Executed February 16, 2010 06:17 p.m. EST by Lethal Injection in Florida
7th murderer executed in U.S. in 2010
1195th murderer executed in U.S. since 1976
1st murderer executed in Florida in 2010
69th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(7) |
|
Martin Edward Grossman W / M / 19 - 45 |
Margaret Peggy Park W / F / 26 |
Citations:
Grossman v. State, 525 So.2d 833 (Fla. 1988). (Direct Appeal)
Grossman v. Dugger, 708 So.2d 249 (Fla. 1997). (PCR)
Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006). (Habeas)
Final / Special Meal:
Grossman didn't request a last meal before the execution, but purchased from the prison canteen a chicken sandwich, a can of fruit punch and banana cream and peanut butter cookies.
Final Words:
"I would like to extend my heartfelt remorse to the victim's family," he said. "I fully regret everything that occurred that night, for everything that was done, whether I remember it or not." After making his statement, he recited the Shema, a central prayer in the Jewish Scripture. It is traditional for Jews to say the prayer as their last words.
Internet Sources:
Florida Department of Corrections
DOC#: Number: 089742
Current Prison Sentence History:
Offense Date: 12/13/1984
Offense :1ST DG MUR/PREMED. OR ATT.
Sentence Date :12/13/1985
County : PINELLAS
Case No.: 8411698
Prison Sentence Length: DEATH SENTENCE
Incarceration History:
Date In-Custody : 05/31/1983 to 07/25/1984
12/23/1985 to 02-16-10 (Death Sentence Executed)
Prior Prison History:
01/02/1983 BURG/DWELL/OCCUP.CONVEY 05/18/1983 PASCO 8300195 2Y 0M 0D
01/02/1983 GRAND THEFT,$300 LESS &20,000 05/18/1983 PASCO 8300195 2Y 0M 0D
"Grossman executed for killing wildlife officer," by Nathan Crabbe. (Published: Tuesday, February 16, 2010 at 9:50 p.m.)
He was sentenced to death for shooting wildlife officer Margaret "Peggy" Park, 26, in December 1985 after she found him with a stolen gun in a wooded area of Pinellas County.
Park's sister Betsy, who witnessed the execution with her mother and brother, said that Grossman's apology was "long overdue" and she was glad to hear it.
"We came here today hoping for closure and an end to the years of reminders of how Peggy died overshadowing the memories of how she lived," she said. "I believe we realized that hope today."
Betsy Park said it was unfortunate that the execution took so long to happen that her father, who died in 2000, wasn't around to witness it. She said a campaign to stop the execution had led to harrasing phone calls to the family over the past week, which she called reproachable.
An Internet petition drive to save Grossman netted more than 33,000 signatures and Gov. Charlie Crist received thousands of phone calls and e-mail messages about the case. More than 110 rabbis wrote Crist to urge a 60-day stay of execution for a clemency hearing, arguing that Grossman did not premeditate the crime, was high on drugs at the time and had been a model prisoner who deserved life in prison.
Rabbi Nochum Kurinsky of Chabad at the Beaches in Ponte Vedra, who witnessed the execution, said Grossman should have been given another chance to plead his case.
"It's just yet another tragedy, another loss," he said of the execution.
The Vatican had asked for Grossman's life to be spared in a letter written by Archbishop Fernando Filoni on behalf of Pope Benedict XVI. The letter said Grossman had "repented and is now a changed person, having become a man of faith."
Grossman didn't request a last meal before the execution. Instead, he had a chicken sandwich, can of fruit punch and banana cream and peanut butter cookies that he bought from the prison canteen, according to Department of Corrections spokeswomen Gretl Plessinger.
After making his statement, he recited the Shema, a central prayer in the Jewish Scripture. It is traditional for Jews to say the prayer as their last words.
The execution appeared to be carried out without problems. Grossman was declared dead at 6:17 p.m., about 15 minutes after the lethal-injection process started.
Park's mother, who shares the same name as Peggy, sat in the front row of the witness room staring directly at Grossman during the execution. She said she was thinking of how his death differed from the children killed in last month's earthquake in Haiti.
"They had hard deaths," she said. "I think he had an easy one."
Her daughter was 26, just three years out of college, when she found Grossman and a companion with a stolen handgun in the woods. Grossman, who was on probation, pleaded with her to let him go because he would be returned to prison.
After she refused, Grossman -- who was 100 pounds heavier and a foot taller -- took her flashlight and beat her with it. She managed to draw her handgun and fire a wild shot before he wrestled away the gun and shot her to death.
Grossman was the 69th prisoner executed since the state reinstated the death penalty in 1976. He was one of 21 Jewish prisoners out of 395 Death Row inmates, according to the Department of Corrections.
The execution brought about 30 protesters to a field across from the prison. While the protesters typically include members of Catholic churches, they were joined Tuesday by Jewish participants including Rabbi Stanley Howard Schwartz of Daytona Beach.
He said protests should not be about Grossman's faith, but rather about the Biblical prohibition against killing.
"The state of Florida should not commit murder," he said.
"Martin Grossman executed Peggy Park," by Mike Deeson. (02-16-10)
Starke, Florida--The state of Florida executed killer Martin Grossman Tuesday evening at 6:17 pm. Grossman killed Wildlife Officer Peggy Park in 1984 in North Pinellas County.
Witnesses were led into the death chamber at 5:45 where a curtain was pulled down over the glass wall.
At precisely 6 pm, the curtain rose, the team warden was on the phone with the Governor's office and he asked Grossman if he had any last words.
Grossman said, "I would like to extend my heartfelt remorse to the victim's family. I fully regret everything that occurred that night, for everything that was done, whether I remember everything or not. I accept responsibility."
Grossman then said a prayer, "Shema Yisrael " and the execution began at 6:02. As the chemicals went into his body, Grossman closed his eyes and looked like he was going to sleep. At 6:07, the team warden called out Grossman's name , shook his body and brushed against his eyelashes to make sure he was unconscious, then the final chemical was administered to stop his heart.
At 6:16, the warden looked to the attending Doctor who was behind a wall. The doctor came out, used a stethoscope and at 6:17 the killer was pronounced dead.
During the rather antiseptic execution, Park's mother stared at her daughter's killer who was just 10 feet away. Afterwards, Margaret Park said she was thinking of the children of Haiti who were buried under concrete and died a horrible, scary death. Park says she thinks Grossman had it easy.
Park's sister Betsy says 25 years is an excruciating long time to have to wait and have the way her sister died brought up over and over. Betsy Park was sad her father didn't live to see the day the killer died.
Park says she was upset with some opponents of the execution including the Pope for stepping in and some Jewish groups which she said went too far. According to Park the family was harassed over the past week and she thinks it is reprehensible.
However Park says she is glad that Grossman took responsibility, but says it was long overdue.
Having covered some of the Peggy Park murder, and now being a witness at the execution of her killer, it seems as if Park's death was more traumatizing. She was beaten over the head more than 20 times with her flashlight and then shot in the head with her service revolver. And while the execution brings some closure, it will never end for the Park family.
Margaret Park says you don't forget, but you go on.
And they will go on knowing the man who killed their daughter has finally been served justice, even if it took a quarter of a century for that to happen.
"Grossman executed; last words are of 'heartfelt remorse'," by Mark Douglas. (News Channel 8)
Martin Grossman was declared dead at 6:17 p.m. at the Florida state prison in Starke, 15 minutes after the start of his execution by lethal injection.
In a final statement, Grossman expressed remorse to the family of Peggy Park, the Florida wildlife officer he beat and shot to death more than 25 years ago.
"I would like to extend my heartfelt remorse to the victim's family," Grossman said. "I fully regret everything that happened that night, everything that was done, whether I remember everything or not. I accept responsibility."
"I would like to say a prayer," the 45-year-old man added, then, lying on a gurney, hands strapped to arm boards and with needles in both arms, he began reciting a Jewish prayer called the Schma.
It is the most sacred prayer in Judaism and the first prayer that Jewish children learn. Among its verses: "The Lord is our God, God is one."
Park's brother, sister and mother were among the 20 witnesses to the execution. They were seated directly in front of Grossman, who was visible through a window.
The Vatican, Jewish leaders as far away as Israel, and thousands of petitioners called for a stop to the execution on several grounds, including questions about whether the slaying was premeditated, Grossman's diminished IQ and his remorse for the crime.
Grossman's religious adviser, Rabbi Menachem Katz, was with him in his cell throughout the day.
Grossman took a shower and dressed at 4 p.m. He ordered no special last meal, just food from the prison cantina â?? a fried chicken sandwich, fruit punch, and banana cookies, said Gretl Plessinger, spokeswoman for the state Department of Corrections.
"He is calm, compliant and resolved to the fact his execution is going to happen," Plessinger said before he was walked to the death chamber.
Grossman's final visit was 8:30 a.m. to 11:30 a.m. today with his aunt, Rosal Melton, and two female friends, Sharon Lion and Francine Whitehouse. The first two hours, a visitors window separated them and the last hour was a contact visit.
Earlier Tuesday, the U.S. Supreme Court refused today to block Grossman's execution.
He was sentenced to death for murdering Park on Dec. 13, 1984, as she patrolled a wooded area of Pinellas County now known as the Brooker Creek Preserve.
She came across Grossman, then a 19-year-old high school dropout, and a 17-year-old accomplice. They had a stolen gun. Grossman had already been to prison for grand theft and breaking-and-entering. He didn't want to go back. They beat Park with a flashlight and shot her with her service revolver.
Last-minute efforts to spare Grossman's life extended to the Vatican, which sent a letter to Gov. Charlie Crist saying "the prisoner has repented and is now a changed person." The letter was sent in response to a request from Rabbi Shear-Yashuv Cohen, chief Rabbi of Haifa, Israel.
Grossman is the 69th person executed in Florida since the death penalty was reinstated in 1979, and the 25th by lethal injection. He was the fifth inmate executed under Florida Gov. Charlie Crist, who has been in office for three years.
Crist signed Grossman's death warrant Jan. 12. Since that time, his office has received about 49,000 letters, telephone calls or e-mails, according to a spokesman.
"US Jews rush to stay execution," by E.B. Solomont. (16/02/2010 04:18)
NEW YORK – A coalition of Orthodox Jewish groups is appealing for clemency on behalf of a Jewish inmate on Florida’s death row who is scheduled to be executed on Tuesday night.
Martin Grossman was convicted of first-degree murder for killing a Florida wildlife officer in 1984, when the officer found Grossman, then 19, and a 17-year-old friend shooting a stolen handgun inside a nature preserve. But, arguing that Grossman’s crime was not premeditated, and committed while Grossman was mentally impaired and on drugs, the Jewish groups are asking for a 60-day reprieve, in order to prepare another appeal and explore legal options.
“He has conducted himself as a model prisoner since his incarceration some 25 years ago and has shown profound remorse and regret for his actions,” the groups, including the National Council of Young Israel, Agudath Israel of America and the Orthodox Union, said in a statement. Grossman, they argued, should “be permitted to serve his debt to society by serving the rest of his life in prison.”
Chief Ashkenazi Rabbi Yona Metzger, citing “new evidence,” also wrote to Florida Gov. Charlie Crist, according to a letter publicized by Yeshiva World News.
“I am convinced that there is sufficient cause to at least delay this execution until all evidence and legal arguments are presented,” he wrote.
With Grossman sitting on death row for decades, the groups sprung into action on January 12, when Crist signed Grossman’s death warrant.
Courts have rejected multiple appeals based on claims including ineffective assistance of counsel and diminished mental capacity. The Florida Supreme Court rejected Grossman’s latest appeal last week.
Grossman was convicted of first-degree murder for killing Margaret “Peggy” Park, a Florida wildlife officer, who found him and a teenaged accomplice shooting a stolen gun in a Florida nature preserve on December 13, 1984. Grossman, who had recently been released from prison after serving time for burglary, begged Park not to turn him in. When she refused, he hit her 20 to 30 times and then shot her in the head with her service gun.
For the victim’s family, who seek closure on the painful memory, the execution is long overdue.
“I don’t take any pleasure in an execution, but it’s time,” Margaret Park, the victim’s 79-year-old mother, told The Associated Press. “He had very good representation all the way through. I think he’s been treated very fairly by the state of Florida,” she said. “It’s long overdue.”
Park, who planned to travel with her daughter and son to Florida from Ohio to witness the execution, said every time there is a new development in the case, it feels like a “wave coming up and knocking you back down, and you go over all the emotions again. We just need to have an end to this coming back and hitting us again.”
The Jewish groups argue, however, that no matter how terrible Grossman’s crime, it does not warrant the death penalty.
So far, more than 24,000 people have signed an online petition on behalf of Grossman, and a Web site, www.savemartingrossman.com, includes medical reports outlining his low IQ and unspecified mental problems, as well as letters from family members, death penalty opponents and even Holocaust survivor and Nobel laureate Elie Wiesel, who wrote, “These days, death is winning too many battles and life imprisonment is a harsh enough punishment.”
Harvard law professor Alan Dershowitz, who signed onto the effort on behalf of Grossman, wrote in the Jewish groups’ public statement: “Even those who strongly support capital punishment would limit it to recidivists or people who commit the most heinous of crimes. Martin Grossman fits neither of those categories.”
Dershowitz added that Grossman’s crime was unplanned, impulsive and the “product of a serious mental illness, that can now be proven by medical technology that was unavailable at the time of his sentencing. All that he is seeking now is a 60-day postponement of his execution, so that his supporters can martial the evidence and present his case for clemency,” Dershowitz wrote. “No one should be rushed to execution while doubts remain unresolved.”
An animal lover, Peggy Park earned a degree in natural resources and wildlife management from Ohio State in 1981, and in 1982 took a job as a Florida wildlife officer patrolling the Brooker Creek nature preserve near Tampa.
Grossman and an accomplice, Thayne Taylor, 17, were arrested two weeks after Park was killed and Taylor served nearly three years in prison. Grossman was convicted in October 1985. The jury recommended the death penalty by a vote of 12 to 0.
Rabbi Menachem Katz of the Aleph Institute, who has counseled Grossman for 15 years, said the inmate is “trying to be as strong as possible. He takes full responsibility for his behavior and actions. He has unbelievable amounts of remorse and he believes in God and hopes for life. He’s praying for a miracle.”
Katz said the Aleph Institute, an organization that works with incarcerated Jews in American prisons, typically does not get involved in legal aspects of criminal cases. “Definitely not as far as this,” he said. “But after the governor signed the death warrant, we looked closer at the case, at the details, to save the life of someone who never should have been given the death penalty,” he said.
Citing Grossman’s history of drug use, he said there was no premeditation in this case. “If this execution goes through, it’s not on the merits of the case.”
He said the fact that Grossman has become more religious has nothing to do with the Aleph Institute’s involvement in his case. “It’s because this is a matter of life and death,” Katz said.
“The facts of the case are so clear,” he said, reiterating his belief that the crime does not warrant death. “If it was a brutal rape and murder crime, we wouldn’t be having this conversation.”
But the victim’s younger sister, Betsy, told the St. Petersburg Times that Grossman’s execution is not about vengeance. “It’s to see it finished,” she said. “He had a chance to make choices. And he made the wrong ones.”
Florida Commission on Capital Cases
GROSSMAN, Martin (W/M)
Date of Offense: 12/13/84
Circumstances of Offense:
On the night of 12/13/84, Martin Grossman and a companion, Thayne Taylor, drove to a wooded area in Pinellas County, Florida, and were shooting a stolen handgun when they were approached by Margaret Park, a Florida Wildlife Officer. Park confiscated the weapon and license of Grossman, at which point Grossman pleaded with her to not report him for possessing a weapon and being outside of Pasco County, both of which were violations of his probation for a burglary charge. Park picked up the radio to call the sheriff’s office, but was repeatedly struck on the head and shoulders with her flashlight by Grossman and was then beaten by Taylor. She managed to exclaim “I’m hit” over the radio, and deputies from the Pinellas County Sheriff’s Office began responding to her location. Park drew her weapon and fired a shot within the vehicle, and disabled Taylor with a kick to the groin. Grossman, who was one foot taller and one hundred pounds heavier than Park, wrestled the weapon away from her and shot her once in the back of the head. Grossman and Taylor fled the scene with Grossman’s license, gun, and Park’s gun.
When they returned to Grossman’s home, both Grossman and Taylor told Brian Hancock about the incident. Hancock and Taylor then buried the two guns near the crime scene while Grossman attempted to discard the clothing and shoes he had been wearing during the attack, because they were covered in blood. After they would not burn, he discarded them in a lake nearby. The following day, Grossman and Taylor cleaned the van that was used in the attack and changed the tires. On 12/20/84, Grossman and Taylor retold the story of the shooting incident to another friend, Brian Allen. Hancock, who testified that he was scared of Grossman, informed the police on 12/25/84 about the event. Soon after, Grossman and Taylor were arrested. Taylor, subsequently, confessed to the police. Grossman also told one more person, a fellow inmate, about the killing.
Codefendant Information:
Taylor was convicted of Third-Degree Murder.
