Current Prison Sentence History:
05/28/1987 BURGUNOCCSTRUC/CV OR ATT. 03/11/1988 POLK 8702449 5Y 0M 0D
05/28/1987 GRAND THEFT MOTOR VEHICLE 03/11/1988 POLK 8702449 5Y 0M 0D
05/28/1987 BURGLARY TOOLS-POSSESS 03/11/1988 POLK 8702449 5Y 0M 0D
09/30/1984 BURGUNOCCSTRUC/CV OR ATT. 03/11/1988 POLK 8404335 5Y 0M 0D
03/03/1994 1ST DG MUR/PREMED. OR ATT. 06/30/1995 POLK 9401248 DEATH SENTENCE
03/03/1994 BURGLARY ASSAULT ANY PERSON 06/30/1995 POLK 9401248 19Y 0M 0D
03/03/1994 KIDNAP V<13/AGG.CHLD ABUSE 06/30/1995 POLK 9401248 19Y 0M 0D
03/03/1994 SEX BAT BY ADULT/VCTM LT 12 06/30/1995 POLK 9401248 SENTENCED TO LIFE

Incarceration History:
05/21/1985 to 12/08/1986
03/17/1988 to 04/05/1989
06/14/1989 to 10/20/1992
07/15/1994 to Currently Incarcerated

The Ledger

"Eddie Wayne Davis Executed for Rape, Murder of 11-Year-Old Lakeland Girl," By Suzie Schottelkotte. (07-10-14)

STARKE | Twenty years, four months and six days after Eddie Wayne Davis kidnapped, raped and suffocated 11-year-old Kimberly Ann Waters in Lakeland, he died in the state's execution chamber Thursday at Florida State Prison. It took the state 11 minutes to take his life. He murmured prayers as the state's execution team prepared to execute him, his eyes darting around the chamber. Leather straps secured him to the table, with his left arm outstretched for the lethal injection. Davis, 45, had no last words.

As the lethal drugs flowed into his vein, Crystal Waters joined friends in a vigil for her younger sister at her Lakeland gravesite. "I'm relieved it's over," she said later Thursday evening. "I just hope now we can remember Kimberly and her life, not her death."

Prison officials were notified at 5:45 p.m. Thursday that the U.S. Supreme Court had denied Davis' last appeal. Despite the last-minute efforts by his lawyers to halt the execution for fear a possible blood disorder combined with the injected drugs would cause Davis extreme pain, he showed no signs of discomfort. Two minutes after beginning the lethal injection, the unidentified execution leader leaned into Davis, appearing to check for consciousness. A minute later, Davis' mouth fell open slightly and he began breathing heavily.

Four minutes after the process began, Davis' breathing grew shallow and he became very still. At 6:43 p.m., 11 minutes after the lethal injection began and after a physician's examination, the execution leader announced that the sentence against Davis had been carried out.

Behind a glass window, Polk Sheriff Grady Judd and Assistant State Attorney John Aguero, who prosecuted Davis in 1995, sat among the 23 witnesses who watched as the state took Davis' life. "When I saw his breathing starting to get labored," Aguero said, "all I could think about was Kimberly. "That poor child had to be terrified," he said, recalling how she was suffocated, "and here he was, unconscious, and didn't know he was dying."

Davis, who had dated Kimberly's mother, kidnapped the girl from her Lakeland home March 4, 1994, while her mother, a nurse, was working the night shift and her old sister, Crystal, slept in a nearby room. He brutally raped her at a vacant mobile home and forced her to walk to the nearby Moose Lodge in Lakeland. She fought him when he suffocated her with a piece of plastic bag. He threw her body in a trash bin and Polk sheriff's deputies found her the next night. Davis confessed three times, and detectives found her blood on his boot, according to court records. Twelve jurors deliberated 32 minutes before finding him guilty, and they unanimously recommended he should die for his crimes. Circuit Judge Daniel True Andrews upheld that recommendation. His family has declined to comment on his case.

Thomas Brimer, Kimberly's uncle, was among her four relatives who watched her killer die Thursday. Her mother, Beverly, died 10 years ago in a motorcycle accident. "It's finally over," Brimer said. "We finally have justice." Kimberly's grandmother, Mary Hobbs, traveled to Starke from her Brooksville home but didn't attend the execution. "I don't need to see it done, I just need to know it's done," she said. "For the first time in 20 years, I'm OK."

Earlier in the day, Davis spent time with his mother and a Catholic spiritual adviser before eating his last meal of chopped steak with onion gravy, home fries, corn, Brussels sprouts, cherry ice cream and a Dr Pepper. "His demeanor is calm," Jessica Cary, spokeswoman for the state Department of Corrections, said at that time. "He's not agitated." When the execution was over, Judd said it was anything but a joyous occasion, but it was something that had to happen. "He earned it, he deserved it and today, justice was done," he said.

At Davis' trial, his lawyers argued that his troubled upbringing, including physical and sexual abuse and alcoholism, led to the killing. In a prepared statement, Public Defender Rex Dimmig, representing Polk, Highlands and Hardee counties, said the state's lack of assistance for troubled youth was as much to blame for Kimberly's death as Davis was. "Florida's simplistic practice of ignoring, incapacitating and ultimately exterminating the troubled youth of our state has failed to protect our most vulnerable citizens," he said. "Without more, the cycle of neglect, abuse and violence will continue. There will be more Eddie Wayne Davises and regrettably, more Kimberly Waterses."

Waters, Kimberly's sister, said she recognized that a life was taken today, but it's been difficult for her to summon sympathy for Davis. "He sealed his own fate when he took my sister's life," she said.

The Daily Mail

By Jill Reilly and Ashley Collman. (10:48 EST, 10 July 2014)

A man who raped and killed an 11-year-old girl was executed today with the victim's grandmother watching from the witness chamber on behalf of her deceased mother. Eddie Wayne Davis, 45, declined to say any last words before receiving a three-drug injection at 6:30pm at Florida State Prison. He was convicted in 1995 on a charge of first-degree murder in the death of Kimberly Waters, whose mother briefly dated Davis. For his last meal, Davis ate chop steak with onions and gravy, home fries, Brussels sprouts, corn, cherry ice cream and Dr Pepper.

After receiving the initial injection, Davis began muttering to himself though those in the viewing area couldn't hear what he said since the intercom speakers were turned off. His chest then heaved up and down for about five minutes before he became motionless. He did not appear to be in any signs of pain and was pronounced dead at 6:43pm. Davis' mother and a spiritual adviser were the last to visit him today.

It was the sixth execution in Florida this year and the second in the state since the death penalty came under fresh scrutiny in April. In late April, Oklahoma prison officials halted the execution of inmate Clayton Lockett after noting that the lethal injection drugs weren't being administered into his vein properly. The procedure was stopped but he died of a heart attack several minutes later.

In Florida, three members of Kimberly's family say they plan to witness Davis' final moments. Mary Hobbs, Kimberly's grandmother, said her daughter - Kimberly's mother - was killed in a motorcycle crash. Hobbs said she feels a special duty this week in seeing Davis put to death. 'I need to be there to represent my daughter and my granddaughter,' she said. 'My daughter never lived to see this happen and that just breaks my heart.' Kimberly's mother, Beverly Schultz, had broken up with Davis after learning about his criminal history, Hobbs said. Davis had served prison sentences for a string of burglaries. They broke up six months before Kimberly's slaying.

Davis told police he broke into a home in the central Florida community of Lakeland on March 3, 1994, looking for beer money and said he didn't think anyone was home. According to court documents and detectives, Davis found Kimberly sleeping in her mother's bed while her mother was working a double shift at a nursing home. He gagged her so she wouldn't wake up her 13-year-old sister in another room. Prosecutors said Davis took the 11-year-old girl to a trailer, raped her and later beat her. Kimberly fought back as Davis suffocated her by pressing plastic over her face.

It would be the sixth execution in Florida this year and the second in the state since the death penalty came under fresh scrutiny in April His DNA was found under her fingernails. When she stopped breathing, he threw her body in a commercial trash bin.

'I feel he was striking back at (my daughter),' Hobbs told The Associated Press recently. 'But it was senseless.' In 1995, he was convicted by a jury in Polk County, a central Florida county in between Tampa and Orlando.

Florida uses three drugs - midazolam hydrochloride, vecuronium bromide and potassium chloride - for executions. The drugs are administered intravenously, intended to induce unconsciousness, paralysis and cardiac arrest. Midazolam, a sedative routinely used in surgery, has been part of the three-drug mixture since 2013. Previously, sodium thiopental was used, but its U.S. manufacturer stopped making it and Europe has banned its manufacturers from exporting it for executions. Other states use the same three drugs, and they were administered in the April execution in Oklahoma.

Davis made a last-ditch effort to appeal his death sentence, maintaining that he suffers from a rare medical condition that would cause him extreme abdominal pain, nausea and vomiting after the first drug is injected. His lawyers said that the pain would violate the constitutional prohibition on cruel and unusual punishment. On Monday, the Florida Supreme Court rejected his argument.

Hobbs said she wants the world to know that Kimberly's family still cares about her and still remembers her life - Kimberly loved being in nature, butterflies and wildflowers. 'After 20 years, it still hurts,' said Hobbs. 'It makes you wonder, what would she have become?' Florida's last execution happened on June 18. John Ruthell Henry, who was convicted of killing his estranged wife and her son, was put to death; he was among three people who were executed in the U.S. during a 24-hour span in June.

Miami Herald

"Florida executes man for 1994 rape, murder of girl," by Jason Dearen. (AP)

STARKE, Fla. -- Florida prison officials on Thursday executed a man convicted of the 1994 rape and slaying of an 11-year-old girl. It was the state's seventh execution this year. Eddie Wayne Davis was executed by injection at Florida State Prison at 6:43 p.m.

Davis, draped in a white sheet and strapped to a table with his hands covered in white material, declined to say any final words before his sentence was carried out. Executioners put the IV needle into Davis' left arm around 6:30 p.m. Davis began muttering to himself after the process began - prison officials said he was saying prayers - but witnesses in the viewing area couldn't hear what he was saying because the speakers had been turned off. Davis' chest heaved up and down for about five minutes and his eyes fluttered before he went motionless, his face ashen. There did not appear to be any outward signs of pain. A doctor came into the room and shined a penlight into Davis' eyes. He then checked for a heartbeat. Afterward, the execution team leader called the governor's office, then officials declared Davis dead.

Davis, 45, was convicted in 1995 of first-degree murder, kidnapping and sexual battery in the slaying of Kimberly Waters, the daughter of a woman Davis had dated briefly. Davis broke into his ex-girlfriend's trailer in the central Florida community of Lakeland seeking beer money, according to court documents. Prosecutors say he found Waters sleeping, and that he woke the girl and took her to an abandoned trailer in a neighboring park and raped her. After the rape, Davis took Waters to a nearby Moose Lodge, where he beat her and suffocated her with a piece of plastic before dumping her body in a trash can.

Waters' grandmother, Mary Hobbs, came to the prison but stayed outside during the execution. "I don't need to see it. I just need to know it's done," she said. "It's an absolute relief ... to know it's over and justice has been served. It's been a long time coming."

About two dozen anti-death penalty protesters gathered across the street from the prison. One sign read "We remember the victims. But not with more killing." Two pro-capital punishment protesters also appeared. Davis' execution was the second in Florida since the lethal injection process came under fresh scrutiny in April when Oklahoma prison officials stopped the execution of Clayton Lockett. They halted it after noticing the deadly drug mixture was not being administered into his vein properly. Lockett died minutes later of a heart attack.

Florida uses a three-drug mixture to execute prisoners: midazolam hydrochloride, vecuronium bromide and potassium chloride. The drugs are administered intravenously, and are intended to first induce unconsciousness, then paralysis and finally cardiac arrest. Midazolam, a sedative used commonly in surgery, has been part of the three-drug mixture since 2013. Sodium thiopental was used before that, but its U.S. manufacturer stopped making it and Europe banned its manufacturers from exporting it for executions.

Davis made a last-ditch appeal to have his execution delayed, arguing to the U.S. Supreme Court that he had a health condition that made injection of the drugs incredibly painful, which violated the Eight Amendment's prohibition of cruel and unusual punishment. But the court rejected the argument, and allowed the execution to proceed.

Waters' mother Beverly Schultz died in a motorcycle crash in 2004, but four of the girl's aunts and uncles attended the execution. Fighting through tears afterward, Kimberly's uncle Tom Briner said the family had waited a long time for this day. "Twenty years, four months and six days and we finally have justice," he said.

