrol car. As Pena was checking the license plate of the car Valle had been driving, Valle walked back to the car, reached inside and then walked back and fired a single shot at Pena, the records indicate. He then fired two shots at Spell, who was saved by his bulletproof vest, the records show. Valle fled and was arrested two days later.

A 4 p.m. EDT execution was initially planned, but Gov. Rick Scott's office said it was delayed by an unsuccessful late bid before the U.S. Supreme Court. Southern prisons had seen a series of executions in recent days. On Sept. 21, Georgia executed Troy Davis for the 1989 shooting death of a policeman, despite an international outcry and claims he was innocent. The same day, Texas executed white supremacist Lawrence Russell Brewer for the 1998 dragging death of James Byrd Jr., a black man. A day later, Alabama executed Derrick O. Mason for the shooting death of a store clerk in a 1994 robbery.

Pena's son, also named Louis Pena, stood outside the Florida prison hours before the execution and spoke of his reaction to the unfolding events. “It means finally, my dad's soul is put to rest after 33 years,” said Pena, who was 19 when his father died and is now 53. “He killed a cop in cold blood … He killed a cop and lived 33 years. This man lived another lifetime after taking a life,” Pena added. Inside Skeen and Lisa Pena were wearing buttons with their father's face and name on them. “We wanted him to look out and see him,” Skeen said of Valle. “We really hope he saw us.”

Valle was initially sentenced to die in 1981, but the state Supreme Court ordered a new trial that year. He was again convicted and sentenced to die, but the U.S. Supreme Court vacated that death sentence in 1986. Another jury recommended the death sentence anew in 1988.

Since Scott signed Valle's death warrant, the original Aug. 2 execution date has been delayed twice — once by the Florida Supreme Court and then by the 11th U.S. Circuit Court of Appeals in Atlanta. Both courts later rejected arguments by Valle's lawyers that the new drug mix would cause him pain and constitute cruel and unusual punishment. The state previously used sodium thiopental to render condemned prisoners unconscious before the second and third drugs, pancuronium bromide and potassium chloride, were injected. But sodium thiopental is no longer made in the US and now Florida and other states are substituting it with pentobarbital, marketed as Nembutal. Eighteen people have been executed nationwide using pentobarbital as a replacement anesthetic since Oklahoma became the first last year.

Valle's warrant was the first Scott signed as governor. It comes in a year when there have been an unusually high number of police officers killed in Florida. Six officers have been fatally shot in 2011, according to the Officer Down Memorial Page, a website that tracks officer deaths nationally. That's already more than each of the last three years and one shy of the seven officers killed by gunfire in 2007.

Florida executes man for 1978 police killing

By Michael Peltier - Reuters.com

Sep 29, 2011

TALLAHASSEE, Fla (Reuters) - Florida on Wednesday executed a man convicted of killing a Coral Gables police officer in 1978, the first inmate put to death since the state changed its lethal injection procedure. Manuel Valle, 61, was pronounced dead by Department of Corrections officials at 7:14 p.m. local time, shortly after being administered a series of lethal drugs at Florida State Prison near Starke.

Valle, who spent 30 years on Florida's death row, was the first inmate executed since Republican Governor Rick Scott took office in January. Florida's governor signs the death warrant for a condemned inmate. Valle was the 37th person put to death in the U.S. this year. His execution was delayed for about three hours on Wednesday as his attorney petitioned the U.S. Supreme Court for a stay, arguing unsuccessfully that executing Valle after three decades on death row was both cruel and unusual.

A corrections spokeswoman said Valle was served a last meal of fried chicken, white rice, garlic toast, peach cobbler and a Coke. He did not make a final statement, but the deceased officer's wife issued one. "Even though I believe this execution was just, I don't believe I will ever have complete closure," said Lana Pena Kemmerer.

The Cuban-born Valle was 27 when he shot and killed Coral Gables Officer Louis Pena after being pulled over for running a red light in a stolen car in April 1978. As the officer checked the license tag, Valle retrieved a gun from the stolen vehicle and fatally shot Pena in the neck. When a backup officer arrived, Valle shot him too. Protected by a bulletproof vest, Officer Gary Spell survived and testified at Valle's trial.

Convicted and first sentenced to death in 1981, Valle avoided execution for decades due to numerous appeals, reversals and re-hearings that wound all the way to the U.S. Supreme Court. This was his third death warrant.

Valle was scheduled to die on August 2, but the execution was again postponed to allow for a hearing on his concerns about the use of a new sedative by the state. Earlier this year, Florida prison officials substituted one of the drugs used in the three-drug lethal injection protocol after its Dutch manufacturer stopped making the product to protest its use in executions.

In late August, the Florida Supreme Court unanimously rejected arguments by Valle's attorneys that the substitution of pentobarbital into the procedure would allow their client to remain conscious, thus subjecting him to undue pain and suffering when the next two drugs were administered. In an opinion that cleared the way for future executions using pentobarbital, the court said it found no credible evidence that administering the drug at 10 times the normal sedation dosage would allow Valle to remain conscious. By itself, the drug is considered lethal at the dosage used by the Department of Corrections. It is followed by other medications that paralyze the lungs and cause a heart attack.

Valle was the 70th inmate executed in Florida since the reinstatement of the death penalty in 1976 and the first since February 2010.

Manuel Valle executed, 33 years after killing police officer

By Jackie Alexander - Gainesville.com

September 28, 2011

RAIFORD — The doctor checked the man's pulse. Execution team warden Timothy Cannon then nodded and picked up the phone. “The sentence of the State of Florida versus Manuel Valle was carried out at 7:14 p.m.,” Cannon said. More than 33 years after being convicted of killing a Coral Gables police officer, Manuel Valle, 61, was executed Wednesday night, despite a last-minute appeal to the Supreme Court of the United States.

Jeneane Skeen and Lisa Pena hugged and cried after the brown curtain to the death chamber closed. They're daughters of Louis Pena, who was shot and killed by Valle on April 2, 1978, during a traffic stop. Valle underwent several trials and execution dates before Wednesday.

Skeen said her family endured trial after trial stoically — “because the murderer has rights.” “This is not justice,” she said. “For 33 years, people have asked us if the death penalty will give us closure … We finally got revenge on the low-life piece of human waste that murdered our father.” Skeen was 13 years old when her father was killed. She and Lisa Pena wore pins bearing their father's face. “We wanted him to look out and see we haven't forgotten,” she said. “We've been there since day one of the hearing and we'll be there to the end.”

Valle, who had been on death watch since Gov. Rick Scott signed a death warrant on June 30, was “very calm” and “polite and compliant” leading up to his execution, said Department of Corrections spokeswoman Gretl Plessinger. Valle ate a final dinner of fried chicken breast, white rice, garlic toast, peach cobbler and a Coca-Cola.

He did not open his eyes while laying on a gurney with a white sheet draped over him. Cannon asked if he had last words. “No, I don't,” Valle said. Soon after the administration of the first drug, Valle looked to Cannon. His words were not audible to the witnesses, but Plessinger reported that he asked, “Do I need to start counting backwards again?” Several minutes later, he laid with his mouth slack-jawed while Cannon periodically checked his breathing. Valle was then pronounced dead by the doctor nearly 20 minutes after the start of the procedure.

Valle was the first Florida prisoner executed using a new lethal mix of drugs. Previously, officials had used sodium thiopental for executions. Now, executions are administered using pentobarbital, even though concerns have been voiced that pentobarbital prolongs the death process and causes pain. According to a letter sent to Gov. Scott by Department of Corrections Secretary Kenneth Tucker, the drug is “compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology and technology.”

Benetta Standly, director of the Northeast Florida region of the American Civil Liberties Union, disagreed. “We oppose the death penalty, because we believe it's a violation of the Eighth Amendment of cruel and unusual punishment,” she said. “I'm here to stand with Floridians and say it's not the state's right to take a person's life.”

Plessinger said 397 inmates are on Death Row at two different facilities. Several inmates have been on Death Row longer than Valle, including Norman Parker, who has been there since 1967. According to the department, the average length of stay on Death Row is nearly 13 years. Both the Florida Supreme Court and the 11th Circuit Court of Appeals denied claims earlier this month that the new drug amounted to cruel and unusual punishment.

Earlier Wednesday, there was confusion outside the prison after the Miami Herald inadvertently published premature news of Valle's death. Valle, family members of Pena and media waited for three hours before the death sentence was carried out. Just after 6:30 p.m., news was delivered that the Supreme Court decided not to intervene.

Victor Cabrera, a member of the Coral Gables police department, said the wait was another inconvenience in a long process. “We had no doubt that it was going to happen,” he said. Skeen said she was willing to wait for her father's rights to be restored with the death of Valle. “I would have waited all night until they got it done,” she said.

Valle v. State, 394 So.2d 1004 (Fla. 1981) (Direct Appeal-Reversed).

Defendant was convicted in the Circuit Court, Dade County, Ellen J. Morphonios, J., of first-degree murder of a police officer, attempted murder in the first degree, and possession of a firearm by a convicted felon. Defendant appealed. The Supreme Court held that: (1) where, with expedited trial date and resulting abbreviated trial preparation, defense counsel, even though diligent, was unable to interview 24 of 59 witnesses listed by State pursuant to discovery rules, was denied opportunity to investigate defendant's mental condition and was denied opportunity to present evidence concerning pretrial motions, prejudice to defendant was clear from record; (2) asserted overwhelming evidence against defendant in trial phase did not override his Sixth and Fourteenth Amendment rights to adequate preparation time and effective assistance of counsel; and (3) trial which commenced only 36 days after police officer's murder, 34 days after defendant's arrest, 24 days from date of arraignment and 21 days from date of first discovery information furnished by State denied defendant fair trial, under circumstances of case. Judgment and sentence vacated, and case remanded for new trial. Adkins, J., dissented.

Valle v. State, 474 So.2d 796 (Fla. 1985) (Direct Appeal-Affirmed).

After remand, 394 So.2d 1004, defendant was convicted in the Circuit Court, Dade County, James R. Jorgenson, J., of first-degree murder, and sentenced to death, and he appealed. The Supreme Court, Adkins, J., held that: (1) defendant's confession was admissible; (2) defendant failed to establish that venire selection process substantially underrepresented Latin Americans, blacks, or women; (3) juror was properly excluded for cause for statements that her feelings concerning capital punishment would impair her ability to follow the the law as the judge instructed her; and (4) prosecutor's remarks on closing argument concerning defendant's possibility for parole, and concerning victim's family, were not reversible error. Affirmed. Ehrlich, J., filed concurring opinion in which Overton, J., concurs. Shaw, J., concurred in result only.

ADKINS, Justice.

Appellant, Manuel Valle, appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and the death sentence.

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

CONVICTION

Appellant makes several challenges to his conviction. Specifically, he challenges (1) the admission of his confession to this murder, (2) the method of selection of the grand and petit jury venires, and (3) the trial court's refusal to grant a mistrial on the basis of the prosecutor's alleged comments on his constitutional right to remain silent.

Appellant argues that his confession, which was admitted at trial, should have been suppressed because it was allegedly obtained in violation of his Miranda ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), rights. Shortly after appellant was arrested he was informed of his rights to remain silent and to have counsel present during questioning and the record shows that he waived those rights. Nonetheless, appellant argues that certain events following this initial free and voluntary waiver indicate that he subsequently invoked his Miranda rights. We do not agree. The record reveals that pursuant to their established procedure, the Deerfield Beach Police Department contacted a public defender who spoke with appellant on the telephone. Later, when the interrogating officers arrived and informed appellant that they were there to conduct an interview, appellant stated that he had spoken with an attorney and she had advised him not to sign anything nor to answer any questions. The officer then stated that it was appellant's constitutional right to refuse to speak to him, that he did not have to speak if he did not want to, and that he had come to Deerfield Beach hopefully to talk with him.

