Citations:
Davis v. State, 461 So.2d 67 (Fla. 1984), cert. denied, 105 S.Ct. 3540 (Direct Appeal).
Davis v. State, 736 So.2d 1156 (Fla. 1999) (PCR).
Davis v. State, 742 So.2d 233 (Fla. 1999) (PCR).
Davis v. Singletary, 119 F.3d 1471 (11th Cir. 1997), cert. denied, 118 S.Ct. 1848 (1998) (Habeas).

Final / Special Meal:
A lobster tail, fried potatoes, a half-pound of fried shrimp, six ounces of fried clam strips, half a loaf of garlic bread and 32 ounces of A&W root beer.

Last Words:
Declined.

Internet Sources:

Florida Department of Corrections

Name: DAVIS, ALLEN L
Aliases: ALLEN L DAVIS ALLEN LEE DAVIS BUD TINY
DC Number: 040174
Race: WHITE
Sex: MALE
Hair Color: GRAY OR PARTIALLY GRAY
Eye Color: HAZEL
Height: 5'10''
Weight: 300 lbs.
Birth Date: 07/20/1944
Custody: MAXIMUM
Release Date: DECEASED

Prison Sentence History:

08/06/1973 ROBBERY 10/01/1973 DUVAL 7303144 15Y 0M 0D
08/12/1973 ROBBERY(ATTEMPTED) 10/01/1973 DUVAL 7303142 2Y 0M 0D
07/09/1973 ROBBERY 10/01/1973 DUVAL 7303143 2Y 0M 0D
05/11/1982 1ST DG MUR/PREMED. OR ATT. 03/02/1983 DUVAL 8204752 DEATH SENTENCE

Date In-Custody 12/10/1973 to 09/25/1979; 03/02/1983 to 07/08/1999.

Florida Times-Union

"Man Who Killed 3 Put to Death," by Beau Halton. ( Friday, July 9, 1999)

STARKE - While witnessing the execution of Allen Lee ''Tiny'' Davis yesterday, John Weiler wasn't distracted by Davis' bleeding or his muffled screams. Instead, the husband and father of Davis' three murder victims said he was steadfastly focused on the fact that his 17 years of waiting for Davis' death were finally ending.

Davis, 54, was condemned for the May 11, 1982, slayings of Nancy Weiler, who was three months' pregnant, and two daughters in their home on San Pablo Road in Jacksonville. During yesterday's execution, a small dot of blood grew to a large splotch on the front of Davis' white dress shirt. Prison physicians and an autopsy report concluded the blood came from a nosebleed.

Regardless, Weiler said, at last the execution was occurring. He was hoping during those hushed, anxious moments in the Florida State Prison death chamber that ''all Florida residents understand the importance of this.'' ''This was a necessary thing that had to be done, and everyone has to understand why,'' Weiler said. ''I've had to wait 17 years for some type of closure to this. No one else should have to do that. Any more than one year to [carry out] a sentence is ridiculous.''

The autopsy report by a Gainesville medical examiner does not mention any injuries - only blood in Davis' left nostril - that would have caused the bleeding. But because of the bleeding and other issues, the Florida Supreme Court last night postponed today's scheduled execution of Thomas Provenzano, convicted of killing one Orange County Courthouse bailiff and wounding two others in 1984. That execution is postponed until Sept. 14. In appeals that led to the postponement, lawyers for Death Row inmates also said not enough electricity was applied yesterday to make Davis' death painless. The electric chair is supposed to automatically apply 2,300 volts for eight seconds, followed by 1,000 volts for 22 seconds, then 2,300 volts for another eight seconds. But a chart on the voltage in Davis' execution showed 1,500 volts for eight seconds, 600 volts for 22 seconds and 1,500 volts for 4.5 seconds. The inmates' lawyers argued that the voltage in the electric chair during four executions last year wasn't enough to kill painlessly, especially for a man Davis' size. Davis weighed 344 pounds, officials said yesterday.

Yesterday's was the first execution in Florida's new electric chair, which replaced ''Old Sparky,'' the rickety oak chair used since 1924. Weiler, 55, sat in the center of the front row in the witness room. He said that, before a hood was draped over Davis' head, he made eye contact with the killer of his wife and two young daughters. ''He didn't show an ounce of remorse,'' Weiler said. ''He knew who I was. He didn't care. Not a bit.'' Davis, who had arthritis and other physical conditions, was brought to the chamber in a wheelchair shortly after 7 a.m. His shaven head and right lower leg were coated with conductive gel. He glanced intermittently at the two dozen witnesses, the ceiling and the floor. Corrections officers hoisted him into the electric chair and secured him with thick leather straps around his legs, arms, waist, chest and head. He shook his head when asked if he had a last statement.

He roared unintelligibly, twice, after a strap was wrapped tightly across his mouth and his head was covered with a skullcap and hood. After the electrocution lever was pulled at 7:10 a.m., Davis' back straightened, his hands clenched and his chest seemed to expand. His body came to rest and blood appeared on the front of his shirt. Initially, a red dot appeared in the center of his chest. The stain slowly grew to a splotch about 8 inches across. His chest heaved repeatedly; he appeared to still be alive. But he was pronounced dead at 7:15. Cory Tilley, spokesman for Gov. Jeb Bush, said: ''We are absolutely, 100 percent comfortable that the chair performed flawlessly as it was designed to perform. . . . Everybody's getting all worked up about a nosebleed.'' But opponents of the death penalty insisted the chair doesn't work. D. Michael McCarron, executive director of the Florida Catholic Conference, which represents Florida's bishops, said, ''If there is any doubt whatsoever about the proper functioning of that chair, tomorrow's scheduled execution of Thomas Provenzano should not go forward. . . . They ought to stop.'' Provenzano opened fire in 1984 at the Orange County Courthouse in Orlando. He had been scheduled to die Wednesday, but was given a 48-hour stay Tuesday night. His execution had been reset for 7:01 a.m. today, but has been postponed.

The American Civil Liberties Union called on Bush to halt all executions until the state can assure they are conducted humanely. ''Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability,'' said Howard Simon, executive director of ACLU of Florida. ''But Florida's record of executions, and the Legislature's obsession with electrocution as the method of execution, has been barbaric,'' Simon said.