The Ledger

"As Execution Looms, Family, Friend Fondly Remember Victim of 1994 Lakeland Murder, by Suzie Schottelkotte." (July 9, 2014)

LAKELAND | She and her best friend, Alma Martinez, would play school together for hours, taking turns being the teacher. But Kimberly, who loved to skate and anything pink, never realized that ambition. Eddie Wayne Davis took that away when he took her life that night in March 1994. "I remember waking up that night to turn on the heat," said her sister, Crystal Waters, 34. "I walked by my mom's room where Kimberly was sleeping, and she was all curled up under a bunch of blankets. I leaned against the door jamb and just watched her sleep for a while, thinking how she looked so sweet. ''That was the last time I saw her."

The state plans to execute Davis today by lethal injection, but Waters won't be there. Instead of watching Davis die, she's choosing to celebrate her sister's life. "She loved sleepovers and country line dancing," Waters said. "She was still a little girl, but she was starting to mature. She was getting interested in boys, and had her first boyfriend. She had so much life ahead of her."

An out-of-work Lakeland roofer, Davis had dated Kimberly's mother, Beverly, and he knew where she stashed her rainy day money. What he didn't know that night when he broke into the Waterses' house, drunk and looking for cash, was that 11-year-old Kimberly was home and sleeping in her mother's bed. Her mother, a nurse, was working the night shift, and Davis later told police he thought no one was home. Kimberly startled him, triggering a terror that her sister still can't comprehend. "I can't think about it," Waters said. "There are things I just don't want to know." Davis kidnapped Kimberly and raped her that night, repeatedly and violently, stuffing an old shirt in her mouth to muffle her screams. When he was finished, he suffocated her with a plastic bag, fending off her kicks and scratches, and left her body in a trash bin near the Moose Lodge in Lakeland.

In June 1995, a jury deliberated 32 minutes before finding Davis guilty of murder, kidnapping and rape, according to court records. His defense lawyers didn't call a single witness, relying solely on their cross-examination of state witnesses. Then those same 12 jurors, who had seen the nightgown Kimberly was wearing and the stain of her blood on Davis' boot, voted unanimously to recommend that he die for his crimes, and Circuit Judge Daniel True Andrews agreed.

Kimberly had fought her attacker, which came as no surprise to those who knew her. "She was a strong person," Martinez said, "and she wasn't going to let anybody bully her. I loved that about her because it made her such a strong person. She fought back, I know she did."

Her young life hadn't always been easy, Waters said. The family didn't have much money, so recreation for them was playing in a park or digging through trash to find treasures they could sell. Their mother was working two jobs and going to school. The girls' father had left for Alabama when Kimberly was a toddler, Waters said, leaving their mom to fend for herself and her daughters. She died in a motorcycle crash 10 years after losing Kimberly.

When Waters thinks of her sister, she said she remembers a feisty girl who defended her friends passionately and was boundless in her generosity. "I remember once when she took my allowance money from my drawer," Waters said, "and I was so angry. Then she came home, and she'd been to a yard sale and had bought something for me. How could I be angry after that?" Kimberly loved scrounging through yard sales to see what treasures she could find, Waters said, but always for someone else. Yet, she wasn't a pushover. "Kimberly was a fighter," Waters said. "She was the kind to get right in your face if you bullied somebody. A lot of people underestimated her." Martinez recalled a time in first grade when Kimberly defied a teacher's request that she go to the principal's office. "They had to drag her out, and that was in the first grade," she said. "I know how strong a person she was, and she wasn't going to let anybody bully her."

A PLATE OF FRENCH FRIES

Martinez said her last memory of Kimberly was over a plate of French fries. "I'd come to her house, and I said I was hungry," she said. "Kimberly had put money aside in an envelope for church, but she pulled some out and we went to Tom's Restaurant. We split an order of french fries, and we just talked about things girls talk about. I can remember exactly where we were sitting. "We went back to her house, and she didn't want me to leave because her mom wasn't home and she didn't want to be alone," Martinez recalled. "But I had to go. "With the execution coming up, it's like reliving all of this all over again," she said. "But it helps me to feel her presence with me, too."

Waters said she carries some memories that still haunt her. "We always slept in my mom's bed together," she said, "but that night I slept in my own bed. I keep thinking about how it might have been different." She said she's pushing those thoughts aside to focus on Kimberly. "She was playful and joyful and trusted everybody," Waters said. "We did everything together. We talked about how many kids we were going to have, and what we were going to name them. We did the things that sisters do."

Waters was 13 when her sister died. Her mother came home from work that morning and asked where Kimberly was. "Everything was gone off the bed," she said. "All the blankets and everything." Polk Sheriff's Lt. Terry Storie, then a road deputy, found her body later that day behind the Moose Lodge. "It was across the street from a place where we used to play," Waters said. That afternoon, Waters and her mother drove to a relative's home in Highland City and never looked back. "We left everything," she said. "We never went back to that house again."

Mary Hobbs, Kimberly's maternal grandmother, said her heart breaks all over again each time she remembers Kimberly. "I'll think about it when I don't expect it, and it's like a wave coming over me," she said. "She was such a sweet, innocent girl, and she didn't do anything to deserve this. "She was bubbly and had such a vivid imagination," Hobbs said. "I'd take her fishing, and we'd be there just a little while before she would see a butterfly and off she'd go. She was so inquisitive. "Kimberly loved to dance and play movie star," she said. "She'd be 31 years old now. I often wonder what she would have been like."

School posed challenges for Kimberly, Waters said. Not long before she died, Kimberly transferred from Crystal Lake Elementary School to Oscar J. Pope Elementary School, which provides services to students with special needs. After her death, her classmates and teachers planted a tree on campus in her memory, Waters said. "She did well in math, but reading and spelling were not going well for her," she said. "She would write letters to people to practice, and she'd ask me to check the spelling."

Three days before she died, Kimberly wrote a letter to her sister expressing her love and admiration, and thanking her for her love and support. "I had read the first line and saw it was mushy," she said. "I looked at the pictures, then I set it aside to read it later. I read it when she went missing, and I started crying. I knew in my heart that she wasn't coming back. It was like a goodbye letter, but how would she know that?" Waters said she held that letter close to her heart for years. "When I would start missing her, I would pull it out and read it," she said. "I read it over and over." Waters lost that cherished letter more than a decade ago when someone stole her backpack. "I'd always hoped they would just take what they wanted and give the rest back to me," she said, "but that didn't happen. I'm sure they took the (blank) checks and just threw the rest away."

As Davis' execution approaches, Waters' thoughts remain the thoughts in that letter, and her love for her sister. "I want to remember how joyful she was," she said. "I'll never forget her."

Tampa Bay Times

"Florida executes man who raped and killed girl." (Associated Press Thursday, July 10, 2014 6:08pm)

Florida prison officials on Thursday executed a man convicted of the 1994 rape and slaying of an 11-year-old girl. It was the state's sixth execution this year. Eddie Wayne Davis was executed at Florida State Prison by injection at 6:43 p.m.

Davis, 45, was convicted in 1995 of first-degree murder, kidnapping and sexual battery in the slaying of Kimberly Waters, the daughter of a woman Davis had dated briefly. Davis broke into his ex-girlfriend's trailer in the central Florida community of Lakeland seeking beer money, according to court documents. Prosecutors say he found Waters sleeping, and that he woke the girl and raped her. After the rape, Davis took Waters to a nearby Moose Lodge, where he beat her and suffocated her with a piece of plastic before dumping her body in a trash can.

Davis' execution was the second in Florida since the lethal injection process came under fresh scrutiny in April when Oklahoma prison officials stopped the execution of Clayton Lockett. They halted it after noticing the deadly drug mixture was not being administered into his vein properly. Lockett died minutes later of a heart attack.

Florida uses a three-drug mixture to execute prisoners: midazolam hydrochloride, vecuronium bromide and potassium chloride. The drugs are administered intravenously, and are intended to first induce unconsciousness, then paralysis and finally cardiac arrest. Midazolam, a sedative used commonly in surgery, has been part of the three-drug mixture since 2013. Sodium thiopental was used before that, but its U.S. manufacturer stopped making it and Europe banned its manufacturers from exporting it for executions. Davis made a last-ditch appeal to have his execution delayed, arguing to the U.S. Supreme Court that he had a health condition that made injection of the drugs incredibly painful, which violated the Eight Amendment's prohibition of cruel and unusual punishment. But the court rejected the argument, and allowed the execution to proceed.

Waters' mother Beverly Schultz died in a motorcycle crash in 2004, but the victim's grandmother and two other relatives were expected to be on hand to witness Davis' execution. Mary Hobbs, the grandmother, said before the execution that she felt it important to be there to represent her daughter and granddaughter. "My daughter never lived to see this happen and that just breaks my heart."

Reuters News

"Florida man executed for 1994 rape and murder of girl," by Bill Cotterell. (Thu Jul 10, 2014 7:22pm EDT)

TALLAHASSEE (Reuters) - A man who confessed to the rape and murder of an 11-year-old girl was executed by lethal injection on Thursday, the Florida Department of Corrections said. Eddie Wayne Davis, 45, was sentenced to death in 1995 after he admitted to taking the girl from her mother’s home, sexually assaulting and strangling her. His death follows a string of executions in the U.S. South last month, including those of two other men in Florida and Georgia, in the wake of a botched Oklahoma execution in April that sparked an uproar among death penalty opponents.

Davis confessed three times to the murder of Kimberly Waters, who was found strangled in a dumpster in 1994. He was 25 years old at the time of her killing, but his defense team claimed that he was mentally still a juvenile. Prison authorities said Davis was calm as he awaited his fate. He met with his mother and a Catholic spiritual adviser during the day before eating his last meal, and issued no final statement.

Davis is the seventh person executed in Florida this year, matching the total number of executions in 2013. The state has not seen more executions in a single year since 1984, when eight prisoners were put to death, according to the Department of Corrections. The Florida Supreme Court on Monday rejected Davis' claim that a metabolic blood disorder known as porphyria might cause him to have a painful reaction to midazolam, the first of three drugs used by the state in executing convicted killers.

Another convicted murderer in Georgia had his death sentence, also due to be carried out on Thursday, commuted to life imprisonment on Wednesday by the state Board of Pardons and Paroles. Tommy Lee Waldrip, 68, was convicted of the 1991 shooting death of a man who had been scheduled to testify against his son in an armed robbery trial It was the fifth death sentence commuted by the Georgia Parole Board since 2002 and the first since April 2012.

Wikipedia

Following is a list of inmates executed since Florida resumed executions in 1979:

1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.

2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor

62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon

63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules

64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy

65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.

66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis

67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr

68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons

69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park

70. Manuel Valle 28 September 2011 lethal injection Louis Pena

71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers

72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer

73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott

74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.

75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson

76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan

77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis

78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson

79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)

80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley

81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins

82. Thomas Knight a/k/a Askari Abdullah Muhammad 7 January 2014 lethal injection Sydney and Lillian Gans, Florida Department of Corrections officer Richard Burke

83. Juan Carlos Chavez 12 February 2014 lethal injection Samuel James Ryce

84. Paul Augustus Howell 26 February 2014 lethal injection Trooper Jimmy Fulford

85. Robert Lavern Henry 20 March 2014 lethal injection Phyllis Harris, Janet Cox Thermidor

86. Robert Eugene Hendrix 23 April 2014 Elmer Bryant Scott Jr., Michelle Scott

87. John Ruthell Henry 18 June 2014 Suzanne Henry and Eugene Christian

88. Eddie Wayne Davis 10 July 2014 Kimberly Waters

ProDeathPenalty.Com

On the afternoon of March 4, 1994, police found the body of eleven-year-old Kimberly Waters in a dumpster not far from her home. She had numerous bruises on her body, and her pubic area had been lacerated. An autopsy revealed that the cause of death was strangulation.

On March 5, police questioned Eddie Wayne Davis, a 25-year-old former boyfriend of Kimberly’s mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample. While Davis was being questioned at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim’s blood and that Davis’s DNA matched scrapings taken from the victim’s fingernails on her left hand.

Davis had been on court-ordered community control after being released from prison after serving only five years of a fifteen year sentence for burglary and grand theft. A warrant was issued for Davis’s arrest. On March 18, Davis agreed to go to the police station for more questioning. He was not told about the arrest warrant. At the station, he denied any involvement and repeated the alibi he had given earlier. After about fifteen minutes, police advised Davis of the DNA test results. Davis insisted they had the wrong person and asked if he was being arrested. Police told him that he was. At that point Davis requested to contact his mother so she could obtain an attorney for him, and the interview ceased.