Trial Summary:
01/18/85 Indicted on one count of First-Degree Murder
Appeal Summary:
Florida Supreme Court – Direct Appeal
U.S. Supreme Court – Petition for Writ of Certiorari
Florida Supreme Court – Petition for Writ of Habeas Corpus
Circuit Court – 3.850 Motion
Florida Supreme Court – 3.850 Motion Appeal
U.S. District Court, Middle District – Petition for Writ of Habeas Corpus
Florida Supreme Court – Petition for Writ of Habeas Corpus
U.S. Court of Appeals, 11th Circuit – Petition for Writ of Habeas Corpus Appeal
Clemency Information:
Factors Contributing to the Delay in Imposition of Sentence: The delay in the imposition of the sentence arises from the time taken to decide the FSC Habeas petition (03/23/90 – 12/18/97) and the Circuit Court 3.850 motion (08/13/90 – 10/05/95). The current delay arises from the Federal Petition for Writ of Habeas Corpus that was pending from 09/18/98 – 01/31/05.
Case Information:
On 01/02/86, Grossman filed a direct appeal with the Florida Supreme Court, raising eighteen issues, yet the FSC concentrated on those issues that directly related to potential errors in the trial process itself. On 02/18/88, the FSC affirmed the conviction and death sentence imposed on Grossman.
Grossman filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 07/25/88 that was denied on 03/06/89.
On 03/08/90, the Governor signed a death warrant for Grossman, but the FSC granted a stay of execution on 04/06/90.
Grossman filed a Petition for Writ of Habeas Corpus on 03/23/90, citing ineffective assistance of counsel, Caldwell error, and court decisions in opposition to the rulings of the FSC. The FSC denied the Petition on 12/18/97.
Grossman filed a 3.850 Motion with the Circuit Court on 08/13/90 that was denied on 10/05/95.
Grossman filed a 3.850 Motion Appeal on 01/04/96, citing ineffective assistance of counsel; Brady violations, by the State withholding evidence; witness error; conflict of interest; faulty instruction on aggravating circumstances (HAC); prosecutorial misconduct; defendant not present at all stages of trial; and improper weighing of aggravating and mitigating circumstances. The FSC affirmed the denial of the 3.850 Motion on 12/18/97.
Grossman filed a federal Petition for Writ of Habeas Corpus with the U.S. District Court on 09/18/98. On 07/22/02, the USDC administratively closed the case pending a decision in the FSC Bottoson/King cases. The case was reopened on 01/23/03. On 08/12/03, the USDC administratively closed the case pending the filing of a supplemental brief. On 08/25/04, an Amended Petition was filed. On 01/31/05, the USDC denied the Petition.
Grossman filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 08/14/03, citing ineffective assistance of counsel. The FSC denied the Petition on 05/07/04.
Grossman filed a Petition for Writ of Habeas Corpus Appeal with the U.S. Court of Appeals, 11th Circuit, on 02/25/05. On 10/16/06, the USCA affirmed the denial of the petition, and on 01/05/07, a Mandate was issued.
Grossman filed a 3.851 Motion with the Circuit Court on 05/16/05 that was denied on 08/02/05.
Grossman filed a 3.851 Motion Appeal with the Florida Supreme Court on 09/12/05, and on 05/25/06 the FSC affirmed the denial of the motion.
Grossman filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 03/06/07 that was denied on 05/21/07.
Grossman filed a 3.851 Motion with the Circuit Court on 09/14/07 that was denied on 10/26/07.
Grossman filed a 3.850 Motion Appeal with the Florida Supreme Court on 03/24/08, and on 02/26/09 the FSC affirmed the denial of the motion.
On 01/12/10 the Governor signed a death warrant for Grossman, and the execution has been set for 02/16/10.
Grossman filed a 3.850 Motion and Request for Evidentiary Hearing and Stay of Execution with the Circuit Court on 01/18/10 that was denied on 01/21/10.
Grossman filed a 3.850 Motion Appeal with the Florida Supreme Court on 01/26/10 that was denied on 02/08/10. On 02/08/10, a mandate was issued.
Grossman filed a Petition for Writ of Habeas Corpus and Emergency Motion for Stay of Execution with the United States Court of Appeals, 11th Circuit, on 02/10/10, which was denied on 02/12/10.
Grossman filed a Petition for Writ of Certiorari with the United States Supreme Court on 02/11/10, which is pending.
Martin Edward Grossman, then 19, and a companion, Thayne Taylor, 17, drove to a wooded area of Pinellas County on the night of December 13, 1984, to shoot a handgun which Grossman had recently obtained by burglarizing a home. Grossman lived in neighboring Pasco County at his mother's home and was on probation following a recent prison term.
Wildlife Officer Margaret Park, known as Peggy, patrolling the area in her vehicle, came upon the two men and became suspicious. She left her vehicle with the motor, lights, and flashers on, and took possession of Grossman's weapon and driver's license. Grossman pleaded with her not to turn him in as having a weapon in his possession and being outside of Pasco County would cause him to return to prison for violation of probation. Officer Park refused the plea, opened the driver's door to her vehicle and picked up the radio microphone to call the sheriff's office. Grossman then grabbed the officer's large flashlight and struck her repeatedly on the head and shoulders, forcing her upper body into the vehicle.
Officer Park reported "I'm hit" over the radio and screamed. Grossman continued the attack, and called for help from Taylor, who joined in the assault. Officer Park managed to draw her weapon, a .357 magnum, and fired a wild shot within the vehicle. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Grossman, who was a large man at 6'4" and 220 pounds, wrenched the officer's weapon away, breaking her fingers as he did so, and fired a fatal shot into the back of her head. The spent slug exited her head in front and fell into a drinking cup inside the vehicle. Blood stains, high velocity splatters, the location of the spent slug, and the entry and exit wounds show that the victim's upper body was inside the vehicle with her face turned inward or downward at the moment she was killed.
Grossman and Taylor took back the seized handgun and driver's license, and fled with the officer's weapon. They returned to the Grossman home, where they told the story of the killing, individually and collectively, to a friend who lived with the Grossmans. The friend, Brian Hancock, and Taylor buried the two weapons nearby. Grossman, who was covered with blood, attempted unsuccessfully to burn his clothes and shoes which Taylor, later disposed of in a nearby lake. Approximately a week later Grossman and Taylor, individually and collectively, recounted the story of the murder to another friend, Brian Allan.
Approximately eleven days after the murder, Hancock told his story to the police and Grossman and Taylor were arrested. Taylor, upon his arrest, recounted the story of the murder to a policeman and, later, Grossman told the story to a jail-mate, Charles Brewer. Grossman and Taylor were tried jointly over Grossman's objection. At trial, the state introduced the testimony of Hancock, Allan, and Brewer against Grossman. The state also introduced Taylor's statement to the policeman against Taylor only. In addition, the state introduced the charred shoes, the two weapons, prints taken from the victim's vehicle, testimony from a neighbor who observed the attempted burning of the clothes, Grossman's efforts to clean the Grossman van, and the changing of the van tires. Expert testimony as to the cause of death and the significance of blood splatter evidence was also introduced by the state.
Peggy's father died in 2000. Margaret described Peggy as "the type of person who was everyone's friend." Peggy grew up in Ohio and went to Ohio State University, graduating with a degree in natural resources and wildlife management in 1981. The next year she graduated from wildlife officer training school and was assigned to Pinellas County. The family had Peggy's body cremated and her ashes were scatter near the eagles nests she worked to protect. A nature trail was named for her in Pinellas County park and a memorial plaque was installed near the place where she was murdered.
Following is a list of 69 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.
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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 execited 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 Jeb Bush
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon Jeb Bush
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
Grossman v. State, 525 So.2d 833 (Fla. 1988). (Direct Appeal)
Defendant was convicted in the Circuit Court, Pinellas County, Crockett Farnell, J., of first-degree murder and was sentenced to death, and he appealed. The Supreme Court held that: (1) admission of codefendant's statement with instructions that it could be used only against codefendant was harmless error; (2) judge was sentencing authority and jury's sentencing role was not unconstitutionally denigrated by State; (3) while sentence would not be overturned because trial judge did not enter his written findings until three months after oral sentencing of defendant, new procedural rule would be adopted that all written orders imposing death sentence be prepared prior to oral pronouncement of sentence for filing concurrent with pronouncement; and (4) provisions of statute were invalid insofar as they permitted introduction of victim impact evidence as aggravating factor in death sentencing. Affirmed. Shaw, J., concurred specially with opinion. Kogan, J., concurred in result only. Barkett, J., concurred in part and dissented in part with opinion.
PER CURIAM.
Appellant Martin Grossman appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and sentence.
The facts surrounding the case are as follows. Appellant and a companion, Taylor, drove to a wooded area of Pinellas County on the night of December 13, 1984, to shoot a handgun which appellant had recently obtained by burglarizing a home. Appellant lived in neighboring Pasco County at his mother's home and was on probation following a recent prison term. Wildlife Officer Margaret Park, patrolling the area in her vehicle, came upon the two men and became suspicious. She left her vehicle with the motor, lights, and flashers on, and took possession of appellant's weapon and driver's license. Appellant pleaded with her not to turn him in as having a weapon in his possession and being outside of Pasco County would cause him to return to prison for violation of probation. Officer Park refused the plea, opened the driver's door to her vehicle and picked up the radio microphone to call the sheriff's office. Appellant then grabbed the officer's large flashlight and struck her repeatedly on the head and shoulders, forcing her upper body into the vehicle. Officer Park reported “I'm hit” over the radio and screamed. Appellant continued the attack, and called for help from Taylor, who joined in the assault. Officer Park managed to draw her weapon, a .357 magnum, and fired a wild shot within the vehicle. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Appellant, who is a large man, wrestled the officer's weapon away and fired a fatal shot into the back of her head. The spent slug exited her head in front and fell into a drinking cup inside the vehicle. Blood stains, high velocity splatters, the location of the spent slug, and the entry and exit wounds show that the victim's upper body was inside the vehicle with her face turned inward or downward at the moment she was killed. Appellant and Taylor took back the seized handgun and driver's license, and fled with the officer's weapon. They returned to the Grossman home, where they told the story of the killing, individually and collectively, to a friend who lived with the Grossmans. The friend, Brian Hancock, and Taylor buried the two weapons nearby. Appellant, who was covered with blood, attempted unsuccessfully to burn his clothes and shoes which Taylor later disposed of in a nearby lake. Approximately a week later appellant and Taylor, individually and collectively, recounted the story of the murder to another friend, Brian Allan. Approximately eleven days after the murder, Hancock told his story to the police and appellant and Taylor were arrested. Taylor, upon his arrest, recounted the story of the murder to a policeman and, later, appellant told the story to a jailmate, Charles Brewer. Appellant and Taylor were tried jointly over appellant's objection. At trial, the state introduced the *836 testimony of Hancock, Allan, and Brewer against appellant. The state also introduced Taylor's statement to the policeman against Taylor only. In addition, the state introduced the charred shoes, the two weapons, prints taken from the victim's vehicle, testimony from a neighbor who observed the attempted burning of the clothes, appellant's efforts to clean the Grossman van, and the changing of the van tires. Expert testimony as to the cause of death and the significance of blood splatter evidence was also introduced by the state. The jury was instructed that Taylor's admissions to the policeman could only be used against him, not appellant. The jury was instructed on premeditation and felony murder based on robbery, burglary, and escape. A general verdict of first-degree murder was returned against the appellant and Taylor was found guilty of third-degree murder. The judge followed the jury's twelve-to-zero recommendation that the appellant be sentenced to death.
Appellant raises eighteen issues for our consideration: (1) did the trial court err in permitting the introduction of codefendant Taylor's statement in a joint trial with instructions that the statement could only be used against Taylor, not appellant; (2) did the court err in refusing to suppress items found in a warrantless search of the Grossman residence and cars in the residence garage; (3) did the state and court violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), by denigrating the importance of the jury recommendation of life or death and by failing to give a requested instruction on the weight to be given to the jury recommendation; (4) did the court err in denying a request for a continuance; (5) did the court err in failing to exclude television cameras from the courtroom and in releasing an evidentiary videotape during the course of the trial; (6) did the court err in denying a subpoena duces tecum for Officer Park's personnel file and in permitting evidence at trial of Officer Park's demeanor and conduct just prior to the murder; (7) did the court err in permitting evidence of appellant's prior burglary during which he obtained a handgun, of other crimes for which appellant was on probation, of appellant's threats to kill Hancock, and of appellant's orders to Hancock to bury the two handguns; (8) did the court err in permitting introduction of a photograph of the victim at the crime scene and of photographs of the victim's head at the autopsy; (9) did the court err in permitting introduction of the shoes and T-shirt recovered from the lake; (10) did the court err in permitting expert testimony on blood splatter evidence; (11) did the court err in instructing the jury on burglary, robbery, and escape as underlying felonies to felony murder; (12) was the evidence sufficient to support the conviction; (13) did the court err in refusing to give a jury instruction that an accomplice's testimony should be received with great caution; (14) did the court err in refusing to give requested penalty phase instructions; (15) did the court err in finding four aggravating factors and no mitigating factors; (16) did the court commit reversible error by failing to enter written findings on the death sentence before the notice of appeal had been filed; (17) is Florida's death penalty unconstitutional on its face and as applied; and (18) was reversible error committed in permitting family members to testify before the sentencing judge on the impact of the murder on the next-of-kin.
[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] We address first those issues which merit only brief comment. On Issue 2, the search in question was conducted with the permission of the homeowner, Mrs. Grossman. Moreover, none of the items seized were introduced into evidence. On Issue 4, appellant had been granted two prior continuances and co-counsel had been appointed to assist counsel in trial preparation. We see no abuse of discretion in denying the third request for a continuance which was filed four days prior to trial. On Issue 5, there is no evidence that the cameras affected the trial and we see no abuse of discretion in denying the motion to exclude the cameras. Maxwell v. State, 443 So.2d 967 (Fla.1983); State v. Green, 395 So.2d 532 (Fla.1981); In Re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979). Similarly, the release of the evidentiary videotape could only be prejudicial*837 if we assume that the jury violated its oath and the court instructions not to watch or read news coverage of the trial. We decline to indulge in such an assumption. In Re Post-Newsweek, 370 So.2d at 777. On Issue 6, the personnel record in question was a public record available to appellant and the court invited appellant to submit a more limited subpoena addressed to the specific information desired. Appellant refused to particularize his request. We find no error. As to the evidence of Officer Park's demeanor and the conduct just prior to the murder, Officer Park's movements and conduct in issuing a citation to an uninvolved person minutes before the officer was murdered was relevant evidence which the jury was entitled to hear. On Issue 7, the fact that appellant was on probation for previous crimes and that the theft of a gun violated his probation was relevant to his motive in killing Officer Park when she apprehended him and seized the weapon. The threat to Hancock's life was relevant to Hancock's motivation in notifying the police. The orders to bury the guns indicated a consciousness of guilt and enabled the jury to follow the path of the weapons from the murder scene to the courtroom. On Issue 8, the photographs of the crime scene and the victim's head were relevant evidence of the method and cause of death. Given the nature of the subject, they are not unnecessarily gruesome; relevancy is the test. Foster v. State, 369 So.2d 928, 930 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). On Issue 9, the T-shirt was not admitted in evidence. On the question of whether the sneakers admitted into evidence belonged to appellant, the sneakers were partially burned and the jury was presented evidence of their attempted destruction, disposition, and recovery. Whether they belonged to appellant was a jury question. On Issue 10, the expert witness was qualified as a blood splatter expert. We are satisfied that he was qualified and performed sufficient analysis to opine that the splatters were from a high velocity weapon, and that the victim's mortal wound was inflicted inside the vehicle. On Issue 11, there was evidence to support felony murder instructions based on burglary, robbery, and escape. The jury could have believed that the murder was motivated by a desire to escape from custody and to take back from the officer by force the handgun and driver's license. Moreover, the evidence suggests that the victim was beaten or wrestled into the vehicle. On Issue 12, appellant asserts there was insufficient evidence to prove first-degree murder on either a felony murder or premeditation theory. We disagree. There was sufficient evidence to support either or both theories. On premeditation, appellant's fear of going back to prison for violation of probation would not have been satisfied by beating the officer into submission and taking back the handgun and driver's license. Indeed, the assault on the officer only worsened his situation as she could have identified him as her assailant and his vehicle. On the evidence, the jury was entitled to believe that the murder was premeditated. Roberts v. State, 510 So.2d 885 (Fla.1987); Wilson v. State, 493 So.2d 1019, 1021 (Fla.1986); Preston v. State, 444 So.2d 939, 944 (Fla.1984). The argument that appellant makes here, that he merely panicked and killed the officer out of fear, is the same argument he made to the jury and which it rejected. We are satisfied that the evidence was legally sufficient to support the convictions. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 502, 70 L.Ed.2d 378 (1982). On Issue 13, appellant urges that the jury should have been instructed that witness Hancock was an accomplice and that his testimony should be received with great caution. Hancock was not an accomplice to the murder for which appellant was being tried. The standard jury instructions on witness credibility and the jury's prerogative to believe or disbelieve witnesses adequately covers Hancock's status. On Issue 14, appellant challenges the refusal of the court to give the jury a series of special instructions requested by appellant. The standard jury instructions adequately address appellant's concerns. On Issue 17, appellant argues that seven motions to dismiss should have been granted because Florida's death penalty statute is unconstitutional*838 on its face and as applied. All of appellant's arguments have been previously resolved contrary to his position and merit no comment.