But Weiler said his family's murders were barbaric. He recalled that Davis admitted that a prime motive that day was ''to rape and kill my daughter Kristina, 9, then to murder my wife and younger daughter [Katherine, 5]. A secondary motive was to rob my residence.'' ''I relate these details to you, the citizens of Florida, so there is no question of the cruel and terrible deaths that Allen Lee Davis inflicted on his victims,'' Weiler said in a news conference after the execution. Recalling that Davis had committed crimes before killing his family, Weiler said, ''Davis was a deviant animal that should have been permanently caged or executed many years before May 1982. . . . The execution today was a legal, moral and righteous one, and I can assure you God approves.'' (Times-Union staff writers Bruce Bryant-Friedland and Jim Saunders contributed to this report. )

Wikipedia

Allen Lee Davis
From Wikipedia, the free encyclopedia

Also known as: Tiny Davis
Born: July 20, 1944
Died: July 8, 1999 (aged 54)
Cause of death: electrocution

Killings
Number of victims: Three (one victim was also pregnant at the time)
Span of killings: 1982 – 1982
Country: United States
State(s): Florida
Date apprehended: 1982

Allen Lee Davis (July 20, 1944 – July 8, 1999) was a convicted murderer executed for the May 11, 1982 Jacksonville, Florida murder of Nancy Weiler, who was three months pregnant at the time. According to reports, Nancy Weiler was "beaten almost beyond recognition" by Davis with a .357 Magnum, and hit over 25 times in the face and head.

He was also convicted of killing Nancy Weiler's two daughters, Kristina (9, shot twice in the face) and Katherine (5, shot as she was trying to run away). Davis was on parole for armed robbery at the time of the murders. He was executed on July 8, 1999. His famous Last meal consisted of: One lobster tail, fried potatoes, a half pound of fried shrimp, six ounces of fried clams, half a loaf of garlic bread, and 32 ounces of A&W Root Beer.[1]

Controversy Davis' execution drew nationwide media attention after he had a nose bleed in the electric chair and suffered burns to his head, leg, and groin area during the course of his electrocution. A Florida Supreme Court justice published some photos of the aftermath of the incident.

In 1999, the state of Florida heard a petition from Thomas Harrison Provenzano, another death row inmate, that argued that the electric chair was a cruel and unusual punishment.

Witness Testimonials

During the proceedings, many people testified about Davis's death. Ira E. Whitlock, licensed electrical engineer, said that during the execution of Allen Lee Davis, the readings produced by Old Sparky's chart recorder indicated that the circuitry operated as it was designed and intended to operate. Others corroborated this testimony. During Davis's execution, the recorder collected the following data: Cycle Voltage Current Impedance 1 1,500 V 10 A 150 O 2 600 V 4.5 A 133 O 3 1,500 V 10 A 150 O

John W. Moser, Capital Collateral Regional Counsel for the Middle Region, testified that between the time Davis was strapped into the chair and the time the electrical current was applied to Davis, he heard what he described as two screams from Davis. He also said that upon application of the current, Davis's body tensed and arched backward, and seconds later, blood appeared on Davis's chest. Moser approximated that around three minutes after Davis's body tensed, at a point when Davis was no longer tensed, he saw Davis's chest move in and out several times. Mark Lazarus, Victim Assistance Administrator for the Florida Department of Corrections, testified that after the head piece was placed on Davis' head, he heard Davis make two one-syllable sounds that he also described as a "yell[ing] out." He corroborated Moser's observations of Davis's body clenching and blood began dripping onto Davis from behind the mask. Lazarus also saw Davis's chest move, but described it as like a muscle spasm.

Sheila McAllister, Correctional Probation Officer at Wakulla Correctional Institution, testified that, though Davis's face was red before being executed, it was redder in the photographs of Davis taken after the execution had taken place. She said, like Moser and Lazarus, that Davis stiffened as the electrical current passed through him, and added that his hands clenched. She also heard Davis make noise, which she described as moaning sounds. She corroborated that Davis had blood on his chest that appeared to be coming from behind the mask, and that Davis's chest moved like muscle spasms. She added that they occurred three or four times and that they were spaced apart with two or three seconds in between.

William R. Dotson, Inspector Supervisor for the Gainesville Field Office with the Department of Corrections' Inspector General's Office, testified that he and "Mr. Geibig" took some of the pictures of Davis's body after the execution, and that he had felt it necessary to document the event.

Michael R. Collins, a nurse for the Florida State Prison testified that he heard Davis make one "loud maybe two, three-second high-pitched murmur" before the current was applied. He corroborated the characterization of Davis's body as stiffened or rigid when the current was applied, and said that Davis's fingernails turned bright red. After the current was stopped and Davis was examined, Collins said that he saw blood on Davis's shirt, on his chest and on the upper right side by the collar, and blood dripping from the mask for a short time during the examination. Steve Wellhausen, employee of Florida State Prison assigned to escort the official witnesses to the execution of Allen Lee Davis, corroborated reports of noise coming from Davis (which he described as a low muffled moan), Davis's stiffening body and tightening hands, and blood coming from beneath the mask and movement of Davis's chest after the current ceased, though Wellhausen stated that it did not look like breathing to him. He also said that it was not uncommon for these chest movements to occur after execution by electric chair.

Robert K. Thomas, John H. "Jack" McNeill, and William Muse established that Davis made a noise after the placing of the mouthpiece into his mouth but before the current was applied. McNeil stated that he heard two noises, once when he put the waist strap on Davis, and again when Thomas tightened the chin strap for the head piece. Thomas testified that he heard Davis moan one time while the strap for the mouthpiece was being tightened, but did not do anything about it. Thomas also stated that he saw two bubbles of blood in Davis's left nostril even before the current had been applied to Davis, but did nothing at that time either.

Thomas Varnes, Warden at Wakulla Correctional Institution, corroborrated some previous testimony, and said that he thought the nose bleed may have something to do with the high blood pressure that Davis was reported to have. Varnes, too, had high blood pressure and nose bleeds, but testified that he does not have pain with his nose bleeds.

Aubrey D. Thornton, Assistant Warden at Florida State Prison, corroborrated some previous testimony, and added that the mouth strap, as it appeared in a photograph presented as evidence, was not in the same position that it was in when Thornton positioned it on him prior to the execution. He said that the mouth strap was higher and closer to Davis' nose. He stated that Davis appeared redder after the mouth strap was applied, but that he did not appear to have trouble breathing.

William F. Mathews, P.A., physician's assistant for Florida State Prison, corroborrated that Davis could not have had trouble breathing. Matthews took Davis's pulse for two minutes after the electrical current ceased and did not feel anything. He also checked for heart and lung sounds and did not hear any. He said that he saw Davis's chest slump but that Davis did not show any sign of life when this occurred.

Robert Kirschner, M.D., forensic pathologist from Illinois, performed an autopsy on Davis and testified that the nose bleed Davis experienced appeared to come from septal area of the left nostril. According to his observations during the autopsy, Kirschner testified that he believed that the mouthpiece partially asphyxiated Davis and that the cause of death was electrocution and association of partial asphyxiation which occurred before the electrocution, and that he believed that Davis was suffering from conscious pain during the period of asphyxiation.