Davis was placed in a holding cell. A few minutes later, while Davis was in the holding cell, Major Grady Judd approached him and, making eye contact, said that he was disappointed in Davis. When Davis responded inaudibly, Judd asked him to repeat what he had said. Davis made a comment suggesting that the victim’s mother, Beverly Schultz, was involved. Judd explained that he could not discuss the case with Davis unless he reinitiated contact because Davis had requested an attorney. Davis said he wanted to talk, and he did so, confessing to the crimes against Kimberly and implicating Beverly Schultz as having solicited the crimes.

Within a half hour after this interview, police conducted a taped interview in which Davis gave statements similar in substance to the untaped confession. Davis’s full Miranda warnings were not read to him until the taped confession began. In May, 1994, Davis wrote a note asking to speak to detectives about the case. In response, police conducted a second taped interview on May 26, 1994. Police asked Davis if he was willing to proceed without the advice of his counsel, to which Davis responded yes, but specific Miranda warnings were not recited to Davis. During this interview, Davis again confessed to killing Kimberly but stated that Beverly Schultz was not involved. Davis explained that he originally went to Schultz’s house to look for money to buy more beer. Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. Crystal later told her mother that she had last seen her sister asleep in their mother's bed when she had gotten up to turn up the heater temperature around 3:00 am that morning.

When Davis turned on the lights in Beverly Schultz’s bedroom, he saw Kimberly. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell. Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis’s old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to raping her with two of his fingers. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.

Davis moved to suppress the March 18 and May 26 statements he made to law enforcement officers, arguing that his Miranda rights were violated. The trial court denied those motions. The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. The jury unanimously recommended a sentence of death and the trial court sentenced Davis to death.

“There are a lot of terrible crimes that occur but that is in the top 10 of my 41 years of service, and I’ve seen thousands and thousands of vicious crimes,” Sheriff Judd said after Davis's execution date was set.

Beverly Schultz died in a motorcycle accident 10 years after her daughter’s murder. In 2013, Crystal Waters, then 33, said she remembered the day Kimberly was murdered like it was yesterday. Crystal and Kimberly's grandmother, Mary Hobbs said, "It has been very frustrating. Does he deserve to die? You bet your bottom dollar he does. This scum has torn our family to pieces. Kimberly was such a sweet little child, and she didn't deserve this." Mary Hobbs said she will be present when Davis is executed. "I'll be there for my dead daughter, and for my little granddaughter. I want closure, and I think it will help. Why should he keep breathing air? My granddaughter isn't. She never had a chance against an animal like that. We've waited long enough. It's time for justice now." Mary said the 11-year-old loved wild flowers and butterflies and enjoyed swimming in the Weeki Wachee River.

Florida Commission on Capital Cases

The Commission on Capital Cases was not funded in the FY 2011-2012 General Appropriations Act, and the Commission ceased operations on June 30, 2011. This site and the Commission website are being retained to provide access to historical materials. The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.

DC# 097852
DOB: 09/12/68
Date of Offense: 03/03/94
Date of Sentence: 06/30/95

Tenth Judicial Circuit, Polk County Case # 94-1248
Sentencing Judge: The Honorable Daniel True Andrews
Attorney, Trial: Austin Maslanik & Robert Norgard – Assistant Public Defender
Attorney, Direct Appeal: Robert Moeller – Assistat Public Defender
Attorney, Collateral Appeals: Richard Kiley & James Viggiano – CCRC-M

Circumstances of Offense:

Eddie Davis was living in a house with Beverly Shultz and her two daughters, Crystal and Kimberly. On the evening of 03/03/94, 11-year-old Kimberly was asleep in her mother’s bed, when she was awakened by Davis. Davis put his hand over her mouth and led her to the living room, where he gagged her with a rag so she could not yell. Davis and Kimberly jumped a fence and went in to the adjacent trailer park where Davis formerly lived. While in Davis’ trailer, he attempted to insert his penis into her vagina, and when this failed, he inserted two fingers. Davis then took Kimberly to the nearby Moose Lodge, where he struck her several times and then placed a piece of plastic over her mouth. Kimberly struggled and ripped the plastic, but Davis held it over her mouth and nose until she stopped moving. He then disposed of the body in a dumpster and left. Kimberly’s body was found on the afternoon of the 03/04/94. The body had numerous bruises, the area between the vagina and anus had been lacerated, and the cause of death was determined to be strangulation. Prior Incarceration History in the State of Florida: At the time of the offense, Davis was on control release supervision, which the trial court and FSC determined to be analogous to imprisonment. The trial court and the FSC found this to be an aggravating circumstance at the penalty phase of the trial. Davis had an extensive criminal record at the time of the offense.

Trial Summary:

04/07/94 Indicted as follows:
Count I First-Degree Murder
Count II Burglary with Assault
Count III Kidnapping of a Child Under 13
Count IV Sexual Battery of a Child Under 12

06/01/95 Jury returned guilty verdicts on all counts of the indictment
06/09/95 Jury recommended a death sentence by a vote of 12-0

06/30/95 Sentenced as follows:
Count I First-Degree Murder – Death
Count II Burglary with Assault – 19 years
Count III Kidnapping of a Child Under 13 – 19 years
Count IV Sexual Battery of a Child Under 12 – Life imprisonment

Case Information:

On 07/24/95, Davis filed a Direct Appeal with the Florida Supreme Court, citing the following trial court errors: admission of statements to the police; allowing the jury to hear the 911 tape of Beverly Shultz after discovering that her daughter was missing; the State improperly injected irrelevant matters and improper argument to exploit the emotions of the jury; overruling defense objections to jury instructions on reasonable doubt and premeditated murder; permitting the State’s mental health expert to examine Davis in order to rebut Davis’ mental health expert; jury recommendation tainted by trial errors; denying proposed jury instructions on non-statutory mitigating circumstances; improper jury instructions and insufficient evidence for aggravating circumstances of avoiding arrest and heinous, atrocious, or cruel circumstances; and finding that Davis’ control release status was similar to being under a sentence of imprisonment, and therefore an aggravating circumstance. The FSC affirmed the convictions and sentences on 06/05/97.

On 12/10/97, Davis filed a Petition for Writ of Certiorari with the U.S. Supreme Court that was denied on 02/23/98.

On 05/28/98, Davis filed a 3.850 Motion with the Circuit Court that was denied on 06/12/02.

On 07/18/02, Davis filed a 3.850 Motion Appeal with the Florida Supreme Court, alleging ineffective assistance of counsel.

On 11/20/03, the FSC affirmed the denial of the 3.850 Motion.

On 12/02/02, Davis filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court, citing allegations of ineffective assistance of counsel. On 11/20/03, the FSC denied the Petition.

On 11/23/04, Davis filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District.

The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.

Davis v. State, 698 So.2d 1182 (Fla. 1997). (Direct Appeal)

Defendant was convicted in the Circuit Court, Polk County, Daniel Andrews, J., of murder, and was sentenced to death. On automatic appeal, the Supreme Court held that: (1) defendant was not in custody for purposes of Miranda when he voluntarily went to police station; (2) statement in which jail employee expressed his disappointment was not impermissible renitiation of interrogation after assertion of Miranda rights; (3) Miranda warnings were required prior to interview after defendant reinitated contact; but (4) improper admission of statement obtained was harmless; (5) recording of 911 emergency call by victim's mother was admissible; (6) prosecutor's reference to portions of defendant's statement as “bald-faced lies” and crime and its perpetrator as “vicious and brutal” were not improper; and (7) instructions on aggravators for imposition of death penalty accurately stated law; and (8) defendant's control release status at time murder established aggravating factor of defendant being under sentence of imprisonment at time of murder. Affirmed. Anstead, J., concurred in result only as to conviction and concurred as to sentence.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Eddie Wayne Davis. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. On the afternoon of March 4, 1994, police found the body of eleven-year-old Kimberly Waters in a dumpster not far from her home. She had numerous bruises on her body, and the area between her vagina and anus had been lacerated. An autopsy revealed that the cause of death was strangulation. On March 5, police questioned Davis, a former boyfriend of Kimberly's mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample.

While Davis was being questioned at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim's blood and that Davis's DNA matched scrapings taken from the victim's fingernails. A warrant was issued for Davis's arrest. On March 18, Davis agreed to go to the police station for more questioning. He was not told about the arrest warrant. At the station, he denied any involvement and repeated the alibi he had given earlier. After about fifteen minutes, police advised Davis of the DNA test results. Davis insisted they had the wrong person and asked if he was being arrested. Police told him that he was. At that point Davis requested to contact his mother so she could obtain an attorney for him, and the interview ceased. Davis was placed in a holding cell.

A few minutes later, while Davis was in the holding cell, Major Grady Judd approached him and, making eye contact, said that he was disappointed in Davis. When Davis responded inaudibly, Judd asked him to repeat what he had said. Davis made a comment suggesting that the victim's mother, Beverly Schultz, was involved. Judd explained that he could not discuss the case with Davis unless he reinitiated contact because Davis had requested an attorney. Davis said he wanted to talk, and he did so, confessing to the crimes against Kimberly and implicating Beverly Schultz as having solicited the crimes. Within a half hour after this interview, police conducted a taped interview in which Davis gave statements similar in substance to the untaped confession. Davis's full Miranda FN1 warnings were not read to him until the taped confession began. FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In May, 1994, Davis wrote a note asking to speak to detectives about the case. In response, police conducted a second taped interview on May 26, 1994. Police asked Davis if he was willing to proceed without the advice of his counsel, to which Davis responded yes, but specific Miranda warnings were not recited to Davis. During this interview, Davis again confessed to killing Kimberly but stated that Beverly Schultz was not involved. Davis explained that he originally went to Schultz's house to look for money to buy more beer. Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. When Davis turned on the lights in Beverly Schultz's bedroom, he saw Kimberly, who was sleeping in Schultz's bed. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell.

Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis's old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to pushing two of his fingers into Kimberly's vagina. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.

Davis moved to suppress the March 18 and May 26 statements he made to law enforcement officers, arguing that his Miranda rights were violated. The trial court denied those motions. The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. The jury unanimously recommended a sentence of death and the trial court sentenced Davis to death.

In aggravation, the trial court found that the murder was: (1) committed by a person under sentence of imprisonment; (2) committed during the commission of a kidnapping and sexual battery; (3) committed for the purpose of avoiding or preventing a lawful arrest; and (4) especially heinous, atrocious, or cruel. As statutory mitigation, the court found that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight. As nonstatutory mitigation, the court found that Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs. Although the trial court gave “medium weight” to several of these nonstatutory mitigators, most of them were assigned little weight.

Davis raises ten issues in this appeal. As his first issue, Davis contends that the trial court erred in admitting the statements he made to law enforcement officers on March 18 and May 26. We address the statements made at each stage separately. First, with respect to the statements Davis made at the police station on March 18 before he was arrested, the trial court found that whether a Miranda violation had occurred was moot because Davis had not made any incriminating statements during that interview. However, Miranda prohibits the use of all statements made by an accused during custodial interrogation if the accused has not first been warned of the right against self-incrimination and the right to counsel.FN2 Thus, statements obtained in violation of Miranda are inadmissible, regardless of whether they are inculpatory or exculpatory.

FN2. In Miranda, the Court said: The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to “admissions” of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely “exculpatory.” If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. 384 U.S. at 476–77.

Nevertheless, we uphold the admissibility of Davis's prearrest statements on a different basis. Miranda warnings are required whenever the State seeks to introduce against a defendant statements made by the defendant while in custody and under interrogation. Absent one or the other, Miranda warnings are not required. Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir.1994) (citing Miranda, 384 U.S. at 477–78, 86 S.Ct. at 1629–30); Sapp v. State, 690 So.2d 581 (Fla.1997); see also Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (“It is clear that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”). Although custody encompasses more than simply formal arrest, the sole fact that police had a warrant for Davis's arrest at the time he went to the station does not conclusively establish that he was in custody. Rather, there must exist a “restraint on freedom of movement of the degree associated with a formal arrest.” Roman v. State, 475 So.2d 1228, 1231 (Fla.1985). The proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in the suspect's position would have perceived the situation. Id.