Appellant and his codefendant were tried jointly, and neither testified at trial. Codefendant Taylor's statement to the police was introduced into evidence against Taylor only and the jury was instructed that this statement could not be used against appellant. This was done on the rationale that Taylor's statement interlocked with the three statements that appellant made to witnesses Hancock, Allan, and Brewer. At the time of trial this appeared to be permissible under Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), where a plurality of the court held that interlocking confessions of codefendants could be introduced in a joint trial as an exception to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), without violating the confrontation clause of the sixth amendment, provided the jury was instructed that the codefendant's statement could only be used against the codefendant. The plurality view of Parker has since been rejected and we must examine this issue in light of Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987).
Parker was decided on the theory that introduction of the confession of a non-testifying codefendant against the codefendant only, which interlocked with a confession of the defendant, was permissible in a joint trial because it presented nothing of evidentiary value against the defendant which was not already properly before the jury. Consequently, the theory went, the jury could reasonably be expected to follow an instruction that it should not use the non-testifying codefendant's confession against the defendant and, even if it did not, the error would be harmless. In rejecting this theory, the majority in Cruz reasoned:
Quite obviously, what the “interlocking” nature of the codefendant's confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant's own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, see Lee v. Illinois, 476 U.S. 530 [106 S.Ct. 2056, 90 L.Ed.2d 514] (1986), but cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential.
107 S.Ct. at 1718-19 (emphasis in original). The Court then went on to make three holdings, all of which are applicable here. First, it is error to admit a non-testifying codefendant's confession incriminating the defendant notwithstanding an instruction not to consider it against the defendant. This is so even if the defendant's own interlocking confession is admitted. Second, the defendant's confession may be considered as an indica of reliability in determining whether the codefendant's confession may be directly admissible against the defendant. Third, in recognition that its ruling would impact on trials already conducted under the Parker theory, the Court held that the defendant's confession could be considered on appeal in determining whether admission of the codefendant's confession was harmless.
[11] [12] It is clear from Cruz that admission of Taylor's statement with instructions that it not be used against appellant was error. It is also clear from the record that this error was harmless. Taylor's statement interlocks with and is fully consistent in all significant aspects with all three statements that appellant made to Hancock, Allan, and Brewer and which were directly admissible against appellant. The indicia of reliability are sufficient to have permitted introduction of Taylor's statement as evidence against appellant. Appellant makes two arguments that this is not so, both of which are contrary to the record. First, he argues that it is only Taylor's statement which emphasizes appellant's primary role in the murder. This is contrary to the record which shows that appellant told Hancock, Allan, and Brewer *839 that it was he who first attacked and battered the officer and that it was he who wrestled her weapon away and fired the single shot which killed her. In all three statements, Taylor's role is clearly subordinate while appellant's role as the initiator and triggerman is dominant. Second, appellant argues, he and Taylor jointly recounted the story of the murder to Hancock and Allan and neither witness was able to identify for the court which defendant said what. This is contrary to the record which shows that the witnesses were able for the most part to identify appellant as the person who narrated the critical elements of the story. Moreover, even if this were not true, the joint statements of appellant and Taylor given in each other's presence would be admissible against both as admissions against penal interest. We hold that it was error to admit Taylor's statement in the joint trial as evidence against Taylor only, but that this error was harmless under the facts and circumstances of the case. Cruz; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
[13] In a two-pronged argument, appellant argues that the sentencing role of the jury was unconstitutionally denigrated by the state and that the jury was not properly instructed on the great weight which would be given to its advisory recommendation on life imprisonment or the death penalty. Caldwell; Tedder v. State, 322 So.2d 908 (Fla.1975). During the jury voir dire, several potential jurors indicated misgivings about their ability to impose the death penalty. Instead of attempting to challenge the jurors for cause as permitted by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 88 L.Ed.2d 841 (1985), the state sought to reassure the jurors that the jury role was to make an advisory recommendation to the judge and that the judge had the ultimate responsibility for sentencing to death. Florida's death penalty statute, section 921.141, Florida Statutes (1983), provides that the jury shall hear the evidence on aggravation and mitigation and render an advisory sentence based on whether there are sufficient aggravating circumstances to warrant a death sentence, and, if so, whether there are sufficient mitigating circumstances to outweigh the aggravating circumstances. The statute goes on to provide that, notwithstanding the recommendation of the jury, the judge shall weigh the aggravating and mitigating circumstances and enter a sentence of life imprisonment or death based on the judge's weighing process. In the event the death sentence is imposed, the judge is required to set forth in writing the findings on which the death sentence is based. It is these written findings of fact and the trial record which furnish the basis for this Court's review of the death sentences. It is clear then, that the prosecutor correctly stated the law in Florida: the judge is the sentencing authority and the jury's role is merely advisory. Thus, Caldwell, which addressed the denigration of the jury acting as a sentencer is clearly distinguishable. Combs v. State, 525 So.2d 853 (Fla.1988); Aldridge v. State, 503 So.2d 1257, 1259 (Fla.1987); Pope v. Wainwright, 496 So.2d 798, 804 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Darden v. State, 475 So.2d 217, 221 (Fla.1985).
[14] In the second prong to this argument, appellant urges that the failure of the court to instruct the jury that its recommended sentence would be given great weight so misled the jury as to violate Caldwell. In Tedder, we held “[a] jury recommendation under our trifurcated death penalty statute should be given great weight” and, in order to sustain an override by the trial judge of a jury recommendation of life FN1 “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder, 322 So.2d at 910. The jury here recommended death but appellant argues that the deference paid to the jury recommendation under Tedder is so great that the jury becomes the de facto, *840 if not de jure, sentencer and our standard jury instructions do not adequately inform the jury of the overwhelming power it possesses to determine the sentence. Thus, appellant urges, had the jury understood the very nearly conclusive impact of its recommendation under Tedder, it might have recommended life imprisonment. We are not persuaded that the weight given to the jury's advisory recommendation is so heavy as to make it the de facto sentence. Our case law contains many instances where a trial judge's override of a jury recommendation of life has been upheld. See Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988), and cases cited therein. Notwithstanding the jury recommendation, whether it be for life imprisonment or death, the judge is required to make an independent determination, based on the aggravating and mitigating factors. Randolph v. State, 463 So.2d 186, 192 (Fla.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3533, 87 L.Ed.2d 656 (1985); Engle v. State, 438 So.2d 803, 813 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984); Ross v. State, 386 So.2d 1191, 1197 (Fla.1980). Moreover, this procedure has been previously upheld against constitutional challenge. Spaziano v. Florida, 468 U.S. 447, 466, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In the penalty phase of a capital proceeding, the jury is instructed, in pertinent part, that although the final responsibility for sentencing is with the judge, that it should not act hastily or without due regard to the gravity of the proceedings, that it should carefully weigh, sift, and consider evidence of mitigation and statutory aggravation, realizing that human life is at stake, and bring to bear its best judgment in reaching the advisory sentence. We are satisfied that these instructions fully advise the jury of the importance of its role and correctly state the law.
FN1. We have also held that a jury recommendation of death should be given great weight. Ross v. State, 386 So.2d 1191, 1197 (Fla.1980); LeDuc v. State, 365 So.2d 149, 151 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979).
[15] The sentencing order found four aggravating circumstances: (1) the murder was committed while engaged in the commission of or an attempt to commit, or flight after committing or attempting to commit, the crime of robbery or burglary; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (3) the murder was committed to disrupt or hinder the lawful exercise of a government function or the enforcement of laws; and (4) the murder was especially wicked, evil, atrocious, or cruel. Numbers two and three were treated as one circumstance by the trial judge. Appellant argues that none of these aggravating circumstances are present. We disagree. Concerning number one, it is clear from the evidence that appellant's handgun and driver's license and the victim's handgun were forcibly taken and that the struggle occurred at least in part inside the victim's vehicle. Thus, both a burglary and a robbery occurred. Concerning aggravating factors two and three, it is clear from the evidence that appellant advised the officer that he was in violation of his probation and that he committed the murder to escape from, avoid, or prevent, an arrest and to disrupt or hinder the enforcement of the probation laws. Moreover, the evidence also shows that the handgun in his possession was obtained illegally, which fact would have been revealed had he not escaped and taken back the weapon. As to aggravating factor four, appellant argues that death occurred almost instantaneously and that there were no additional acts to set the crime apart from the norm. This argument overlooks the fact that the murder was preceded by a brutal beating. Appellant's statements indicate that he struck the officer twenty to thirty times with a heavy-duty flashlight but was unable to beat her into unconsciousness or to subdue her despite his large size and the assistance of Taylor.FN2 The ferocity of the attack and the ferocity with which the officer defended herself, coupled with her knowledge that appellant was attacking to prevent a return to prison, lead inevitably to the conclusion*841 that she knew she was fighting for her life and knew that if she was subdued or her weapon taken, her life would be forfeited.FN3 Under these circumstances, we are satisfied that the trial judge did not abuse his discretion in finding that the murder was heinous, atrocious, and cruel. Wilson v. State, 436 So.2d 908, 912 (Fla.1983). Appellant also argues that there was substantial evidence that he had no prior history of violence, he had a deprived and difficult adolescence, he was only nineteen, he expressed remorse for the crime, and he had been a well-behaved and cooperative prisoner. Neither the jury nor the judge was sufficiently impressed by this evidence to find that it outweighed the aggravating circumstances. We see no error. Roberts and cases cited therein; Tedder.
FN2. Appellant, who is 6'3? and 225 pounds, was approximately a foot taller and 100 pounds heavier than the officer.
FN3. The ferocity of the attack is partially explained by appellant's contemptuous statement to Brewer that he was not going to be arrested by a woman.
[16] Appellant's next point is that the sentence should be overturned because the trial judge did not enter his written findings until three months after orally sentencing him to death. Appellant argues that the circumstances here are virtually identical to those in Van Royal v. State, 497 So.2d 625 (Fla.1986). We disagree. The judge's written findings were made prior to the certification of the record to this Court. It is not determinative that these written findings were made after the notice of appeal was filed seven days after the oral pronouncement of sentence. Under our death penalty statute, appeal is automatic and under Florida Rule of Appellate Procedure 9.140(b)(4), governing capital appeals, the trial court retains concurrent jurisdiction for preparation of the complete trial record for filing in this Court. Muehleman v. State, 503 So.2d 310 (Fla.), cert. denied, 484 U.S. 882, 108 S.Ct. 39, 98 L.Ed.2d 170 (1987).
Since Van Royal issued we have been presented with a number of cases in which the timeliness of the trial judge's sentencing order filed after oral pronouncement of sentence has been at issue. In Van Royal and its progeny, we have held on substantive grounds that preparation of the written sentencing order prior to the certification of the trial record to this Court was adequate. At the same time, however, we have stated a strong desire that written sentencing orders and oral pronouncements be concurrent. Patterson v. State, 513 So.2d 1257 (Fla.1987); Muehleman. We recognize that the trial court here, and the trial court in other cases which have reached us or will reach us in the near future, have not had the benefit of Van Royal and its progeny. Nevertheless, we consider it desirable to establish a procedural rule that all written orders imposing a death sentence be prepared prior to the oral pronouncement of sentence for filing concurrent with the pronouncement. Accordingly, pursuant to our authority under article V, section 2(a), of the Florida Constitution, effective thirty days after this decision becomes final, we so order.
Since the briefs and arguments on this case were presented to the Court, the United States Supreme Court has issued Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), holding that introduction of victim impact evidence to a capital punishment sentencing jury violated the eighth amendment to the United States Constitution. Because our record review revealed that such victim impact evidence was presented to the sentencing judge, but not to the jury, we ordered that supplemental briefs be submitted on the impact of Booth on the case at hand.
In Booth, the defendant chose to be sentenced by a jury. In accordance with Maryland law, a mandatory victim impact statement was prepared and submitted to the jury. The thrust of this evidence was twofold. First, that the two victims were exceptionally kind and gentle persons and the bereavement of the family was severe. Second, and following from the first, there was no conceivable excuse for murdering such persons and execution was the appropriate penalty. The Booth court concluded that such evidence of victim impact was irrelevant to any legitimate sentencing consideration in capital punishment cases and *842 that introduction of such evidence created a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. Consequently, the Maryland statute was held to be invalid insofar as it required victim impact information to be considered in capital punishment cases.FN4
FN4. The Court was careful to state that its decision implied no opinion as to the use of victim impact statements in non-capital cases.
[17] Florida's death penalty statute, section 921.141, limits the aggravating circumstances on which a sentence of death may be imposed to the circumstances listed in the statute. § 921.141(5). The impact of the murder on family members and friends is not one of these aggravating circumstances. Thus, victim impact is a non-statutory aggravating circumstance which would not be an appropriate circumstance on which to base a death sentence. Blair v. State, 406 So.2d 1103 (Fla.1981); Miller v. State, 373 So.2d 882 (Fla.1979); Riley v. State, 366 So.2d 19 (Fla.1978). Florida law provides, however, that prior to sentencing any defendant convicted of a homicide, the next-of-kin of the homicide victim will be permitted to either appear before the court or to submit a written statement under oath for the consideration of the sentencing court. These statements shall be limited solely “to the facts of the case and the extent of any harm, including social, psychological, or physical harm, financial losses, and loss of earnings directly or indirectly resulting from the crime for which the defendant is being sentenced.” § 921.143(2), Fla.Stat. (1985). Thus, it is clear that the Florida Legislature, like Congress and the legislature of at least thirty-five other states, has made the judgment “that the effect of the crime on the victims should have a place in the criminal justice system.” Booth, 107 S.Ct. at 2536 n. 12. It is also clear, however, from the Booth decision, that the legislature may not make this judgment in capital punishment cases. Accordingly, we hold that the provisions of section 921.143 are invalid insofar as they permit the introduction of victim impact evidence as an aggravating factor in death sentencing.FN5
FN5. Like the Booth court, we limit our holding to death penalty cases.
[18] The first question is whether appellant's failure to object to the introduction of the victim impact evidence is a procedural bar to raising the issue on appeal. Victim impact is not one of the aggravating factors enumerated in section 921.141. We have previously held that “[t]he aggravating circumstances specified in the statute are exclusive, and no others may be used for that purpose.” Miller, 373 So.2d at 885. Thus, appellant was entitled to object to the introduction of the evidence. The state correctly points out that appellant made no objection, whereas in Booth there was an objection to such evidence. There is nothing in the Booth opinion which suggests that it should be retroactively applied to the cases in which victim impact evidence has been received without objection. Except for fundamental error, an appellate court will not consider an issue unless it was presented to the lower court. Steinhorst v. State, 412 So.2d 332 (Fla.1982). Therefore, we hold that by his failure to make a timely objection, appellant is procedurally barred from claiming relief under Booth.
[19] While our consideration of the Booth issue could stop at this point, for the benefit of the bench and the bar we choose to also discuss whether, had an objection been made, the error could be deemed harmless.
Appellant does not argue that harmless error analysis may not be applied to Booth errors, but we consider it necessary to consider the question in view of its importance.FN6 We begin our consideration by noting*843 that the Booth court did not specifically state whether harmless error analysis was permitted, presumably because the issue was not raised. However, its disposition of the case does not rule out application of harmless error and, normally, the Court finds it desirable to leave the determination of harmless error, in the first instance, to the lower court. Rose v. Clark, 478 S.Ct. 570, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983).
FN6. Prior to 1984, only the victim of a crime could testify during the sentencing proceeding as to its impact. Since § 921.143 was amended by ch. 84-363, Laws of Fla., the next-of-kin of homicide victims are permitted to testify on the impact of the homicide. Presentence investigation (PSI) reports may also include information on victim impact. Here, for example, the PSI included the following:
James Park, the victim's father, states “I think he's shattered our family. This girl was kind of the center of our family. It's like taking my heart out. It will hurt me the rest of my life. We have all seen a psychiatrist or psychologist at least twice including my other two children. My personal feeling is that he should receive the death penalty.”
It is not unusual in Florida for the PSI reports to contain statements from the victim's family relating the hurt wrought upon them by the crime. If the mere fact that the trial judge (the sentencer in Florida) is exposed to such a report is sufficient to render the error per se reversible, all death penalties in Florida are potentially subject to automatic reversal.
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that the determination of whether violation of a federal constitutional right could be held harmless was the responsibility of the United States Supreme Court, in the absence of appropriate Congressional action, and could not be left to the states themselves. Further, the Court held, not all violations of the federal constitution mandate reversal of a conviction and that only three constitutional rights had been identified as “so basic to a fair trial that their infraction can never be treated as harmless error.” Id. at 23, 87 S.Ct. at 827-828 (footnote omitted).FN7 Since Chapman issued, “the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” Hasting, 461 U.S. at 509, 103 S.Ct. at 1980 (citations omitted). In Van Arsdall, the Court emphasized again the application and rationale of the Chapman rule.
FN7. Those three rights or violations were identified as a coerced confession, the right to counsel and an impartial judge. The Court has since held that an involuntary confession erroneously admitted into evidence may be held harmless beyond a reasonable doubt. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). In Milton, the involuntary confession contained essentially the same information as that in three other confessions which were properly admitted. Recently, in Van Arsdall, the Court omitted a coerced confession from the list of constitutional violations which mandate automatic reversal, but see Rose, another 1986 case in which the Court cites Chapman with approval and remands for application of the Chapman standard.