Kris Sperry, M.D., Chief Medical Examiner for the Georgia Bureau of Investigation, testified that the application of ten amps of current to brain tissue causes instant loss of consciousness, including cessation of the experience of pain, and that a person can indeed bleed while dead. Sperry disagreed with Kirschner's opinion regarding the mouthpiece, but thought that the nose bleed occurred from some sort of increased pressure in Davis' upper torso or head region. William Hamilton, M.D., Medical Examiner for the Eighth Judicial Circuit, who performed an autopsy on Davis, was deposed, stating that Davis had burns on his scalp and forehead, on his suprapubic and right upper medial thigh region, and behind the right knee. He believed the burns on the inmates executed in the previous five or six years were smaller than those on inmates executed before that time. He corroborrated earlier testimony in addition.

The state of Florida controversially found that Davis had died a "painless death" and was not asphyxiated.

ProDeathPenalty.Com

"Who Weeps for the Weiler Fanily," by Bob Greene. (Chicago Tribune July 14, 1999)

Some people were horrified by what happened to Allen Lee Davis last week. Davis, 54, was put to death in Florida's electric chair. During his execution, a spot of blood unexpectedly appeared on his shirt; by the time the execution was finished, the blood spot had grown to approximately 8 inches across.

Prison officials later said that the blood came from a simple nosebleed, and that the blood dripped onto Davis' shirt. But some witnesses said that the blood seemed to come from Davis' chest area.

All of this was used by some as evidence that putting prisoners to death--specifically by using the electric chair--is an appalling and cruel thing to do. The lawyer for another Florida man on Death Row said, "The degrading and mutilating manner in which (Davis) died was a clear violation of the Eighth Amendment. Blood gushing from the face and chest of a dying inmate is repugnant to the conscience of mankind." Civil liberties attorney Howard Simon said that the method used to execute Davis was "barbaric." Perhaps.

But before we go too far down the path of mourning the way in which Allen Lee Davis died, maybe, just for a few moments, it is worth reporting something that has not been commented upon much: what Davis did to get to Death Row in the first place.

On May 11, 1982, Davis--an ex-convict--entered the Jacksonville, Fla., home of the John Weiler family. Weiler, an executive with the Westinghouse Corp., was on a business trip in Pittsburgh.

In the Weiler home, Allen Lee Davis attacked Nancy Weiler, 37, who at the time was three months pregnant with the family's third child. Davis bludgeoned Mrs. Weiler--who was the corresponding secretary of the PTA at her children's school--so severely that she was barely recognizable when police found her body. Davis brutalized Mrs. Weiler with such force that the trigger guard on the gun with which he was beating her broke, as did the wooden grips and metal frame of its handle.

Davis tied up the Weiler's 10-year-old daughter, Kristy--a 5th-grade student who hoped to become a nuclear engineer someday--and shot her in the face, killing her. The Weilers' other child -- 5-year-old Kathy -- tried to run from Davis. He shot her in the back, and then beat her, crushing her skull. There was quite a bit of blood in the Weiler home after Davis had killed the mother and her two children. Considerably more blood than inadvertently appeared on Davis' shirt during the execution.

When prisoners are wrongly sent to Death Row, there is justifiable outrage that the court system could condemn innocent people to death. This is as it should be. But there was no question about Allen Lee Davis. He murdered Mrs. Weiler and her two little girls. No one disputes that.

And for 16 full years the State of Florida housed him, took care of his physical needs, fed him all the food he desired (he ballooned up to 344 pound in prison; one of his attorneys based an appeal on the theory that Davis should not be executed because his obesity might complicate the electrocution and cause him pain, which the attorney said would be cruel and unusual punishment. The attorney did not characterize the extent of the cruelty in the deaths of the Weiler family.)

As his last meal before his execution, Davis received from the State of Florida the dinner he had requested: a lobster tail, fried potatoes, a half-pound of fried shrimp, six ounces of fried clam strips, half a loaf of garlic bread and 32 ounces of A&W root beer. In 1982, Davis did not give Mrs. Weiler and her two children a choice of a last meal before he killed them.

But now the focus is on the blood spot on Davis' chest, and whether that indicates we are an immoral and vicious society for doing such a thing to him.

John Weiler--whose wife and daughters have been dead for 17 years--apparently doesn't think so. At one point as he waited for Davis to at last receive the punishment the courts had ordered for him, Weiler said: "It is cruel and unusual punishment of the victims, living and dead, to know that this animal . . . still breathes."

And now Allen Lee Davis is dead. Evidently his death was a somewhat unpleasant experience for him. There are a lot of things in this world for the public to worry about. Davis' discomfort is not necessarily one of them.

ProDeathPenalty.Com

Allen Lee Davis was convicted of killing a pregnant Jacksonville woman and her two young daughters on May 11 in 1982. Davis, 54, was convicted of murdering Nancy Weiler, a Westinghouse executive's wife in Jacksonville who was three months pregnant when she was killed in 1982. Mrs. Weiler was "beaten almost beyond recognition," with a .357, hit over 25 times in the face and head. Her 9-year-old daughter Kristina was tied up and shot twice in the face, and her 5-year-old daughter Katherine was shot as she was trying to run away and then her skull was beaten in with the gun. The murders occurred the day before Kristina's 10th birthday. The Weilers were neighbors of Davis's parents and after the murders, Davis stole a camera and some jewelry. The Weiler family was about to move and Nancy's husband John had gone ahead to Pennsylvania to await his family. Two other death warrants have been issued in the case in last 13 years. 37 at the time of the murders, Davis had a string of felony convictions to his credit and was on parole for armed robbery at the time.

Amnesty International (Kuno Sandholzer)

"Florida Execution of 350-pound Inmate Turns Bloody," by Lesley Clark. (July 8, 1999 Miami Herald)

Blood poured from the chest and mouth of convicted killer Allen Lee Davis as he was electrocuted early Thursday in Florida's first use of its new electric chair. Davis let out two muffled screams from behind a chin mask after four guards strapped him into the electric chair. As the 2,300 volts of electricity began to surge through the metal cap on his head, Davis jerked back against the oak chair, his fists clenched.

A tiny trickle of blood began to stain his white long-sleeved dress shirt as witnesses watching the execution behind glass gasped in horror. Corrections officers in the death chamber looked at each other in alarm, their eyes wide. None of them moved, but watched as the blood thickened. The blood continued to seep, leaking through the buckle holes in the thick leather restraints. It created a stain 6 to 8 inches in diameter across Davis' chest, from below his breastbone to nearly the top of his dark blue dress pants and black belt. A small spot of blood was visible under his right collar and when doctors lifted up the death mask to check his eyelids, his mouth appeared to be bleeding.

The black-hooded executioner flipped the switch at 7:05 and power was shut off at 7:07, corrections officials said. Davis' chest convulsed at least twice before two prison medical officials declared him dead at 7:15 a.m. Davis, 54, who had to be wheeled into the death chamber because he has trouble walking, was sentenced to die for the 1982 beating and shooting deaths of Nancy Weiler and her two young daughters during an attempted burglary at Weiler's Jacksonville home. Davis, at 350 pounds, was one of several large inmates whom prison officials considered last year when they replaced Florida's infamous 76-year-old electric chair known as "Ol' Sparky'' with a near-replica that has been tested to withstand heftier inmates.