The circumstances of this case lead us to conclude that Davis was not in custody at the time he made the prearrest statements. Police had questioned Davis several times prior to March 18. At least once he had gone to the police station voluntarily for questioning and was permitted to leave. It is therefore unlikely that a reasonable person in Davis's position would have perceived that he was in custody until he was formally arrested. In any event, any error in admitting these prearrest statements was harmless. Davis did not say anything during the prearrest interview that he had not already said to police on previous occasions.

Next we address the admissibility of the untaped confession Davis made to Major Judd and Lieutenant Schreiber while in the holding cell. Davis points out that because he had invoked his right to counsel upon being arrested (and the trial court found that he had), police were prohibited under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), from interrogating Davis unless he reinitiated contact. According to Davis, Judd's expression of his disappointment in Davis constituted initiation of contact by police in violation of Edwards. The trial court made a finding that Major Judd's statement did not constitute interrogation as defined in Innis and Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). We agree with the trial court's analysis and result. First, Judd's statement was not an express questioning of Davis. Second, Judd's statement was not the functional equivalent of express questioning because there was no allegation or showing in the record that the statement was reasonably likely to elicit an incriminating response from Davis based on his emotional or mental state. See Mauro, 481 U.S. at 526–27, 107 S.Ct. at 1935; Innis, 446 U.S. at 300–301, 100 S.Ct. at 1689–90. Moreover, although Judd eventually did ask Davis to repeat himself, thereby asking a question, it was not intended to elicit an incriminating response. For all Judd knew, Davis could have been asking for a drink of water; surely Judd was permitted to ascertain what Davis had said.

Alternatively, Davis argues that even if he reinitiated contact, Judd should have given him Miranda warnings before interviewing him in the holding cell, pursuant to Kight v. State, 512 So.2d 922 (Fla.1987); disapproved on other grounds, Owen v. State, 596 So.2d 985 (Fla.1992). In Kight, the Court held that a defendant who reinitiated contact with police after having invoked his Fifth Amendment right to counsel was entitled to a fresh set of Miranda warnings before being interrogated. Id. at 926. Yet, this Court later held in Christmas v. State, 632 So.2d 1368 (Fla.1994), that where the defendant who was in custody voluntarily initiated a conversation with law enforcement officers in which the defendant provided information about the case, Miranda warnings were not required.

Although in this case Major Judd did not read Davis his Miranda rights as they are usually set forth, the record shows that as soon as Judd understood that Davis was making statements about the murder, Judd explained to Davis that he would have to reinitiate contact with police because he had asked for a lawyer. Moreover, when Davis said that he could not afford an attorney, Judd assured him that the State would provide him with one. Therefore, it would be easy to conclude that a formal reading of the Miranda warnings was unnecessary. However, the requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings. As far as we can tell, Davis had never been advised of his Miranda rights with respect to this case before talking to Judd. Under these circumstances, we are compelled to conclude that Davis's untaped confession to Judd should have been suppressed.

Notwithstanding, the erroneous admission of this confession was harmless beyond a reasonable doubt. Shortly after confessing in his holding cell, Davis gave a taped statement in which he voluntarily gave the same information contained in his prior statement to Judd. This statement was clearly admissible because Davis was fully informed of (and waived) his Miranda rights before the start of the taping session. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (holding that although defendant's voluntarily given initial statement was inadmissible because of Miranda violation, subsequent statement, made after careful Miranda warnings were given and waiver was obtained, was admissible).

As to the second taped confession, given on May 26, Davis was not given a fresh set of Miranda warnings, although he was reminded of his right to the advice of counsel. However, numerous state and federal courts have rejected the talismanic notion that a complete readvisement of Miranda warnings is necessary every time an accused undergoes additional custodial interrogation. See Brown v. State, 661 P.2d 1024 (Wyo.1983), and cases cited therein. Rather than adhere to an overly mechanical application of Miranda, we believe that once Miranda has been complied with, the better test for admissibility of statements made in subsequent or successive custodial interrogations is whether the statements were given voluntarily. Such an inquiry must consider the totality of the circumstances. We recede from those portions of Kight and Christmas that may be inconsistent with this analysis.

In this case, Davis had previously received full Miranda warnings and he validly waived them. There is no evidence of coercion; in fact, Davis was responsible for initiating the contact that led to this second taped confession. He was once again apprised of his right to counsel. Under these circumstances, we conclude that the second taped confession was voluntary and that the underlying concerns of Miranda were fully satisfied. Thus, there was no error in admitting the second taped confession. Davis's second issue is that the trial court erred in allowing the jury to hear a tape of the 911 emergency call Beverly Schultz made after discovering her daughter was missing. At trial the State proffered the tape for the stated purpose of showing Beverly Schultz's distressed state of mind at the time of the call. The State contended that Schultz's state of mind was relevant to rebut any inference that she might have been involved in the murder based on Davis's first taped confession, which implicated her. The State also argued that the tape was admissible as a spontaneous statement or an excited utterance. The trial court admitted the tape, instructing the jury that the tape was not being offered for the truth of the matters asserted in the tape, but only to establish Beverly Schultz's state of mind.

We find no error in the admission of the tape. In view of Davis's earlier confession implicating Schultz as the instigator of the crime, the tape was relevant to show her genuine concern over the loss of her child. In addition, the tape was admissible as an excited utterance under section 90.803(2), Florida Statutes (1993). Allison v. State, 661 So.2d 889 (Fla. 2d DCA 1995) (tape of 911 call by son upon finding mother dead admissible as excited utterance); Ware v. State, 596 So.2d 1200 (Fla. 3d DCA 1992) (tape of 911 call for help admissible as excited utterance). Moreover, the call was relevant to establish the circumstances of the crime and the time when Kimberly was discovered missing. Even if it could be said that the tape should not have been admitted, the error would be harmless beyond a reasonable doubt.

Third, Davis contends that the State improperly injected irrelevant matters and improper argument into the trial and exploited the emotional displays of its witnesses. Davis argues that it was error for the prosecutor (1) to ask a prospective juror during voir dire and in the presence of the other prospective jurors whether it would bother her that the case involved a child with a learning disability; (2) to refer to the victim's emotional handicap during closing argument where the victim's handicap had not been part of the State's case; (3) to refer to the emotional reaction of Detective Storie, who testified to discovering the victim's body; (4) to characterize statements given by Davis in one of his confessions as “bald-faced lies”; and (5) to refer to the crime and its perpetrator as “vicious” and “brutal.” As to asking a prospective juror in front of the others whether it would hinder her impartiality if the case involved a learning disabled child, we find no error. Whether a trial judge should have allowed interrogation of jurors on specific subjects is reviewed under an abuse of discretion standard. Farina v. State, 679 So.2d 1151, 1154 (Fla.1996). The prospective juror in question had worked with learning disabled children for ten years. The trial court did not abuse its discretion in permitting the prosecutor to voir dire this prospective juror and any of the other prospective jurors on this subject. The prosecutor stated that he intended to establish that Davis had targeted the victim because of her handicap. Ultimately he did not do so, but the trial judge was reasonable at that stage in permitting this question to determine if any of the jurors had strong feelings or biases that would prevent them from rendering an impartial verdict in the case. Moreover, the prosecutor did not dwell on the victim's handicap during voir dire, but rather asked the question and moved on to other areas.

The prosecutor's reference to the victim's emotional handicap in closing argument was not objected to by the defense. Thus the issue is waived. Even if it had been preserved, any error would have been harmless. The prosecutor made mention of the victim's handicap once in passing. If anything, the jury was more focused on the victim's young age than the fact that she may have been handicapped. We find no error in the trial court's decision to overrule the defense's objection to the prosecutor's reference to Detective Storie as “the guy that got upset thinking about this little girl.” The prosecutor was in the middle of making the argument that Davis placed the victim's body in the dumpster to avoid detection. In light of the number of law enforcement witnesses who testified, it is understandable that the prosecutor used this reference as a short-hand method of referring to the detective who discovered the victim's body in the dumpster. There was no undue emphasis on the detective's emotionalism.

Davis also argues that the prosecutor improperly referred to certain statements in Davis's taped confessions as “bald-faced lies,” particularly where the State was responsible for admitting those tapes into evidence. We find that the comments did not cross the line into improper argument. When it is understood from the context of the argument that the charge is made with reference to the evidence, the prosecutor is merely submitting to the jury a conclusion that he or she is arguing can be drawn from the evidence. Craig v. State, 510 So.2d 857, 865 (Fla.1987). It was for the jury to decide what conclusion to draw from the evidence and the prosecutor was merely submitting his view of the evidence to them for consideration. Nor do we agree with the contention that the prosecutor's characterization of the crime and its perpetrator as “vicious” and “brutal” was improper argument in view of the evidence in the case. In his fourth claim, Davis argues that the trial court erred in overruling defense objections to the standard jury instructions on reasonable doubt and premeditated murder. These issues have been resolved adversely to Davis by our prior case law. Esty v. State, 642 So.2d 1074 (Fla.1994) (reasonable doubt); Spencer v. State, 645 So.2d 377 (Fla.1994) (premeditation).

Penalty Phase

Davis asserts as his fifth issue that the trial court erred in permitting the State's mental health expert to examine Davis in order to rebut the defense's penalty phase mental health expert testimony. According to Davis, the compelled mental health examination violated his Fifth Amendment right against self-incrimination. In Dillbeck v. State, 643 So.2d 1027 (Fla.1994), we rejected the same argument. We reasoned that it would be unfair to permit a defendant to present mitigating mental health evidence at the penalty phase while denying the State the opportunity to present evidence on the same issue. This became especially so after our decision in Nibert v. State, 574 So.2d 1059 (Fla.1990), wherein we held that a trial court must find that a particular mitigating circumstance has been proved whenever the defendant has presented a “ ‘reasonable quantum of competent, uncontroverted evidence’ ” of that mitigating circumstance. Dillbeck, 643 So.2d at 1030 (quoting Nibert, 574 So.2d at 1062). We also directed the proposal of a new Rule of Criminal Procedure that would permit the State to have its mental health expert examine a defendant who intends to present at the penalty phase the testimony of a mental health expert who has interviewed the defendant. We subsequently adopted such a rule. See Fla.R.Crim.P. 3.202. We therefore reject this argument.

Sixth, Davis argues that the jury recommendation of death was tainted by a number of trial errors. First, he claims that the trial court erred in permitting the prosecutor to cross-examine one of the defense's mental health experts about some hearsay contained in a predisposition report because it was not established that the expert had relied upon the report in rendering his opinion that Davis had been abused as a child. We disagree. The record shows that defense counsel questioned Dr. Dee on direct examination about the records he had reviewed. When Dr. Dee did not remember seeing any predisposition reports, defense counsel assured Dr. Dee that the predisposition reports were contained in the HRS records he had reviewed. On cross-examination, the prosecutor asked Dr. Dee to read a portion of the predisposition report which referred to an earlier HRS investigation. The report noted that the HRS investigation revealed no physical bruises on Davis and that an unnamed person stated that she had not seen bruises for five years. On redirect examination, defense counsel asked Dr. Dee about another of the predisposition reports, in which the author reported having seen belt marks on Davis in the past. It is clear the predisposition reports were among the records Dr. Dee relied upon in arriving at his opinion that Davis had been the victim of child abuse. We find no abuse of discretion in permitting the prosecutor to cross-examine the expert witness on material contained in the predisposition report. See Muehleman v. State, 503 So.2d 310, 315 (Fla.1987) (upholding admission into evidence of report constituting hearsay where expert witness considered report in formulating opinion).

Davis also challenges the State's introduction of a photopack photograph admitted during cross-examination of Davis's grandmother, depicting Davis with long hair and facial hair. We find no error. During its direct examination of Davis's grandmother, the defense admitted photographs of Davis as a young boy, thereby making Davis's appearance relevant. The photopack photograph was proper rebuttal to show that Davis no longer looked the same.

Further, Davis challenges the trial court's refusal to permit his attorney to testify. The situation arose when the State cross-examined the defense's mental health expert Dr. McClane about the fact that Davis's lawyers did not permit him to question Davis about the instant crimes and the effect this limitation had on the formulation of his opinions. Defense counsel objected to this questioning on the ground that the limitation imposed on their expert was a legal decision made in the wake of Dillbeck. In Dillbeck, our ruling permitting the State to examine the defendant was limited to those situations where the defendant had been interviewed by the defense's mental health expert. Yet that is precisely what happened here. The fact that Davis's lawyers limited the subject matter of the questions that Dr. McClane could ask Davis does not change the fact that Davis was interviewed. The State was permitted to point out any weaknesses in Dr. McClane's testimony due to the restrictions placed on his interview of Davis. Nor was it error to deny defense counsel's request to personally testify in order to explain his strategy to the jury. Defense counsel was permitted on redirect to elicit that the witness's interview was limited in an attempt to insulate Davis from being examined by the State.