Even assuming that appellant's statement was somehow an invocation of his Miranda rights, it was at most an equivocal one, and interrogating officers are permitted to initiate further communications for the purpose of clarifying the suspect's wishes. Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979); Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Thus, when the officer responded that “that was his constitutional right” and that he was there “hopefully to speak with him,” he was not conducting further interrogation within the meaning of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), but was simply trying to determine whether or not the appellant wished to talk. Cf. Cannady v. State, 427 So.2d 723 (Fla.1983) ( “I think I should call my lawyer” held to be an equivocal request for counsel); Waterhouse v. State, 429 So.2d 301 (Fla.) (interrogation does not have to cease when accused states “I think I want to talk to an attorney before I say anything else” because he did not express a desire to deal with the police only through counsel), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983). The right to counsel during questioning can be waived. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). After the officer's innocuous reply, appellant's next statement that he had had several experiences with police officers in the past and that he had cooperated in the past and was willing to do so at that time, clearly shows that he voluntarily waived his Miranda rights. Even if he had previously asserted his rights, the law accords a defendant the opportunity to voluntarily change his mind and talk to police officers. Witt, 342 So.2d at 500. This statement, combined with the previous oral waiver, a later express written waiver, and the fact that at not time before, during, or after questioning did appellant request an attorney, convinces us that he made a voluntary, knowing and intelligent waiver of his Miranda rights. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The trial judge was correct in admitting appellant's confession.

Appellant also contends that because the public defender instructed the Deerfield Beach officers not to question appellant and they agreed, that amounted to an invocation of his right to counsel. That is simply not true. The determination of the need of counsel is the defendant's prerogative. State v. Craig, 237 So.2d 737 (Fla.1970). Thus, just as his attorney would have no right to waive appellant's right to counsel, without his consent, she likewise would have no right to unilaterally invoke that right.

Appellant argues next that his rights to due process and equal protection of the law were violated by substantial underrepresentation of Latin Americans, blacks, and women on the grand and petit jury venires. Appellant's grand jury was selected in accordance with chapters 70–1000, 57–550, and 57–551, Laws of Florida. Pursuant to these laws, circuit judges of the Eleventh Judicial Circuit of Florida submit the names of approximately five hundred individuals believed to be morally fit for jury service. A venire of ninety persons is then formed by a random selection.

This method of grand jury selection and the legislation authorizing grand jury selection have been consistently upheld by this Court as both constitutional and effective. See Dykman v. State, 294 So.2d 633 (Fla.1973); Rojas v. State, 288 So.2d 234 (Fla.1973), cert. denied, 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974); Seay v. State, 286 So.2d 532 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974); Calvo v. State, 313 So.2d 39 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla.), cert. denied, 429 U.S. 918, 97 S.Ct. 309, 50 L.Ed.2d 283 (1976). However, this method is constitutional only if there is a random selection of jurors by the circuit judges. As we stated in State v. Silva, 259 So.2d 153, 160 (Fla.1972):

The tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. This does not mean, however, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community, for such complete representation would frequently be impossible. But it does mean that prospective jurors must be selected at random by the proper selecting officials without systematic and intentional exclusion of any of these groups. (emphasis in original).

Appellant claims that the venire selection process used to select the grand jury which indicted him and prior grand juries was not random with regard to Latin Americans. The Supreme Court of the United States has stated that “in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. Casteneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

Appellant, by his characterization of himself as a Latin American, has failed to prove that he belongs to an identifiable group. “The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.” Id. The term “Latin American” encompasses people from too many different countries and different cultural backgrounds and attitudes to constitute a single cognizable class for equal protection analysis. Accord, United States v. Rodriguez, 588 F.2d 1003 (5th Cir.1979). See also United States v. Duran de Amesquita, 582 F.Supp. 1326 (S.D.Fla.1984) (holding that “hispanics” do not constitute a recognizable class). Appellant also urges a due process violation in the grand jury selection process. The first prong of the test for a due process violation requires that defendant show “that the group alleged to be excluded is a ‘distinctive’ group in the community....” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). For the same reason, appellant has failed to prove that Latin Americans are a “distinctive” group in the community.

Appellant has also failed to prove that this method of grand jury selection was anything other than random with respect to blacks and women. In this case, the petit jury venire was randomly selected by computer from Dade County's voter registration list. Appellant argues that although section 40.01, Florida Statutes (1981), requires that all jurors be registered voters, it is nonetheless impermissible to rely exclusively upon voter lists as the source for random selection of veniremen. However, this Court has repeatedly upheld the constitutionality of section 40.01 against the argument that the selection of juries solely from voter lists was defective. See, e.g., Bryant v. State, 386 So.2d 237 (Fla.1980); Johnson v. State, 293 So.2d 71 (Fla.1974); Reed v. State, 292 So.2d 7 (Fla.), cert. denied, 419 U.S. 995, 95 S.Ct. 307, 42 L.Ed.2d 268 (1974); Jones v. State, 289 So.2d 385 (Fla.1974). Appellant has failed to overcome the presumptive fairness of the source of the petit jurors.

Finally, we find no basis for quashing the indictment or setting aside appellant's conviction based on his challenge to the selection of the grand jury foreperson for the same reasons which we expressed in Andrews v. State, 443 So.2d 78 (Fla.1983).

Appellant's final challenge to his conviction concerns testimony by the interrogating officer that when he asked the appellant the name of his employer during questioning appellant replied, “I'd rather not say.” Appellant contends that this was an impermissible comment by the prosecutor on his exercise of his right to remain silent.

In Donovan v. State, 417 So.2d 674 (Fla.1982), this Court reaffirmed the holding in Bennett v. State, 316 So.2d 41 (Fla.1975), that it is reversible error to comment on an accused's exercise of his right to remain silent. However, we stated in Donovan that “[f]or Bennett to apply, the accused must have exercised his right to remain silent.” 417 So.2d at 675. Appellant refused to answer one question of the many that were asked of him after he had been given his Miranda warnings and had freely and voluntarily waived them. Similarly, in Ragland v. State, 358 So.2d 100 (Fla. 3d DCA), cert. denied, 365 So.2d 714 (Fla.1978), the accused declined to answer one question of many. The court reasoned:

While we are fully aware of the restrictions placed upon prosecutors on commenting upon a defendant's exercise of his or her constitutional right to remain silent, Doyle v. Ohio, 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] (1976); Bennett v. State, 316 So.2d 41 (Fla.1975), the record before us conclusively demonstrates that appellant never invoked his Fifth Amendment right against self-incrimination. Rather, the record reveals that after being given his Miranda warnings, appellant freely and voluntarily conversed with the police. During this post- Miranda lengthy conversation, appellant refused to answer one question of many. We do not believe that comment upon the failure to answer a single question was violative of appellant's constitutional right, when said constitutional right was not invoked. Id. at 100 (citations omitted).

We agree with this reasoning and find it to be particularly applicable to this case. We, therefore, approve the holding in Ragland and find that appellant did not invoke his Miranda rights when he refused to answer one question. Again, the trial judge was correct in not granting a mistrial.

SENTENCE

Appellant also makes several challenges to his sentence. These are: 1) that the trial judge erred by excluding a prospective juror, for cause, 2) that death may not be imposed where mitigating character evidence that appellant would be a model prisoner was excluded, 3) that the prosecutor made impermissible comments during closing arguments, 4) that the jury was not properly instructed on mitigating and aggravating circumstances, 5) that the trial court improperly found this murder to be especially heinous, atrocious, or cruel and 6) that the trial court refused to find certain statutory mitigating circumstances.

First, appellant argues that the sentence of death should be vacated because a juror who had serious reservations about the death penalty was excluded for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Nearly half of the venire at Witherspoon's trial was eliminated by challenges for cause under the authority of an Illinois statute which provided:

In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same. 391 U.S. at 512, 88 S.Ct. at 1772. The jury in the state of Illinois at the time was given unlimited discretion to decide whether or not death was the “proper penalty” in a particular case. Id. at 519, 88 S.Ct. at 1775. The Supreme Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding verniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522, 88 S.Ct. at 1777 (footnote omitted).

After the Witherspoon decision, the Supreme Court and lower courts, this Court included, began to refer to language in footnotes 9 and 21 of Witherspoon as setting the standard for excluding jurors who were opposed to capital punishment. E.g., Maxwell v. Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482, 89 S.Ct. 1138, 1140, 22 L.Ed.2d 433 (1969); Stewart v. State, 420 So.2d 862, 864 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); King v. State, 390 So.2d 315, 319, cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (Fla.1980). In footnote 21, the Court noted that jurors may be excluded for cause if they make it unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Id. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. Similar language in footnote 9 provided:

Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position. Id. 391 U.S. at 515 n. 9, 88 S.Ct. at 1773 n. 9. The Witherspoon test has recently been rejected by the United States Supreme Court, however. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a Florida case, the Court clarified the “general confusion surrounding the application of Witherspoon.” It held that the proper standard for excluding jurors opposed to capital punishment was set forth in a later case, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In Adams the Court discussed its prior opinions dealing with juror exclusion and, in doing so, it noted the Witherspoon language in footnote 21. However, it did not apply the Witherspoon test; rather, the Adams Court concluded:

This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the Court. 448 U.S. at 45, 100 S.Ct. at 2526 (emphasis added).

The Court noted a number of reasons why the Adams test is preferable over Witherspoon, among them, present-day capital sentencing juries are no longer invested with unlimited discretion in choice of sentence, the statements in the Witherspoon footnotes were dicta, and the Adams standard is in accord with the traditional reasons for excluding jurors. 105 S.Ct. at 851.

Applying the Adams standard of whether 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” to the facts of this case, we conclude that juror Ladd was properly excluded for cause. An examination of the voir dire record in this case reveals that Ms. Ladd, the excluded juror, came forward after the initial voir dire was completed, and told the bailiff that she would like to say something that she was too nervous to say before. The following colloquy then occurred:

THE BAILIFF: Miss Ladd wants to say something that she had forgotten about before.... MISS LADD: I don't know, but I was up here, I was like really nervous, and I was thinking of all the questions that you asked me. I wanted to say, like when I heard about the capital punishment and all that, I believe in it, I just don't know if I could do it. What you are saying about the second half of the trial and as far as could I make a decision and everything like that, I just don't believe that I personally could sentence anyone to death, and I just, since you were asking so many questions about the second part, I thought you might want to know that.... MISS LADD: You get so nervous. MR. ADORNO: Are you calm now or do you want a couple of more minutes? MISS LADD: I am as calm as I am going to be. MR. ADORNO: Please tell me what your opinion is as far as your concern? Are you concerned about the second phase? MISS LADD: Well, like I say, I believe in capital punishment, okay, and there's no problem there, but when I am really in here in seeing the defendant and everything and knowing what he looks like, I don't know if I personally could sentence anyone to death. MR. ADORNO: You believe in it, but you do not want to be a party to someone who potentially could be sentenced to death? That is basically what you are trying to tell me? MISS LADD: Basically. MR. ADORNO: This feeling that you have that you have expressed to us, is it of such a degree that first of all that it might affect you from the first part? In other words, we only get to the second part after the first part. MISS LADD: No, I don't think so. MR. ADORNO: So you could give me, on behalf of the State, a fair trial on the first part? MISS LADD: Yes. MR. ADORNO: Even though that is the first prerequisite? In other words, only if he is convicted of first degree murder is there the potential to have a jury recommend and the Court to sentence him to death. MISS LADD: Yes, the first part, you know, I can handle. MR. ADORNO: Let us go to the second part. Is it your feeling to such an extent that if I get up here in front of the twelve members of the jury and you are number twelve and I am telling you what I believe the evidence has shown and what the law is and what I believe is the appropriate recommendation as being death under the facts of the case, am I really only arguing to eleven? ... MISS LADD: I couldn't do it. MR. ADORNO: So you are telling me that there is no way I am going to be able to present to you by way of evidence anything that will get you to recommend anything other than life and make you consider to vote for a recommendation of death? MISS LADD: I can't say there is nothing, you couldn't do, but I mean, you would have a lot to overcome before you would be able to convince me. MR. ADORNO: Okay.... MR. ROSENBERG: What I am asking you is if you went through the guilt or innocence phase and you on the jury voted guilty and go to the second phase and in the second phase what the Court is seeking from you is a recommendation, and that recommendation is between life or death, and the Court instructs you that there are other factors to take into consideration in returning that recommendation and the Court instructs you that the recommendation is to be made by a majority of you, the jury, and the Court instructs you that the recommendation is advisory only, that the Court may not follow that in the final sentence and judgment, but that the Judge may do what he wishes, would you be able to follow those instructions? MISS LADD: No, because I would still see it as me. MR. ROSENBERG: Are there any circumstances under which you would be able to return or recommend to the Court the death penalty? MISS LADD: You know, I can't think there are none, but offhand I can't think of anything. You know, I mean I don't know about the case or anything like that, but I just don't know if I could do it.