As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one. E.g., United States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983); Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). In Chapman, this Court rejected the argument that all federal constitutional errors, regardless of their nature or the circumstances of the case, require reversal of a judgment of conviction. The Court reasoned that in the context of a particular case, certain constitutional errors, no less than other errors, may have been “harmless” in terms of their effect on the factfinding process at trial. Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.
Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436. In Rose, the Court stressed again the limited number of exceptions to the harmless error rule.
We have emphasized, however, that while there are some errors to which Chapman does not apply, they are the exception and not the rule. United States v. Hasting, 461 U.S., at 509, 103 S.Ct., at 1980. Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a *844 strong presumption that any other errors that may have occurred are subject to harmless error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S., at 679-681, 106 S.Ct., at 1436; United States v. Hasting, supra, at 508-509, 103 S.Ct., at 1980.
Rose v. Clark, 106 S.Ct. at 3106-07 (emphasis added). It is clear then, that with the exceptions noted, there is a strong presumption that constitutional errors are subject to harmless error analysis.
We turn then to the general question of whether harmless error analysis may be applied to the sentencing phase of capital punishment cases and the more specific question of whether a Booth error may ever be held harmless. On the general question, it is clear that harmless error analysis is applicable to capital sentences. This Court routinely applies harmless error analysis to, and affirms, death sentences where the judge has improperly found invalid aggravating factors provided one or more valid aggravating factors exist which are not overridden by one or more mitigating factors. White v. State, 446 So.2d 1031 (Fla.1984); Sims v. State, 444 So.2d 922 (Fla.1983) cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984); Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Even more significantly, in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), the Court specifically approved the application of harmless error analysis to death sentences and held that consideration by the trial judge of an invalid aggravating circumstance does not, per se, render the imposition of a death sentence unconstitutional.
We turn now to the specific question of whether Booth errors are one of those rare exceptions to Chapman where the violation is so basic and pervasive that the infraction can never be treated as harmless error. The Booth court summarized the impact evidence and its finding as follows.
The VIS [Victim Impact Statement] in this case provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members' opinions and characterizations of the crimes and the defendant. For the reasons stated below, we find that this information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.
Booth, 107 S.Ct. at 2533 (emphasis added). The Court's first finding, that such evidence is irrelevant, poses no problem for harmless error analysis. Conceptually, this is the easiest type of error to analyze because the impermissible evidence can be easily isolated from the permissible evidence. If the reviewing court can say beyond a reasonable doubt that the death sentence would have been imposed had the irrelevant evidence not been introduced, the error is harmless; if the court cannot say this beyond a reasonable doubt, the error is harmful. The second finding, that the evidence may cause juries to impose the death penalty in an arbitrary and capricious manner, is more difficult to analyze, but by no means intractable. The use of the word “may” and the internal analysis of the Booth court show that some victim impact statements will differ in impact from others. This is consistent with common sense and experience. Indeed, the very logic of the Court suggests that some Booth errors are harmless. In illustrating why the impact on family members was impermissible aggravation, the court made the following revealing statement of its reasoning.
As evidenced by the full text of the VIS in this case, see Appendix to this opinion, the family members were articulate*845 and persuasive in expressing their grief and the extent of their loss. But in some cases the victim will not leave behind a family, or the family members may be less articulate in describing their feelings even though their sense of loss is equally severe. The fact that the imposition of the death sentence may turn on such distinctions illustrates the danger of allowing juries to consider this information. Certainly the degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant, who may merit the death penalty, should live or die. See [ Booth v. State ] 306 Md., [172] at 223, 507 A.2d, [1098] at 1129 (Cole, J., concurring in part and dissenting in part) (concluding that it is arbitrary to make capital sentencing decisions based on a VIS, “which vary greatly from case to case depending upon the ability of the family member to express his grief”).
Booth, 107 S.Ct. at 2534. Similarly, the Court also noted that the character and reputation of the victim would vary widely, some would be sterling members of the community, others would be of questionable character. Thus, the Court, in large part, grounded its decision that systematically imposing the death penalty based on such evidence would be arbitrary and capricious in violation of the eighth amendment on the rationale that such irrelevant evidence would sometimes impel the sentencer to impose death, i.e., would be harmful in those cases, but, in other cases, would not so impel the sentencer, i.e., would be harmless. This would result in a capital punishment system which arbitrarily and capriciously imposed death sentences. In short, because some Booth errors will be harmful and some will not, the system will be arbitrary and capricious, i.e., lack uniformity. It can be seen, then, that the rationale of Booth permits harmless error analysis. We hold that the erroneous introduction of victim impact evidence is subject to harmless error analysis on a case-by-case basis.
[20] [21] We turn now to application of harmless error analysis using State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We begin by noting the salient distinction between Booth and the case here. In Booth, the sentencing authority which heard the victim impact evidence was a jury; here the sentencing authority which heard the evidence was a judge mandated by case law to give great weight to the jury's recommendation of death. Ross; LeDuc; Tedder. For the following reasons we conclude beyond a reasonable doubt that the sentencing judge would have imposed the death penalty in the absence of the victim impact evidence. First, under section 921.141, the sentencing judge's consideration of aggravating circumstances on which a death penalty may be based is limited to those enumerated in the statute. The statute does not include impact of the murder on the family as an aggravating circumstance. The judge is required to set out in writing for appellate review the findings on which the death sentence is based. The written findings here show that there was no reliance, or even a hint of reliance,FN8 on the *846 evidence introduced regarding the impact of the murder on the next of kin.FN9 Second, the trial judge found four aggravating circumstances, all of which are valid, and no mitigating circumstances. The balance in favor of imposing the death sentence is overwhelming. In view of this balance and the fact that the jury recommended death, the trial judge's actual discretion here was relatively narrow. Third, for the purposes of appellate review, the case is analogous to those cases where we affirm death sentences based on valid aggravating circumstances and no mitigation even though the sentence judge has found and relied on invalid aggravating circumstances. Finally, the record shows that the jury did not receive the improper evidence of victim impact, but recommended death by a twelve-to-zero vote based on the evidence of statutory aggravating circumstances only. A jury recommendation of death, reflecting the conscience of the community, is entitled to great weight. Ross; LeDuc. More significantly, from the viewpoint of harmless error analysis, it shows that all twelve members of the jury, who were not exposed to the irrelevant evidence, were persuaded that death was the appropriate penalty based on the permissible evidence. We are persuaded beyond a reasonable doubt that the death penalty would have been imposed absent the impermissible evidence. We hold (1) that appellant is procedurally barred from contesting the receipt of victim impact evidence and (2) that the receipt of such evidence in this case was harmless error.
FN8. The findings are as follows:
The Defendant, MARTIN GROSSMAN, was found guilty of the crime of Murder in the First Degree of Peggy Park, the verdict being returned on October 29, 1985. On October 31, 1985, this Court conducted the penalty phase of the trial and both the State and the defendant presented evidence as to aggravating and mitigating circumstances. After approximately one (1) hour and fifteen (15) minutes of deliberation, the jury returned a recommendation to the Court that it impose a sentence of death upon Martin Grossman, by a vote of twelve (12) to zero (0). The Court ordered a Presentence Investigation in an effort to gain additional insight into the Defendant's background, and the matter came on for sentencing on December 13, 1985.
The Court imposed a sentence of death after having found as aggravating circumstances, the following:
1. The crime for which the Defendant is to be sentenced was committed while he was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit the crime of Robbery or Burglary.
2. 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; or,
The crime for which the Defendant is to be sentenced was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; these aggravating circumstances to be treated only as one (1).
3. The crime for which the Defendant is to be sentenced was especially wicked, evil, atrocious or cruel, in that Peggy Parks, the deceased victim, was much smaller than the Defendant, Martin Grossman, and was held down by him in the front seat of her police vehicle and repeatedly struck on or about her head with her metal flashlight, causing innumerable deep lacerations on her head, resulting in extreme pain, but according to the medical examiner, not causing her to be rendered unconscious; then, with the deceased victim, Peggy Parks, in this helpless position, taking her gun, all of which she realized as was reflected by the evidence presented during trial, and using her weapon to end her life.
The only mitigating circumstance which would have been found as a result of the testimony presented in behalf of the Defendant and the Presentence Investigation, was that the Defendant was nineteen (19) years old at the time the crime was committed. However, this Court does not feel that this constituted a mitigating circumstance in this case.
The Court does not find any other aspect of the Defendant's character or record, or any other circumstances of the offense as reflected in the testimony presented at trial and in the penalty phase to be mitigating factor.
The Court hereby finds that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty is the appropriate sentence in this case.
FN9. This is not surprising in that judges are routinely exposed to inadmissible or irrelevant evidence but are disciplined by the demands of the office to block out information which is not relevant to the matter at hand.
We affirm appellant's conviction and sentence.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH and GRIMES, JJ., concur.
SHAW, J., concurs specially with an opinion.
KOGAN, J., concurs in result only.
BARKETT, J., concurs in part and dissents in part with an opinion.
SHAW, Justice, specially concurring.
I agree fully with the majority's disposition of the issues presented. However, concerning Issue 3, I believe that Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), call for a reexamination of the Tedder FN1 rule concerning the weight to be assigned to the jury's advisory recommendation on sentencing.
FN1. Tedder v. State, 322 So.2d 908 (Fla.1975).
In Tedder, a young husband kidnapped his estranged wife and infant son from the home of his mother-in-law and, in the course of doing so, murdered the mother-*847 in-law. The jury recommended life imprisonment. The judge, however, sentenced Tedder to death on the basis of three aggravating and no mitigating circumstances: (1) the murderer knowingly created a great risk of death to many persons; (2) the murder was especially heinous, atrocious, and cruel; and, (3) the murder was committed in the course of a kidnapping. We reversed the death sentence on the basis that the “jury recommendation under our trifurcated death penalty statute should be given great weight” and “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder at 910. It is readily apparent from the facts of Tedder that aggravating factors one and two were invalid. Moreover, even the aggravating factor of kidnapping, although valid, carried less weight than normal because the murder and kidnapping occurred in the context of a domestic quarrel. Wilson v. State, 493 So.2d 1019 (Fla.1986); Ross v. State, 474 So.2d 1170 (Fla.1985). On the facts of the case, this was simply not a case in which the death penalty was warranted. Even if the jury had recommended death, we would have been constrained under a proportionality review to reverse because this was clearly not one of the more aggravated and indefensible crimes for which the death penalty is appropriate. State v. Dixon, 283 So.2d 1, 8 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Thus, Tedder itself does not rely on or test the Tedder rule.
In Tedder we gave no reasoned explanation of why a jury recommendation was entitled to great weight, we merely concluded that it was and cited Florida's death penalty statute as authority. Section 921.141, Florida Statutes (1973 and thereafter) provides that “notwithstanding” the jury recommendation the trial court will weigh the evidence of aggravation and mitigation and “shall” enter a sentence based on that weighing. The Florida death statute thus makes the judge the sentencer subject to a weighing of the aggravating and mitigating circumstances and assures sufficient basis for appellate review by requiring that in instances where the judge imposes a sentence of death, he shall set forth in writing the findings upon which the sentence is based. The statute simply cannot be read to require that a judge follow the jury's recommendation of life unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder 322 So.2d at 910. Under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny, the sentencer is not at liberty to ignore the factual balance between the aggravating and mitigating evidence.
Under Florida law, the sentencing judge is required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors. There is good reason to anticipate, then, that as to certain categories of murderers, the penalty will not be imposed freakishly or rarely but will be imposed with regularity; and consequently it cannot be said that the death penalty in Florida as to those categories had ceased “to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.” Furman v. Georgia, 408 U.S. 238, 311, [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972) (White, J., concurring). Accordingly, the Florida statutory scheme for imposing the death penalty does not run afoul of this Court's holding in Furman v. Georgia.
Proffitt v. Florida, 428 U.S. 242, 260-61, 96 S.Ct. 2960, 2970, 49 L.Ed.2d 913 (1976) (White, J., concurring) (emphasis in original). It would appear, therefore, that Florida's scheme for imposing the death penalty would pass constitutional muster without the benefit of Tedder in that it designates the sentencer and spells out an easily reviewable criteria which must be set forth in writing when the death penalty is imposed. While there is nothing constitutionally wrong with death penalty systems which place the sentencing responsibility upon the jury and require a factual finding *848 on which to base appellate review, and many prefer that system, our legislature in its wisdom has decided otherwise. We must defer to that legislative decision.
The Tedder rule injected confusion into the Florida scheme by making the jury, by its recommendation, the virtual sentencer without requiring that the jury articulate any factual findings upon which it based its recommendation and making the jury's recommendation binding upon the trial judge unless “the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ.” We thus end up with the very evil that Furman found objectionable.FN2 Moreover, the facts of Tedder do not support or test the rule because the judge's sentencing order, standing alone and notwithstanding the jury recommendation, did not support a sentence of death. A true test of the validity of the Tedder rule requires a factual situation where the sentencing order of death, notwithstanding the jury recommendation, is valid and would be affirmed except for the Tedder rule of deference to the jury's recommendation of life. To follow Tedder under those circumstances in the face of our statute clearly violates Furman by imposing, or not imposing, the death penalty in an arbitrary and capricious manner. We recognized this in rejecting a double jeopardy challenge in Spaziano v. State, 433 So.2d 508, 512 (Fla.1983).
FN2. Justice White, in his dissent to Lockett v. Ohio, 438 U.S. 586, 621, 98 S.Ct. 2954, 2981, 57 L.Ed.2d 973, 1000 (1978) (White, J., dissenting), expressed a similar concern about the return of unbridled jury discretion. Id. at 623, 98 S.Ct. at 2982-83.
First, the jury's function under the Florida death penalty statute is advisory only. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Second, allowing the jury's recommendation to be binding would violate Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
See also Spaziano v. Florida, 468 U.S. 447, 453-54, 104 S.Ct. 3154, 3158-3159, 82 L.Ed.2d 340 (1984), where the Court affirmed our denial of the double jeopardy challenge and noted our “understanding that allowing the jury's recommendation to be binding would violate the requirements of Furman....” This understanding is correct in light of our particular statute which places no requirement upon the jury to justify or give a reason for its recommendation. In short, where a judge overrides the advisory recommendation of a jury, we should only defer to the jury's advisory recommendation if we find that the judge's sentencing order, standing alone, does not support the imposition of death.
The above conclusion is also supported by an analysis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In Witherspoon, the Court was concerned with the automatic exclusion from capital punishment juries of persons who opposed the death penalty or who had conscientious scruples against capital punishment. The Court held that opponents of capital punishment could not be excluded from such juries unless they expressed the view that they could not make an impartial decision on guilt or could never vote to impose the death penalty. Tedder is actually grounded on the Witherspoon principle that juries reflect the conscience of the community and it is this conscience which should determine whether death is the appropriate penalty.FN3 This Witherspoon concept of the jury as a cockpit in which the jurors argue out their religious, ideological, and political views of capital punishment was at tension with the concept of the jury as an impartial, non-emotional, fact-finding body following the law as given to it by the court. One year prior to Furman, the Court upheld, against due process and equal protection challenges, the imposition of the death penalty by juries acting, without standards *849 or substantive instructions, as the conscience of the community. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1987). This holding was contingent on the selection of the jury in accordance with the precepts of Witherspoon. Id. at 185 n. 1, 91 S.Ct. at 1456 n. 1.FN4 Furman did not explicitly override McGautha and Witherspoon, but implicitly found that imposition of the death penalty based on the conscience of the community principle was cruel and unusual punishment because it resulted in the arbitrary and capricious imposition of the death penalty. Although it did not override McGautha and Witherspoon, Furman did restore the jury to its traditional role as a finder-of-fact whose discretion was strictly limited and whose findings of fact on the imposition of the death penalty would be subject to judicial review. The substantial tension, if not outright conflict, between the Witherspoon and Furman concepts of the jury role in capital sentencing was not resolved until Witt issued in 1985.
FN3. See Richardson v. State, 437 So.2d 1091 (Fla.1983), and Odom v. State, 403 So.2d 936 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982), which attribute the great weight given to the jury's recommendation to its reflection of the conscience or judgment of the community.
FN4. The mandate of the Court in McGautha was later withheld and the judgment vacated and remanded for further proceedings consistent with Furman. 403 U.S. 951, 91 S.Ct. 2273, 29 L.Ed.2d 862; [ Crampton v. Ohio ], 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).
In Witt the Court revisited and clarified Witherspoon. In doing so, the Court recognized the inherent incompatibility of Witherspoon and Furman.
There is good reason why the Adams [448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) ] test is preferable for determining juror exclusion. First, although given Witherspoon's facts a court applying the general principles of Adams could have arrived at the “automatically” language of Witherspoon's footnote 21, we do not believe that language can be squared with the duties of present-day capital sentencing juries (emphasis supplied). In Witherspoon the jury was vested with unlimited discretion in choice of sentence. Given this discretion, a juror willing to consider the death penalty arguably was able to “follow the law and abide by his oath” in choosing the “proper” sentence. Nothing more was required. Under this understanding the only veniremen who could be deemed excludable were those who would never vote for the death sentence or who could not impartially judge guilt.
After our decisions in Furman v. Georgia, 408 U.S. 238, [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972), and Gregg v. Georgia, 428 U.S. 153, [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976), however, sentencing juries could no longer be invested with such discretion (emphasis supplied). As in the State of Texas, many capital sentencing juries are now asked specific questions, often factual, the answers to which will determine whether death is the appropriate penalty. In such circumstances it does not make sense to require simply that a juror not “automatically” vote against the death penalty; whether or not a venireman might vote for death under certain personal standards, the State still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge. To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a State must allow a venireman to sit despite the fact that he will be unable to view the case impartially.