Davis also argues that the prosecutor improperly introduced the nonstatutory aggravator of future dangerousness into the penalty phase by stating to Dr. McClane during cross-examination that he couldn't predict “from this point forward” whether Davis would commit a crime such as the one he committed here. We agree that the trial court should have sustained defense counsel's objection. However, this error was harmless. The question was never answered because the court required the prosecutor to rephrase the question. Further, the court also told the jury that they would be instructed on the only aggravating circumstances which could be considered. See, e.g., Allen v. State, 662 So.2d 323, 331 (Fla.1995) (finding harmless error where the sentencing order specifically provided that the imposition of the death sentence was based solely on the statutory aggravating factors and the trial court did not allow any other aggravating factors to be argued to the jury), cert. denied, 517 U.S. 1107, 116 S.Ct. 1326, 134 L.Ed.2d 477 (1996). We reject Davis's contention that the prosecutor improperly misled the jurors into believing that they should not be swayed by any sympathy they felt for Davis. See Valle v. State, 581 So.2d 40, 46–47 (Fla.1991). Likewise, we find no merit in the argument that the prosecutor improperly told the jury that the under sentence of imprisonment aggravator alone was sufficient for imposing the death penalty.

As his seventh point, Davis argues that the trial court erred in denying his proposed jury instructions on nonstatutory mitigating factors. We have repeatedly ruled that the standard jury instructions are sufficient. The trial court acted within its discretion to deny a special instruction. E.g., Kilgore v. State, 688 So.2d 895 (Fla.1996); Ferrell v. State, 653 So.2d 367, 370 (Fla.1995), cert. denied, 520 U.S. 1123, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997); Gamble v. State, 659 So.2d 242, 246 (Fla.1995), cert. denied, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d 860 (1996). For the same reason, we reject Davis's argument that the trial court should have given an instruction that unanimous agreement was not required for the consideration of mitigating factors.

Eighth, Davis attacks both the jury instruction on the avoid arrest aggravator and the sufficiency of the evidence in support thereof. The trial court gave the following instruction for this aggravator: “The crime for which the defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody.” Davis argues that because the victim in this case was not a law enforcement officer, the jury should have been instructed that they could find this aggravator only if the State had proven beyond a reasonable doubt that the dominant or only motive for the killing was elimination of the witness. In support of this argument, he cites to our decisions holding that in order for this aggravator to be established where the victim is not a law enforcement officer, the State must clearly show that the dominant or only motive for the killing was witness elimination. E.g., Robertson v. State, 611 So.2d 1228, 1232 (Fla.1993); Jackson v. State, 599 So.2d 103, 109 (Fla.1992); Jackson v. State, 575 So.2d 181, 190 (Fla.1991). However, not every court construction of an aggravating factor must be incorporated into a jury instruction defining that aggravator. See Jackson v. State, 648 So.2d 85, 90 (Fla.1994) (qualifying that not every aggravating factor necessarily requires instruction that incorporates judicial interpretation of that factor). In Whitton v. State, 649 So.2d 861, 867 n. 10 (Fla.1994), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995), we stated that, unlike the heinous, atrocious, or cruel statutory aggravator, the avoid arrest statutory aggravator did not contain terms so vague as to leave the jury without sufficient guidance for determining the absence or presence of the factor. The challenged instruction was therefore legally adequate.

Nor do we agree with the claim that there was insufficient evidence to establish the avoid arrest aggravator. Davis likens the circumstances of this case to those in Doyle v. State, 460 So.2d 353 (Fla.1984), where the Court struck down the avoid arrest aggravator. However, Davis stated in his confession that when Kimberly Waters awoke to find Davis in the bedroom, he placed a rag in her mouth to keep her quiet. He transported her to his trailer in a nearby trailer park where he sexually abused her. Davis admitted that he didn't want anybody to know that he had done something like that. He killed her by striking her with his fist and holding a piece of plastic over her mouth. He also admitted that he put her in the dumpster to enable him to get away before her body could be found. These circumstances more closely resemble cases in which we have upheld this aggravator. See Swafford v. State, 533 So.2d 270, 276 (Fla.1988); Cave v. State, 476 So.2d 180, 188 (Fla.1985); Routly v. State, 440 So.2d 1257, 1264 (Fla.1983).

As his ninth issue, Davis contends that the trial court erred in finding that his control release status supported the finding that he was under a sentence of imprisonment at the time of the murder.FN3 We have not ruled on this precise issue before. In Straight v. State, 397 So.2d 903 (Fla.1981), this Court held that evidence that the defendant was on parole at the time of the murder supported a finding that the defendant was under a sentence of imprisonment for purposes of this aggravator. Later, in Haliburton v. State, 561 So.2d 248, 252 (Fla.1990), we found that this aggravator also included situations where the defendant had been out on mandatory conditional release.FN4 We based our reasoning on language in the mandatory conditional release statute stating that a person under mandatory conditional release was subject to all statutes relating to parole. On the other hand, in Bolender v. State, 422 So.2d 833 (Fla.1982), this Court held that probation did not qualify for the under sentence of imprisonment aggravator because the defendant was not incarcerated. In Trotter v. State, 576 So.2d 691, 694 (Fla.1990), we applied the same reasoning to hold that community control did not satisfy this aggravator.FN5

FN3. § 921.141(5)(a), Fla.Stat. (1993). FN4. § 944.291, Fla.Stat. (1979). FN5. The statute was subsequently amended to expressly include community control as an aggravating circumstance. Ch. 91–271, § 1, at 2562, Laws of Fla.

Davis posits that control release is similar to community control and therefore does not qualify as a “sentence of imprisonment” under the reasoning of Trotter. He distinguishes control release from parole by pointing out that only inmates who are ineligible for parole may qualify for control release. He further distinguishes the two by pointing out that, unlike parole violators, those who have their control release revoked are not entitled to credit for time spent out of prison. However, both of these arguments tend to suggest that control release is even more restrictive than parole. We find that Haliburton governs this issue because control release is most like parole. Like parole, control release is provided for under chapter 947, Florida Statutes (1993). That chapter creates the Parole Commission and sets forth its powers and duties, including administration of both the parole and control release programs. In contrast, probation and community control are housed under a separate chapter FN6 and fall under court supervision. The similarities between parole and control release are greater than their differences. We therefore hold that a defendant under control release at the time he or she committed the murder was under a sentence of imprisonment for purposes of section 921.141(5)(a). FN6. Chapter 948, Fla.Stat. (1993).

Finally, Davis attacks the heinous, atrocious, or cruel (HAC) aggravator and the adequacy of the instruction given to the jury. The instruction given in this case was identical to the one given in Hall v. State, 614 So.2d 473, 478 (Fla.1993). We found that the instruction “define[d] the terms sufficiently to save both the instruction and the aggravator from vagueness challenges.” Id. (emphasis added.) We see no reason to recede from Hall.

The sentence of death in this case is proportional to other sentences we have approved. The judgment of guilt and the sentence of death are hereby affirmed. The judgments and sentences for burglary, kidnapping, and sexual battery are also affirmed. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in result only as to conviction and concurs as to sentence.

Davis v. State, 875 So.2d 359 (Fla. 2003). (PCR)

Background: Defendant was convicted in the Circuit Court, Polk County, Daniel Andrews, J., of murder, and was sentenced to death. On automatic appeal, the Supreme Court, 698 So.2d 1182, affirmed. Defendant moved for post-conviction relief. The Circuit Court, Polk County, Randall G. McDonald, J., denied motion. Defendant appealed and petitioned for writ of habeas corpus.

Holdings: The Supreme Court held that: (1) attorney's failure to pursue defense of voluntary intoxication and request instruction was not deficient performance; (2) attorney did not render deficient performance by failing to obtain an on-the-record waiver by defendant of his right to testify in the penalty phase; (3) attorney did not render ineffective assistance by failing to present a more qualified expert to testify that defendant suffered from post-traumatic stress syndrome due to sexual abuse as a child and while in prison; and (4) allowing child victim's mother to remain in the courtroom after testifying was not shown to be abuse of discretion. Affirmed; petition denied. Wells, J., concurred and filed opinion in which Cantero and Bell, JJ., concurred. Anstead, C.J., concurred in part, dissented in part, and filed opinion.

PER CURIAM.

Eddie Wayne Davis was sentenced to death for the murder of an eleven-year-old child following a unanimous jury recommendation. This Court affirmed the conviction and death sentence. See Davis v. State, 698 So.2d 1182 (Fla.1997). Now in postconviction proceedings, Davis appeals a trial court order denying postconviction relief following an evidentiary hearing and further petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel.FN1 His claim for postconviction relief is based primarily on claims of ineffective assistance of counsel in the guilt and penalty phases. Specifically, Davis asserts that trial counsel was ineffective in: (1) failing to present the defense of voluntary intoxication in the guilt phase; (2) failing to argue to the jury as to the inherent unreliability of Davis's confessions; (3) failing to obtain an on-the-record waiver of Davis's right to testify in the penalty phase; and (4) failing to present a “qualified” expert on sexual abuse as mitigation evidence in the penalty phase. For the reasons that follow, we affirm the denial of Davis's postconviction motion and deny the petition for habeas corpus. FN1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

FACTS AND PROCEDURAL HISTORY

Davis was convicted of murdering eleven-year-old Kimberly Waters, whose body was found in a dumpster close to her home. See Davis, 698 So.2d at 1186–87. As we explained:

On March 5, police questioned Davis, a former boyfriend of Kimberly's mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample. While Davis was being questioned at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim's blood and that Davis's DNA matched scrapings taken from the victim's fingernails. Id. at 1186. While in a holding cell, Davis gave one unrecorded confession and two recorded confessions to the police. In his final confession he stated that he originally went to the home of the victim's mother, Beverly Schultz, who was his girlfriend, to look for money to buy beer:

Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. When Davis turned on the lights in Beverly Schultz's bedroom, he saw Kimberly, who was sleeping in Schultz's bed. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell. Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis's old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to pushing two of his fingers into Kimberly's vagina. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.

... The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. Id. at 1186–87. During the four-day penalty phase, Davis's trial counsel presented the testimony of fifteen witnesses in mitigation. These witnesses included Davis's father, stepmother, girlfriend, coworker and friend, maternal aunt, grandmother, paternal aunt, control release supervisor, and special group leader and youth counselor at HRS, as well as three mental health experts. Despite the extensive mitigating testimony, the jury unanimously recommended the death penalty. In imposing the death penalty, the trial court concluded in a detailed and comprehensive sentencing order that the aggravation outweighed the substantial mitigation. In aggravation, the trial court found that the murder was (1) committed by a person under sentence of imprisonment; (2) committed during the commission of a kidnapping and sexual battery; (3) committed for the purpose of avoiding or preventing a lawful arrest; and (4) especially heinous, atrocious, or cruel. As statutory mitigation, the court found that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight.FN2

FN2. As nonstatutory mitigation, the court found that Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs. Although the trial court gave “medium weight” to several of these nonstatutory mitigators, it assigned little weight to most of them.

On direct appeal, Davis raised ten issues.FN3 The Court determined that Davis's untaped confession while in his holding cell should have been suppressed. See id. at 1189. However, the Court found this error harmless beyond a reasonable doubt because shortly after confessing in his holding cell, Davis gave a taped statement in which he was fully apprised of his Miranda FN4 rights and voluntarily gave the same information contained in the untaped confession. See id. The Court rejected the other issues raised by Davis as without merit and affirmed Davis's conviction and death sentence. See id. at 1194.

FN3. Davis argued that (1) the trial court erred in admitting two statements that Davis made to law enforcement officers; (2) the trial court erred in allowing the jury to hear a tape of a 911 emergency call made by the victim's mother; (3) the State improperly injected irrelevant matters and improper argument into the trial and exploited the emotional displays of its witnesses; (4) the trial court erred in overruling defense objections to the standard jury instructions on reasonable doubt and premeditated murder; (5) the trial court erred in permitting the State's mental health expert to examine Davis; (6) the jury recommendation of death was tainted by a number of trial errors; (7) the trial court erred in denying his proposed jury instruction on nonstatutory mitigating factors; (8) the trial court erred in instructing the jury on the “avoid arrest” aggravator and the sufficiency of the evidence in support thereof; (9) the trial court erred in finding that Davis's control release status supported the finding that he was under sentence of imprisonment at the time of the murder; and (10) the trial court erred in instructing the jury on the heinous, atrocious, and cruel aggravator. FN4. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

Davis filed a motion for postconviction relief raising twelve claims. FN5 After a HuffFN6 hearing, the trial court granted an evidentiary hearing on a portion of Davis's claims.FN7 After the evidentiary hearing, the trial court denied relief in a comprehensive order. Davis now appeals the denial of his postconviction motion and also petitions this Court for a writ of habeas corpus.