On at least six separate occasions juror Ladd stated that her feelings concerning capital punishment would impair her ability to follow the law as the judge instructed her. While the question and answer session may not reach the point where her bias was made “unmistakably clear,” (although we think it did), it did reach a point where the trial judge could have concluded her views would substantially impair her ability to act as an impartial juror. Further, we pay great deference to the trial judge's findings because he was in a position to observe the juror's demeanor and credibility, unlike we as a reviewing court. This is in accord with the Supreme Court's holding in part III of Witt. Although the Witt Court was concerned with the deference to be paid a state trial court's finding in a petition for federal habeas corpus, the same applies on direct review. See 105 S.Ct. at 854.

In conclusion, we hold that the trial judge, aided by his ability to observe the demeanor and clarity of Ms. Ladd's responses, was properly entitled to exclude her for cause.

Appellant's next point on appeal concerns certain character evidence offered by him for the purpose of mitigation. This character evidence consisted of the proffered testimony of certain corrections consultants and prison psychiatrists who would testify that if appellant were given a sentence of life imprisonment rather than death, he would be a “model prisoner.” Appellant relies on our decision in Simmons v. State, 419 So.2d 316 (Fla.1982), to sustain his position that this testimony should have been admitted. That reliance is misplaced, however. In Simmons, the proffered testimony was that of a psychiatrist who stated that unlike some violent criminals with more severe character disorders, appellant had the capacity to be rehabilitated. Id. at 317–18. We held that the trial judge erred in not allowing this testimony before the jury. Unlike the proffered testimony in Simmons, there was no testimony by the expert witnesses here that appellant had the capacity to be rehabilitated, only that he would be a model prisoner while in prison. It does not necessarily follow that if one behaves while he is in prison that he will behave outside of prison.

Competent evidence of this same type had already been heard by the jury. Eurvie Wright, special administrator of the Dade County Corrections and Rehabilitation Department, was a bureau supervisor of the Dade County Stockade in 1975 when appellant was an inmate there. Wright, who was a rehabilitation officer, testified that during the time appellant was in prison, he was a model prisoner and was rehabilitated.

The arguments presented here are similar to those which this Court considered and rejected in Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983). In Stewart, there was evidence from three psychiatrists that the defendant was competent to stand trial. On the day the sentencing proceedings began, defense counsel moved for a continuance and appointment of a psychiatrist and psychologist, claiming their testimony was necessary to demonstrate certain mitigating circumstances set forth in section 921.141(6)(b), (e), and (f), Florida Statutes (1981). Stewart argued on appeal that the trial court's denial of the motion prevented the unlimited consideration of mitigating evidence as mandated by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We found that another psychiatric examination would be merely cumulative and the trial court in no way limited the presentation or consideration of mitigating evidence. We then held that the trial court did not abuse its discretion by refusing to grant the continuance. Id. 420 So.2d at 864. We believe, then, that there was substantial, competent evidence presented to the jury on the issue of appellant Valle's rehabilitation; thus, as in Stewart, any other evidence on this issue was merely cumulative.

As for appellant's contention that the trial court erred in not finding the statutory mitigating circumstances set forth in sections 921.141(6)(b) and (f), neither the jury nor the trial court is compelled to find mitigating circumstances as long as they consider them. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Appellant also contends that the prosecutor made several comments during his closing arguments that amounted to fundamental error, specifically, that the appellant might be paroled if sentenced to life imprisonment, and that a life sentence would be unfair to the victim's family. The record shows that, during closing argument, the prosecutor made the following remarks:

It seems the argument is going to be that 25 years is a real long time. Think about it. If you multiply that by the hours, by the days, by 25 years, that he will be there, he won't be out until he is 55. Well, think about that argument. At least he has hope, even at 55, to get out. His wife, his child, they all have hope that some day they will see him again. Alana Pena will never see Lou Pena again, nor his parents, nor his children. They will never spend a 55th birthday with Lou Pena, and if Mr. Rosenberg comes up and he begins to describe electrocution to you, I agree it is not very pleasant, but if he does, and you should consider that, which I believe you should not, and he describes the last meal and the last walk down the hallway to the room, think about it. This man has had a chance to prepare, to make his peace with his family and with God. Not on April 2nd, 1978, did Lou Pena ever get a chance to do this. When he left his home on that day, I am sure he did not think that that would be the last time he ever left, and I am sure when he kissed his wife and children good-bye, I am sure he did not think that would be the last one.

The remarks concerning the defendant's possibility for parole do not rise to the level of prosecutorial overkill which we determined in Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984), required a new sentencing. Rather, they are more like the remarks made by the prosecutor in Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984), which we held, while they should not have been made, were not so prejudicial as to require a mistrial. Similarly, the remarks concerning the victim's family, while improper, were not so prejudicial as to have influenced the jury to render a more severe recommendation than it would have otherwise and is therefore not reversible error. Johnson v. State, 442 So.2d 185 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2182, 80 L.Ed.2d 563 (1984). See also Blair v. State, 406 So.2d 1103 (Fla.1981).

Appellant also contends that the trial judge and the jury improperly considered nonstatutory aggravating circumstances, to wit, the appellant's lack of remorse, the victim's pain and suffering, and the victim's occupational status. There is no indication in the record that the trial judge considered either the appellant's lack of remorse or the victim's occupation as a police officer in his finding of aggravating factors. As for appellant's claim that the jury improperly considered nonstatutory aggravating factors, the jury is presumed to follow the judge's instructions as to the evidence it may consider. Grizzell v. Wainwright, 692 F.2d 722, 726–27 (11th Cir.1982), cert. denied, 461 U.S. 948, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983). Contrary to appellant's argument, the jury was properly instructed in this instance. This Court has consistently held that the standard jury instructions on aggravating and mitigating circumstances, which were given in this case, are sufficient and do not require further refinements. Vaught v. State, 410 So.2d 147, 150 (Fla.1982); Demps v. State, 395 So.2d 501, 505 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). Thus, since the jury was properly instructed in this instance as to the evidence which it may have considered, there is nothing to indicate that they relied on the prosecutor's remarks in closing argument. See Shriner v. Wainwright, 715 F.2d 1452 (11th Cir.1983).

Appellant's final argument on appeal is that the trial judge erred in finding that this murder was especially heinous, atrocious, and cruel. See § 921.141(5)(h), Fla.Stat. (1983). In addition to this aggravating circumstance, the trial judge also found that two other aggravating factors were applicable to this murder, i.e., that the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, section 921.141(5)(e), Florida Statutes (1983), and the capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, section 921.141(5)(g), Florida Statutes (1983). These findings are not challenged on appeal to this Court. The written sentencing order also states that the trial judge considered all the evidence of statutory and non-statutory mitigating circumstances, and specifically found that none were applicable to this case. We have reviewed that finding and there was no error.

We need not consider whether this aggravating factor is present, then, because even without it there are two aggravating factors that are properly applied here. When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in section 921.141(6), Florida Statutes (1983). State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Accordingly, the conviction and sentence are affirmed. It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN and McDONALD, JJ., concur. EHRLICH, J., concurs with an opinion, in which OVERTON, J., concurs. SHAW, J., concurs in result only.

EHRLICH, Justice, concurring.

I concur with the majority opinion. However, I would note that this Court has previously determined that these facts do not support the finding that the murder was especially heinous, atrocious or cruel. Teffeteller v. State, 439 So.2d 840 (Fla.1983). OVERTON, J., concurs.

Valle v. State, 502 So.2d 1225 (Fla. 1987) (Direct Appeal-Reversed).

After remand for new trial, 394 So.2d 1004, defendant was convicted in the Circuit Court, Dade County, James R. Jorgenson, J., of first-degree murder and sentenced to death. The Supreme Court, 474 So.2d 796, affirmed. The United States Supreme Court, 106 S.Ct. 1943, vacated sentence and remanded. Upon remand, the Supreme Court held that: (1) proffered expert testimony of clinical psychologist and two corrections consultants on issue of possible future adjustment of defendant in prison were not cumulative to testimony of rehabilitation officer, and (2) defendant was entitled to new jury recommendation on sentence. Remanded. Adkins, J., dissented with opinion.

PER CURIAM.

We recently affirmed appellant's conviction for first-degree murder and sentence of death. Valle v. State, 474 So.2d 796 (Fla.1985). In Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986), the United States Supreme Court granted certiorari, vacated the sentence of death, and remanded the cause to this Court for further consideration in light of Skipper v. South Carolina, 476 U.S. 1 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). For the reasons expressed below, we remand for resentencing.

Skipper introduced, as mitigating evidence, the testimony of himself, his former wife, and his mother in proof of his good conduct while in jail awaiting trial. As additional proof of his adjustment to prison life, Skipper proffered the testimony of two jailers and a regular visitor, which testimony was excluded by the trial court as irrelevant and inadmissible. The United States Supreme Court held that the exclusion of this testimony violated the precepts of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which mandate that “the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record,” and that “the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence,’ ” 106 S.Ct. at 1670-71, quoting Eddings, 455 U.S. at 110, 114, 102 S.Ct. at 874, 876. In reaching this conclusion, the Court rejected the state's argument that the excluded testimony was cumulative, finding that the jailers and the visitor were disinterested witnesses whose testimony would be given greater weight by the jury.

A rehabilitation officer testified in the instant case that Valle had been a model prisoner and was rehabilitated during his prior imprisonment. The trial court excluded the expert testimony of a clinical psychologist and two corrections consultants which was proffered in proof of Valle's claim that, if given a sentence of life imprisonment rather than death, he would be a model prisoner. The United States Supreme Court in Skipper found that evidence of probable future conduct in prison is relevant mitigating evidence.

[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer's consideration. .... [A] defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination. 106 U.S. at 1671, 1672 (footnotes omitted).

When we first considered this matter, 474 So.2d at 804, we found that this proffered “model prisoner” testimony was cumulative and properly excluded. We are now persuaded that the excluded testimony of these experts differed in quality and substance from that of the rehabilitation officer. The expert testimony was proffered in proof of the probability that Valle would be a model prisoner in the future. It cannot be said that this evidence was cumulative in light of the rehabilitation officer's testimony that he could only vouch for Valle's behavior while previously imprisoned and that he had no opinion as to Valle's ability to adjust, in the future, to prison life.

Although Skipper requires only that we remand to the “sentencer” for consideration of all relevant mitigating evidence, we remand for a new jury recommendation as well. The jury's recommended sentence is given great weight under our bifurcated death penalty system. It is the jury's task to weigh the aggravating and mitigating evidence in arriving at a recommended sentence. Where relevant mitigating evidence is excluded from this balancing process, the scale is more likely to tip in favor of a recommended sentence of death. Since the sentencer must comply with a stricter standard when imposing a death sentence over a jury recommendation of life,FN* a defendant must be allowed to present all relevant mitigating evidence to the jury in his efforts to secure such a recommendation. Therefore, unless 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. Since we cannot say beyond a reasonable doubt that the exclusion did not affect that recommendation, we remand for a new sentencing hearing with a new jury panel.

FN* “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

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

ADKINS, Justice, dissenting.

I dissent. I am convinced that the recent United States Supreme Court decision of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), does not require us to order a resentencing hearing for Valle. The facts involved in Skipper and the instant case are easily distinguishable, and the language in Skipper indicates that those factual distinctions are controlling and warrant different results.

In Skipper, petitioner and his former wife both testified that petitioner had conducted himself well while in jail awaiting trial. The reversible error occurred when the trial court excluded the testimony of two jailers and one jail visitor who were going to testify that petitioner had “made a good adjustment” during his stay in jail. 106 S.Ct. at 1670. The Court rejected the state's argument that the excluded testimony was merely cumulative and its exclusion harmless in light of the testimony of the petitioner and his former wife. The Court rejected the cumulative evidence/harmless error argument “ on the facts before us.” 106 S.Ct. at 1673 (emphasis supplied). It went on to explain that the error was not harmless because the testimony of three disinterested witnesses would have a far greater impact on the jury than the self-serving testimony of the petitioner. Id.

Unlike in Skipper, Valle presented at trial the testimony of a disinterested witness who testified about his behavior as an inmate. As we noted upon direct appeal, “Eurvie Wright, special administrator of the Dade County Corrections and Rehabilitation Department, was a bureau supervisor of the Dade County Stockade in 1975 when appellant was an inmate there. Wright, who was a rehabilitation officer, testified that during the time appellant was in prison, he was a model prisoner and was rehabilitated.” 474 So.2d at 804. Thus, unlike in Skipper, competent “model prisoner” testimony was presented from a disinterested stockade supervisor, as opposed to the self-serving testimony of the defendant referred to in Skipper. Indeed, the Court in Skipper emphasized the great weight and credibility that such a jailer's testimony would likely carry. 106 S.Ct. at 1673. Thus, the sentencing judge and jury were presented with mitigating evidence indicating that Valle would not pose a danger in prison if spared.