Witt, 469 U.S. at 421-22, 105 S.Ct. at 851 (footnote omitted).
Witt has two effects on our Tedder decision. First, Witt makes clear that Witherspoon, as applied, permitted jurors who were personally biased to participate in the decision to recommend life or death. Under Witherspoon, the state was not permitted to challenge jurors for cause unless they made it unmistakably clear that they would automatically vote against the death penalty regardless of the evidence developed at trial. This meant that the trial court had no way of ensuring that the jurors' discretion would be guided by aggravating and mitigating circumstances and not by their personal beliefs. From a Furman viewpoint, this decreased the reliability of the jury recommendation because *850 it increased the likelihood that juries would act arbitrarily and capriciously based on personal biases. Witt, by spelling out standards for determining when prospective jurors may be excluded for cause because of their views on capital punishment, increased the likelihood that jurors will impartially follow the law as announced by the trial judge and not their personal views on the death penalty. Witt should reduce the Witherspoon gap between the views of the judge and jury and the number of occasions where they disagree on the sentence. It should also reduce the likelihood that the death penalty will be arbitrarily and capriciously imposed.
A second impact of Witt is to take the constitutional ground, Witherspoon, out from under Tedder. Arguably, as long as Witherspoon stood unamended, it could be said that there was some constitutional basis for great deference to the jury recommendation as the conscience of the community. However, as Witt makes clear, the role of the jury under Witherspoon cannot be squared with the role of the jury under Furman and it is Furman which controls. This point is reinforced by the structure of the Florida death penalty system. Under our statute, the trial judge is the sentencer and renders the written findings on which we base our constitutionally required review. When we apply Tedder, we have no factual findings from the jury to review and can only speculate as to the reasons underlying the jury recommendation. In effect, from a cold record, we attempt to find the facts supporting the jury's recommendation. Skene, Review of Capital Cases: Does The Florida Supreme Court Know What It's Doing?, 15 Stetson L.Rev. 263, 298-306 (Spring 1986). While it is constitutionally permissible for either the jury or the judge to act as sentencer, Tedder tends to transform our system into a hybrid. Contrast Tedder with Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where the jury is the sentencer and is required to make specific findings of fact to support a death sentence and the jury's findings furnish a basis for appellate review.
There are two pertinent and controlling propositions of law to be drawn from Furman and its progeny. First, it is cruel and unusual punishment to impose the death penalty on a particular defendant if the penalty is disproportionate to the facts surrounding the particular murder. The penalty should be reserved for the most aggravated and unmitigated crimes. State v. Dixon, 283 So.2d 1, 7 (Fla.1973). Second, from a systemic viewpoint, the system must impose the penalty with regularity, not arbitrarily or capriciously. This is done by “rationally distinguish[ing] between the individuals for whom death is an appropriate sanction and those for whom it is not.” Spaziano, 468 U.S. at 460, 104 S.Ct. at 3162. Undifferentiated deference, by either this Court or sentencing courts, to unsupported and unreviewable jury recommendations does not meet either of the two propositions.
Caldwell also impacts on the viability of the Tedder rule. In Caldwell, the error consisted of denigrating the role of the sentencing jury by suggesting that the responsibility for the sentence rested elsewhere; and, the Court held, it was constitutionally impermissible to rest a death sentence on a determination made by a sentencer who had been led to believe that the responsibility for the sentence rested elsewhere. I am not persuaded that our application of Tedder violates Caldwell. Combs v. State, 525 So.2d 853 (Fla.1988). However, I do suggest that the Tedder rule unnecessarily obscures and confuses the identity of the sentencer in Florida. Our statute unquestionably makes the judge the sentencer, but Tedder in its practical application has reversed the roles by mandating that the judge must defer to jury recommendation unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” 322 So.2d at 910. The practical import of Tedder is to place the trial judge in the unenviable position of either following the statute and basing his sentence upon a weighing of the aggravating and mitigating factors or following *851 Tedder. During 1984-85, we affirmed on direct appeal trial judge overrides in eleven of fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have affirmed overrides in only two of eleven cases, less than twenty percent. This current reversal rate of over eighty percent is a strong indicator to judges that they should place less reliance on their independent weighing of aggravation and mitigation and more reliance on the indecipherable recommendation of the jury. If we continue to follow Tedder the independent sentencing judgment of trial courts becomes more and more debatable. This brings into question the constitutionality of our death penalty statute as applied.FN5 Caldwell.
FN5. In this connection, see Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified by Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987), and Mann v. Dugger, 817 F.2d 1471 (11th Cir.1987), vacated and rehearing granted en banc by Mann v. Dugger, 828 F.2d 1498 (11th Cir.1987), where the courts held that instructing the jury that the judge was the ultimate sentencer denigrated the jury role contrary to Tedder and in violation of Caldwell. It should be noted under Florida law that all capital punishment juries are instructed that the judge is the ultimate sentencer. The practical effect of Adams and Mann is to hold Florida's death penalty statute unconstitutional as applied.
For the reasons set forth above, I feel that the only forthright position is to recede from Tedder and announce to one and all that the only useful purpose of the advisory recommendation of the jury under our death penalty statute is to apprise the trial judge and appellate court of the jury's reaction to the evidence of aggravation and mitigation as a matter of information. Short of a revision of section 921.141 to place the sentencing responsibility upon the jury and to require factual findings on which to base appellate review, the jury recommendation does not carry the great weight assigned to it by Tedder. It is as its designation indicates, advisory only, nothing more, nothing less.
BARKETT, Justice, concurring in part, dissenting in part.
I concur in affirming the conviction in this case. As to the sentence, I agree that the majority's Caldwell analysis is compelled by this Court's prior rulings. However, I adhere to my view that Caldwell indeed is applicable to the Florida advisory jury as well as the judge, since both exercise sentencing discretion. See Combs v. State, 525 So.2d 853 (Fla.1988) (Barkett, J., specially concurring); Foster v. State, 518 So.2d 901 (Fla.1987) (Barkett, J., specially concurring); Phillips v. Dugger, 515 So.2d 227 (Fla.1987) (Barkett, J., specially concurring).
As to the Van Royal issue, I agree with the decision to promulgate a new procedural rule requiring the entry of a written order prior to the oral pronouncement of a sentence of death. However, unlike the majority, I cannot agree that the procedure followed in this instance met the statutory requirements already existing in this state. Specifically, I do not believe a trial judge may support the death sentence with written “findings” made three months after sentencing when he failed to enter specific oral findings at the time death was imposed. In the proceedings below, the trial judge made the following “findings” at sentencing:
The Court has considered the aggravating and mitigating circumstances presented in evidence in this case and has considered the recommendation of the jury and the recommendation included in the presentence investigation and determined that sufficient aggravating circumstances exist and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
Section 921.141(3), Florida Statutes (1983), requires that a death sentence be based upon specific circumstances. The plain import of the statute is that death may not be imposed if the trial judge does not have specific reasons for doing so; and I cannot agree that it is permissible to formulate those reasons after the fact. Moreover, I fail to see how the judge had jurisdiction to enter findings of fact after the matter had been appealed to this Court. I cannot subscribe to the majority's suggestion that Muehleman stands for the proposition that *852 in retaining concurrent jurisdiction for purposes of transmitting the record, the trial court also retains jurisdiction for preparing a document statutorily crucial to this Court's appellate review.
I also write separately to address the views in Justice Shaw's special concurrence. Although these views are inapplicable to this case because this jury recommended death, I cannot leave unchallenged the suggestion that the Tedder standard may be unconstitutional. To the contrary, the United States Supreme Court has expressly upheld the validity of Tedder and has suggested that the Florida death penalty statute is constitutional at least partially because of it:
This crucial protection [the Tedder standard] demonstrates that the new statute affords significantly more safeguards to the defendant than did the old. Death is not automatic, absent a jury recommendation of mercy, as it was under the old procedure. A jury recommendation of life may be overridden by the trial judge only under the exacting standards of Tedder. Hence, defendants are not significantly disadvantaged vis-a-vis the recommendation of life by the jury....
Dobbert v. Florida, 432 U.S. 282, 295-96, 97 S.Ct. 2290, 2299-2300, 53 L.Ed.2d 344 (1977) (footnote omitted). Accord Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984) ( Tedder standard expressly upheld as constitutional); Barclay v. Florida, 463 U.S. 939, 955-56, 103 S.Ct. 3418, 3427-3428, 77 L.Ed.2d 1134 (1983) ( Tedder standard cited as a factor contributing to individualized sentencing); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (discussing Tedder in upholding Florida statute).
Moreover, in his discussion of Spaziano, Justice Shaw fails to note that the Supreme Court in that case sustained Tedder against the precise criticism he now levels. Instead of finding that Tedder resulted in unequal treatment between some defendants who received a life recommendation and some who did not, the Spaziano Court found that
[w]e see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case.
468 U.S. at 466, 104 S.Ct. at 3165. I also cannot agree that Tedder rested on the rationale contained in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and thus does not comport with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Tedder does not cite or even allude to Witherspoon, and was decided some three years after Furman at a time when this Court was acutely aware of Furman 's dictates. In any event, this issue already has been settled in favor of the Tedder standard. Dobbert, 432 U.S. at 295-96, 97 S.Ct. at 2299-2300.
In the same vein, I cannot agree that Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), which clarified Witherspoon in light of Furman, has any applicability to the issue raised by Justice Shaw. Witt is concerned not with specific sentencing and appellate procedures to be followed in ensuring reliability of the death penalty, but with the reasons for which jurors can be excluded from a capital panel. It is the former, not the latter, that is primarily the concern of the Furman line of cases. See Proffitt, 428 U.S. at 253, 96 S.Ct. at 2967 ( Furman requires procedures that establish a meaningful basis for distinguishing death cases from non-death cases). The United States Supreme Court authoritatively has ruled that reliability is advanced in Florida at least partly because of Tedder. Dobbert, 432 U.S. at 295-96, 97 S.Ct. at 2299-2300.
Furthermore, I cannot agree with Justice Shaw's implication that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), may be violated by Tedder. First, over my own objection, this Court repeatedly has ruled that Caldwell has no application in Florida. Combs; Foster; Phillips. If this is true, then it necessarily follows that Tedder does not violate Caldwell. Second, I do not agree that Tedder somehow obscures the identity of the sentencer. This assumes that only the judge *853 or jury can be the sentencer, but not both. I can find no federal case law advancing this assumption, and the Supreme Court in fact has held that no specific method of sentencing is required if the procedures employed promote reliability, Spaziano, 468 U.S. at 464, 104 S.Ct. at 3164, as Florida's manifestly does. Id.; Barclay; Dobbert; Proffitt. Since Caldwell focuses on the exercise of sentencing discretion, the Tedder standard necessarily means that both judge and jury constitute the sentencer for Caldwell purposes because both exercise this discretion. FN1
FN1. In the same vein, I cannot agree with Justice Shaw's interpretation of Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified, 816 F.2d 1493 (1987). Adams clearly was grounded on the fact that the trial judge made several erroneous statements not contained in the standard jury instructions. These statements included observations that the jury recommendation could be disregarded and that jurors were not to trouble their consciences with it. 804 F.2d at 1528, 1532-33 & n. 8; 816 F.2d at 1501 n. 9. There is nothing in Adams suggesting that the standard jury instructions themselves were the source of the error.
Finally, any controversy over who actually is the sentencer in Florida is not the kind of concern properly characterized as a Caldwell problem. Under Justice O'Connor's concurring opinion,FN2 Caldwell addresses only erroneous statements made to the jury that minimize their sense of responsibility. 472 U.S. at 341-43, 105 S.Ct. at 2646-2647. It does not concern a procedure mandated by the law of Florida as interpreted by this Court in Tedder. As Justice O'Connor noted,
FN2. This concurrence is the ground upon which a majority of the Caldwell court agreed.
a misleading picture of the jury's role is not sanctioned [under federal case law].... But neither does [this case law] suggest that the Federal Constitution prohibits the giving of accurate instructions regarding postsentencing procedures.
472 U.S. at 342, 105 S.Ct. at 2646 (emphasis added). I fail to see how a standard required by Florida law and expressly approved by the United States Supreme Court runs afoul of Justice O'Connor's Caldwell analysis, since it hardly paints “a misleading picture of the jury's role.”
For these reasons, I conclude that Tedder is valid under the Constitution and should remain a part of the law of Florida. As the nation's highest court has noted, Tedder affords defendants “a crucial protection,” Dobbert, 432 U.S. at 295, 97 S.Ct. at 2299, and is a “significant safeguard.” Spaziano, 468 U.S. at 465, 104 S.Ct. at 3165. Moreover, in the dozen years since Tedder issued, the legislature has never voted to overrule this Court. A rule so firmly established in twelve years of voluminous jurisprudence should not be overruled for reasons that have been rejected by the United States Supreme Court and our own legislature.
Grossman v. Dugger, 708 So.2d 249 (Fla. 1997). (PCR)
Following affirmance of conviction for first-degree murder, 525 So.2d 833, defendant filed motion for postconviction relief, which was denied by the Circuit Court, Pinellas County, Crockett Farnell, J. Defendant appealed denial and also sought writ of habeas corpus. The Supreme Court held that defendant failed to show ineffective assistance by trial or appellate counsel. Denial of motion affirmed, and habeas petition denied. Anstead, J., concurred in result only.
PER CURIAM.
Martin Grossman appeals an order of the trial court denying relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1, 9), Fla. Const. We affirm the denial of rule 3.850 relief and deny the writ.
The facts of this case are set out fully in our opinion on direct appeal. See Grossman v. State, 525 So.2d 833 (Fla.1988). Martin Grossman and a friend were firing a stolen handgun in a wooded area of Pinellas County during the night of December 13, 1984, when wildlife officer Peggy Park happened on the scene. Although Grossman begged her not to report him because he was on probation and would be sent back to prison, Park nevertheless began to call in a report. Grossman then struggled with her, beat her with her flashlight, and shot her in the back of the head with her gun. Grossman was arrested, was charged with first-degree murder, gave numerous incriminating statements, was convicted, and was sentenced to death pursuant to the jury's unanimous recommendation. The court imposed a sentence of death based on four aggravating circumstances FN1 and no mitigating circumstances. We affirmed.
FN1. The court found that the murder was committed: pursuant to a robbery or burglary; to avoid arrest; to hinder enforcement of the laws; and in a heinous, atrocious, or cruel (HAC) manner. The court counted the second and third circumstances as one.
Before Grossman filed any postconviction motions, Governor Martinez signed a death warrant in March 1990, and Grossman filed a petition for a writ of habeas corpus in this Court. We granted a stay of execution to allow Grossman an opportunity to seek postconviction relief. He filed a rule 3.850 motion in the trial court in August 1990 and at the same time filed an amended habeas petition in this Court. The trial court denied the rule 3.850 motion following an evidentiary hearing, and Grossman now appeals that denial. FN2 He also seeks relief under his pending habeas petition.FN3
FN2. Grossman raises ten issues, claiming error on the following points: (1) ineffective assistance of counsel at the penalty phase; (2) Brady violations; (3) witness Brewer was a State agent; (4) ineffective assistance of counsel at the guilt phase; (5) ineffective assistance of counsel in procuring a mental health exam; (6) faulty HAC instruction; (7) trial counsel had a conflict of interest; (8) the defendant was not present at all critical stages; (9) prosecutorial misconduct; and (10) improper weighing of aggravating and mitigating circumstances.
FN3. Grossman raises three issues, claiming error on the following points: (1) ineffective assistance of appellate counsel; (2) Caldwell error; and (3) recent decisions of this Court.
I. RULE 3.850 MOTION
[1] Grossman first claims that trial counsel provided ineffective representation during the penalty phase of the trial. We disagree. This Court set out the standard for reviewing such claims following an evidentiary hearing in Blanco v. State, 702 So.2d 1250 (Fla.1997):
In reviewing a trial court's application of the [relevant] law to a rule 3.850 motion following an evidentiary hearing, this Court applies the following standard of review: As long as the trial court's findings are supported by competent substantial evidence, “this Court will not ‘substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ”
*251 Id. at 1252 (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)). In the present case, the trial court addressed this first claim at length and concluded:
The Court has weighed all the above matters in light of Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). The Defendant has failed to make the required showing of either deficient performance or sufficient prejudice to support his ineffectiveness claim.
The Court has evaluated the conduct of the Defendant's counsel from counsel's perspective at the time of the trial. Defendant introduced thirty-three affidavits that were represented as possible mitigation witnesses that were available a the time of trial but were not used by the defense. Several of the possible witnesses represented by the affidavits were known to the defense, and the defense had determined not to use them.
Defense counsel, Mr. McCoun, at the time of trial recognized that while trying to present a favorable picture of the Defendant, equally negative things would also be presented. Mr. McCoun did not want to use witnesses who would say that the Defendant was into stealing and heavy drug use. Moreover, defense counsel called three mitigating witnesses in addition to the Defendant's mother. The mitigating witnesses that were called had close contact with the defendant near the time that he committed the crime; whereas, many of the potential witnesses that were represented by the affidavits had not seen the Defendant in years.