FN5. Davis argued: (I) guilt phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to move for a mistrial upon allowing an enlarged photograph of the victim's body to remain in front of the jury, (b) failing to adequately investigate the criminal past of a key witness, (c) failing to present the defense of voluntary intoxication, (d) failing to procure a change of venue, (e) failing to investigate and prepare DNA evidence, (f) failing to effectively suppress defendant's confession or alternatively to effectively argue its inherent unreliability to the jury; (II) penalty phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to cross examine Alicia Riggall, Davis's control release supervisor, during the penalty phase of the trial, (b) failing to call Davis to testify at the penalty phase of the trial, (c) failing to present expert testimony on post-traumatic stress disorder, (d) failing to sufficiently develop voluntary intoxication as a mitigator, (e) failing to provide physical evidence of organic brain damage, (f) failing to call Brenda Reincke, Davis's neighbor to testify, (g) failing to move for a competency evaluation; (III) a conflict of interest between counsel and Davis prevented counsel from rendering effective assistance; (IV) the rules prohibiting counsel from interviewing jurors deprived Davis of his constitutional rights; (V) he was denied a meaningful adversarial testing by counsel's conceding guilt without consultation; (VI) Davis may be incompetent at the time of execution; (VII) Florida's capital sentencing structure is unconstitutional on its face and as applied; (VIII) the trial contained numerous procedural and substantive errors which cannot be harmless when viewed as a whole; (IX) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (X) execution by electrocution is cruel and unusual punishment; (XI) lethal injection is cruel and unusual punishment; (XII) Brim v. State, 695 So.2d 268 (Fla.1997), and Murray v. State, 692 So.2d 157 (Fla.1997), establish that Davis's conviction violates the Eighth and Fourteenth Amendments. FN6. Huff v. State, 622 So.2d 982 (Fla.1993).

FN7. The trial court granted an evidentiary hearing on claims IB, IC, IE, IIA (as orally amended), IIB, IIC, IIE, IIF, II G, III, V, and VIII. The trial court found claims IA, ID, IF, VII, and XII to be procedurally barred and denied a hearing. The trial court determined that claims IID and IX were conclusively refuted by the record and denied a hearing. The trial court noted that claim IA was conclusively refuted by the record as well as being procedurally barred. The trial court denied claim IV without a hearing because the defendant never made a motion to interview jurors and thus, the claim had no merit. The trial court denied claim VI without a hearing because the defendant was not under an active death warrant. Claim X was denied as moot and claim IX was denied without a hearing because this Court in Sims v. State, 754 So.2d 657 (Fla.2000), decided lethal injection does not constitute cruel and unusual punishment.

I. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Ineffective Assistance of Counsel—Guilt Phase

Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings. See id. In order for a claim of ineffective assistance of counsel to be considered meritorious, a defendant must establish two components under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Stephens, 748 So.2d at 1033. First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Second, the deficiency in counsel's performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id.; see also Rutherford v. State, 727 So.2d 216, 219 (Fla.1998) ( “[T]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

1. Voluntary Intoxication

Davis argues that his trial counsel was ineffective for “failing to present the defense of voluntary intoxication as a valid defense to first-degree murder.” Although it is uncontested that there was abundant evidence presented during the guilt phase of trial by both the State and the defense that Davis was intoxicated at the time of the offense, Davis specifically argues that his trial counsel failed to either present actual evidence in the form of an expert opinion, or request a jury instruction that Davis lacked the specific intent required for a finding of guilt on the charge of first-degree murder due to his voluntary intoxication, or both. This Court has stated that “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Rolling v. State, 825 So.2d 293, 298 (Fla.2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

At the evidentiary hearing, Davis presented the testimony of Dr. Michael Maher, an expert in forensic psychiatry, who testified that in his opinion Davis was sufficiently intoxicated at the time of the offense that his capacity to commit premeditated acts of murder was very substantially impaired. Austin Maslanik, Davis's lead counsel, testified that he did not request a specific instruction on voluntary intoxication for four specific reasons, including the fact that Davis gave two very detailed confessions of the crime which would tend to undermine an argument that Davis was seriously impaired. This view of the evidence is set forth in the trial judge's sentencing order: The evidence was that the defendant had been drinking the afternoon before the murder .... The barmaid ... testified that the defendant did not appear to be intoxicated. [She] was the last objective person to see the defendant before the murder and her testimony, in the opinion of this Court, was believable. The Court, however, believes the defendant was somewhat intoxicated, but not to the point it affected his actions and knowledge.

The defendant left the bar and decided to burglarize the victim's home in hope of finding more beer money as he stated in both of the taped confessions. The defendant unscrewed the front porch light bulb so no one would see him enter. When the defendant turned on the light in the master bedroom he was surprised to find the victim. He stated in his second taped confession he could not turn the light off before the victim saw him. At this time the defendant's intent changed.... The defendant stated in his second taped confession that he placed his hand over the victim's mouth, told her to be quiet and led her out of the house, while stuffing a rag in her mouth. He then either took her directly to the curtilage of the Moose Club (taped confession # 1) or to his trailer (taped confession # 2) where he brutally and forcefully raped her. The defendant had the state of mind not to rape her in her house but to take her to another location. All of this is noted in both taped confessions which give exacting detail beyond one in an intoxicated blackout.... In fact the defendant described in detail how he forcefully penetrated the victim's vagina with his two fingers. He also described how he beat her, held her down, placed plastic over her mouth and nose for a couple of minutes, while the victim ripped at the plastic and tried to get away. The defendant then made a conscious, knowing, decision to take the lifeless body, boost it over the dumpster (taped confession # 1) and shut the lid (taped confession # 2).... This Court allowed the defendant's attorney to argue this statutory mitigator to the Court, but the facts of this case, the defendant's statements and actions show there was no mental disturbance interfering or obviating the defendant's knowledge of right or wrong.

We conclude that this case is similar to Stewart v. State, 801 So.2d 59 (Fla.2001), where we rejected a claim that trial counsel was ineffective for not pursuing a voluntary intoxication defense. In so doing, we noted that during the evidentiary hearing Stewart's trial counsel testified that his conversations with the defendant persuaded him that an involuntary intoxication defense would not be appropriate due to Stewart's detailed account of the crime and the State's potential use of experts who examined Stewart to determine his competency to stand trial. See id. at 65. The Court concluded that the record of both the evidentiary hearing and trial demonstrated that trial counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense for strategic reasons. See id. at 65. Similarly, in Occhicone, 768 So.2d at 1048, and Johnson v. State, 593 So.2d 206, 209 (Fla.1992), the Court rejected claims that counsel was ineffective for not pursuing an intoxication defense where defendant had good recall of what transpired on the night of the murders and, therefore, was not intoxicated to the level of not being able to premeditate the murders. Similar to the defendants in Stewart, Occhicone, and Johnson, in this case Davis gave two taped, detailed confessions as to the circumstances of the crime that substantially undermined the viability of a voluntary intoxication defense. The testimony of defense counsel and the record of the confession in this case provide competent, substantial evidence to support the trial court's findings that Maslanik made an informed and strategic decision not to pursue an intoxication defense. Thus, counsel was not deficient and Davis is not entitled to relief on this issue.

Moreover, even if counsel's performance was deficient, we note that there was a general verdict in this case and the evidence supported an instruction on felony murder based on sexual battery, which is a general intent crime to which voluntary intoxication is not a defense. Therefore, even if the jury had been instructed on voluntary intoxication as a defense to premeditated murder, because the general verdict did not differentiate between premeditated murder and felony murder, Davis cannot establish prejudice. See Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (rejecting claim that trial court committed fundamental error by not instructing the jury on voluntary intoxication as a defense to felony murder based on kidnapping, based in part on the fact that there was sufficient evidence of sexual battery, a general intent crime to which voluntary intoxication is not a defense). Therefore, the trial court did not err in denying this claim.

2. Davis's Confessions

Davis next argues the trial court erred in not granting him an evidentiary hearing on his claim that trial counsel was ineffective “for failing to argue to the jury as to the inherent unreliability of Davis's confessions.” A postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002). Although this Court has urged trial courts to err on the side of caution when deciding whether or not to grant an evidentiary hearing on postconviction claims, “[a] defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.” State v. Coney, 845 So.2d 120, 135 (Fla.2003); see also Kennedy, 547 So.2d at 913. In order for a motion to be facially sufficient, the defendant must allege specific legal and factual grounds that demonstrate a cognizable claim for relief. This claim was properly denied by the trial court because Davis failed to plead this claim specifically. Davis does not allege in his motion what is inherently unreliable in the two detailed confessions, nor does he direct us to portions of the record where trial counsel failed to effectively cross-examine witnesses on the confessions' inconsistencies. Davis's conclusory allegations that the jury would have reached a different result had trial counsel argued the “inconsistent parts of the confessions” are not supported by a properly pled factual basis. Thus, this claim is facially insufficient and the trial court did not err in summarily denying this claim.

B. Ineffective Assistance of Counsel—Penalty Phase
1. On-the Record Waiver

In his first claim of penalty phase ineffectiveness, Davis argues that trial counsel was ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase of trial. In Torres–Arboledo v. State, 524 So.2d 403, 410 (Fla.1988), the Court addressed whether due process required that the trial court obtain from the defendant an on-the-record waiver of the right to testify in the guilt phase. The Court stated: Although we agree that there is a constitutional right to testify under the due process clause of the United States Constitution, ... this right does not fall within the category of fundamental rights which must be waived on the record by the defendant himself. We view this right to be more like an accused's right to represent himself. Although such a right has been expressly recognized by the United States Supreme Court ... this right has not been considered so fundamental as to require the same procedural safeguards employed to ensure that a waiver of the right to counsel is knowingly and intelligently made. Id. at 410–11. In Torres–Arboledo, the Court relied in part on Cutter v. State, 460 So.2d 538 (Fla. 2d DCA 1984), where the Second District stated that the right to testify may be waived by the defendant's attorney “in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.” Cutter, 460 So.2d at 539; See Torres–Arboledo, 524 So.2d at 410 (expressly approving Cutter ); see also Occhicone v. State, 570 So.2d 902, 905 (Fla.1990) (relying on Torres–Arboledo to hold that the trial court did not err in not telling Occhicone specifically that he had the right to testify on his own behalf). The standard adopted in Torres–Arboledo applies to the defendant's right to testify at both the guilt and penalty phase. See Lawrence v. State, 831 So.2d 121, 132 (Fla.2002). In this case, the trial court obtained from Davis an on-the-record waiver of his right to testify in the guilt phase, in which Davis affirmatively participated. In securing this waiver, the trial court inquired as to whether Davis wanted to testify and made Davis aware that whether or not to testify was his decision. In the penalty phase, defense counsel indicated that his client would not be testifying. Davis did not testify during the postconviction evidentiary hearing that he disagreed with counsel's waiver. Nor does Davis assert that he was otherwise prevented by counsel from testifying. In fact, his defense counsel stated that the subject of whether Davis would testify in the penalty phase was discussed with Davis. Therefore, because the record affirmatively shows that our holding in Torres–Arboledo was not violated, Davis's counsel was not ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase. Moreover, Davis has not established prejudice under the second prong of Strickland. Because Davis did not testify at the evidentiary hearing or otherwise establish what testimony he would have offered, we cannot conclude that our confidence in the outcome is undermined by Davis's failure to testify during the penalty phase. Therefore, we affirm the trial court's denial of relief on this claim.

2. “Qualified” Expert on Sexual Abuse in Mitigation

In his second claim of ineffective assistance of penalty phase counsel, Davis argues that his trial counsel was ineffective for failing to present in mitigation the testimony of a qualified expert that Davis suffered from post-traumatic stress syndrome due to sexual abuse suffered by him as a child and while in prison. Specifically, he alleges that the expert presented on this issue was not qualified to render an opinion on the relationship between sexual abuse and post-traumatic stress disorder. In denying this claim, the trial court found: Maslanik testified that Dr. McClane did testify during the penalty phase on Post Traumatic Stress Disorder. The Court finds that Dr. McClane testified that Davis was diagnosed with PTSD. McClane also described to the jury the effects of PTSD. Maslanik testified that he believed Dr. McClane's overall qualifications would qualify him to render an opinion on PTSD. Additionally, Dr. Harry Krop, PhD testified that Davis was diagnosed with PTSD and described PTSD to the jury. Accordingly, this claim is DENIED.