The majority holds, contrary to our prior holding in Valle v. State, 474 So.2d 796, 804 (Fla.1985), that the excluded testimony was not cumulative because it was proffered to prove that Valle would be a model prisoner in the future whereas the admitted testimony referred to Valle's past conduct in prison. Skipper does not require us to reverse our prior finding that the proffered testimony was cumulative and therefore properly excluded.

In Skipper, the United States Supreme Court recognized that testimony of a defendant's past conduct in prison pertains to the defendant's probable future behavior if sentenced to life imprisonment. 106 S.Ct. at 1671. In fact, the improperly excluded testimony deemed relevant to Skipper's likely future conduct in prison spoke only of Skipper's behavior in jail awaiting trial. Further, the Court found that any distinction between testimony regarding the probability that a defendant would be a model prisoner in the future and testimony pertaining to a defendant's behavior while previously imprisoned was “elusive.” 106 S.Ct. at 1672. Skipper does not mandate a resentencing hearing for Valle. Unlike Skipper, Valle has already presented the sentencing judge and jury with “model prisoner” testimony from a disinterested witness.

Valle v. State, 581 So.2d 40 (Fla. 1991) (Direct Appeal-Affirmed).

Defendant was convicted of first-degree murder of police officer, attempted murder in first degree, and possession of firearm by convicted felon, and was sentenced to death, in the Circuit Court, Dade County, Ellen J. Morphonios, J., and defendant appealed. The Florida Supreme Court, 394 So.2d 1004, vacated judgment and sentence and remanded for a new trial. On remand, defendant was convicted of first-degree murder and was sentenced to death, in the Circuit Court, James R. Jorgenson, J., and defendant appealed. The Florida Supreme Court, 474 So.2d 796, affirmed, and defendant petitioned for writ of certiorari. The United States Supreme Court, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353, granted petition, vacated judgment, and remanded for further consideration. The Florida Supreme Court, 502 So.2d 1225, remanded for new sentencing proceeding. The Circuit Court, Norman S. Gerstein, J., sentenced defendant to death. The Supreme Court held that: (1) defendant failed to properly preserve issue for appeal as to whether trial judge held adequate inquiry into State's peremptory challenges of black venire members; (2) fact that information was discovered about juror after jury was sworn did not of itself constitute good cause as matter of law for defense to challenge juror; (3) trial judge properly allowed State to cross-examine defense witness about his opinion of defendant's future prison behavior if, hypothetically, he were eligible for parole in 15 years; and (4) State improperly introduced, in its case-in-chief, testimony that defendant had shown no remorse over killing, but such error was harmless beyond reasonable doubt. Affirmed.

PER CURIAM.

Manuel Valle appeals his death sentence for the 1978 murder of Officer Louis Pena. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution. This Court originally reversed Valle's conviction and sentence of death on the ground that his counsel had not been given an adequate time to prepare for his defense. Valle v. State, 394 So.2d 1004 (Fla.1981). Following a retrial, we affirmed Valle's conviction and death sentence. Valle v. State, 474 So.2d 796 (Fla.1985). Thereafter, upon remand from the United States Supreme Court FN1 for further consideration in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), we remanded the case for a new sentencing proceeding. Valle v. State, 502 So.2d 1225 (Fla.1987). FN1. Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986).

We detailed the facts of this murder in Valle, 474 So.2d at 798:

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

At the resentencing hearing, the jury recommended a sentence of death by an eight-to-four vote. The court then imposed the death penalty, finding in aggravation that: 1) Valle had been previously convicted of another violent felony; 2) the murder was of a law enforcement officer; 3) the murder was for the purpose of preventing lawful arrest; 4) the murder hindered the enforcement of laws; and 5) the murder was cold, calculated, and premeditated. FN2 The judge merged factors 2, 3, and 4, treating them as only one aggravating factor. The judge did not find any mitigation. FN2. §§ 921.141(5)(b), (e), (g), (i), (j), Fla.Stat. (1987).

Valle's first claim on this appeal is that during jury selection the judge failed to hold an adequate inquiry into the state's peremptory challenges of black venire members. He argues that this constitutes reversible error under the principles established in State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), and State v. Neil, 457 So.2d 481 (Fla.1984). We reject this claim because, as demonstrated in the following facts, Valle failed to preserve the issue for appeal.

After the jury had been selected but before it had been sworn, one of Valle's attorneys claimed “an impropriety in the record” as to the state's use of peremptory challenges against certain jurors. The defense attorney noted that six blacks and two Hispanics were peremptorily excused by the state. The judge then observed that if there was a problem with any particular juror he wanted “the state to be able to respond in whichever manner they wish.” One of the prosecutors then asked the judge if he was making a finding that the state had somehow improperly excused jurors. The judge responded, “I've been asked to make no findings and I am making no findings but for record-keeping purposes she has some objection to the state's action and, of course, I'm giving the state an opportunity to respond in time.” The state then voluntarily gave its reasons for peremptorily excusing the eight jurors. FN3 After the prosecutor finished giving his reasons for exercising the peremptory challenges, the defense attorney stated, “I object on the basis of [Valle's] Sixth, Eighth and 14th amendment rights, to the combination of the challenges for cause, either peremptory challenges leading to a jury that is in favor of the death penalty.”

FN3. The state gave the following reasons for challenging the eight jurors:

Juror 1: She appeared unlikely to recommend the death penalty, was either reading or writing something throughout the voir dire examination, and stated that the voice of one of the prosecutors was giving her a headache. Juror 2: Juror two wore sunglasses and a cap pulled over her head in the courtroom. The prosecutor stated that “[i]f somebody comes into the courtroom wearing sunglasses, that shows me exactly how much respect they have in the court system.” Juror 3: The third juror expressed opposition to imposing the death penalty, stating “I can go for life but won't sign to take it away.” Juror 4: Juror four had also expressed reservations about imposing the death penalty, as well as giving detailed explanations of members of her family who had been in the state prison system and had been represented by the public defender's office. Juror 5: The fifth peremptorily excused juror had a son who was being prosecuted for thirty counts of grand theft by the state attorney's office. The state also had information that the juror had lied during voir dire. Juror 6: The sixth juror had also expressed reservations about imposing the death penalty and had a son who had been represented by the public defender's office. Juror 7: Juror seven did not appear to have the sense or intellectual capacity to understand the case. Juror 8: The eighth peremptory challenge was exercised because the juror expressed reservations about the death penalty and indicated he had had a son who was a police officer killed in the line of duty.

The prosecutor noted that the jurors who were challenged based on their reservations about the death penalty had not expressed reservations such as to justify challenges for cause. This Court has previously set out the procedure to be followed under these circumstances. There must be an objection that the challenges are being exercised in a racially discriminatory manner. At this point, the judge should determine if there has been a prima facie showing that there is a strong likelihood that the jurors have been challenged because of their race. Neil. If legitimate reasons for the challenges are not apparent from the jurors' statements but there are other reasons why the challenges do not appear to be racially motivated, the judge should note these reasons on the record. If the judge rules that a prima facie showing has been made, the burden shifts to the challenging party to demonstrate valid, nonracial reasons why each minority juror has been stricken. Thompson v. State, 548 So.2d 198 (Fla.1989). The judge must then evaluate the proffered reasons in deciding whether the objection is well taken.

We believe that under the facts of this case Valle did not properly preserve this issue for appeal. When Valle's attorney first referred to the state's use of peremptory challenges, the judge specifically noted that he had not been asked to make any finding. The defense did not ask the judge to find that it had carried its initial burden of showing that there was a strong likelihood that the jurors were challenged because of their race. After the prosecution volunteered its reasons for challenging the eight jurors, the defense again did not ask the judge to find that it had carried its burden of showing that it was substantially likely that the jurors were challenged because of their race. The only objection that the defense made after the prosecutor gave his reasons for using the peremptory challenges was that the challenges were used to create a jury in favor of the death penalty. This objection certainly cannot be interpreted to preserve the issue of the adequacy of a judge's inquiry under Neil and Slappy.FN4

FN4. In any event, we do not believe that Valle showed that it is likely the challenges were used in a racially discriminatory manner. Two blacks served as jurors and a third served as an alternate. Further, the reasons volunteered by the prosecutor for exercising the peremptory challenges appear to be racially neutral. We further note that Valle, himself, is not black. See Kibler v. State, 546 So.2d 710 (Fla.1989).

The next issue Valle raises is whether the trial judge should have allowed the defense to exercise a peremptory challenge after the jury was sworn but prior to any testimony. Florida Rule of Criminal Procedure 3.310 provides that a trial court “may, for good cause, permit [a challenge] to be made after the juror is sworn, but before any evidence is presented.” After the jury was sworn in this case, the state learned of information about one of the jurors and promptly advised the defense and the judge. The victim's first wife, who was in the audience, told the prosecutors that she recognized one of the jurors because her employer had borrowed money from him in order to loan it to her approximately one and one-half years prior to the trial. She said she did not believe he recognized her because she looked different at the present time. Valle's attorney sought to exercise a peremptory challenge of this juror. However, the defense declined the judge's offer to ask either the juror, separately, or all of the jurors, generally, if they recognized anyone in the courtroom. The judge did not allow the challenge, finding that the new information did not constitute good cause for a challenge. FN5. Valle does not challenge the finding that, on the merits, the new information does not constitute good cause.

Valle argues that the challenge was “for good cause” because the defense did not learn of this information until after the jury was sworn. He argues that the “for good cause” requirement should be interpreted as relating to the point in time that the party seeking to use the challenge discovers the information on which the challenge is based. He essentially argues that a trial court cannot look at the underlying information on which such a challenge is based as long as the information was not available until after the jury was sworn.

We reject this interpretation of rule 3.310. Rule 3.310 vests the trial court with discretion to determine whether the newly discovered information constitutes good cause for a challenge. A trial court certainly may consider the reason for a challenge on its merits when determining whether the challenge is “for good cause.” The fact that the information was discovered after the jury was sworn does not of itself constitute good cause as a matter of law under the rule,FN6 depriving the trial judge of the discretion to determine whether the new information constitutes good cause.

FN6. Valle argues that his interpretation of the rule is supported by Mobley v. State, 559 So.2d 1201 (Fla. 4th DCA 1990), and Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984). Those decisions are distinguishable because the jurors misinformed the attorneys in answers to questions asked during voir dire. In this case, the defense attorneys did not ask the venire whether they recognized or knew Officer Pena's family members who were seated in the courtroom.

Valle next claims that the trial judge erred because he allowed the state to retry its entire case as to guilt. We have previously held that it is within the sound discretion of the trial court during resentencing proceedings to allow the jury to hear or see probative evidence which will aid it in understanding the facts of the case in order that it may render an appropriate advisory sentence. We cannot expect jurors impaneled for capital sentencing proceedings to make wise and reasonable decisions in a vacuum. Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986). Further, during resentencing the state must prove the aggravating circumstances beyond a reasonable doubt. King v. State, 514 So.2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). We find that the trial judge did not abuse his discretion in the amount of evidence he allowed the state to present in this case.

Valle further claims that his prior death sentence became a feature of the resentencing proceeding. At the outset, it should be noted that Valle requested the judge to instruct the jury that he previously had been sentenced to death and that the sentence had been vacated and should be given no weight. Valle requested this instruction because he wanted to present evidence that he had positively adapted to prison life since his conviction. The court gave the requested instruction. Valle now asserts that from the evidence the jury likely inferred that he also had been sentenced to death at an earlier time. We reject this claim. Because Valle opened the door by requesting this instruction and then eliciting testimony concerning his adaptation to prison life, the state was properly allowed to rebut this testimony with evidence of Valle's prison behavior, including his behavior on death row, since his conviction. See Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 1164, 102 S.Ct. 1037, 1039, 71 L.Ed.2d 319, 320 (1982); McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). However, there was no reference to a second sentencing proceeding. The fact that the jury was aware of a sentencing proceeding in 1981 did not lead to the conclusion that there was a second sentencing proceeding simply because the murder occurred in 1978. See Teffeteller. FN7. We also summarily reject Valle's claim that it was error to allow the state to impeach a defense witness, using a permissible method of impeachment, because Valle could not rehabilitate the witness without focusing on the prior sentencing proceeding.

Valle's next claim is that the state improperly cross-examined the defense's expert witnesses as to Valle's prison behavior by questioning them about specific incidents in prison for which he had not been convicted. He also claims error in allowing the state to cross-examine a defense witness about a 1976 incident where Valle allegedly attempted to run over a police officer.