The Court finds that Mr. McCoun did a competent, effective job of representing the Defendant at all phases of the trial. Even if counsel were deemed ineffective for the reasons stated by the Defendant, such alleged ineffectiveness did not come close to being so prejudicial to the Defendant that it affected the outcome of the case. The facts of this case showed the Defendant's conduct to be so egregious that proof of mitigating circumstances was extremely difficult.
The trial court applied the right rule of law governing ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),FN4 and competent substantial evidence supports its finding. We find no error.
FN4. See, e.g., Kennedy v. State, 547 So.2d 912 (Fla.1989).
Grossman next claims that the State withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree. In addressing this claim, the trial court noted:
Defendant says that the state withheld material, exculpatory evidence in violation of due process under Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), and the Eighth Amendment to the United States Constitution. This claim relates to information that Defendant says the State failed to disclose with respect to three of the witnesses at Defendant's trial: Charles Brewer, Brian Hancock, and Brian Allan. The greater weight of the evidence refutes this claim.
The court then addressed each aspect of this claim at length and concluded: “For the foregoing reason, there is no basis to the Defendant's allegations that the State withheld material, exculpatory evidence from the defense; therefore, [this] ground has no merit.” The trial court applied the right rule of law governing the withholding of evidence under Brady,FN5 and competent substantial evidence supports its findings. We find no error.
FN5. See, e.g., Hegwood v. State, 575 So.2d 170 (Fla.1991).
[2] Grossman claims that inmate Charles Brewer, who testified for the State, was acting as a State agent when he procured incriminating information from Grossman. The trial court addressed this claim:
Defendant states that Charles Brewer, a trusty at the Pinellas County jail while Defendant was being held there awaiting trial, was a state agent, and the State withheld this fact along with an agreement that Mr. Brewer had reached with prosecutors regarding charges that were pending*252 against Mr. Brewer. Mr. Brewer testified that he had his brother contact law enforcement after he heard Defendant discussing the case. Mr. Brewer said that he talked to the homicide detectives only one time and that was when they took his taped statement.
Detective Robert Rhodes testified that he taped Mr. Brewer's statement on July 25, 1985, and that was the only time he ever met with Mr. Brewer. The State did not make any deals with Mr. Brewer in exchange for the statement, and Detective Rhodes did not suggest questions for Mr. Brewer to ask the Defendant or ask Mr. Brewer to be an agent for the State.
The State Attorney, Bernie McCabe, testified that he interviewed Mr. Brewer at the State Attorney's Office prior to the trial and that he emphasized to Mr. Brewer that there were no deals in exchange for Mr. brewer's testimony. Defendant's claim that Mr. Brewer was a state agent at the time that he discussed the Peggy Park murder with Defendant and that the State struck a deal with Mr. Brewer in exchange for his testimony is without merit.
Competent substantial evidence in the record supports the trial court's finding that Brewer was not a State agent. We find no error.
Grossman claims that trial counsel provided ineffective representation during the guilt phase of the trial. We disagree. The trial court stated:
[T]he Defendant claims that he was denied the effective assistance of counsel at the guilt phase of his trial by the failure of his counsel to move for change of venue or for individual and sequestered voir dire, by the failure to adequately cross examine crucial state witnesses, and by the failure to move for severance pursuant to Rule 3.152(b)(2), Florida Rules of Criminal Procedure.
The court then addressed each aspect of this claim at length, concluding: “Defendant's claim that he had ineffective assistance of counsel during the guilt phase of his trial is without merit.” The record shows that the trial court's conclusion is supported by competent substantial evidence. We find no error.
Grossman claimed in his 3.850 motion before the trial court that trial counsel failed to investigate Grossman's history of mental problems and thus did not provide sufficient background information to the defense mental health expert, Dr. Merin. Grossman now claims that the trial court erred in failing to address this issue during the evidentiary hearing. We disagree. In its order granting an evidentiary hearing on certain issues (but denying it on this issue), the trial court addressed this issue at length, concluding:
Defendant's claim is without merit as it fails the second prong of Strickland, as there has been no showing that but for such claimed ineffectiveness, the outcome probably would have been different. Furthermore, this Court concludes the jury would not have been persuaded to arrive at a different result, nor would this Court have been persuaded to reach a different result, assuming the substance of Defendant's allegations had been introduced into evidence.
Competent substantial evidence supports the trial court's finding. We find no error. We find the remainder of Grossman's rule 3.850 claims to be procedurally barred.FN6
FN6. Issues 6-10 are procedurally barred.
II. HABEAS CORPUS
[3] [4] [5] Grossman claims as his first issue in his habeas petition that appellate counsel provided ineffective representation in a number of ways. (A) He claims that appellate counsel should have argued that the trial court's sentencing order was insufficiently specific. A review of the order, however, shows that it comports with the law that was in effect at that time. (B) He asserts that appellate counsel should have claimed prosecutorial misconduct. This issue was not preserved since trial counsel failed to object to the allegedly improper statements. (C) He asserts that appellate counsel should have argued more convincingly that Florida's capital sentencing statute is unconstitutional. This claim is procedurally barred-it was raised on direct appeal. (D) He asserts that *253 appellate counsel should have argued that the death penalty is imposed in an arbitrary fashion. This claim is procedurally barred-it was raised on direct appeal. (E) He claims that appellate counsel should have argued that the HAC instruction was vague. This issue was not preserved. Although trial counsel objected on vagueness grounds to the HAC aggravating circumstance pretrial, he did not object to the proposed instruction at trial except on the ground that the evidence did not support it; nor did he propose an alternative instruction. Appellate counsel cannot be faulted. Ferguson v. Singletary, 632 So.2d 53 (Fla.1993).(F) Grossman claims that appellate counsel should have argued that codefendant Taylor's acquittal of first-degree felony murder precluded such a conviction for Grossman (and precluded application of the felony murder aggravating circumstance to Grossman) since Taylor was more guilty than Grossman. This issue has already been decided adversely to the defendant. Eaton v. State, 438 So.2d 822 (Fla.1983).(G) He claims that appellate counsel should have argued that the trial court failed to hold a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). The record, however, shows that defense counsel never claimed that a discovery violation took place and never requested a hearing. (H) He claims that appellate counsel should have argued more convincingly that the trial court erred in failing to grant a severance. This issue is procedurally barred-it was raised on appeal. We find no merit to Grossman's ineffectiveness claim.
Grossman next claims that recent federal court decisions have rendered meritorious his claim under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). This argument has already been decided adversely to the defendant. See, e.g., Johnson v. State, 660 So.2d 637 (Fla.1995). Grossman also claims that recent decisions of this court warrant relief. Our decision in Campbell v. State, 571 So.2d 415 (Fla.1990), however, is not retroactive. See Turner v. Dugger, 614 So.2d 1075 (Fla.1992). Our decisions in Porter v. State, 564 So.2d 1060 (Fla.1990), Hallman v. State, 560 So.2d 223 (Fla.1990), and Brown v. State, 526 So.2d 903 (Fla.1988), inaugurated no fundamental changes in death penalty jurisprudence. See generally Witt v. State, 387 So.2d 922 (Fla.1980). We find no merit to these claims.
Based on the foregoing, we affirm the denial of Grossman's rule 3.850 motion, and we deny his petition for writ of habeas corpus.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur.
ANSTEAD, J., concurs in result only.
Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006). (Habeas)
Background: Following affirmance on direct appeal of his murder conviction and death sentence, 525 So.2d 833, and denial of postconviction relief, 708 So.2d 249, petitioner sought writ of habeas corpus. The United States District Court for the Middle District of Florida, No. 98-01929-CV-T-17MSS, Elizabeth A. Kovachevich, J., 359 F.Supp.2d 1233, entered order denying petition, and petitioner appealed.
Holdings: The Court of Appeals, Marcus, Circuit Judge, held that:
(1) Florida Supreme Court's determination as to harmless nature of error that occurred when trial court denied defendant's motion to sever his trial from that of nontestifying codefendant and admitted codefendant's confession at their joint trial was neither “contrary to” nor an “unreasonable application” of governing United States Supreme Court case law;
(2) Florida courts did not make unreasonable factual determinations or unreasonably apply clearly established federal law in determining that state was not aware of any falsity in statements of witnesses who testified against petitioner or in concluding that undisclosed disorderly conduct charge against one witness or criminal investigation of another were not material; and
(3) determination that attorney representing capital murder defendant had not behaved deficiently at penalty phase of case was not unreasonable application of Supreme Court precedent. Affirmed.
MARCUS, Circuit Judge:
In this death case Martin E. Grossman appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his Sixth Amendment right to confrontation was violated when the state trial court refused to sever his case from his co-defendant, whose confession-which also implicated Grossman-was introduced at trial, albeit against only the co-defendant. Grossman also maintains that the state impermissibly withheld Brady material concerning three prosecution witnesses, and that he received ineffective assistance of counsel at the penalty phase of his capital trial. The Supreme Court of Florida affirmed his conviction and sentence on direct appeal and affirmed the denial of his post-conviction requests for collateral relief. After thorough review, we affirm.
I.
Grossman was convicted of first-degree murder by a state-court jury in Pinellas County, Florida, after he shot and killed Margaret Park, a wildlife officer employed by the Florida Game & Fish Commission, while she was engaged in the lawful performance of her duties. The same jury unanimously recommended that Grossman be sentenced to die, and the state trial judge entered an order consonant with that recommendation. The Supreme Court of Florida affirmed Grossman's conviction and sentence on direct appeal. Grossman v. State, 525 So.2d 833 (Fla.1988) ( Grossman I). Grossman then filed a state petition for post-conviction relief, *1330 which was denied by the trial judgeFN1 in an order subsequently affirmed by the Supreme Court of Florida. Grossman v. Dugger, 708 So.2d 249 (Fla.1997) ( Grossman II). Thereafter, Grossman filed a habeas petition in the United States District Court for the Middle District of Florida, alleging eighteen constitutional errors. In a well-reasoned and comprehensive order, the district judge denied habeas relief on all grounds, Grossman v. Crosby, 359 F.Supp.2d 1233 (M.D.Fla.2005) ( Grossman III), and we granted a certificate of appealability on three issues: first, whether the state trial court violated Grossman's Sixth Amendment right of confrontation when it refused to sever Grossman's trial from his co-defendant, Thayne Taylor; second, whether the prosecutors violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny by failing to disclose exculpatory material relating to witnesses Charles Brewer, Brian Hancock, and Brian Allan; and, finally, whether Grossman received ineffective assistance of counsel at the penalty phase of his trial. FN2
FN1. The judge who resolved Grossman's post-conviction claim for relief was the same judge who presided over the original trial.
FN2. The district court considered eighteen claims: 1) whether the failure to sever violated Grossman's Sixth Amendment rights; 2) whether the state public defender's office had an impermissible conflict of interest; 3) whether the state sentencing court violated Grossman's rights under the Eighth and Fourteenth Amendments by failing to timely state the reasons for imposing a death sentence; 4 & 5) whether the state trial judge violated the Constitution by refusing to give certain requested jury instructions; 6) whether Grossman received ineffective assistance of counsel on direct appeal; 7) whether the state withheld Brady material; 8) whether state prosecutors improperly questioned Grossman outside the presence of counsel; 9 & 17) whether Grossman received ineffective assistance of counsel at the penalty phase; 10) whether the jury was properly instructed on aggravating factors at the penalty phase; 11) whether Fla. Stat. § 921.141 is unconstitutional; 12) whether the state trial court violated Grossman's constitutional rights by denying a continuance; 13) whether the state trial court violated Grossman's constitutional rights by admitting gory and gruesome photographs; 14) whether the state trial court erred in admitting victim impact and character evidence; 15) whether Florida's capital sentencing scheme is unconstitutional; 16) whether Grossman received ineffective assistance of counsel at the guilt phase; and 18) whether the Florida capital sentencing scheme comports with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
The facts of this case, which we glean from the trial testimony, the state collateral hearing, and the opinions of the Florida courts, are these. Grossman and a companion, Thayne (Tommy) Taylor, drove to a wooded area of Pinellas County on December 13, 1984, to shoot a handgun that Grossman, Taylor, and Brian Hancock, Grossman's friend and roommate, had recently stolen. At the time, Grossman was living in nearby Pasco County and was on probation following a recent prison term. Florida wildlife officer Margaret (Peggy) Park was on patrol in the area and became suspicious when she saw Grossman and Taylor. She parked her patrol truck near Grossman's van and took possession of Grossman's weapon, which she found under the driver's seat of the van, and his driver's license.
Grossman pleaded with the officer not to arrest him because possessing a weapon and being outside of Pasco County would have violated the terms of his probation. Officer Park refused his pleas, opened the driver's door to her vehicle, and reached in to pick up her radio microphone so she could call the sheriff's office. Grossman then grabbed the officer's large metallic flashlight and struck her repeatedly on the *1331 head and shoulders, forcing her upper body into the truck. Officer Park managed to exclaim “I'm hit” over the radio, and deputies from the Pinellas County Sheriff's Office began responding to her location.
Grossman continued his attack on Officer Park and called for help from Taylor, who then joined in the assault. Officer Park drew her firearm, a .357 magnum, and fired one shot that narrowly missed hitting Taylor in the head. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Grossman, who was significantly larger than Officer Park, gained control of her weapon and fired one shot into the back of her head, killing her.
Grossman and Taylor then took back the seized handgun and driver's license and fled with Officer Park's weapon. They returned to Grossman's home where they told the story of the shooting, both individually and collectively, to Brian Hancock. Hancock and Taylor buried the two guns near the crime scene. Grossman, whose clothing was covered in blood, unsuccessfully attempted to burn the clothes and shoes he was wearing during the attack.FN3 Taylor eventually discarded those items in a nearby lake. The next day, Grossman and Taylor thoroughly cleaned the van they were driving on the night of the murder and changed the tires on the vehicle.
FN3. Lawrence Black, one of Grossman's neighbors, testified that he saw a fire behind the Grossman house on the evening of December 14, 1984. Black said he saw Grossman and another man carrying things out of the house and burning them in the yard. Black could not see exactly what items Grossman and his accomplice were burning.
Approximately one week later, on December 20, 1984, Grossman and Taylor told the story of the shooting to yet another friend, Brian Allan. Then, on December 25, Hancock, who testified that he was scared of Grossman, went to the police and told them what he knew. Shortly thereafter, Grossman and Taylor were arrested. Upon his arrest, Taylor confessed to the police and gave them a similar and detailed account of the events that took place on the night of the murder. After Grossman was arrested, but before he was tried, Grossman told the story of the killing, and his central role in it, to still one more person, fellow inmate Charles Brewer.
Grossman and Taylor were charged with first-degree murder, and, over Grossman's objections, were tried together. The state introduced significant physical and forensic evidence. A latent prints examiner testified that Grossman's fingerprints were found on the driver's door handle of Officer Park's vehicle and on her flashlight.FN4 Brian Moyer, a deputy sheriff in Pasco County, testified that Brian Hancock led him to the location of two guns buried in a wooded area of Pasco County. One was a semiautomatic pistol and one was a .357 magnum. The serial number on the .357 matched that of Officer Park's weapon.
FN4. Taylor's fingerprints were also recovered from the driver's door handle of Officer Park's vehicle.
The police had recovered two discharged bullets from the scene, one from inside a cup in Officer Park's vehicle and another from inside a wall of that vehicle. An FBI agent qualified as an expert in the field of elemental composition analysis tested the lead composition of those bullets and determined that it was identical to the lead composition of one bullet later recovered from Officer Park's gun.FN5 Another FBI *1332 agent, qualified as a firearms and gunpowder expert, testified that the bullet recovered from the cup inside Officer Park's vehicle could only have been fired from her own gun.FN6
FN5. Four bullets were subsequently recovered from Officer Park's gun. Three of them had identical lead compositions. One had a slightly different composition, and it was that bullet that matched the two discharged bullets recovered from the scene.
FN6. The agent testified that the other bullet, which had been fired into the metal wall of the vehicle, was damaged. He was able to say that it had been fired from a .357 caliber weapon, which is the kind of weapon Officer Park carried that night, but was not able to definitively establish that it was fired from Officer Park's gun. There were no fingerprints recovered from any of the weapons.
Dr. Edward Corcoran, an associate medical examiner for Pinellas County, conducted an autopsy on Officer Park. The doctor testified that she died of a single gunshot wound to the head. The shot made an entrance wound in the back of her head on the left side and an exit wound in the right temporal region. He said that the bullet went in at about a 45 degree angle from the left back to the right side, with a slight deviation upwards of about 10 degrees. In the doctor's opinion, “this would indicate that the bullet went in, someone holding the gun down firing upwards, or else the gun going in and the head bent over.”
Dr. Corcoran testified that in addition to the gunshot wounds, he discovered two lacerations on the top of the right side of the head, a laceration on the back right side of the head, three large defects on the top left side of the head, a bruise on the right side of the forehead, small bruises on the chin, a scrape on the left cheek, a bruise on the left shoulder, bruises and scrapes on the right hand, a scrape on the left hand near the knuckles, and small bruises around the knees and thigh. There was hemorrhaging inside the scalp and extensive fracturing of the skull. The doctor testified that the skull fractures were caused by the bullet. Some of the lacerations on the head were caused by the bullet, and others were caused by external blunt trauma.