We have recognized that “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)). In determining whether the penalty phase proceedings were reliable, “the failure [of counsel] to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (citations omitted). Moreover, as the Supreme Court recently stated in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003): [O]ur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel's investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seems “from counsel's perspective at the time.” Id. at 2536 (citations omitted) (third alteration in original).

In contrast to Wiggins, where counsel's proffered mitigation was completely devoid of evidence of the defendant's life history and family background, in this case there was substantial investigation and a comprehensive presentation of evidence during a four-day penalty phase. Davis's defense team presented the testimony of three mental health experts: (1) Dr. Harry Krop, a clinical psychologist with a specialty in child sexual abuse and an expert in forensic psychology, (2) Dr. Henry Dee, a neuropsychologist and an expert in pediatric neuropsychology and substance abuse, and (3) Dr. Thomas McClane, a psychiatrist and expert in the area of forensic psychiatry and pharmacology. All three mental health experts reviewed extensive background information provided to them by Davis's defense lawyers, including photographs of the victim and the crime scene, the transcripts and audiotapes of two statements made by Davis after he was arrested, jail medical records, other police and arrest reports of Davis's, beginning with juvenile records, Davis's HRS records, psychological evaluations done at Peace River Developmental Center, high school records including two psychological evaluations done by members of the school board, and medical and psychiatric records from the Department of Corrections. The experts also reviewed the arrest reports and Florida Department of Law Enforcement (FDLE) records of Davis's stepfather, Brad Hudson, and FDLE and police reports of Eddie Arnold Davis, Davis's biological father. Finally, the mental health experts also either interviewed or reviewed depositions of various people related to the case, including Davis's two aunts, mother, half sister, grandmother, father, stepmother, and stepfather.

Dr. Krop performed neuropsychological testing and a psychosexual evaluation on Davis and testified during the penalty phase that Davis had suffered from physical abuse as a child and had a problem with excessive drinking. Dr. Krop diagnosed Davis with six different mental health disorders—dysthymia, substance abuse, post-traumatic stress disorder, learning disability, borderline personality disorder, and antisocial personality disorder. Dr. Dee corroborated Dr. Krop's testimony that Davis was physically abused as a child and had moderate to severe problems with alcohol, and testified that he was aware of the allegations of sexual abuse contained in Davis's prison's records. Both Dr. Dee and Dr. Krop evaluated Davis prior to trial. Dr. McClane evaluated Davis after Davis was found guilty but before the beginning of the penalty phase. During this evaluation Davis disclosed for the first time that he was sexually abused by his stepfather, Brad Hudson, sometime between the ages of eleven and thirteen. Dr. McClane testified during the penalty phase that this abuse would have had a “serious effect on the development of a child” and had a “profound effect” on Davis. Dr. McClane diagnosed Davis with five mental health disorders. Dr. McClane's primary diagnosis was post-traumatic stress disorder based on the incidents of sexual abuse, followed by chronic alcohol dependence and intoxication at the time of the offense, borderline intellectual functioning, borderline personality disorder, and antisocial personality disorder.

During cross-examination, the State attempted to attack the credibility of Dr. McClane by focusing on the fact that he was not specially trained in the area of sexual abuse of children. Davis argues that Dr. McClane's testimony that Davis suffered from post-traumatic stress syndrome due to sexual abuse as a child was significantly undermined by this cross-examination. Davis contends that trial counsel should have secured an expert in child sexual abuse to testify that Davis was being truthful when he revealed that he suffered from sexual abuse as a child and that Davis suffered from post-traumatic stress as a result of that abuse.

At the postconviction hearing, Davis presented the testimony of Dr. Sherri Bourg–Carter, a psychotherapist with specialties in forensic psychology and child sexual abuse. Dr. Bourg–Carter testified that she believed Davis was telling the truth as to his allegations of child sexual abuse and diagnosed him as suffering from post-traumatic stress disorder based on this abuse. Dr. Bourg–Carter based her diagnosis on an interview with Davis, the results of psychological tests she administered to him, prior psychological exams done on Davis, Department of Corrections records, and the transcript testimony of Dr. Krop and Dr. McClane at the penalty phase. Dr. Bourg–Carter further testified that Dr. Krop could have been qualified as an expert in child sexual abuse and wondered why Dr. McClane interviewed Davis as to the sexual abuse instead of Dr. Krop. Finally, Dr. Bourg–Carter testified that she thought Dr. Krop should have been alerted to the sexual abuse after reviewing the records. In Dr. Bourg–Carter's opinion, there were certain “red flags” in the record that Davis was possibly a victim of sexual abuse, including the nature of the crime itself—the murder of a young girl. We conclude that Davis's argument that counsel was ineffective in not securing the testimony of an expert such as Dr. Bourg–Carter is without merit. First, trial counsel's performance was not deficient. This Court has found counsel's performance deficient where counsel “never attempted to meaningfully investigate mitigation” although substantial mitigation could have been presented. See Rose v. State, 675 So.2d 567, 572 (Fla.1996); see also Wiggins, 123 S.Ct. at 2542 (failing to uncover substantial mitigating evidence, including sexual abuse, due to inattention is deficient performance and not reasoned strategic judgment). However, in this case, Davis's trial counsel did conduct a thorough background investigation and present substantial mental health mitigation, including the testimony of three mental health experts, who diagnosed Davis with no less than six different mental health disorders. Thus, this case is more like Asay, where we concluded that trial counsel was not deficient where the defendant had been examined prior to trial by mental health experts and the defendant was simply able to secure a more favorable diagnosis in postconviction. See Asay, 769 So.2d at 985.

“In evaluating the Strickland prong[ ] of deficiency ..., it is [also] important to focus on the nature of the mental mitigation [the defendant] now claims should have been presented.” Rutherford, 727 So.2d at 223. In this case, Davis is offering no new mental mitigation testimony. Nor did the postconviction expert rely on information not previously available at trial.FN8 Rather, the testimony of Dr. Bourg–Carter presented at the evidentiary hearing is similar to the penalty phase testimony of Dr. McClane. Both mental health experts diagnosed Davis as suffering from post-traumatic stress disorder based on incidents of child sexual abuse. Dr. Krop diagnosed Davis as suffering from post-traumatic stress as a result of physical abuse suffered as a child. Although Dr. Bourg–Carter may be characterized as a “more favorable mental health expert” in that she has substantial expertise in child sexual abuse and its relationship to post-traumatic stress disorder, Davis's trial counsel was not deficient simply because Davis was able to secure a “more favorable” report on postconviction. Asay, 769 So.2d at 986. FN8. In fact, Dr. Bourg–Carter conceded during the postconviction proceedings that she actually reviewed less prior history than either Dr. Dee or Dr. Krop and would not have been qualified with what she reviewed to testify comprehensively in a penalty phase.

Even if counsel was deficient for not having an expert specifically trained in child sexual abuse examine Davis after Davis revealed incidents of sexual abuse, Davis is unable to demonstrate prejudice. As noted above, both Dr. Krop and Dr. McClane testified that Davis suffered from post-traumatic stress syndrome. Consistent with this diagnosis and the other multiple diagnoses of the experts, the trial judge found in his sentencing order that the mitigating factor of extreme mental or emotional disturbance was established and stated that it is apparent to this Court the defendant came from a dysfunctional family; the defendant is an alcoholic, with low self-esteem; the defendant had an abused, neglected childhood; the defendant has had learning disabilities, which he has overcome; the defendant is immature for his age; the defendant may have an anti-social personality disorder; the defendant may have suffered from post-traumatic stress disorder; the defendant has suffered from chronic depression and anxiety; the defendant has poor impulse control and defective judgment at times and the defendant has suffered from attention deficit hyperactivity disorder. The Court is reasonably convinced this mitigating factor exists and gives it great weight. (Emphasis supplied.) Thus, there was extensive mental health testimony presented during the penalty phase and the trial judge gave the statutory mitigator of extreme emotional disturbance great weight. Davis cannot establish prejudice such that our confidence in the outcome is undermined. Therefore, we affirm the denial of relief on this claim.

II. PETITION FOR WRIT OF HABEAS CORPUS

Davis raises four claims in his petition for habeas corpus. The first three claims pertain to ineffective assistance of appellate counsel in not raising on direct appeal: (1) the trial court's failure to obtain an on-the-record waiver of Davis's right to testify in the penalty phase; (2) the trial court allowing the victim's mother to remain in the court room; and (3) the trial court admitting inflammatory photographs of the victim. Fourth, Davis argues that his death sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

A. Ineffective Assistance of Appellate Counsel

Habeas petitions are the proper vehicle by which to raise ineffective assistance of appellate counsel claims, and the analysis of these claims follows the two-pronged analysis of Strickland as to both deficient performance and prejudice. See Rutherford v. Moore, 774 So.2d 637, 642 (Fla.2000). Because these claims are presented first to this Court in cases involving the imposition of a death sentence, we are called on to analyze the performance of appellate counsel in handling the defendant's direct appeal. A core principle of ineffective assistance of counsel claims is that “appellate counsel will not be considered ineffective for failing to raise issues that have little or no chance of success.” Spencer v. State, 842 So.2d 52, 74 (Fla.2003). In other words, “[if] a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective.” Rutherford, 774 So.2d at 642 (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).

In his first habeas claim, Davis argues that his appellate counsel was ineffective for failing to raise on direct appeal the failure of the trial court to obtain an on-the-record waiver by Davis of his right to testify at the penalty phase. Because we have determined that neither the trial court nor counsel erred in not obtaining an on-the-record waiver from Davis, Davis's claim that appellate counsel was ineffective for failing to raise this issue on appeal is without merit.

Davis next argues that appellate counsel was ineffective for not raising on direct appeal that the trial court allowed, over objection, the mother of the victim to remain in the courtroom after testifying. This claim is without merit. Section 90.616, Florida Statutes (1995), provides an exception to the rule of sequestration for a minor child victim's parent, and Davis has been unable to establish how the trial judge abused his discretion in allowing the victim's mother to remain in the courtroom. See Rose v. State, 787 So.2d 786, 804 (Fla.2001) (finding no error in allowing victim's family to remain in courtroom where there was no showing of prejudice to the accused); Gore v. State, 599 So.2d 978, 985 (Fla.1992) (same); see also Stano v. State, 473 So.2d 1282, 1287 (Fla.1985) (finding no error in trial court exempting a deputy clerk from the rule of sequestration where no prejudice to the defendant was shown). Because the underlying claim would not have been successful on direct appeal, appellate counsel cannot be ineffective for failing to raise the issue.

Third, Davis argues that his appellate counsel was ineffective for failing to raise on direct appeal the admission of a series of inflammatory photographs of the victim. Defense counsel objected to the admission of four of these photographs. We have stated that “the admission of photographic evidence is within the trial judge's discretion and a trial judge's ruling on this issue will not be disturbed on appeal unless there is a clear showing of abuse.” Rutherford, 774 So.2d at 646 (quoting Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995)); see also Carroll v. State, 815 So.2d 601, 621 (Fla.2002). Photographic evidence is relevant to depict the circumstances of the crime, “to assist the crime scene technician in explaining the condition of the crime scene,” Hertz v. State, 803 So.2d 629, 641 (Fla.2001) (quoting Pope v. State, 679 So.2d 710, 713 (Fla.1996)), and to “explain a medical examiner's testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Rutherford, 774 So.2d at 647 (quoting Larkins v. State, 655 So.2d 95, 98 (Fla.1995)).

We have examined the four photographs that were admitted into evidence over trial counsel's objection and the remaining photographs that were introduced without objection. As to the preserved issue of the four photographs, we conclude that appellate counsel could not have shown that the trial court abused its discretion in admitting those photographs. As to the remaining unobjected-to photographs, counsel can only be deemed deficient for failing to raise this issue on appeal if the admission of the unobjected-to photographs constituted fundamental error: We have “repeatedly held that appellate counsel cannot be considered ineffective for failing to raise issues which [were] procedurally barred ... because they were not properly raised at trial”. [As to an unpreserved issue] if it had been raised on appeal, it would have warranted reversal only if it constituted fundamental error, which has been defined as an error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Rutherford, 774 So.2d at 646 (citations omitted); see also Johnson v. Moore, 837 So.2d 343, 347 (Fla.2002) (“[A]ppellate counsel cannot be deemed ineffective for failing to raise [an unpreserved] issue unless the alleged error constitutes fundamental error.”); Valle v. Moore, 837 So.2d 905, 907–08 (Fla.2002) (same).