In Hildwin v. State, 531 So.2d 124, 127 (Fla.1988), aff'd, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), we noted that “there is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case, where the focus is substantially directed toward the defendant's character.” We stated that section 921.141(1), Florida Statutes (1987), allowed for broader admissibility of evidence during the penalty phase. Further, we held that during the penalty phase of a capital case, the state may rebut defense evidence of the defendant's nonviolent nature by means of direct evidence of specific acts of violence committed by the defendant provided, however, that in the absence of a conviction for any such acts, the jury shall not be told of any arrests or criminal charges arising therefrom. Hildwin, 531 So.2d at 128.

In this case, the defense presented expert opinions that the defendant would be a good prisoner. Under the rationale of Hildwin, it is clear that the state could introduce rebuttal evidence of specific prior acts of prison misconduct and violence. Here, however, the defense experts had formed their opinions from Valle's prison records, including reports of the incidents explored on cross-examination. Valle's experts also used his criminal records as a basis for their opinions, including the transcript from the probation revocation hearing that dealt with the incident where Valle attempted to run over the police officer.FN8 Therefore, it was proper to cross-examine the experts concerning these incidents. Parker v. State, 476 So.2d 134 (Fla.1985); see § 90.705, Fla.Stat. (1987).

FN8. The defense had opened the door for this testimony by questioning their expert witness about this incident on direct examination.

We also do not believe the trial judge erred by allowing the state to cross-examine a defense witness about his opinion of Valle's future prison behavior if, hypothetically, he were eligible for parole in fifteen years. The witness had testified to his belief that “lifers” make good prisoners because the prison will always be their home. The state could properly cross-examine him as to whether his opinion would change given the possibility that Valle could be eligible for parole in fifteen years. The state was not trying to establish the possibility of parole as an aggravating factor, but was rebutting the defense's assertion of a mitigating factor. Further, the judge instructed the jury that it should not consider Valle's possible eligibility for parole when recommending a sentence.

Valle correctly asserts that because evidence of lack of remorse is not a statutory aggravating factor, the state improperly introduced in its case-in-chief the testimony of a witness that Valle had shown no remorse over the killing. Robinson v. State, 520 So.2d 1 (Fla.1988). The error was committed despite the fact that the state could have introduced the same evidence to rebut the testimony of his remorse presented by Valle in mitigation. However, in light of the circumstances of the crime, the weight of the aggravating evidence, and the minimal amount of mitigating evidence, we believe this error was harmless beyond a reasonable doubt.

Valle's next claim is that the prosecutor improperly tried to limit the jury's consideration of proper mitigation. We find no merit to this argument. The judge told the jury that he would instruct them on mitigating factors and that they could consider “anything else that you think is mitigating.” The state may properly argue that the defense has failed to establish a mitigating factor and may also argue that the jury should not be swayed by sympathy. The prosecutor in this case did not argue that the law would not allow the jury to consider sympathy in their recommendation. We find no error.

Valle next argues that the judge should not have instructed the jury on, nor found, the aggravating factor that the victim was a law enforcement officer engaged in the performance of his official duties under section 921.141(5)(j), Florida Statutes (1987). Valle argues that the application of this factor violates the prohibition against ex post facto laws. In Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982), this Court considered whether the application of the “cold, calculated, and premeditated” aggravating factor to a crime committed before that factor was enacted violated the ex post facto clause. We determined that the factor could be constitutionally applied to a crime committed before the factor was enacted because the statute only reiterated an element already present in the crime of premeditated murder. Id. at 421. Premeditation was not an entirely new factor.

Similarly, in this case the aggravating factor that the victim was a law enforcement officer who was murdered while performing his official duties is not an entirely new factor, and Valle is not disadvantaged by its application. At the time Valle committed this crime the legislature had established the aggravating factors of murder to prevent lawful arrest and murder to hinder the lawful exercise of any governmental function or the enforcement of laws. §§ 921.141(5)(e), (g), Fla.Stat. (1977). By proving the elements of these two factors in this case, the state has essentially proven the elements necessary to prove the murder of a law enforcement officer aggravating factor. In any event, Valle is not disadvantaged because the trial judge merged these three factors into one aggravating factor. FN9. The trial judge did not err by not instructing the jury to merge the three factors when making their sentencing recommendation. Suarez v. State, 481 So.2d 1201 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986).

Valle's next claim is that he is entitled to a new sentencing proceeding because the prosecutor improperly introduced victim impact evidence in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). We have previously summarized the facts and law of these cases. In Booth the Supreme Court held that Maryland's requirement that a “victim impact statement” be considered during sentencing violated the eighth amendment. The “victim impact statement” in that case contained extensive information about “the victims' outstanding personal qualities” and “the emotional and personal problems the family members have faced as a result of the crimes.” Booth, 482 U.S. at 499, 107 S.Ct. at 2531. The victim impact statement also presented information concerning “the family members' opinions and characterizations of the crimes” including the son's statement that “his parents were ‘butchered like animals.’ ” Id. at 508, 107 S.Ct. at 2535. The Supreme Court concluded that “the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” Id. Thus, such information could result in a jury's imposing the death penalty in an arbitrary and capricious manner. Id. at 502-03, 107 S.Ct. at 2532-33.

The Supreme Court again considered Booth error in Gathers. During the sentencing phase closing arguments in Gathers the prosecutor read extensive portions of a printed prayer as well as emphasizing other religious objects and a voter registration card all found in the victim's possession. Gathers, 490 U.S. at 808-10, 109 S.Ct. at 2209-10. The Court held that this argument violated Booth because it focused the jury's attention on the victim's personal qualities and characteristics, factors about which the defendant was unaware. Id. at 811, 109 S.Ct. at 2210-11. The information was not relevant to the circumstances of the crime nor to the defendant's moral culpability. Id. at 811-12, 109 S.Ct. at 2210-11. Bush v. Dugger, 579 So.2d 725, 727 (Fla.1991).

We agree that there were some prosecutorial arguments and a little testimony that improperly focused on the loss felt by Officer Pena's family and friends and on Officer Pena's personal characteristics. However, we do not believe that such evidence and arguments were sufficiently prejudicial in their content and quantity to require reversal. They were not comparable to the extensive victim impact evidence and arguments found in Booth and Gathers.

Valle also argues that the judge erroneously applied the cold, calculated, and premeditated aggravating factor to this case. He argues that the facts do not support the heightened premeditation to find that factor. The judge summarized his finding on this factor as follows:

Approximately eight minutes elapsed between the initial stop and the murder of Officer Pena. After the defendant heard the information about the car come on the radio, he returned to his car and told Mr. Ruiz that he would have to waste the officer. He got the gun and concealed it along the side of his leg and slowly walked back to the car. He fired at Officer Pena from a distance of 1 1/2 to 3 feet from the officer, hitting him in the neck. He purposely said “Officer” in order to get a better shot. He then stepped back and shot at Officer Spell. Although he aimed at his head, Officer Spell was able to quickly turn, causing the bullet to strike him in the back. Approximately 2 to 5 minutes elapsed from the time the defendant left Officer Pena's car to get the gun and slowly walk back to shoot and kill Officer Pena.

The Court finds that these actions establish not only a careful plan to kill Officer Pena to avoid arrest, but demonstrate the heightened premeditation needed to prove this aggravating circumstance. This was, without any doubt, an execution-type murder. It was committed without any pretense of moral or legal justification. Officer Pena did nothing to provoke or cause the defendant's actions. This aggravating factor has been proven beyond and to the exclusion of every reasonable doubt. See Jackson v. State, 498 So.2d 406 (Fla.1986); Eutzy v. State, 458 So.2d 755, 757 (Fla.1984); Jones v. State, 440 So.2d 570, 577 (Fla.1983). We believe these facts were sufficient to sustain a finding that the murder was cold, calculated, and premeditated. See also Swafford v. State, 533 So.2d 270 (Fla.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989); Phillips v. State, 476 So.2d 194 (Fla.1985).

Next, Valle contends that the judge did not properly consider the mitigating factors. Valle was found to have an IQ of 127, and his examining psychologist testified that there was no evidence of brain damage or major mental problems. He further said there was no indication of any addiction to drugs or alcohol. Nonetheless, he expressed the opinion that Valle was under the influence of extreme mental or emotional disturbance at the time of the crime and that his ability to conform his conduct to the requirements of law was substantially impaired. He based his opinion upon the stress occasioned by dysfunction within Valle's family as he grew up, his father's harsh discipline, and his own failure to live up to expectations.

The judge referred to this testimony as well as that of a social worker on the subject but concluded that the two statutory mental mitigating factors did not exist. Valle does not quarrel with the rejection of the two statutory mental mitigating factors. He contends that the judge failed to give the testimony weight as nonstatutory mental mitigating evidence. With respect to nonstatutory mitigating evidence, the judge stated in his order:

The defense presented testimony of six expert witnesses to the jury to prove the defendant, if given a life sentence would either be a model prisoner in the future and/or would be a non-violent prisoner, and/or would be a salvageable or rehabilitable prisoner. The Court has considered their opinions, weighed the evidence concerning these witnesses' opinions, as well as the State's evidence in rebuttal. The Court does not find that this mitigating circumstance reasonably exists. The Court heard testimony from his family, including his sister Georgina, his father and his niece Ann. These witnesses testified concerning his life prior to the murder. This included his lack of love and attention by his parents, the methods his father used to discipline him and life during his teenage years. The Court also heard from witnesses who knew the defendant in high school. The Court additionally heard from the defendant outside the presence of the jury concerning his current remorse over the killing, wherein he accepts full responsibility for his actions.

Considering all the evidence which the defense has presented concerning these circumstances, the Court does not find these circumstances to be relevant mitigating circumstances. Even if they were established, the Court finds that they are outweighed by the aggravating factors.

The mere fact that the judge made no further reference to Valle's mental state at the time of the crime does not mean that the court gave it no consideration. We conclude that the judge considered and properly weighed all relevant mitigating evidence. We summarily reject Valle's remaining claims, including the following: 1) the state improperly cross-examined a defense psychologist and attacked his character; 2) the trial judge improperly restricted the defense's redirect examination of several witnesses; 3) the trial judge abused his discretion in not allowing the defense to present a witness in surrebuttal; and 4) the prosecutor's closing arguments, concerning the weighing process and the consideration of mercy, constitute reversible error.

Therefore, we affirm Valle's sentence of death. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur.

Valle v. State, 778 So.2d 960 (Fla. 2001) (PCR).

After convictions for first-degree murder, attempted first-degree murder, and possession of firearm, and death sentence were affirmed on appeal, 581 So.2d 40, movant filed motion for postconviction relief. The Circuit Court, Dade County, Richard Margolius, J., summarily denied motion without holding evidentiary hearing. Movant appealed. The Supreme Court, 705 So.2d 1331, affirmed in part, and reversed and remanded in part. On remand, following evidentiary hearing, the Circuit Court, Dade County, Richard Margolius, J., denied relief. Movant appealed. The Supreme Court held that: (1) no due process violation and no reversible error resulted from trial court's adoption of substantial portion of state's proposed order; (2) defense counsel's performance was not deficient, despite introduction of model prisoner evidence; and (3) any error in presentation of model prisoner evidence did not deprive movant of fair trial with reliable result. Affirmed.

PER CURIAM.

Manuel Valle appeals the trial court's denial of postconviction relief after an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court's order denying Valle postconviction relief.

This Court recited the procedural history of this case in Valle's appeal from the trial court's summary denial of his first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850: Valle was convicted of first-degree murder, attempted murder, and possession of a firearm, and was sentenced to death for the murder charge.[FN1] Valle v. State, 394 So.2d 1004 (Fla.1981). On direct appeal, this Court reversed the convictions and sentences and remanded for a new trial. Id. On retrial in 1981, Valle was again convicted on those three counts and again sentenced to death. The convictions and sentences were affirmed by this Court in Valle v. State, 474 So.2d 796 (Fla.1985). The United States Supreme Court subsequently vacated Valle's death sentence and remanded the case to this Court for further consideration in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), regarding the admissibility of model prisoner testimony. Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). We remanded for a new sentencing hearing before a new jury.[FN2] On resentencing, the jury recommended death by a vote of eight to four. The trial court, Judge Norman Gerstein presiding, imposed the death sentence, finding five aggravating factors (three were merged) and no mitigating evidence.[FN3]

FN1. In Valle's described the specific details of the crime: On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived on the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon. Valle v. State, 581 So.2d 40, 43 (Fla.1991) (quoting Valle v. State, 474 So.2d 796, 798 (Fla.1985)).