Although Ol' Sparky withstood legal challenges and served as the method of death for famous serial killers like Ted Bundy, prison officials said the prisoner-built relic was showing its age. The oak seat was cracked, and one of its arms was ready to snap off. In a bid to stay his execution, Davis argued that prison officials failed to update the chair's electrical apparatus and that electrocution in the chair would be long and painful, in violation of the state and U.S. constitutions.

Florida is one of just four states to rely solely on the electric chair as a means of execution. Several state Supreme Court justices have called on lawmakers to consider using lethal injection, calling the electric chair "a spectacle whose time has passed.'' The Supreme Court twice rejected Davis' arguments but is requiring the Department of Corrections to certify before each electrocution that the chair is working properly. Since 1990, fire and smoke have twice erupted during executions, and guidelines were developed to prevent such events. Davis argued in his latest appeal that the state was not following its own rules because it failed to replace worn, faulty or damaged electrical equipment. Davis also argued that death in the chair could come slower for him because his fat tissue would be more resistant to the electrical current than that of an average-size man.

Quixote.org

Florida: Torture is Still All the Rage

Allen Lee Davis was electrocuted July 8 in yet another grisly Florida execution. Upon examining photos from Davis’ execution, one medical expert observed that Davis experienced pain as the mouthpiece pushed up against his nostrils, causing his nose to bleed and suffocating him before the electricity struck his body. Despite the horror movie nature of Davis’ death, Florida Governor Jeb Bush said he is still "convinced that the electric chair is an appropriate way to carry out death sentences in Florida."

The Chair’s Horrific History

This is not the first time that Florida’s 76-year-old electric chair has performed its "job" in a particularly repulsive way. The 1990 electrocution of Jesse Tafero caused flames to burst from his head the instant electricity was applied. According to the Florida Department of Corrections (DOC), the synthetic sponge that lined the electrical head fitting had caught fire. To demonstrate their theory, they put a similar sponge in a kitchen toaster, where it caught fire. Another test was conducted with a fire-resistant sea sponge, using a tub of water to replace the body and a colander for the head. This sponge did not catch fire. As a result of these Frankenstein-like experiments, synthetic sponges were banned. Despite the ban on synthetic sponges, Pedro Medina’s head erupted into flames during his electrocution in March 1997. Immediately following this second atrocity, prisoner Leo Alexander Jones sued the Florida DOC on the basis that the electric chair constituted cruel and unusual punishment (which is banned by the US Constitution). The Florida Supreme Court imposed a five-month moratorium in 1997 while it considered Jones’ suit. The court ultimately upheld the chair as constitutional and executions resumed. It did order the DOC to write down their execution procedures, which up until that point had only been relayed by word of mouth. In an particularly cruel mandate, the court ordered Jones to watch the next test of the electric chair. Unfortunately, official scrutiny of the chair’s use has done little to inform the public. In November last year, Florida voters passed a ballot initiative that wrote death by electrocution into Florida’s State Constitution.

The Debate Goes On

Earlier this year, the Florida DOC hired a structural engineer to evaluate the chair. The inspector determined that the problem was the wooden chair itself. In a morbid twist, he then posed in the chair for a photo, which he plans to use as his Christmas card. Before Davis’s execution, the State of Florida announced that it had replaced the 72-year-old electric chair with a new one. The DOC did in fact replace the chair with a replica from the DOC museum, but the original electrical anodes that are attached to the victim were not replaced. In the hearing following Davis’s electrocution, Florida Supreme Court Judge Clarence Johnson ruled that the chair did not constitute cruel and usual punishment. Johnson’s 33-page decision read like a medical opinion: " Allen Lee Davis did not suffer any conscious pain while being electrocuted in Florida’s electric chair. Rather, he suffered instantaneous and painless death once the current was applied to him." The court appears unwilling to intervene no matter how bloody the execution. Contact Governor Jeb Bush and tell him that the electric chair is cruel and unusual punishment!

CrimeMagazine.com

The execution of Allen Lee Davis in the Florida electric chair on July 8, 1999, was so violent that it set off a shock wave that ripples around the world. When the Florida Supreme Court ruled, yet again, that execution by electrocution is not unconstitutional, a dissenting justice attached three photographs of the execution to his dissent. Since then, nearly a million people have visited, or tried to visit, the Florida Supreme Court web site. The photographs have drawn attention from all over the world, with many foreign visitors expressing disgust, while many Floridians rallied in support of "Old Sparky," as the Florida electric chair is known. One Florida woman, in an email to the court, described the photographs as "wonderful."

Each person can view the photographs, and read the following lengthy excerpt from the dissent of Justice Shaw and come to his or her own conclusion as to the propriety of capital punishment, and electrocution in particular. As Justice Shaw points out, the United States is the only country in the world that uses electrocution as a means of execution, and even in the United States only four states still use this method of execution. Justice Shaw describes in detail three recent executions, including that of Davis, wherein the execution went awry. He points out that Davis not only died from electrocution, but from being smothered by the large leather strap that held his head to the electric chair. Witnesses described Davis as either screaming or moaning prior to the current being turned on. Davis had been convicted for murdering a woman and her two daughters. That his crimes were heinous and totally reprehensible is not in dispute. What is controversial is how Davis was executed. His death was tortured and violent. His execution was so bungled that his cause of death was at least partially due to asphyxiation. In killing Davis in such an intentionally inept manner, the State of Florida sank to a gruesome level of barbarity. For those who don’t care that Florida violated Davis’ civil rights, and for those, in fact, who applaud the cruel and unusual punishment inflicted on Davis, I can only say that in trashing his rights Florida trashed everyone’s rights. Does anyone really want the government in charge of torture as well as incarceration and execution? A government with such power would be known as a police state. The following is an excerpt from Justice Shaw’s dissenting opinion.

Davis' Execution

"The execution of Allen Lee Davis on July 8, 1999, differed from prior executions in that here Department of Corrections (DOC) officials took post-execution color photos of Davis before he was removed from the electric chair. (Several of the photos are appended to this dissenting opinion.) These photos, when combined with eyewitness accounts, provide a vivid picture of a violent scene. According to witnesses' accounts, when Davis was being strapped into the chair, guards placed a solid leather mouth-strap across his mouth and nose area. This mouth-strap is wide--approximately five inches from top to bottom--and it covered the entire lower portion of Davis's face from the bottom of his chin to immediately below his nose. The strap was fastened so tightly against his face and was so wide that it pushed his nose severely upward, blocking his nostrils at least partially. A heavy fabric facemask was placed on top of this apparatus, further occluding his airway. And then, as explained below, blood began flowing from his nose prior to electrocution. This too obstructed his nostrils.