Finally, the state introduced the charred shoes; the two weapons; testimony from Black, the neighbor who observed the fire outside Grossman's home; and extensive testimony regarding Grossman's efforts to clean his van and change the van's tires. The state also presented expert testimony as to the significance of blood spatter evidence.FN7
FN7. An investigator from the medical examiner's office testified that blood spatter evidence in the victim's vehicle indicated that when she was shot, Officer Park was probably standing outside the vehicle with her head above the driver's seat, facing the interior of the vehicle, probably toward the area of the radio.
In addition to the physical evidence, the state introduced the testimony of Hancock, Allan, and Brewer, and the details of Taylor's confession to the police. Because Grossman claims that he was prejudiced by the admission of Taylor's confession at their joint trial, we recount at some length the powerful similarities between Taylor's confession, on one hand, and the trial testimony of Hancock, Allan, and Brewer, describing what Grossman told them about the crime, on the other.
Hancock testified that Grossman and Taylor “come back, they run through the door. Grossman was covered full of blood with two guns in his hand saying he just shot a police officer .... Grossman told me he shot a police officer. And Tommy told me the same thing.” Hancock added that Grossman told him that Grossman shot the officer because he did not want to go back to prison. FN8
FN8. Grossman's attorney cross-examined Hancock about this point and got Hancock to admit that Grossman did not actually say, on the night of the murder, that he shot the officer because he did not want to go back to prison. Hancock clarified that he had engaged in numerous conversations with Grossman during which Grossman told Hancock that he did not want to go back to prison. The jury heard the following exchange on cross-examination, which best encapsulates Hancock's testimony on this point:
Q (Defense Counsel McCoun): These are-your testimony with regards to that point about his fear about going back to jail, you've already told the jury that was something that he didn't say, but something that you surmised or determined in your mind; correct?
A (Brian Hancock): No. He told me several times before the shooting ever-before he even killed her he said that, he would never go back to jail.
Q: I appreciate that. He had been to prison one time and he did not like it; right?
A: That's right.
Q: Okay. But he never told you, sir, that that was the reason why this lady was killed, did he? That's just something that you figured out?
A: That's right.
*1333 Hancock further testified that when he was alone with Grossman he asked Grossman specifically what had happened. Grossman provided a detailed account of the circumstances surrounding the murder. He explained that when Officer Park came upon Grossman and Taylor she asked what they were doing, and whether they had any guns. They denied having any firearms. Park asked both Grossman and Taylor to step outside the vehicle and proceeded to search it. She found a gun under Grossman's seat and placed him under arrest. Grossman pleaded with her not to arrest him because he was on parole. As she went to call in the incident on her radio Grossman hit her on the head with her flashlight, perhaps as many as twenty or thirty times. Grossman called Taylor for help, who then grabbed Park's legs. The officer then kicked Taylor in the groin, pulled out her .357 magnum, and got off one shot, which grazed Taylor. Grossman grabbed Officer Park's weapon from her hand and shot her in the head at point blank range. He then took back the nine-millimeter weapon lying on the seat, along with the officer's weapon, and with Taylor, fled in his van. The next day Grossman and Taylor washed and cleaned the van and changed its tires.
Allan testified that he met up with Grossman and Taylor on December 20, 1984, after returning to Pasco County from Jacksonville, where he had been serving a probationary sentence at a halfway house. Grossman showed Allan a newspaper article detailing the account of Officer Park's death, and told Allan, “I did it, man, I killed her.”
According to Allan's testimony, Grossman told him that Officer Park had found a firearm in his van. Thereafter, she walked back to her vehicle and said, “Mr. Grossman, you are going back to prison.” Grossman pleaded with the officer not to arrest him, but she persisted. Allan testified that “Martin grabbed the flashlight and repeatedly hit her over the head. Couldn't get a good grip, couldn't get a good hit, so, he got a better grip on the flashlight and hit her a couple more times.” Grossman, while attacking Officer Park, yelled to Taylor, “Tom, she still won't go. Tom, she still won't go.” After thinking he had beaten her into unconsciousness, Grossman told Allan, he let go of the officer, at which point she pulled out her gun and fired the shot that narrowly missed hitting Taylor. Then, Allan recounted, Grossman “had her around the neck, and he grabbed her gun, ripped it out of her hands, let her go.” Like Hancock, Allan testified that he, too, had conversations with Grossman, prior to the murder, during which Grossman told him that he did not like prison and did not want to go back.
Charles Brewer, a fellow inmate of Grossman's, testified that Grossman gave *1334 him a magazine article detailing the facts of the murder, but that Grossman complained about some inaccuracies in the account. Thus, for example, the article indicated that Officer Park was shot in the back of the head, and Grossman told Brewer “[t]hat was a damned lie. It was in the side of the head.” Like Hancock and Allan, Brewer testified that Grossman admitted that he grabbed Park's flashlight, struck her in the head with it, and shot her once in the head with her own weapon. Brewer also testified that Grossman told him he did not want to be arrested by a female officer and that he did not want to go back to jail.
Finally, the state introduced only against Taylor the testimony of Wayne Desmarais, a detective with the Pinellas County Sheriff's Department, who took Taylor's confession. It is this testimony that Grossman claims prejudiced his trial. Taylor told the detective that he and Grossman had driven to the Covered Bridge Estates area of Pinellas County on the night of December 13, 1984, so that they could shoot a nine-millimeter weapon. Before they could begin firing, Officer Park drove up to the location, exited her vehicle, and asked Grossman for his driver's license. Officer Park asked Grossman and Taylor to step out of their van and stand to the side while she searched the vehicle. She asked if they had any guns, and they replied they did not. Grossman told her that he was on probation,FN9 that he did not want any trouble, and that he did not want to go back to jail. Officer Park soon found the nine-millimeter gun in the van and told Grossman he was under arrest.
FN9. Taylor was unsure whether Grossman used the word “probation” or “parole.”
The detective testified that Taylor told him he then lost sight of Grossman and Officer Park for a short period.FN10 Taylor heard Grossman yelling his name, and he went over to the officer's vehicle, where Grossman had Officer Park pinned down on the driver's seat. Grossman was on top of Officer Park, and he was hitting her head with an aluminum flashlight she had been carrying. Officer Park was kicking her legs frantically, and Taylor attempted to stop her. Officer Park managed to draw her weapon and fire one shot that narrowly missed hitting Taylor in the head, while simultaneously kicking him in the groin. Taylor said that he was lying on the ground and saw Grossman take Officer Park's gun and fire one round into the back of her head. Taylor then retrieved Grossman's license and the nine-millimeter weapon from the officer's car, Grossman and Taylor returned to their van, and they left the scene. The detective testified that Taylor confirmed the firearms were buried near the crime scene and that the clothes Grossman wore at the crime scene had been discarded in a lake.
FN10. According to Taylor, his vision was obscured by the glare from the headlights on Officer Park's vehicle.
The defense called no witnesses at the guilt phase. The trial judge instructed the jury on premeditation and felony murder based on escape and the robbery or burglary of Officer Park's gun and the seized driver's license. The jury returned a general verdict of first-degree murder against Grossman and a general verdict of third-degree murder against Taylor.
At the penalty phase of Grossman's capital trial, the state did not present any additional evidence. The defense presented the testimony of Myra Grossman, Martin Grossman's mother, who said that her son was a non-violent person who helped to care for his father (who died when Martin was only fifteen years old). She *1335 recounted that Martin Grossman did not complete junior high and that she loved her son. Grossman also presented the testimony of Thomas Campbell, a detention officer from the Pinellas County Sheriff's Office, who stated that Grossman did not cause any problems while he was incarcerated. Carolyn Middleton, a correctional social worker, provided similar testimony, noting that Grossman was respectful to guards and able to express emotions. Finally, Grossman's best friend, Steven Martakas, testified that he considered Martin to be like a brother and recounted that Grossman was respectful to his mother and had always encouraged him to avoid smoking and taking drugs.
The jury unanimously recommended, and the trial judge agreed, that Grossman should be sentenced to die. The trial judge expressly found, as aggravating circumstances, that Grossman committed the murder while committing the crime of robbery or burglary, that the murder was committed for the purpose of avoiding lawful arrest or escaping from custody, and that the murder was especially wicked, evil, atrocious or cruel. The only mitigating circumstance, the trial court observed, that “could have been found” based on the testimony was that the defendant was nineteen years old at the time the murder was committed. The judge squarely rejected this factor, concluding that it did not “constitute[ ] a mitigating circumstance in this case.” The trial court then determined that “the aggravating circumstances far outweigh[ed] the mitigating circumstances” and sentenced Grossman to death.
II.
Grossman commenced his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and, therefore, the provisions of that Act govern this appeal. Wade v. Battle, 379 F.3d 1254, 1259 (11th Cir.2004). Under AEDPA, Grossman was required to obtain a Certificate of Appealability (“COA”) before he could appeal the district court's decision, see 28 U.S.C. § 2253(c)(1)(A), and “appellate review is limited to the issues specified in the COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998). Therefore, our review is limited to the three issues noted in the COA.
[1] When examining a district court's denial of a § 2254 habeas petition, we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error. Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir.2005), cert. denied, 549 U.S. 819, 127 S.Ct. 348, 166 L.Ed.2d 33 (2006). However, in reviewing the decisions of the Supreme Court of Florida, we are governed by the explicit terms of AEDPA, which provides that we may grant a writ of habeas corpus only if 1) the state decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or 2) the state decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
[2] The phrase “clearly established Federal law,” as used in § 2254(d)(1), encompasses only the holdings of the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that the language of § 2254(d)(1) expressly “restricts the source of clearly established law to [the Supreme Court's] jurisprudence”). “Clearly established federal law is not the case law of the lower federal courts, including this Court.” *1336 Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). And, clearly established federal law “refers to the holdings ... of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (emphasis added).
[3] [4] “Moreover, section 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal court must consider.” Maharaj, 432 F.3d at 1308. A state court decision is contrary to clearly established federal law if either “(1) the state court applied a rule that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case.” Putman, 268 F.3d at 1241. An “unreasonable application” of clearly established federal law may occur if the state court “identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case.” Id. “An unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Id.
[5] Finally, a federal court may grant a writ of habeas corpus to a state prisoner when the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A state court's determination of the facts, however, is entitled to substantial deference. 28 U.S.C. § 2254(e)(1) (noting that “a determination of a factual issue made by a State court shall be presumed to be correct” and that an “applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence”).
III.
[6] As we have noted, Grossman was jointly tried with co-defendant Taylor. Grossman made numerous motions to sever, each of which was denied by the state trial judge. Plainly, Grossman did not want the jury to hear the inculpatory statements co-defendant Taylor made to the police shortly after Taylor was arrested, even though the trial court found them admissible against only Taylor. Because Taylor did not testify, Grossman had no opportunity to cross-examine Taylor about those statements, and, accordingly, Grossman contends his Sixth Amendment right of confrontation was violated.
This argument was rejected by the Supreme Court of Florida on direct appeal. We quote from its analysis in some detail to show that the Supreme Court of Florida's determination was neither contrary to nor an unreasonable application of clearly established federal law:
Appellant and his codefendant were tried jointly, and neither testified at trial. Codefendant Taylor's statement to the police was introduced into evidence against Taylor only and the jury was instructed that this statement could not be used against appellant. This was done on the rationale that Taylor's statement interlocked with the three statements that appellant made to witnesses Hancock, Allan, and Brewer. At the time of trial this appeared to be permissible under Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), where a plurality of the court held that interlocking confessions of codefendants could be introduced in a joint trial as an exception to *1337 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), without violating the confrontation clause of the sixth amendment, provided the jury was instructed that the codefendant's statement could only be used against the codefendant. The plurality view of Parker has since been rejected and we must examine this issue in light of Cruz v. New York, [481 U.S. 186], 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987).
Parker was decided on the theory that introduction of the confession of a non-testifying codefendant against the codefendant only, which interlocked with a confession of the defendant, was permissible in a joint trial because it presented nothing of evidentiary value against the defendant which was not already properly before the jury. Consequently, the theory went, the jury could reasonably be expected to follow an instruction that it should not use the non-testifying codefendant's confession against the defendant and, even if it did not, the error would be harmless. In rejecting this theory, the majority in Cruz reasoned:
Quite obviously, what the “interlocking” nature of the codefendant's confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant's own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, see Lee v. Illinois, 476 U.S. 530 [106 S.Ct. 2056, 90 L.Ed.2d 514] (1986), but cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential.
107 S.Ct. at 1718-19 (emphasis in original). The Court then went on to make three holdings, all of which are applicable here. First, it is error to admit a non-testifying codefendant's confession incriminating the defendant notwithstanding an instruction not to consider it against the defendant. This is so even if the defendant's own interlocking confession is admitted. Second, the defendant's confession may be considered as an indica of reliability in determining whether the codefendant's confession may be directly admissible against the defendant. Third, in recognition that its ruling would impact on trials already conducted under the Parker theory, the Court held that the defendant's confession could be considered on appeal in determining whether admission of the codefendant's confession was harmless.
It is clear from Cruz that admission of Taylor's statement with instructions that it not be used against appellant was error. It is also clear from the record that this error was harmless. Taylor's statement interlocks with and is fully consistent in all significant aspects with all three statements that appellant made to Hancock, Allan, and Brewer and which were directly admissible against appellant. The indicia of reliability are sufficient to have permitted introduction of Taylor's statement as evidence against appellant. Appellant makes two arguments that this is not so, both of which are contrary to the record. First, he argues that it is only Taylor's statement which emphasizes appellant's primary role in the murder. This is contrary to the record which shows that appellant told Hancock, Allan, and Brewer that it was he who first attacked and battered the officer and that it was he who wrestled her weapon away and fired the single shot which killed her. In all three statements, Taylor's role is clearly subordinate while appellant's role *1338 as the initiator and triggerman is dominant. Second, appellant argues, he and Taylor jointly recounted the story of the murder to Hancock and Allan and neither witness was able to identify for the court which defendant said what. This is contrary to the record which shows that the witnesses were able for the most part to identify appellant as the person who narrated the critical elements of the story. Moreover, even if this were not true, the joint statements of appellant and Taylor given in each other's presence would be admissible against both as admissions against penal interest. We hold that it was error to admit Taylor's statement in the joint trial as evidence against Taylor only, but that this error was harmless under the facts and circumstances of the case. Cruz; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Grossman I, 525 So.2d at 838-39.
In short, the Supreme Court of Florida held that the admission of Taylor's confession at a joint trial with Grossman, even with instructions to disregard the statement as to Grossman, was error under Cruz, but that the error was harmless. On habeas review, the district court concluded that the Supreme Court of Florida had identified the appropriate Supreme Court case law ( Cruz), and that the application of the Cruz principles was not objectively unreasonable. Specifically, the district court found that although it was error under Cruz to admit Taylor's statement, even with the limiting instruction, it was harmless because “Taylor's statements were fully consistent with Grossman's statements [to Hancock, Allan, and Brewer], which were properly admitted against Grossman.” Grossman III, 359 F.Supp.2d at 1253.
Grossman argues, nevertheless, that: 1) the admission of Taylor's statement was constitutional error; and 2) the error was fatally prejudicial in light of the Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As for his first argument, we agree with Grossman, the Supreme Court of Florida, and the district court that admission of Taylor's statement was erroneous. In Cruz, the Supreme Court held that “where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him.” 481 U.S. at 193, 107 S.Ct. 1714 (citation omitted).
The factual circumstances described in Cruz largely mirror what occurred in this case. Taylor did not testify, yet his statement to the police, which implicated Grossman, was admitted against Taylor with instructions to disregard the statement as to Grossman, precisely because it interlocked with Grossman's confessions to Hancock, Brewer, and Allan. Plainly, there was Cruz error. Nevertheless, that alone does not entitle Grossman to habeas relief; as Cruz made abundantly clear, “the defendant's confession may be considered ... on appeal in assessing whether any Confrontation Clause violation was harmless.” Cruz, 481 U.S. at 193-94, 107 S.Ct. 1714. The Supreme Court of Florida determined that the error was harmless. The evidence was overwhelming and Taylor's statements interlocked with and were consistent in all significant aspects with each of the three detailed and inculpatory statements Grossman made to Hancock, Allan, and Brewer.
*1339 On direct appeal, the Supreme Court of Florida specifically found that the Cruz error was harmless beyond a reasonable doubt. See id. at 839 (citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), which analyzed whether a Confrontation Clause error raised on direct appeal was harmless beyond a reasonable doubt). However, in a habeas corpus proceeding under 28 U.S.C. § 2254, we analyze Grossman's claim under a different harmless error standard of review: whether the Confrontation Clause error alleged in this case “had substantial and injurious effect or influence in determining the jury's verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted).
In Brecht, the Supreme Court held that constitutional trial errors raised collaterally in a habeas proceeding are subject to the harmless error standard enunciated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), where it opined that an error is harmless unless the error “had substantial and injurious effect or influence in determining the jury's verdict.” Id. at 776, 66 S.Ct. 1239. In Brecht, the Supreme Court noted the differences between the Kotteakos harmless error standard and the “harmless beyond a reasonable doubt” standard, and determined that the harder-to-establish Kotteakos formulation was more appropriate in the habeas context, which is designed to afford relief only to those whom society has “grievously wronged.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710. The Brecht Court cited as compelling factors “the State's interest in the finality of convictions that have survived direct review within the state court system,” principles of “comity and federalism,” the need to avoid degrading the significance of trial or encouraging relitigation of claims, the character of habeas corpus as an unusual remedy, and the social costs and practical difficulties of retrying a defendant after a grant of habeas relief. See id. at 635-37, 113 S.Ct. 1710.