FN2. At Valle's 1981 retrial, “[a] rehabilitation officer testified that Valle had been a model prisoner and was rehabilitated during his prior imprisonment.” Valle v. State, 502 So.2d 1225, 1226 (Fla.1987). The trial court excluded the expert testimony of a clinical psychologist and two corrections consultants that Valle proffered to prove that, if given a sentence of life imprisonment rather than death, he would be a model prisoner. See id. This Court held that the excluded expert testimony differed in “quality and substance” from that of the rehabilitation officer, and therefore was not cumulative. Id. Instead, the excluded testimony concerned proof that Valle would be a model prisoner in the future, while the rehabilitation officer only testified as to Valle's prior prison behavior. See id.

FN3. The aggravating factors were: (1) prior violent felony; (2) avoiding a lawful arrest; (3) murder committed to disrupt or hinder the lawful exercise of any governmental function or enforcement of laws; (4) murder committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification; (5) victim was a law enforcement officer engaged in the performance of official duties. The trial court merged factors (2), (3), and (5). The court found no evidence of statutory mitigation and concluded that either the evidence did not establish nonstatutory mitigation or the nonstatutory mitigation was outweighed by the aggravating factors. See Valle v. State, 705 So.2d 1331, 1333 n. 1 (Fla.1997). Valle v. State, 705 So.2d 1331, 1332-33 (Fla.1997) (citation omitted).

After this Court affirmed Valle's death sentence in 1991,FN4 Valle filed his first rule 3.850 motion for postconviction relief, which the trial court summarily denied without prejudice to file a legally sufficient motion. See id. at 1332. Valle then filed his second postconviction motion, raising twenty claims. See id. Following a HuffFN5 hearing, the trial judge denied the second postconviction motion without an evidentiary hearing. See id. at 1336.

FN4. Pertinent to the instant ineffective assistance of counsel claim, in the 1988 resentencing, Valle introduced the testimony of expert witnesses who stated that Valle would be a good prisoner if given a life sentence. See Valle v. State, 581 So.2d 40, 46 (Fla.1991). This Court held that it was not improper for the State to cross-examine these experts as to Valle's prison behavior by questioning them about specific incidents in prison for which he had not been convicted. See id. This Court noted that the expert witnesses had formed their opinions from Valle's prison records, including reports of the incidents explored on the State's cross-examination. See id. Moreover, the Court explained that because Valle's experts relied on Valle's criminal records as a basis for their opinions, including the transcript from the probation revocation hearing concerning an incident where Valle attempted to run over a police office, cross-examination on information contained within these records was proper. See id. Finally, this Court ruled that it was not improper for the State to cross-examine a defense witness about his opinion concerning Valle's future prison behavior if, “hypothetically, he were eligible for parole in fifteen years.” Id. This Court explained that because the witness had testified that “lifers” always make good prisoners because the prison will always be their home, the State could cross-examine the witness to determine whether his opinion would change given the possibility of parole eligibility. Valle, 581 So.2d at 46. FN5. Huff v. State, 622 So.2d 982 (Fla.1993).

On appeal to this Court, Valle argued that he was entitled to an evidentiary hearing and claimed that his resentencing counsel was ineffective based on the following acts or omissions: (1) failing to move for disqualification of the resentencing trial judge based upon allegations that the judge had kissed the victim's widow and fraternized with friends of the victim in full view of the jury; (2) unreasonably introducing evidence of Valle's prison behavior, referred to as SkipperFN6 evidence; (3) failing to move for disqualification of the trial judge based on alleged ex parte communications with the State; (4) failing to call as witnesses Valle's mother and former wife; (5) failing to properly object to and preserve for appeal the State's peremptory challenges at voir dire for racial discrimination; and (6) failing to prevent the State from filling the courtroom with an “overwhelming presence” of uniformed police officers for the purpose of intimidating the jury and judge. See id. at 1333-35. Moreover, Valle claimed that the trial court erred by not requiring the Dade County State Attorney's Office to comply with section 119.07(2)(a), Florida Statutes (1999), which mandates that an agency list the basis for a claimed public records exemption. See Valle, 705 So.2d at 1335. Finally, Valle asserted that the trial court erred by refusing to grant Valle leave to pursue public records claims against several state agencies under chapter 119, Florida Statutes (1999), and to thereafter amend his motion. See id. FN6. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

This Court affirmed the summary denial of all but two of Valle's claims: FN7 ineffective assistance as to the failure to move for disqualification of the trial judge and ineffective assistance regarding the introduction of the Skipper evidence.FN8 See id. at 1336. Accordingly, this Court remanded for an evidentiary hearing on these two claims. See id.

FN7. This Court rejected Valle's third contention that resentencing counsel was ineffective for failing to move for disqualification of the trial judge based upon alleged ex parte communications with the State, ruling that the allegation was insufficient as a matter of law. See id. at 1334. The Court also rejected Valle's fourth contention regarding ineffective assistance in failing to call as witnesses Valle's mother and former wife, finding that their testimony would have been cumulative. See id. Moreover, the Court rejected Valle's fifth claim regarding ineffective assistance in failing to properly object to and preserve for appeal the State's peremptory challenges at voir dire for racial discrimination, ruling that there was “no reasonable probability Valle could prove the challenge had been made in a discriminatory manner.” Id. at 1335. The Court also found that the record conclusively refuted Valle's sixth contention regarding ineffective assistance in failing to object to the State filling the courtroom with uniformed police officers, because Valle's counsel filed a pretrial motion to prevent the attendance of uniformed police officers. See id. Further, the Court found that the record refuted Valle's contentions regarding the State's noncompliance with section 119.07(2)(a). See id. Finally, the Court held that Valle's claims concerning the trial court's refusal to pursue public record claims were either moot or without merit. See id.

FN8. This Court also found the following claims procedurally barred: (1) the resentencing court improperly denied Valle's petition for a writ of error coram nobis; (2) the instruction on the cold, calculated, and premeditated aggravating factor was unconstitutionally vague and overbroad; (3) the trial court erred in failing to instruct the jury on merger of aggravating circumstances; (4) Florida's death penalty statute is vague and overbroad; (5) the penalty phase jury instructions improperly shifted the burden to Valle; (6) counsel was ineffective for failing to object to alleged prosecutorial misconduct and presentment of uncharged collateral crimes; and (7) the trial court erred in finding no mitigating circumstances. See id. at 1335-36.

On remand, the trial court held an evidentiary hearing. Because Valle voluntarily waived his claim pertaining to the allegations concerning the resentencing judge's conduct, the trial court considered only Valle's claim concerning ineffective assistance of trial counsel for unreasonably presenting Skipper evidence, which led to the State's introduction of prejudicial rebuttal evidence. The trial court ultimately denied Valle's claim. In the present case, Valle raises two issues on appeal from the trial court's denial of postconviction relief. First, Valle claims the trial court erred in adopting almost verbatim the State's proposed order denying 3.850 relief, in violation of Valle's due process rights. Second, Valle asserts that the record demonstrates ineffective assistance at his resentencing due to defense counsel's presentation of Skipper evidence. We address each of these issues in turn.

ADOPTION OF THE STATE'S PROPOSED ORDER

Following the conclusion of the evidentiary hearing, the trial court requested and received proposed orders from both the State and Valle. On receipt of the State's order, Valle immediately filed written objections not only to the content of the order, but also to the propriety of accepting proposed orders generally. The day after receiving Valle's objections, the court entered an order denying relief. Valle claims that the trial court violated his due process rights by the wholesale adoption of the State's proposed order denying postconviction relief. Valle asserts that although the trial court emphasized that it would write its own order, the court's order was almost identical to the State's proposed order.

This Court has rejected similar due process challenges based solely on the fact that the trial court adopted the State's proposed order where that order was supported by the testimony at the evidentiary hearing. See Patton v. State, 25 Fla. L. Weekly S749, S750-51, ---So.2d ---, ---- - ----, 2000 WL 1424526 (Fla. Sept. 28, 2000); Hardwick v. Dugger, 648 So.2d 100, 104 (Fla.1994); Groover v. State, 640 So.2d 1077, 1078-79 (Fla.1994).FN9 On the other hand, we have found a due process violation to exist when the defendant was not served with a copy of the State's proposed order or given an opportunity to file objections. See Huff v. State, 622 So.2d 982, 983 (Fla.1993); Rose v. State, 601 So.2d 1181, 1182 (Fla.1992).

FN9. As we recently noted in Patton, a distinction exists between the adoption of proposed orders after a postconviction evidentiary hearing and the adoption of proposed sentencing orders, which are governed by section 921.141, Florida Statutes (1999), and require the trial court to determine independently specific aggravating and mitigating circumstances that applied in the case. Patton, 25 Fla. L. Weekly at S751, at ----; see Patterson v. State, 513 So.2d 1257, 1262 (Fla.1987). In the sentencing context, this Court has held that the trial court may not request that the parties submit proposed orders and adopt one of the proposals verbatim without a showing that the trial court independently weighed the aggravating and mitigating circumstances. See Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993); Patterson, 513 So.2d at 1262; Nibert v. State, 508 So.2d 1, 3-4 (Fla.1987). The reason for this limitation is that because the evaluation of the aggravating and mitigating factors is the basis for the imposition of a sentence of life or death, “[t]he sentencing order must be sufficiently detailed to allow this Court to perform its proportionality review, the review which may ultimately determine whether a person lives or dies.” Patton, 25 Fla. L. Weekly at S751, at ----. By contrast, a defendant brings a motion for postconviction relief after this Court has affirmed the judgment and sentence and it is presumed correct. See id. Moreover, this Court has stated that the trial court's failure to prepare its own findings in support of the death penalty does not constitute reversible error “so long as the record reflects that the trial judge made the requisite findings at the sentencing hearing.” Patterson, 513 So.2d at 1262; Nibert, 508 So.2d at 4. Thus, the instant case is distinguishable from Patterson and its progeny in that Valle challenges the submission of proposed findings in a hearing denying postconviction relief, a procedure not governed by section 921.141.

In contrast to Rose and Huff, in this case the defense had the opportunity to present its own proposed order and to file objections to the State's proposed order. In addition, although the differences were not substantial, it does appear that the trial court made changes to the trial court's order, thus revealing that the trial court reviewed both orders and did not simply “rubber-stamp” the State's order. Most importantly, however, we find that the trial court's final order is supported by the testimony presented at the evidentiary hearing. See Patton, 25 Fla. L. Weekly at S750, at ----. Accordingly, we find no due process violation and no reversible error in this case as a result of the trial court's adoption of a substantial portion of the State's proposed order.FN10 See generally Glock v. Moore, 776 So.2d 243, 249 (Fla.2001).

FN10. As we stated in Patton, we once again reiterate that this holding “is limited to these specific facts and would caution trial courts that the more prudent approach is for courts to draft their own orders.” Patton, 25 Fla. L. Weekly at S753 n. 5, at ---- n. 5.

INEFFECTIVE ASSISTANCE OF COUNSEL

We next address Valle's claim that his counsel was ineffective for introducing “model prisoner” evidence pursuant to Skipper, which resulted in the State's introduction of prejudicial rebuttal evidence concerning Valle's misconduct in prison between 1981 and 1988. Valle asserts that his counsel introduced model prisoner evidence because they believed they were legally required to under this Court's remand, rather than as a matter of strategy. At the conclusion of the evidentiary hearing, however, the trial court ruled that Valle failed to establish ineffective assistance of counsel because he demonstrated neither deficient conduct nor prejudice as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to establish a claim of ineffective assistance of counsel, a defendant must prove two elements: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998).

In evaluating whether an attorney's conduct is deficient, “there is ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,’ ” and the defendant “bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Brown v. State, 755 So.2d 616, 628 (Fla.2000) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). This Court has held that defense counsel's strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. See Shere v. State, 742 So.2d 215, 220 (Fla.1999). Moreover, “[t]o establish prejudice [a defendant] ‘must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); see Rutherford, 727 So.2d at 220.

In analyzing a claim for ineffective assistance of counsel, this Court must afford deference to the trial court's factual findings, utilizing a “competent substantial evidence” standard. Stephens v. State, 748 So.2d 1028, 1031 (Fla.1999). However, because ineffective assistance of counsel claims are mixed questions of fact and law, while affording deference to the trial court's factual findings, this Court must perform an independent review of both the deficiency and prejudice prongs under Strickland. See id. at 1031-32.