"The trial court below explained that the pathologist who conducted a post-execution autopsy on Davis concluded that he had been at least partially asphyxiated prior to electrocution: Robert Kirschner, M.D., forensic pathologist from Illinois, testified as an expert in the area of forensic pathology. Kirschner testified that he performed an autopsy on the body of Allen Lee Davis. He testified that during Davis's autopsy, he was unable to identify the precise source of the nosebleed that Davis suffered, but that it was coming from the septal area of the left nostril. Kirschner testified that the placement of the mouth strap across Davis' mouth inhibited Davis' breathing and caused him to become at least partially asphyxiated before the application of electrical current to him. Kirschner testified that he is of the opinion that Davis' death was caused by electrocution and association of partial asphyxiation which occurred before the electrocution. "Aubrey D. Thornton, Assistant Warden at Florida State Prison, testified that he was one of the individuals responsible for strapping Allen Lee Davis into the electric chair. . . Thornton also testified that Davis' face began to turn red after the mouth strap was applied to him." (Emphasis added.)

"After Davis' airflow had been blocked by the mouth-strap, the face-mask, and his own blood, Davis made several sounds under the face-mask which were described variously as muffled screams, moans, or yells, as if he were attempting to get the guards' attention. The trial court gave the following description: ‘John W. Moser, Capital Collateral Regional Counsel for the Middle Region, testified that in his capacity as Capital Collateral Regional Counsel, he witnessed the execution of Allen Lee Davis. Moser testified that between the time Davis was secured in the electric-chair and the time the electrical current was applied to Davis, he heard what sounded like two screams from Davis.’ "Mark Lazarus, Victim Assistance Administrator for the Florida Department of Corrections, testified that he observed the execution of Allen Lee Davis. Lazarus testified that after the head piece was placed on Davis' head, he heard two one-syllable sounds coming from Davis and that the sounds sounded like Davis was trying to ‘make some noise’ or ‘yell out.’ "Thomas Varnes, Warden at Wakulla Correctional Institution, testified that he witnessed the execution of Allen Lee Davis. Varnes testified that after the mouth strap and chin strap of the head piece were tightened and the face mask was lowered, he heard Davis moan like he was trying to say something.

"James Crosby, Warden of Florida State Prison testified that after the mouth piece was placed on Davis, and just before the execution, he heard two muffled sounds from Davis, which sounded like Davis was trying to say something. (Emphasis added.) "Prior to and during the electrocution, blood flowed freely from Davis' nose, ran over the mouth-strap, and spilled onto his chest, forming a pool the size of a dinner plate on his white shirt. Again, in the words of the trial court below: "‘Sheila McAllister, Correctional Probation Officer at Wakulla Correctional Institution, testified that she witnessed the execution of Allen Lee Davis . . . McAllister also testified that while the current was on she observed blood on Davis' chest, and she observed something dripping from behind Davis' mask.’ "Michael R. Collins, employed with Florida State Prison as a nurse, testified that he attended the execution of Allen Lee Davis . . .. Collins further testified that after the electrical current was stopped and after Mr. Matthews, the Florida State Prison physician's assistant, was examining Davis, he observed blood on Davis' shirt in his chest area and on his upper right side, by his collar. Collins stated that the blood was dripping from under the mask. "William Muse, Lieutenant with the Florida Department of Corrections, assigned to Florida State Prison, testified that he witnessed the execution of Allen Lee Davis . . .. Muse testified that after the cycle of current had been terminated, he observed blood on Davis' shirt, blood on the strap, and blood coming from Davis' nostril [s]. (Emphasis added.) "In light of the placement of the mouth-strap, the positioning of the face-mask, and the flow of blood from his nostrils, it is reasonable to conclude – as did Dr. Kirschner – that Davis was being smothered before he was electrocuted.

"And finally, as with Tafero and Medina, Davis' body was mutilated by burns on the head, face, and leg, as noted in the trial court's order: "The deposition of William Hamilton, M.D., Medical Examiner for the Eighth Judicial Circuit, was read into the record due to Hamilton's unavailability . . .. Hamilton testified that Davis had burns on his scalp and forehead, on his superpubic and right upper medial thigh region, and behind the right knee. (Emphasis added.) "The color photos taken by DOC show a ghastly post-execution scene: Davis is wearing a white shirt and dark pants and is restrained in the wooden chair by thick leather straps placed across his arms, legs, torso, and mouth; the electrical head-piece is attached to the top of his head with a leather strap that runs under his chin; a sponge placed under the head-piece obscures the entire top portion of his head down to his eyebrows; because of the width of the mouth-strap, only a small portion of Davis' face is visible above the mouth-strap and below the sponge, and that portion is bright purple and scrunched tightly upwards; his eyes are clenched shut and his nose is pushed so severely upward that it is barely visible above the mouth-strap; although the exterior openings of Davis' nostrils are partially visible, it appears as though the interior openings may be covered by the mouth-strap; a stream of blood pours from his nostrils, flows over the wide leather mouth-strap, runs down his neck and chest, and forms a bright red pool (approximately eight by twelve inches) on his white shirt. The scene is unquestionably violent."

CNN.com

"Florida's First Execution in New Electric Chair Turns Bloody" (July 8, 1999)

TALLAHASSEE, Florida (CNN) -- Florida officials are defending their new electric chair after blood gushed from the first man put to death in the device Thursday. The execution of convicted murderer Allen "Tiny" Davis took place early Thursday morning at Florida's Starke Prison.

"There was blood all over his shirt and in the center of his chest and pouring out the side of his mouth," said witness Ron Word. "It appeared just after the power was turned on." But the Florida Department of Corrections said that was not true, saying no witness actually saw the prisoner's face, which was covered by a veil. "According to doctors who examined him and pronounced him dead, this was caused by a nosebleed," said C.J. Drake, a department spokesman who also witnessed the execution. Drake said a 7-inch wide star- or cross-shaped bloodstain could be seen on Davis' white shirt. He also said blood oozed through the holes of a strap around Davis' chest holding him in the chair. The department official said nosebleeds are not uncommon. And Davis, a 344 pound man suffering from hypertension and arthritis, was taking heavy doses of aspirin and Motrin -- both blood thinners.

Lawyers for Davis had tried to stop the execution on the grounds that the voltage wouldn't be enough to humanely kill a man of his size. After the execution, Davis lawyer Marty McClain said a chart of the voltage showed that the current used fell short of the 2,300 volts necessary to put someone to death humanely. "The electric chair functioned as it was designed to function today," said Cory Tilley, a spokesman for Florida Gov. Jeb Bush.