The admission of these photographs does not constitute error, much less fundamental error, and thus Davis has not demonstrated that any deficiency in appellate counsel's performance “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Rutherford, 774 So.2d at 647 (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995)).

B. Ring and Apprendi

Finally, Davis argues that Florida's death penalty statute, section 921.141, Florida Statutes (2003), is unconstitutional based on Apprendi and Ring. We note that Davis's death sentence is supported by both the “committed during the course of a kidnapping and sexual battery” aggravator and a unanimous death recommendation. We have denied relief in direct appeals where there has been a prior violent felony aggravator. See Duest v. State, 855 So.2d 33, 49 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”). We have also denied relief to postconviction defendants raising this issue. See Jones v. State, 855 So.2d 611, 619 (Fla.2003); Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Davis is not entitled to relief on this issue.

CONCLUSION

For the above reasons, we affirm the lower courts denial of Davis's rule 3.851 motion for postconviction relief and deny the petition for a writ of habeas corpus. FN9. We also reject the remainder of the claims contained in Davis's postconviction motion and petition for writ of habeas corpus. Davis's claim that his Eighth Amendment rights will be violated because he may be incompetent at the time of execution is premature and without merit as Davis is not under active death warrant at this time. See Hunter v. State, 817 So.2d 786, 799 (Fla.2002); § 922.07, Fla. Stat. (2003); Fla. R.Crim. P. 3.811. Finally, Davis's claim that cumulative error warrants a new trial and penalty phase is without merit as Davis has been unable to demonstrate any error, either individually or collectively. See Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla.2001); Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999).

It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. WELLS, J., concurs with an opinion, in which CANTERO and BELL, JJ., concur. ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

WELLS, J., concurring. I write to adopt my concurring opinion in Duest v. State, 855 So.2d 33 (Fla.2003), in respect to the Ring claim. CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurring in part and dissenting in part. I concur in the majority opinion in all respects with the sole exception of its discussion of the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Davis v. Scott, 2014 WL 3407473 (M.D.Fla. 2014). (Habeas)

JAMES D. WHITTEMORE, District Judge.

Eddie Wayne Davis is a State of Florida prisoner under sentence of death and is scheduled to be executed today, Thursday, July 10, 2014, at 6:00 p.m. BEFORE THE COURT are his Emergency Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 (Dkt.1), and his Emergency Application for Stay of Execution (Dkt.3). Defendants oppose the Emergency Petition and move to dismiss the claims or, in the alternative, for summary judgment (Dkt.11), and oppose the application for a stay of execution (Dkt.9). Petitioner filed a Reply (Dkt.12). Upon consideration, The Emergency Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 is DISMISSED and the Emergency Application for Stay of Execution is DENIED.

In his petition, Davis contends that Florida's clemency proceedings are constitutionally defective and the clemency rules, procedures and customs are facially unconstitutional. He frames the issue as being “whether the Florida clemency procedures comport with the minimum requirements of due process.” The essence of this claim is that he did not receive minimum due process as discussed in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). He concedes, however, that he received notice of his clemency review, was appointed and represented by counsel during his clemency review, was interviewed with counsel present by the Florida Commission on Offender review, and was permitted to presented evidence during the review.

Factual and Procedural Background

Petitioner Davis was convicted in 1995 of first-degree murder, burglary with assault, kidnapping of a child under 13, and sexual battery on a child. He was sentenced to death. Davis' convictions and sentence were affirmed by the Florida Supreme Court. See Davis v. State, 698 So.2d 1182 (Fla.1997), cert. denied, 522 U.S. 1127, 118 S.Ct. 1076, 140 L.Ed.2d 134 (1998). His collateral attacks on his conviction and sentence have been rejected by the Florida Supreme Court, this Court, and the Eleventh Circuit Court of Appeals. Davis v. State, 875 So.2d 359 (Fla.2003); Davis v. McNeil, 2009 U.S. Dist. LEXIS 30702 (M.D.Fla. Mar. 30, 2009); Case No. 8:04–cv–2549–T–27MAP (M.D.Fla.2004); Davis v. Sec'y, Dept. of Corr., Case No. 09–11907–P (11th Cir.2009) (denying certificate of appealability).

On June 2, 2014, Florida's Governor signed a death warrant for Davis, stating that “executive clemency for EDDIE WAYNE DAVIS, as authorized by Article IV, section 8(a), Florida Constitution, was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate.”

On June 9, 2014, Davis filed a successive postconviction motion pursuant to Florida Rules of Criminal Procedure 3.851. Claim III of the motion alleged that his procedural due process rights were violated during the clemency process. The motion was denied, and Davis appealed to the Florida Supreme Court. While the appeal of the denial of his Rule 3.851 motion was pending in the Florida Supreme Court, Davis filed a second petition in state circuit court challenging the clemency process under 42 U.S.C. § 1983. The second petition was likewise denied. On July 7, 2014, the Florida Supreme Court affirmed both decisions in separate orders and denied Davis' application for a stay of execution. See Davis v. State, No. SC14–1178, 2014 WL 3034008, at *8–9 (Fla. July 7, 2014); Davis v. Scott, No. SC14–1286, Slip Op. at 2 (Fla. July 7, 2014) (unpublished). Davis' petition for writ of certiorari and application for stay of execution filed with the United States Supreme Court are pending. FN1. Neither party requests that this Court abstain from addressing the petition, notwithstanding that identical claims are pending before the United States Supreme Court.

Writ of Habeas Corpus

Habeas actions and § 1983 actions “are mutually exclusive.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.2006) (“[I]f a claim can be raised in a federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights action.”). The Complaint does not challenge the fact or duration of Davis' imprisonment. Rather, it challenges the constitutionality of his clemency proceedings and Florida's clemency procedures. These claims are not cognizable in a habeas proceeding brought under § 2254. See Valle v. Sec'y Fla. Dep't of Corr., 654 F.3d 1266, 1268 (11th Cir.2011) (“Valle's constitutional claims about clemency procedures are collateral to his conviction and sentence, and are not cognizable in this § 2254 proceeding. His complaint about Florida's clemency procedures may only be brought under 42 U.S .C. § 1983.”). Accordingly, Davis' petition for habeas corpus is due to be dismissed.

Standard for Stay of Execution

A stay of execution is equitable relief which may be granted only if the moving party shows that: “(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir.2013) (quoting Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir.2011)). Davis' application for stay of execution fails at the first step of the analysis because his challenge to the clemency process is barred by res judicata. Even if his claims were not precluded, they are due to be dismissed on the merits.

Res Judicata

Respondent contends that these claims are barred by res judicata. In this Circuit, a party seeking to invoke res judicata must satisfy four elements: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action. Mann v. Palmer, 713 F.3d 1306, 1311 (11th Cir.2013) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001)). “The court next determines whether the claim in the new suit was or could have been raised in the prior action; if the answer is yes, res judicata applies.” In re Piper Aircraft, 244 F.3d at 1296.

The elements of res judicata are met here. The state circuit court and the Florida Supreme Court, both of which were vested with jurisdiction, both rendered final judgment on the merits of Davis' clemency claims. See Davis v. State, No. SC14–1178, 2014 WL 3034008, at *8–9 (Fla. July 7, 2014); Davis v. Scott, No. SC14–1286, Slip Op. at 2 (Fla. July 7, 2014) (unpublished). Those proceedings involved the same parties and the same causes of action as those asserted in this action.FN2 Davis' constitutional challenge to the clemency proceedings is identical to those brought in state court, and is therefore barred by res judicata. Accord Muhammad v. Sec'y, Fla. Dep't of Corr., 739 F.3d 683, 685, 688 (11th Cir.2014) ( section 1983 action barred by res judicata when petitioner raised the same claim in state court and claim was rejected by the Florida Supreme Court). FN2. It is of no moment that Davis' first challenge to the clemency procedures was brought in his successive postconviction motion pursuant to Florida Rules of Criminal Procedure 3.851. See Mann, 713 F.3d at 1311 (if cases arise out of “the same nucleus of operative fact,” or are based “on the same factual predicate,” they are the same “claim” or “cause of action” for purposes of res judicata).

Constitutional Claims on Clemency Procedure

Even if Davis' claims are not barred by res judicata, they fail on the merits. In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), a 5–4 majority of the Court held that basic elements of fair procedure and due process are required in clemency proceedings. See id. at 289 (O'Connor, J., concurring in part and concurring in the judgment) FN3 (“[S]ome minimal procedural safeguards apply to clemency proceedings.”); id. at 292 (Stevens, J., concurring in part and dissenting in part) (“[I]f a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the Due Process Clause.”). The remaining four Justices did not determine whether clemency proceedings were subject to procedural due process, concluding only that clemency is “a matter of grace committed to the executive authority.” Id. at 285 (plurality opinion). FN4 Justice O'Connor concluded that the process the petitioner received, notice of the hearing and an opportunity to participate in an interview, comported with “whatever limitations the Due Process Clause may impose on clemency proceedings.” Id. at 290. The Chief Justice's plurality opinion makes clear that if minimal procedural due process was required for the clemency process, the four Justices in the plurality would concur with Justice O'Connor that those minimal requirements were met by notice and an opportunity to participate in an interview.FN5

FN3. Justice O'Connor's opinion was joined by Justices Souter, Ginsburg, and Breyer. Id. at 288. FN4. This holding was contained in Part II of the plurality opinion written by Chief Justice Rehnquist, which was joined by Justices Scalia, Kennedy, and Thomas. Id. at 275. FN5. Justice Stevens would have remanded the case to the District Court for a determination of whether the procedures meet the minimum requirements of due process. Id. at 295 (Stevens, J., concurring in part and dissenting in part).

It is undisputed that Davis received notice of his clemency hearing, was represented by clemency counsel during the process, and was interviewed by the Florida Commission on Offender Review, during which he was permitted to present a video and other evidence. This process met minimum due process requirements and exceeded the procedure extended to the petitioner in Woodard and therefore does not violate the Procedural Due Process Clause of the Fourteenth Amendment. Accord Mann, 713 F.3d at 1316–17 (no procedural due process claim where Governor conducted clemency hearing, with notice, and prisoner was represented by counsel).

Petitioner's contention that the Governor's exercise of “unfettered discretion” deprived him of due process is unavailing. “The Constitution of the State of Florida vests in the Governor, with the approval of two of his cabinet members, the discretion to commute the punishment of individuals not convicted of treason or impeachment. Fla. Const. Art. 4, § 8.” Mann, 713 F.3d at 1316; See also Rule 8, Florida Rules of Executive Clemency. Since clemency is committed to the discretion of the Governor, due process provides only minimal protection for death row inmates in the clemency process. Mann, 713 F.3d at 1316. As for Davis' complaint that he did not have access to certain confidential clemency documents, including his own file, minimum due process requirements do not mandate that Davis have access to confidential clemency documents. See Woodard, 523 U.S. at 285 (“executive's clemency authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges”). As discussed, Davis' clemency process met minimum due process requirements.

Davis' contention that the Governor was predisposed to deny clemency likewise fails to demonstrate a substantial likelihood of success on the merits. The 2011 letter authored by an assistant legal counsel Davis relies on was written some three years before the Governor denied clemency in 2014, after a full clemency hearing. Nothing in this record, including the speculative assertions Davis draws from that letter, supports judicial intervention. See Woodard, 523 U.S. at 289 (O'Connor, J., concurring in part and concurring in the judgment) (“Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”). Even if the letter might suggest a predisposition on the part of the Governor, that does mean that the Governor and his cabinet members did not fulfill their duty to consider clemency. See Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 969 (8th Cir.1996), cert. denied, 518 U.S. 1035, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996) (“Although these statements might reflect the members' predisposition, such predisposition does not mean that the members failed to fulfill their statutorily imposed duty to consider the application.”).

Under Woodard, minimum due process required only that Davis receive notice and an opportunity to be heard as part of the clemency process. That, he received. Accordingly, he has not demonstrated a substantial likelihood of success on the merits.

Conclusion

The Emergency Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 is DISMISSED and the Emergency Application for Stay of Execution is DENIED.