In its order denying Valle's motion for postconviction relief, the trial court summarized the evidence presented at the evidentiary hearing by three of the four attorneys who represented Valle. The court then concluded that: (1) the defense recognized that if they had presented substantially the same evidence that they had presented in the 1981 retrial, the result of the 1988 resentencing would have been the same; i.e., Valle would have been sentenced to death; and (2) the record “clearly demonstrates a recognition by [defense counsel] that he well and fully knew that he did not have to put on the same evidence at the resentencing hearing that was excluded at the prior hearing in 1981.” As the trial court explained:

The Court concludes that the evidence demonstrated that defense counsel, despite their claim to the contrary, did not believe that they were required by the mandate of the Florida Supreme Court to introduce evidence that the defendant was, and in the future, would be a model prisoner. Rather, it is clear, that these experienced attorneys believed that without additional mitigating evidence, substantially different from that introduced in 1981, the result of the sentencing proceeding would be the same. To that end, they decided not to introduce past model prisoner testimony or future model prisoner testimony, but rather modified it to present nonviolent prisoner testimony, which they believed would preclude the rebuttal evidence of the defendant's bad acts in prison; a belief which continued through the appeal of the defendant's third death sentence. Such actions are reasonable and clearly not deficient under the standards of Strickland v. Washington, supra.

After a thorough review of the testimony at the evidentiary hearing, we agree with the trial court that defense counsel's performance at the 1988 resentencing proceeding did not fall outside the bounds of reasonable professional conduct so as to constitute deficient performance as contemplated by Strickland.

Moreover, even if we did conclude that Valle's counsel acted deficiently, we would still be compelled to affirm because we agree with the trial court that Valle cannot satisfy the prejudice prong of Strickland. As the trial court stated in pertinent part: It is clear that, as recognized by Mr. Zelman prior to trial, without any new mitigating evidence being presented to a jury, the result at the resentencing would be the same as in 1981. In 1981, the substantially identical testimony concerning the mitigating factors related to the defendant's background and mental state were presented to the jury. In addition, in 1981, there was testimony, without any rebuttal, that the defendant had been a model prisoner at the Stockade. However, despite that testimony, the jury recommended death by a vote of 9 to 3. In 1988, even with the nonviolent prisoner testimony and its rebuttal, the jury recommended death, this time with a vote of 8 to 4. Thus, the Court finds that if the defense had not put on the nonviolent prisoner testimony, there is no reasonable probability that the outcome would have been different. This Court reaches this conclusion based on the entire record not necessarily because of the above-stated vote.

The trial court in its 1988 sentencing order, found no statutory mitigating circumstances, and gave little weight to the nonstatutory mitigating circumstances. They could not have reasonably outweighed the three very powerful aggravating circumstances involved in this killing of a police officer, which was done in cold, calculated, and premeditated manner, for the purpose of avoiding arrest, and at the same time, attempting to commit first degree murder of another police officer. As such, any deficiency by counsel was clearly not prejudicial under the dictates of Strickland v. Washington, supra.

We agree with the trial court and conclude that any error in presenting the penalty phase evidence did not deprive Valle of a “fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see Rutherford, 727 So.2d at 219. In sum, our confidence in the outcome of the resentencing phase proceedings was not undermined as a result of counsel's performance. See Williams, 120 S.Ct. at 1512; Rutherford, 727 So.2d at 219.

Accordingly, we affirm the denial of postconviction relief.

Valle v. Secretary, 459 F.3d 1206 (11th Cir. 2006) (Habeas).

Background: Following affirmance of his conviction for first degree murder and his death sentence, 581 So.2d 40, and affirmance of denial of post-conviction relief, 778 So.2d 960, petitioner sought habeas corpus relief. The United States District Court for the Southern District of Florida, No. 03-20387-CV-UNGARO-BEN, Ursula Ungaro-Benages, J., 2005 WL 3273754, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Wilson, Circuit Judge, held that: (1) counsel did not engage in deficient performance, for purposes of ineffective assistance claim; (2) state courts' conclusion that petitioner was not prejudiced by counsel's performance, for purposes of ineffective assistance claim, was not contrary to or unreasonable application of clearly established federal law; (3) Florida Supreme Court's stated reasons for finding that peremptory challenges were not used in racially discriminatory manner were not contrary to or unreasonable application of clearly established federal law; (4) state courts' conclusion, that petitioner did not invoke his right against self-incrimination, was not contrary to or unreasonable application of clearly established federal law; and (5) Florida Supreme Court's conclusion that “Latins” did not constitute identifiable minority for purposes of constitutional challenges to grand jury and petit jury was not unreasonable or contrary to established federal law. Affirmed.

WILSON, Circuit Judge:

Manuel Valle appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We address the following issues: (1) whether Valle was denied the effective assistance of counsel at resentencing due to counsels' presentation of model prisoner evidence; (2) whether Valle's rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated; (3) whether Valle's rights under the Fifth and Fourteenth Amendments were violated when the trial court denied his motions to suppress incriminating statements; and (4) whether Valle was denied Due Process and Equal Protection based on the manner in which the jury was selected. After argument and consideration of the parties' briefs and the record, we affirm.

I. Facts and Procedural History

The facts of this case, as summarized by the Florida Supreme Court, are as follows: On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Valle v. State, 474 So.2d 796, 798 (Fla.1985) ( Valle II).

On April 13, 1978, Valle was indicted for the first degree murder of Pena, the attempted first degree murder of Spell, and the possession of a firearm by a convicted felon. Valle v. State, 394 So.2d 1004, 1005 (Fla.1981) (per curiam) ( Valle I). At trial, which began on May 8, 1978, the jury found Valle guilty of all crimes charged. Id. at 1006. The jury recommended a sentence of death, which the trial court followed. Id. Valle then appealed his convictions and death sentence, and the Florida Supreme Court reversed his convictions in 1981 after finding that Valle was denied his right to effective assistance of counsel when he was required to go to trial within 24 days after his arraignment. Id. at 1005.

After remand, Valle was again convicted of first degree murder, received a death sentence, and appealed. Valle II, 474 So.2d at 798. The Florida Supreme Court affirmed his convictions and sentence, id., but the United States Supreme Court subsequently vacated judgment and remanded the case to the Florida Supreme Court in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).FN1 Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986) (Valle III). FN1. In Skipper, the Supreme Court held that the exclusion from the sentencing hearing of testimony regarding petitioner's good behavior during the seven months he spent in jail awaiting trial deprived petitioner of his right to present relevant mitigation evidence. 476 U.S. at 4, 106 S.Ct. at 1671.

On remand, the Florida Supreme Court determined that Valle was entitled to resentencing because he was previously precluded from putting on the expert testimony of a clinical psychologist and two corrections consultants to show that Valle would be a model prisoner in the future, in violation of Skipper. Valle v. State, 502 So.2d 1225, 1225–26 (Fla.1987) (per curiam) ( Valle IV). At this resentencing, the jury recommended a sentence of death by eight to four, and the court imposed the death penalty, finding that: “(1) Valle had been previously convicted of another violent felony; (2) the murder was of a law enforcement officer; (3) the murder was for the purpose of preventing lawful arrest; (4) the murder hindered the enforcement of laws; and (5) the murder was cold, calculated and premeditated.” Valle v. State, 581 So.2d 40, 43 (Fla.1991) (per curiam) ( Valle V). The judge merged factors two, three, and four, and treated them as one aggravating factor. Id. The court did not find any mitigation. Id.

After this sentencing, Valle again appealed to the Florida Supreme Court, raising a number of claims, including his claim that during jury selection, the judge failed to hold an adequate inquiry into the state's peremptory challenges of black venire members. Id. The Florida Supreme Court rejected his claims, and Valle again appealed to the United States Supreme Court, which denied certiorari. Valle v. Florida, 502 U.S. 986, 112 S.Ct. 597, 116 L.Ed.2d 621 (1991) ( Valle VI).

He then filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Valle v. State, 705 So.2d 1331, 1332 (Fla.1997) (per curiam) ( Valle VII). The Florida Supreme Court remanded for an evidentiary hearing on his claim of ineffective assistance of counsel based on his assertion that his defense team unreasonably introduced model prisoner evidence. Id. at 1334. After remand, the Florida Supreme Court affirmed the trial court's conclusion that his ineffective assistance claim based on Skipper was without merit. Valle v. State, 778 So.2d 960, 966–67 (Fla.2001) (per curiam) ( Valle VIII). Valle then filed a petition for writ of habeas corpus in state court, which was denied. Valle v. Moore, 837 So.2d 905, 906 (Fla.2002) (per curiam) ( Valle IX). He subsequently filed a petition for writ of habeas corpus in federal district court, which was also denied. Valle v. Crosby, 18 Fla. L. Weekly Fed. D. 1017 (2005) ( Valle X). The district court granted a certificate of appealability with respect to the four issues outlined above, and this appeal followed.

II. Standard of Review

Valle filed his petition after the effective date of the Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, this case is governed by the provisions of 28 U.S.C. § 2254 as modified by the Act. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). With respect to claims adjudicated on the merits, § 2254(d)(1) restricts the issuance of habeas relief to those cases resulting in a decision that was contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Section 2254(d)(2) provides for habeas relief where the state court determination “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The AEDPA also mandates deference to state court factual determinations. Under § 2254(e)(1), a state court's determination of a factual issue is presumed correct. One seeking habeas relief must rebut this presumption by clear and convincing evidence. § 2254(e)(1).

III. Discussion

A. Ineffective Assistance of Counsel

Valle argues that his 1988 resentencing counsel's performance was deficient because their decision to present model prisoner evidence was based on the mistaken belief that they were required to do so or the previous death sentence would be reinstated. Valle argues that as a result of the introduction of this evidence, the door was opened to the State's presentation of evidence that Valle had twice attempted to escape from prison and an instruction to the jury that Valle had been on death row for ten years. Moreover, Valle argues that he can show prejudice because considering the totality of the evidence, confidence is undermined in the jury's eight to four death recommendation. See Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1503, 146 L.Ed.2d 389 (2000) (“[E]rrors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of” the writ of habeas corpus.).

The State responds that the state courts found that counsel made a strategic decision to present prison behavior evidence because other mitigation evidence had previously failed to persuade the jury or trial court not to recommend death. According to the State, Valle has failed to rebut these factual findings by clear and convincing evidence. See § 2254(e)(1). Here, the State argues, there is ample support for the finding that the attorneys were not credible. Therefore, the state courts' application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was not unreasonable or contrary to clearly established federal law. See § 2254(d)(1).

To show that counsel was so ineffective as to require reversal of the conviction, a defendant must show that counsel's performance was deficient and that prejudice resulted therefrom. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To do so, a defendant must show that counsel committed errors that were so serious as to deprive the defendant of the counsel guaranteed by the Sixth Amendment as well as a fair trial whose result is reliable. Id.

Here, the trial court found that “despite their claim to the contrary, [counsel] did not believe that they were required ... to introduce evidence that the defendant was, and in the future, would be a model prisoner,” but rather they believed that “without additional mitigating evidence, ... the result of the sentencing proceeding would be the same” as it was in 1981. Valle VIII, 778 So.2d at 966. Counsel's performance, therefore, was reasonable and not deficient under Strickland. The Florida Supreme Court agreed with the trial court's conclusion that counsel's performance did not constitute deficient performance and that Valle was unable to show prejudice in light of the fact that the trial court found no statutory mitigating circumstances, gave little weight to nonstatutory mitigators, and found three “very powerful” aggravating circumstances. Id. at 967.

In this case, as the State correctly points out, Valle has failed to show that the state court's factual findings were incorrect or that its legal determinations were unreasonable or contrary to federal law. See § 2254(d)(1). Valle merely reiterates the testimony produced at the evidentiary hearing that the state courts already rejected. Further, the state courts' conclusions regarding prejudice were not contrary to or an unreasonable application of Strickland, particularly in light of the absence of mitigating factors and the presence of three strong aggravating circumstances. Therefore, Valle's ineffective assistance claim is without merit.

B. Batson Claim

Valle claims that his rights under Batson were violated when six of the State's nine peremptory challenges at his resentencing proceeding were used to strike black prospective jurors. He says the trial court refused to conduct an inquiry into his Batson claim, requiring reversal of his death sentence. Furthermore, he contends that the state trial court never made findings with regard to Valle's claim of discrimination following the state's race neutral explanation, and therefore, the claim should be reviewed de novo. Because the trial court failed to apply Batson reasonably, Valle argues that habeas relief is warranted. The State first claims that Valle's Batson claim was properly denied because it is procedurally barred. See Valle V, 581 So.2d at 43–44. Even if the claim was not barred, the State argues that the district court still properly denied the claim on the merits. The Florida Supreme Court rejected Valle's Batson claim because, in addition to being procedurally barred, the claim was factually without basis. Id. at 44 n. 4. The State contends that the AEDPA standard of review is correct, and the district court properly determined that the rejection of Valle's claim was not contrary to, or an unreasonable application of Batson.