Davis was convicted and sentenced to death 17 years ago for the murder of Nancy Weiler, who was three months pregnant, and her 5- and 3-year-old daughters at their home in Jacksonville. The husband and father of the three victims sat directly across from Davis during the execution. "His crime was so heinous, animal-like and brutal that he deserves no less than the execution carried out today," John Weiler said.
Chair's troubled history

Florida's new electric chair used electrical equipment from the previous chair, named "Old Sparky" Davis' execution was the first in Florida's new wooden electric chair. It replaced the chair nicknamed "Old Sparky," which had been built by inmates in 1923. The oak framework of the three-legged chair is new, the electrical apparatus is not. Use of the old chair was challenged because of the 1997 execution of Pedro Medina, when foot-long flames shot from his head. It was the second such incident in 10 years. The state blamed sponges applied to his head during the electrocution. That older chair was returned to use a year later after state courts dismissed legal challenges that its use was cruel and unusual punishment.

Factoid: This was believed to be the first time in 44 Florida executions since capital punishment resumed in 1979 that the inmate bled. Florida is one of four states that use the electric chair for executions. The executioner is a private citizen who is paid $150 per execution. State law allows for his or her identity to remain anonymous.

Association Rupture (Pierre Duterte and Misha M. Karapetian)

Do we own our dead body? Allen Lee "Tiny" Davis was executed in the State of Florida in 1999. After his electrocution three of Davis dead body's photographs have been published on Florida's High Court official website. "Whatever is part of the opinion goes up. We do not censor anything." - said Craig Waters, a spokesman for the high court. "It's part of the public record." Are all US public records so carefully illustrated, or it has some educational preferences in certain cases...

Without any doubt the pictures of electrocuted Allen Lee "Tiny" have been published to show to the American public that Florida's "Old Sparky" is working well. Though the real noise around this photo exhibition was made in order to raise debates on so-called 'cruelty' of execution on electric chair, as claimed some court representatives later. (If electrocution is cruel, what is the option than? To execute the prisoner by a lethal injection?) This whole show just proves what sort of horror and hypocrisy reigns in some US State Administrations. While some wise and not so very wise politicians manipulate with public opinion on violations of basic human rights, we never seen a politician come up with an interesting idea to mention that every human being, no matter what his background is, has the exclusive rights on his dead body.

May be this could be the most basic human right if one could own, at least, his dead body. Since the Barbaric legislation in some US states allow the killing, sorry, the execution of a criminal in the name of State, may be, Court officials in those States could avoid using the images of executed criminals, without the violation of basic human right. The right to be killed in peace. This right is not written, but should it be really written? Why not? Especially, when the killing machine belongs to the Government. Did Florida's Court officials demand the right to publish the photographs of the dead body to its direct owner: Allen Lee "Tiny" Davis? We are not sure. Probably he was executed for the only purpose - to deliver impressive evidence to Politicians who eager to illustrate their speeches while they garantee to fight for the public security.

Let's precise that we do not have preferences or any particular sympathy for criminals. There is no matter who is the executed person and what are his crimes, do we like him or do we hate him. Whatever the brutality of the crime is, the State cannot take the advantage to send the criminal to the electric chair. "An eye for an eye" is rather a street rule, it's most probably the rule of jungle. When such a rule is taken as a State justice practice, the State becomes a jungle itself. Looking at photographs of electrocuted Allen Lee "Tiny" Davis, one cannot feel anything but hate towards murderers, towards evrything that destroys the life. The image of murder is horrible.

In the conclusion we would add just one thing - there are certainly people who get hard on looking at such pictures, but let's hope that this number of excited people is really low and that the guys who published theese images are not among those excited persons. Otherwise we never know who of us will become the next object of their exotic fantasies.

Davis v. State, 461 So.2d 67 (Fla. 1984). (Direct Appeal)

Defendant was convicted in the Circuit Court, Duval County, Major B. Harding, J., of three counts of murder, and he appealed. The Supreme Court held that: (1) trial court did not err in failing to grant motion for change of venue; (2) trial court did not err by failing to conduct individual and sequestered voir dire; and (3) evidence supported finding of five aggravating factors. Affirmed. Adkins, J., concurred in result only with the conviction and concurred with the sentence.

PER CURIAM.

Allen Davis appeals his convictions of murder and sentences of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentences.

The state charged Davis with three counts of first-degree murder for the shooting/beating deaths of a woman and her five- and ten-year-old daughters in their home. The jury convicted him as charged and recommended the death penalty for each conviction. The trial court agreed with the jury's recommendation and imposed three death sentences.

On appeal Davis claims: (a) the trial judge abused his discretion (1) by failing to grant a motion for change of venue, (2) by denying a motion for individual and sequestered voir dire, and (3) by denying a motion for mistrial based on a witness' testimony on redirect examination; (b) the trial judge erred in denying Davis' challenge for cause of one prospective juror; and (c) the prosecutor's closing argument rendered the penalty proceeding fundamentally unfair. After considering these points, we find that no relief is warranted. Moreover, our review of the record reveals that competent, substantial evidence supports the convictions and that the death sentences are appropriate.

These murders occurred on May 11, 1982, the police arrested Davis on May 13, and a grand jury indicted him on May 27. On August 11, 1982 Davis filed a motion for change of venue, alleging that the case had received such extensive publicity that he could not receive a fair trial in Duval County. After a hearing on August 17, the trial judge deferred ruling on that motion until an attempt to select a jury had been made.FN1 Jury selection subsequently began on January 31, 1983, with the trial lasting from February 1 through February 4.

FN1. A trial court may wait to decide whether to grant a change of venue until after an attempt to seat a jury is made. Manning v. State, 378 So.2d 274 (Fla.1979).

Davis now claims that the trial judge's failure to grant the motion for change of venue constituted an abuse of discretion. An application for change of venue is addressed to a court's sound discretion, and a trial court's ruling will not be reversed absent a palpable abuse of discretion. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Manning v. State, 378 So.2d 274 (Fla.1979). We find no such abuse here.

In Manning this Court reiterated the test for changing venue as set out in McCaskill v. State, 344 So.2d 1276 (Fla.1977). The Court went on to explain that in applying that test a determination must be made as to whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom. 378 So.2d at 276. The trial court ruled that Davis did not meet this test, and we agree.

At the hearing Davis presented evidence detailing media coverage of the case. According to this evidence, the bulk of the publicity on the case appeared from mid May through early June 1982 with sporadic coverage after that. By the time for jury selection almost nine months had passed since the murders. Of the forty-some prospective jurors called several acknowledged having heard or read something concerning the case. Either the defense or the state used peremptory challenges to excuse some of these prospective jurors, but the final jury panel contained several persons who had some prior knowledge of the case. All who served on the jury, however, indicated affirmatively that any prior knowledge could be put aside, that they could serve with open minds, and that they could reach a verdict based on the law and the evidence presented at trial.

Media coverage and publicity are only to be expected when murder is committed. The critical question to be resolved, however, is not whether the prospective jurors possessed any knowledge of the case, but, rather, whether the knowledge they possessed created prejudice against Davis. Straight. Davis has not shown a community “so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result.” Manning, 378 So.2d at 276. Moreover, following jury selection, Davis' attorney announced that he had consulted with Davis during the jury selection and that both he and Davis were satisfied with the jury selection even though they had one peremptory challenge left. On the facts presented here we find that the trial court did not abuse its discretion by failing to grant the motion for change of venue.

Davis also claims that the trial court erred by failing to conduct individual and sequestered voir dire of the prospective jurors as requested by the defense. The granting of individual and sequestered voir dire is within the trial court's discretion. Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Jones v. State, 343 So.2d 921 (Fla. 3d DCA), cert. denied, 352 So.2d 172 (Fla.1977). The purpose of conducting voir dire is to secure an impartial jury. Lewis v. State, 377 So.2d 640 (Fla.1979). Davis has demonstrated neither the partiality of his jury nor an abuse of discretion by the trial court, and we find no merit to this claim.

As his last point dealing with the jury, Davis argues that the trial court erred by not excusing a certain prospective juror for cause. The competency of a challenged juror is a mixed question of law and fact, the determination of which is within the trial court's discretion. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Manifest error must be shown before a trial court's ruling will be disturbed on appeal. Id. “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). The prospective juror in question met that test. When the defense challenged her for cause the court pointed out that “the last time you inquired of her, she said that she could listen to all of the evidence and render a verdict based on that, so I will deny your motion.”

Prospective jurors are frequently ambivalent, and their answers, as well as the questions asked of them, are, sometimes, not models of clarity. In such instances, as here, it can be argued that the words on the cold record have several meanings and are subject to several interpretations. It is of great assistance to an appellate court if a trial court states on the record the reasons for granting or not granting a challenge for cause, and we encourage trial courts to do so.

At trial the state called Davis' father to testify about a pistol missing from his home. The following exchange between the prosecutor and the witness occurred: Q [Mr. Austin] While-did Allen subsequently leave with the police to go to the police station? A [Donald Davis] Yes. Q Do you know whether he did that freely and voluntarily or not? A Yes, he did. Q He did? A I heard him tell [Detective] Kessinger, “Let's go take a lie detector test and get it over with.”

Defense counsel then objected to the mention of a polygraph examination as being highly prejudicial and moved for a mistrial. After discussion, the trial court denied the motion and stated: “I don't think there is any prejudice. It was mentioned. There is no evidence that [a polygraph examination] was given and no evidence that there is [sic] any results.” The court then directed the jury to disregard the witness' reference to a lie detector. Davis now claims that the trial court erred in denying his motion for a mistrial.

Unless both sides consent, the results of polygraph examinations are inadmissible in adversarial proceedings. Walsh v. State, 418 So.2d 1000 (Fla.1982). Here, however, neither party sought to have any such results introduced. The mere mention of the possibility of a polygraph examination does not compel the granting of a new trial. See Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). The trial court's cautionary instruction to the jury cured any problem with this witness' inadvertent reference to a polygraph examination, and we find no error on this point.

As his final point on appeal, Davis contends that the prosecutor's argument to the jury during the penalty phase rendered those proceedings fundamentally unfair. After the jury charge, defense counsel objected to one of the prosecutor's remarks, an alleged “golden rule” comment. The court overruled the objection, finding that the manner and context of the remark did not constitute a “golden rule” argument. We agree. The control of comments in closing arguments is within a trial court's discretion, and a court's ruling will not be overturned unless a clear abuse is shown. Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). No such showing has been made here.

Defense counsel did not object to the other comments complained about on appeal. In the absence of fundamental error the failure to object precludes consideration of this point on appeal. Bassett v. State, 449 So.2d 803 (Fla.1984); Mason v. State, 438 So.2d 374 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). Davis now claims that the comments constituted fundamental error. This simply is not correct. The comments had no significant impact on the jury's recommendation or the sentence imposed. They did not go to the foundation of the conviction or sentence.

Even if this prosecutor's argument had been objected to there was no reversible error committed by the argument. In State v. Murray, 443 So.2d 955, 956 (Fla.1984), we stated that “prosecutorial error alone does not warrant automatic reversal ... unless the errors involved are so basic to a fair trial that they can never be treated as harmless.” We went on to hold that the error must be so prejudicial as to taint the entire trial as judged by the harmless error rule from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).FN2 Wide latitude is permitted in arguing to a jury. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 1060, 103 S.Ct. 482, 74 L.Ed.2d 627 (1982). In this case the prosecutor strongly urged the jury to recommend the death penalty, but we do not find that he went overboard. Our review of the record discloses that the prosecutor restricted his argument to evidence in the record and to reasonable comments on that evidence. This case is factually distinguishable from Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), on which Davis relies. As the prosecutor pointed out, the killing of a woman and her two young children in their home is a terrible crime, and the proof against Davis was substantial. We therefore find no merit to this point.

FN2. In Chapman the Court held that a reviewing “court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. at 828.

In his sentencing order the trial court found five aggravating factors (under sentence of imprisonment; previous conviction of violent felony; committed during course of a burglary; heinous, atrocious, or cruel; and cold, calculated, and premeditated) applicable to all three counts of the indictment plus one additional factor (avoid or prevent arrest) applicable to the younger daughter's death. The trial court found nothing in mitigation.

Davis' appellate attorney has not challenged the death sentences. In response to a question asked at oral argument he stated that he had made a tactical decision not to do so and gave several reasons for his decision. First, he said that, in all candor, only the cold, calculated, and premeditated and avoid or prevent arrest aggravating circumstances could be argued against. Moreover, because no mitigating circumstances existed and because the jury had recommended the death sentence, the sentence could be sustained even if this Court found those aggravating circumstances improper. Elledge v. State, 346 So.2d 998 (Fla.1977). Finally, defense counsel stated that, taking the above into consideration, he had decided to use his brief to attack the convictions rather than the sentences, even though he disagrees with the sentences.

Section 921.141, Florida Statutes, however, directs this Court to review both the conviction and sentence in a death case, and we will do so here on our own motion. Our review convinces us that all but one aggravating circumstance, avoid or prevent arrest, are supported by the record and that the trial court properly applied them to Davis. Davis had been convicted previously of several counts of robbery, attempted robbery, and use of a firearm during commission of a felony. At the time of these murders Davis was on parole from a fifteen-year prison sentence. Additionally, the person who had dropped Davis off so that he could commit a burglary stated that when he picked Davis up again Davis had in his possession a camera of the same make as one belonging to the family of the victims which the victims' husband and father reported as missing after their deaths. The manner and method of these murders supports the finding of heinous, atrocious, or cruel-the mother had been beaten over the head with a pistol almost beyond recognition, one child was tied up and then shot twice, and the second child was shot once in the back and then beaten, all of which occurred in the mother's bedroom and the short hallway to that bedroom. See Breedlove v. State. The state's evidence is also sufficient to support the court's finding of cold, calculated, and premeditated in aggravation. Compare Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984) (no evidence of planning, instruments of death all from victim's premises) with the instant case (entering home armed with pistol and with rope used to bind one of the victims). We do not find, however, that the evidence meets the standard of Riley v. State, 366 So.2d 19 (Fla.1978), and Menendez v. State, 368 So.2d 1278 (Fla.1979), and we therefore strike the court's finding of avoid or prevent arrest in aggravation of the younger child's murder.