The Florida Supreme Court summarized what occurred at the 1988 resentencing jury selection: After the jury had been selected but before it had been sworn, one of Valle's attorneys claimed “an impropriety in the record” as to the state's use of peremptory challenges against certain jurors. The defense attorney noted that six blacks and two Hispanics were peremptorily excused by the state. The judge then observed that if there was a problem with any particular juror he wanted “the state to be able to respond in whichever manner they wish.” One of the prosecutors then asked the judge if he was making a finding that the state had somehow improperly excused jurors. The judge responded, “I've been asked to make no findings and I am making no findings but for record-keeping purposes she has some objection to the state's action and, of course, I'm giving the state an opportunity to respond in time.” The state then voluntarily gave its reasons for peremptorily excusing the eight jurors. After the prosecutor finished giving his reasons for exercising the peremptory challenges, the defense attorney stated, “I object on the basis of [Valle's] Sixth, Eighth and 14th amendment rights, to the combination of the challenges for cause, either peremptory challenges leading to a jury that is in favor of the death penalty.” Valle V, 581 So.2d at 43–44.

Batson prescribes a three-part test to evaluate equal protection challenges to a prosecutor's use of peremptory challenges. 476 U.S. at 96–98, 106 S.Ct. at 1722–24. First, the defendant must make a prima facie showing of discrimination. Id. at 96, 106 S.Ct. at 1723. Next, the State must give a race neutral explanation for challenging black jurors. Id. at 97, 106 S.Ct. at 1723. Finally, the trial court has the duty to determine whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. at 1724.

Here, it is unnecessary to address the issue of the procedural bar, because even assuming the claim is preserved, Valle is not entitled to habeas relief based on Batson. The Florida Supreme Court did address the merits of the Batson claim, concluding that Valle failed to show that “it is likely the challenges were used in a racially discriminatory manner.” Valle V, 581 So.2d at 44 n. 4. In reaching this conclusion, the Court reasoned that “[t]wo blacks served as jurors and a third served as an alternate,” the prosecutor's reasons for the challenges “appear[ed] to be racially neutral,” and “Valle, himself, is not black.” Id. (citing Kibler v. State, 546 So.2d 710 (Fla.1989)). At the time Valle's conviction became final, these reasons were not contrary to, nor an unreasonable application of, clearly established federal law. See § 2254(d)(1). Therefore, Valle's Batson claim is unavailing.

C. Confession Claim

Valle argues that because he individually and through his attorney invoked his rights to silence and to have counsel present during interrogation, the trial court erred in admitting the subsequently obtained confessions into evidence, and the state courts' adjudication was contrary to or an unreasonable application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, Valle claims that he invoked his right to silence and his right to counsel when he told Detective Wolf, an interviewing officer, that he had consulted with a public defender and that “she had advised him not to speak to anybody or to sign anything.” Further, the lieutenant with custody of Valle was instructed through counsel, and the lieutenant agreed, not to permit police officers to question Valle. Valle contends that under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), this was sufficient to invoke the Edwards v. Arizona rule forbidding further questioning. See 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (holding that when a suspect invokes the right to consult with an attorney, the suspect is not subject to further interrogation until counsel is made available). Valle cites Romine v. Head, 253 F.3d 1349, 1365 (11th Cir.2001), in support of his contention that we must review his claim involving his right to silence de novo because the Florida Supreme Court did not address Valle's argument on this point.

The State responds that the confession claim was properly denied. After conducting an evidentiary hearing, the trial court found Valle never asserted his right to remain silent or to have counsel present, either himself or through the public defender. The Florida Supreme Court reached the same conclusions. According to the State, the district court properly applied the AEDPA standard of review and determined that Valle had not rebutted the presumption of correctness afforded state court factual findings and that the state court's conclusions were not contrary to or an unreasonable application of federal law.

In this case, there was an evidentiary hearing where the trial court heard the testimony of the public defender, Wolf, and other participants in the arrest and interrogation of Valle. The trial court found that Valle never told the public defender that he intended to invoke his rights to silence and counsel, that Wolf was unaware that Valle had spoken to an attorney until after Valle himself advised him of this fact during the interrogation, and that Valle's statement to Wolf was that he had spoken with the public defender who had told him not to say anything or sign anything. The trial court further found, as a matter of law, that “at no time did [Valle] ever assert his constitutional rights to remain silent or to have counsel present or in any way invoke any of his constitutional rights under ... Miranda ...,” that “the defendant never intended to and did not invoke his rights to remain silent and to counsel through [the public defender],” and that Valle's “subsequent written waiver of his constitutional rights was freely, knowingly and voluntarily executed by ... Valle, and that he freely and voluntarily first spoke with Detective Wolf and then freely and voluntarily made a formal written confession.”

The Florida Supreme Court found that Valle waived his Miranda rights and did not subsequently invoke them. Valle II, 474 So.2d at 798–99. Valle's statement that his lawyer had advised him not to sign anything or answer any questions was, the Florida Supreme Court said, at best equivocal, and as such, interrogating officers were permitted to clarify Valle's wishes. Id. at 799. Valle's statement that he had several experiences with police officers in the past and that he had cooperated in the past and was willing to do so on that occasion showed that Valle voluntarily waived his Miranda rights. Id. Further, only the defendant may invoke the right to counsel. Id. The Florida Supreme Court concluded that Valle's “statement, combined with the previous oral waiver, a later express written waiver, and the fact that at not [sic] time before, during, or after questioning did [Valle] request an attorney, convinces us that he made a voluntary, knowing and intelligent waiver of his Miranda rights.” Id.

In Miranda, the Supreme Court recognized that an accused has a constitutional right not to be compelled to make incriminating statements during the process of interrogation. 384 U.S. at 467, 86 S.Ct. at 1624. Because “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege” against compulsory self-incrimination, a suspect in custody also has the right to consult with counsel prior to and during questioning. Id. at 469, 86 S.Ct. at 1625. The defendant may waive the privilege against self-incrimination, but the prosecutor must show that the waiver was voluntary, knowing, and intelligent. Id. at 475, 86 S.Ct. at 1628.

Here, while it is not disputed that Valle informed Wolf that he had spoken to an attorney and that “she had advised him not to speak to anybody or to sign anything,” it was not unreasonable nor contrary to precedent for the state courts to conclude that this was not an invocation of Valle's Miranda rights. See, e.g., Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979) (requiring officers to seek clarification of the suspect's wishes when the suspect's statements are ambiguous), abrogated by Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (clarifying that a suspect must unambiguously assert the right to counsel in order to stop interrogation until counsel is available). This is further buttressed by Valle's statement that he had always cooperated with police and his execution of a written waiver of his Miranda rights. The state courts also reasonably rejected Valle's claims that his attorney invoked his rights to silence and to counsel for him. See Moran v. Burbine, 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 1147 n. 4, 89 L.Ed.2d 410 (1986) (explaining that the privilege against compulsory self-incrimination can only be invoked by the defendant). Therefore, Valle's claims based upon the denial of his motion to suppress do not warrant habeas relief.

D. Composition of Grand and Petit Juries

Valle next claims that the grand jury that indicted him, as well as all other grand juries dating back to 1971, were selected from venires chosen in a way that resulted in a gross underrepresentation of Latins in violation of the Equal Protection Clause. Castaneda v. Partida, 430 U.S. 482, 493, 97 S.Ct. 1272, 1279, 51 L.Ed.2d 498 (1977). He also claims that the process for selecting petit juries systematically excluded distinctive groups in the community and thereby violated the Due Process Clause. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975); Alexander v. Louisiana, 405 U.S. 625, 630–31, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972). Here, the state courts and the district court concluded that Valle failed to prove that “Latins” were an identifiable minority and denied his requests for an evidentiary hearing. Because his contention that Latins are a cognizable minority has not been subjected to evidentiary development, Valle argues that the district court should have granted an evidentiary hearing.

The State contends that the state courts properly denied these claims without granting an evidentiary hearing. Castaneda requires a defendant to show that a group is a cognizable class by demonstrating that the group is “singled out for different treatment under the laws, as written or as applied.” 430 U.S. at 494, 97 S.Ct. at 1280. Based on the conclusory allegations that Valle proffered, the State argues that the state courts did not act unreasonably or in a way contrary to federal law in finding that Valle failed to show that Latins are a cognizable class or in denying Valle's requests for an evidentiary hearing. See Rojas v. State, 288 So.2d 234, 237 (Fla.1973). Further, the State says that the district court properly denied the evidentiary hearing because Valle failed to develop the record as required by § 2254(e).

To show a violation of the Equal Protection Clause in the context of grand jury selection, a defendant must demonstrate that “the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.” Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280. To make such a showing, a defendant must first show that the group is a “recognizable, distinct class, singled out for different treatment under the laws, as written or applied.” Id. Next, the defendant must show the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion of the group chosen to serve as grand jurors over a significant period of time. Id. Finally, a selection process that is prone to abuse or one that is not racially neutral supports a presumption of discrimination. Id.

The Due Process Clause is violated when petit juries are not drawn from a source fairly representative of the community. Taylor, 419 U.S. at 538, 95 S.Ct. at 702. To prove a prima facie violation of the fair cross-section requirement, a defendant is required to demonstrate that: (1) the allegedly excluded group is “distinctive” in the community; (2) the representation of the excluded group in venires is not “fair and reasonable” relative to the number of such persons in the community; and (3) this underrepresentation is caused by the “systematic exclusion” of the group in the process of jury selection. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

Here, the trial court summarily denied Valle's motions to dismiss the indictment and to strike the petit venire. The Florida Supreme Court affirmed the denial of these motions, concluding that in light of Castaneda and Duren, Valle failed to establish that “Latins” were an single, cognizable group. Valle, 474 So.2d at 800. Both courts denied Valle's requests for evidentiary hearings.

Because Valle attempted to secure an evidentiary hearing in the state courts, Valle's failure to develop a factual basis for his claim in state court does not preclude this Court from granting an evidentiary hearing. § 2254(e)(2); see also Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir.2002). Even so, “no evidentiary hearing is necessary where the proffered evidence would not affect the resolution of the claim.” Bolender v. Singletary, 16 F.3d 1547, 1555 n. 9 (11th Cir.1994). Therefore, in order to obtain an evidentiary hearing, Valle must demonstrate that his factual allegations, if proven, would indicate that the state courts acted contrary to, or unreasonably applied, clearly established federal law when they rejected his Equal Protection and Due Process claims. See § 2254(d).

Valle's factual proffer in state court included the following: (1) the Dade County Commission's creation of the Department of Latin Affairs in 1973 based on a recognition of difficulties encountered by people from Cuba, Mexico, Spain, and other Latin American countries who do not speak English; (2) expert testimony that Latins differ from other residents of Dade County because of language and culture; (3) an expert's conclusion that grand jury venires had not been randomly selected with regard to Latins; (4) and evidence that showed that no Latin forepersons had been selected to preside over grand juries between 1967 and 1977, and the foreperson on the grand jury indicting him was a non-Latin male. Because Valle does not offer any evidence in support of his claim that was not already considered by the state courts, we consider whether the state courts acted contrary to, or unreasonably applied, clearly established federal law when they rejected his claims. See Bolender, 16 F.3d at 1555 n. 9; see also § 2254(d).

Here, the Florida Supreme Court's conclusion that “[t]he term ‘Latin American’ encompasses people from too many different countries and different cultural backgrounds and attitudes to constitute a single cognizable class for equal protection analysis” is not contrary to or an unreasonable application of Castaneda or Duren. See Valle II, 474 So.2d at 800; see also United States v. Rodriguez, 588 F.2d 1003, 1007 (5th Cir.1979) (stating that appellant's mere assertion that his statistics indicated that the number of Latin registered voters had more than doubled since the master jury wheel was last filled indicated purposeful discrimination was insufficient to show that “persons of such diverse national origins as Cubans, Mexicans, and Puerto Ricans possess such similar interests that they constitute a cognizable group ....” (quotation omitted)). Therefore, Valle is not entitled to habeas relief on this ground.

IV. Conclusion