In the sentencing order the trial court stated: “The Court finds that there are no statutory mitigating factors existent in this cause ....” The mitigating evidence was not restricted to that listed in section 921.141, however, and we find the court's failure to mention nonstatutory mitigating evidence to be merely inartful drafting of the sentencing order.

Striking one of the aggravating circumstances leaves five valid ones for each count, with nothing in mitigation. We therefore affirm both the convictions and the sentences of death.

It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. ADKINS, J., concurs in result only with the conviction and concurs with the sentence.

Davis v. State, 589 So.2d 896 (Fla. 1991). (PCR)

PER CURIAM.

Allen Lee Davis, a prisoner on death row, appeals the trial court's denial of his second motion for postconviction relief. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.; Fla.R.Crim.P. 3.850. We affirm the trial court's order.

In 1982 Davis killed a woman and her two young daughters in their home. At trial early in 1983 a jury convicted him of first-degree murder, and the trial court imposed three death sentences, which this Court affirmed. Davis v. State, 461 So.2d 67 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). The governor signed Davis' death warrant in 1986, and Davis filed his first postconviction motion, raising fifteen issues. This Court affirmed the trial court's denial of the motion without opinion. Davis v. State, 496 So.2d 142 (Fla.1986). Davis also petitioned for writ of habeas corpus, which this Court denied. Davis v. Wainwright, 498 So.2d 857 (Fla.1986), cert. denied, 484 U.S. 873, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987). A federal district court denied Davis' petition for habeas corpus relief because it contained unexhausted claims and constituted an abuse of the writ, but the Eleventh Circuit reversed for consideration on the merits. Davis v. Wainwright, 644 F.Supp. 269 (M.D.Fla.1986), rev'd, 829 F.2d 1513 (11th Cir.1987). On remand the district court dismissed Davis' petition without prejudice and directed him to exhaust his Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), claim in state court or to refile his petition without that claim. Davis v. Dugger, 703 F.Supp. 916 (M.D.Fla.1988). Davis then filed his second postconviction motion with the trial court. That court found that the Hitchcock issue had no merit and that the other issues were procedurally barred and denied the motion without an evidentiary hearing.

On appeal Davis raises nine issues: 1) Hitchcock error; 2) ineffective assistance by mental health expert and ineffective assistance by counsel regarding Davis' competency; 3) Davis' competency to stand trial; 4) Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), violation; 5) unconstitutionality of the heinous, atrocious, and cruel aggravator and instruction; 6) unconstitutionality of the cold, calculated, and premeditated aggravator and instruction; 7) improper shift of burden to show death not appropriate sentence; 8) jury misled as to exercising mercy and sympathy; and 9) automatic felony-murder aggravator. We agree with the trial court that the Hitchcock issue has no merit and that the other issues are procedurally barred.

Claims under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), are time barred if not raised by Aug. 1, 1989. Mills v. Dugger, 574 So.2d 63 (Fla.1990). Because Davis raised this claim in a court, albeit not the correct court, before that date and because we wish to make it clear that no Hitchcock error occurred at Davis' trial, we will not impose a procedural bar on this issue in the instant case. We reiterate, however, that Hitchcock claims filed after Aug. 1, 1989 are time barred.

In Hitchcock the United States Supreme Court invalidated Florida's pre- Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), standard jury instruction which limited mitigating circumstances to those listed in the death penalty statute. By the time of Davis' trial, however, the standard jury instruction had been amended to provide for nonstatutory mitigation. The record of the original trial of Davis reveals that the judge and the parties were aware of the right and need to consider nonstatutory mitigating circumstances as decreed in Lockett. Instead of the erroneous Hitchcock instruction, the revised post- Lockett instruction was given. We find no evidence of a Hitchcock violation, and the trial court correctly found this issue to have no merit. E.g., Engle v. Dugger, 576 So.2d 696 (Fla.1991); Bolender v. Dugger, 564 So.2d 1057 (Fla.1990); Spaziano v. Dugger, 557 So.2d 1372 (Fla.1990); Harich v. State, 542 So.2d 980 (Fla.1989); Card v. Dugger, 512 So.2d 829 (Fla.1987). Davis argues that the trial court violated Hitchcock by not addressing nonstatutory mitigating evidence in the sentencing order, but we considered that order on direct appeal and found no error. 461 So.2d at 72. Cf. Harich; see Engle; Spaziano. The cases Davis relies on are factually distinguishable. E.g., Way v. Dugger, 568 So.2d 1263 (Fla.1990) (trial court instructed on only one statutory mitigator and did not instruct on or mention nonstatutory mitigating evidence); Cheshire v. State, 568 So.2d 908 (Fla.1990) (trial court refused to consider mental mitigating evidence as relevant to anything but statutory mitigators); Waterhouse v. State, 522 So.2d 341 (Fla.) (even though trial occurred in 1980, trial court gave the instruction limiting consideration of mitigating evidence that Hitchcock condemned), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 97 (1988).

At the hearing in the instant case, Davis' counsel told the court that, with the exception of the automatic-aggravator issue, all of the issues “have been addressed on direct appeal or on postconviction in some form or other.” Claims that have been previously raised are procedurally barred. E.g., Francis v. Barton, 581 So.2d 583 (Fla.), cert. denied, 501 U.S. 1245, 111 S.Ct. 2879, 115 L.Ed.2d 1045 (1991); Clark v. State, 569 So.2d 1263 (Fla.1990); Atkins v. Dugger, 541 So.2d 1165 (Fla.1989); Eutzy v. State, 541 So.2d 1143 (Fla.1989). The cases Davis relies on are not fundamental changes in the law which require retroactive application. Moreover, these claims violate the two-year requirement set out in rule 3.850. Adams v. State, 543 So.2d 1244 (Fla.1989). Davis' arguments that the federal district court directed him to re-raise these claims and that Hitchcock holds “that a Florida sentencing jury must receive accurate instructions” are flawed. The district court's order pertains only to bringing the Hitchcock issue to state court. 703 F.Supp. at 922. Hitchcock, itself, dealt with a single instruction, 481 U.S. at 398-99, and is not as broad as Davis now argues. Also, as noted in footnote *, supra, Hitchcock claims are time barred if filed after August 1, 1989. Therefore, we agree with the trial court that issues 2 through 9 are procedurally barred.

We affirm the trial court's denial of Davis' second postconviction motion. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs in result only. HARDING, J., recused.