[7] Since then, we have had occasion to say more than once that the Brecht standard governs harmless error analysis in habeas corpus cases involving Cruz violations and other Confrontation Clause transgressions associated with the improper admission of out-of-court statements. See Glock v. Singletary, 65 F.3d 878, 891 (11th Cir.1995) (en banc) (adopting the harmless error analysis of the vacated panel opinion, which had applied the Brecht standard to a Cruz claim presented in a state habeas petition filed pursuant to § 2254); see also Washington v. Crosby, 324 F.3d 1263, 1266 n. 2 (11th Cir.2003) (“Even if we assumed that the district court did not err in finding a Confrontation Clause violation, we would hold that the violation was harmless under Brecht ...”); McIntyre v. Williams, 216 F.3d 1254, 1258-59 (11th Cir.2000) (stating in dictum that “admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Confrontation Clause” is trial error subject to Brecht harmless error analysis); Cargill v. Turpin, 120 F.3d 1366, 1375-76 (11th Cir.1997) (concluding that admission of a statement for purposes other than proving the truth of the matters contained in the statement did not violate the Confrontation Clause, but finding that even if there had been an error, it would have been harmless under the Brecht standard); Cumbie v. Singletary, 991 F.2d 715, 724 (11th Cir.1993) (applying Brecht harmless error analysis to erroneous admission of one-way video testimony); cf. Ventura v. Att'y Gen., 419 F.3d 1269, 1279 n. 4 (11th Cir.2005) (noting the difference between the harmless error standards of review and opining that the “beyond a reasonable doubt” formulation *1340 “has little application to a case before us on collateral review”). Thus, the Brecht formulation provides the standard against which to measure harmless error in this case. FN11
FN11. It is of no moment that Brecht was decided after Grossman's direct appeal in the state courts had run its course and while state collateral proceedings were pending. Notably, Grossman's federal habeas corpus proceedings commenced after Brecht was decided. Indeed, the Supreme Court and our court have applied Brecht even in those cases where the federal habeas action was commenced before Brecht was decided. See Brecht, 507 U.S. at 638, 113 S.Ct. 1710 (applying the Brecht rule in Brecht itself); Cumbie, 991 F.2d at 724 (applying the Brecht standard in a case in which the panel heard oral arguments before Brecht was decided).
Grossman offers no convincing explanation for why we should find that the admission of Taylor's inculpatory statement was harmful. The evidence against him-both physical and testimonial-was overwhelming. Grossman's fingerprints were found on the door handle of the officer's vehicle and, significantly, on her flashlight. One of Grossman's neighbors testified that he observed a fire outside Grossman's home, and the state introduced the charred shoes that Grossman attempted to destroy. And, most importantly, each of the recitations Grossman separately gave to Hancock, Allan, and Brewer duplicates each important aspect of Taylor's confession-that Grossman was the one who first attacked the officer, repeatedly beating her with a metal flashlight; that it was Grossman who gained control of the officer's weapon; that Grossman played the dominant role, as the Supreme Court of Florida put it; and that Grossman fired the fatal shot. More specifically, Hancock testified that Grossman told him that Grossman followed the officer to her car, repeatedly struck her with her flashlight, took the officer's gun away from her, and shot her at point blank range. Allan's testimony likewise established that Grossman related the same basic facts he had told Hancock. Finally, as the district court observed, “Grossman admitted the same motivation in statements to fellow inmate Brewer”-to avoid going back to jail. In light of the overwhelming physical and testimonial proof, we cannot say the Cruz error had a substantial and injurious effect or influence in determining the jury's verdict.FN12
FN12. The Supreme Court of Florida also determined that Taylor's statement was entirely consistent with the detailed confessions Grossman made to Hancock, Brewer, and Allan, and thus that there were sufficient indicia of reliability to have admitted Taylor's statement directly against Grossman. See Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that admission of a statement from an unavailable hearsay declarant does not violate the Confrontation Clause so long as there are sufficient indicia of reliability supporting the statement); see also Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (holding that “[i]f those portions of [a] codefendant's purportedly ‘interlocking’ statement which bear to any significant degree on the defendant's participation in the crime are not thoroughly substantiated by the defendant's own confession, the admission of the statement” violates the Confrontation Clause (emphasis added)). Notably, Cruz did not disturb the holdings of Roberts and Lee, which were undeniably good law at that time. Cruz, 481 U.S. at 193-94, 107 S.Ct. 1714 (observing that “the defendant's confession may be considered at trial in assessing whether his codefendant's statements are supported by sufficient ‘indicia of reliability’ to be directly admissible against him ... despite the lack of opportunity for cross-examination” and citing Lee). The Supreme Court of Florida's finding that there were sufficient indicia of reliability to have permitted the admission of Taylor's statement directly against Grossman also was neither contrary to nor an unreasonable application of clearly established federal law.
The long and short of it is that the Supreme Court of Florida reasonably determined*1341 that the admissibility of Taylor's statement amounted to harmless error.
[8] Grossman argues, however, that his inability to cross-examine Taylor constituted harmful error under the Supreme Court's recent decision in Crawford. This claim fails for two reasons. First, we have held that under the Supreme Court's analysis in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Crawford does not apply retroactively to cases on collateral review. Espy v. Massac, 443 F.3d 1362, 1367 (11th Cir.2006) (holding that “ Crawford did not announce a watershed rule of criminal procedure, and it therefore does not apply retroactively to cases on collateral review”). Second, it fails because AEDPA requires us to consider only clearly established federal law, which “refers to the holdings ... of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (emphasis added); Hart v. Att'y Gen., 323 F.3d 884, 891 (11th Cir.2003); Putman, 268 F.3d at 1241. Because Crawford was decided in 2004, nearly sixteen years after the Supreme Court of Florida issued its opinion on the severance issue in 1988, it does not qualify as clearly established federal law that we may consider. FN13 Simply put, the Supreme Court's decision in Crawford cannot affect our analysis. We, therefore, agree with the district court that the state court's decision was neither contrary to nor an unreasonable application of clearly established federal law, and that it was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
FN13. We need not decide the extent to which AEDPA codifies the exceptions to non-retroactivity set forth in Teague, see Teague, 489 U.S. at 311, 109 S.Ct. 1060, because, under Teague, Crawford is not retroactively applicable to cases on collateral review. See Mungo v. Duncan, 393 F.3d 327, 334-35 (2d Cir.2004) (“In any case, whether § 2254(d)(1) was intended, or out of prudence should be read, to adopt the Teague exceptions is a question we need not answer because we conclude that the Crawford rule does not qualify as a watershed rule coming within the exception to Teague.”).
IV.
Grossman's next habeas claim is that the state prosecutor erroneously failed to disclose exculpatory material concerning witnesses Brewer, Hancock, and Allan. Grossman raised this issue in his state post-conviction proceeding and presented evidence at a hearing conducted by the state trial judge. The state court squarely rejected Grossman's Brady claims and the Supreme Court of Florida affirmed. See Grossman II, 708 So.2d at 251. The district court similarly found that there were no Brady violations. Grossman III, 359 F.Supp.2d at 1261-63.
[9] [10] [11] [12] In Brady, the Supreme Court set forth the now firmly-established constitutional rule that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. Indeed, the “duty to disclose such evidence is applicable even though there has been no request by the accused, and ... the duty encompasses impeachment evidence as well as exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citation omitted). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding *1342 would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The state post-conviction court and the Supreme Court of Florida recognized Brady as establishing the relevant law, and Grossman does not claim any error in that regard; instead, he contends that the state courts unreasonably applied Brady and its progeny to the facts of this case. We disagree.
Grossman first says that the state withheld exculpatory information that it had cut a deal with Brewer to give him assistance on other charges in exchange for his testimony, that the state attorneys knew Brewer's testimony was false, and that Brewer was an agent of law enforcement, as well as information regarding the number of Brewer's prior convictions.
[13] The state trial court took extensive evidence on this claim at a collateral hearing, and concluded that Brewer did not receive any deal in exchange for his testimony and was not acting as an agent of law enforcement. The court relied specifically on the hearing testimony of Pinellas County Detective Robert Rhodes and State Attorney Bernie McCabe, both of whom unambiguously said that there were no deals with Brewer. The Supreme Court of Florida affirmed for the reasons offered by the trial judge. Grossman II, 708 So.2d at 251-52. The district court, in turn, found that the state court's conclusion was supported by “competent, substantial evidence presented at the hearing,” Grossman III, 359 F.Supp.2d at 1262, and we agree. Although Brewer testified that he had an agreement with the state, the state post-conviction court was entitled to credit the contrary testimony of the detective and the prosecutor, and we are obliged to defer to that fact-finding.
[14] Grossman also says that Brewer provided false testimony at trial regarding what he heard from Grossman and about Brewer's prior convictions. The state court determined, however, that to the extent Brewer provided any false testimony at trial, the state was not aware of the falsehood, and that Grossman failed to show how the alleged falsities affected the conviction or the sentence. The Supreme Court of Florida again affirmed, and we agree with the district court that the state court's conclusions are supported by substantial, competent evidence. Grossman offers us no argument other than the testimony of Brewer himself, which stands in stark contrast to the accounts provided by the police detective and state attorney. Moreover, he does not begin to establish how the evidence was material-that is, how there is a reasonable probability that the outcome would have been different if the alleged falsities had been disclosed.FN14 As the district court correctly noted, the evidence of Grossman's guilt was “overwhelming.” Grossman III, 359 F.Supp.2d at 1263.
FN14. The parties have argued this issue under the rubric of Brady. Some of Grossman's arguments come close to alleging Giglio error, “a species of Brady error that occurs when the undisclosed evidence demonstrates that the prosecution's case included perjured testimony and that the prosecution knew, or should have known, of the perjury.” Ventura v. Att'y Gen., 419 F.3d 1269, 1276-77 (11th Cir.2005) (internal quotation marks omitted). The materiality standard under Giglio is less stringent than under a garden variety Brady claim; under Giglio, a failure to disclose evidence is material if “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Ventura, 419 F.3d at 1278 (internal quotation marks omitted). But, whether we evaluate Grossman's claim under Brady or Giglio, the outcome is the same; the allegedly withheld evidence was not material.
*1343 Grossman also alleges that the state, again in violation of Brady, failed to disclose that: 1) his friend and roommate Brian Hancock had charges pending against him in Martin County; 2) Hancock was interested in receiving reward money in exchange for his testimony; and 3) the police instructed Hancock to testify that Grossman told him he hit Officer Park “20 to 30 times” with her flashlight. The state court rejected each claim.
In the first place, the state trial judge found that Hancock did not lie at trial about his Martin County arrest and that Hancock purposefully withheld the details of that incident from the Pinellas County authorities. The state court also found that Hancock never lied about any reward money and that his testimony concerning the number of times Grossman hit Officer Park was based on information he learned from Grossman, not information he got from the police. The Supreme Court of Florida affirmed, and the district court again concluded that the findings were supported by substantial testimony from the post-conviction hearing.
At trial, the prosecutor asked Hancock if “anyone promised you anything with regard to any possible charges you might have faced for your involvement in this case” and Hancock answered, “No, they haven't.” On cross-examination, the defense attorney asked Hancock, “You have not been arrested in this incident, you have not been charged with anything during the past ten months, have you?” Hancock answered, “No, I have not.” According to Hancock, he had been arrested in Martin County for disorderly conduct shortly before he testified. Hancock claimed that he told Pinellas County officials about the arrest. Eventually-it is not clear when-Hancock failed to appear on the disorderly conduct charges and was sentenced to 45 days in jail.
It is not clear from the record whether Hancock lied when he said he had not been “charged” with anything in the previous ten months. First, the initial part of the question (“You have not been arrested in this incident, ... have you?”) expressly asked about this incident (i.e., the murder), and the disorderly conduct arrest was unrelated to the killing of Officer Park. Moreover, it is not clear whether Hancock had been charged with disorderly conduct when he testified. He had been arrested at that point, but it is unclear when he was formally charged. Regardless of whether he lied, however, we agree with the district court's conclusion, that even if the state knew about the Martin County arrest, and even if the state withheld that information, there was no Brady error because there is no possibility that the result of the proceeding would have been different if the defense knew about that arrest.FN15
FN15. Again, the evidence was not material regardless of whether we evaluate Grossman's claim under Brady or Giglio.
As for the reward money and the testimony about the number of times Grossman struck Officer Park, the state court's conclusions are adequately supported by the post-conviction testimony of Pinellas County Detective Robert Rhodes, Detective John Halliday, and State Attorney McCabe. Again, the state court's decision was neither an unreasonable application of clearly established federal law nor an unreasonable determination of the facts.
Finally, Grossman maintains that the state failed to disclose that Brian Allan *1344 was the subject of a criminal investigation when he testified. At the state court post-conviction hearing, a sergeant with the Pasco County Sheriff's Office testified that he first began investigating Allan on September 9, 1985, at which time he purchased a small amount of marijuana from Allan. Allan was arrested soon thereafter by the Pasco County officers on October 31, 1985-the same day that the penalty phase of Grossman's trial began. The Pasco County sergeant said it was three to four days later before he learned that Allan was a witness in Grossman's case, at which time he notified the state attorney's office.
The state trial court found that the state did not know of the Allan investigation and that it would not have been helpful for impeachment purposes. The Supreme Court of Florida affirmed. Grossman does not explain why that ruling was erroneous; he simply restates the facts noted above. We agree with the district court that there was no Brady violation; there is simply no evidence that the prosecutors knew about the Allan investigation. But, even if the state did know about the investigation, and even if the information could have been used for the purposes of impeachment, there is no real possibility that the result of the proceeding would have been different.
In short, the Supreme Court of Florida correctly determined the relevant federal law, applied that law in a reasonable manner, and did not make any unreasonable factual determinations in rejecting Grossman's Brady claims.
V.
Finally, Grossman maintains that he received ineffective assistance of counsel because his attorneys did not effectively prepare for the penalty phase of the trial, failed to object to the state's presentation of non-statutory aggravating factors, failed to object to the state's use of a “Golden Rule” argument, and did not present an effective closing argument. Grossman argues that his attorneys should have interviewed more of his family and friends, and he offers affidavits from thirty-three individuals he contends could have provided mitigation testimony at the penalty phase. After painstaking review, the district court concluded that Grossman received effective assistance at the penalty phase, and we agree.
Ineffective assistance claims are governed by the well-established standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that to prevail on an ineffective assistance claim, a criminal defendant must show both that counsel's performance was deficient and that counsel's performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. The Florida courts recognized and followed the Strickland standard in this case, and Grossman does not contend otherwise. Rather, he says that the Florida courts unreasonably determined that, based on the facts of this case, counsel's performance at the penalty phase was constitutionally sufficient.
Grossman argues that his two trial attorneys were ineffective because they failed to interview family and friends who could have provided beneficial testimony at the penalty phase. His attorneys erred, he says, in relying on only three sources for potential penalty phase witnesses-Grossman himself, his mother, and his grandmother-and he put forth thirty-three additional mitigating affidavits. The *1345 Supreme Court of Florida rejected this claim, and in doing so quoted at length from the state post-conviction court's opinion:
The Court has weighed all the above matters in light of Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). The Defendant has failed to make the required showing of either deficient performance or sufficient prejudice to support his ineffectiveness claim.
The Court has evaluated the conduct of the Defendant's counsel from counsel's perspective at the time of the trial. Defendant introduced thirty-three affidavits that were represented as possible mitigation witnesses that were available a[t] the time of trial but were not used by the defense. Several of the possible witnesses represented by the affidavits were known to the defense, and the defense had determined not to use them.
Defense counsel, Mr. McCoun, at the time of trial recognized that while trying to present a favorable picture of the Defendant, equally negative things would also be presented. Mr. McCoun did not want to use witnesses who would say that the Defendant was into stealing and heavy drug use. Moreover, defense counsel called three mitigating witnesses in addition to the Defendant's mother. The mitigating witnesses that were called had close contact with the defendant near the time that he committed the crime; whereas, many of the potential witnesses that were represented by the affidavits had not seen the Defendant in years.
The Court finds that Mr. McCoun did a competent, effective job of representing the Defendant at all phases of the trial. Even if counsel were deemed ineffective for the reasons stated by the Defendant, such alleged ineffectiveness did not come close to being so prejudicial to the Defendant that it affected the outcome of the case. The facts of this case showed the Defendant's conduct to be so egregious that proof of mitigating circumstances was extremely difficult.
The trial court applied the right rule of law governing ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and competent substantial evidence supports its finding. We find no error.
Grossman II, 708 So.2d at 251 (second alteration added and footnote omitted).
[15] [16] [17] [18] The standard governing counsel's performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.” White v. Singletary, 972 F.2d 1218, 1221 (11th Cir.1992). “To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc) (internal quotation marks omitted). The burden of persuasion is on the petitioner to prove by a preponderance of the evidence that no competent counsel would have taken the action that his counsel did take. See *1346 Marquard v. Sec'y for Dep't of Corr., 429 F.3d 1278, 1304 (11th Cir.2005), cert. denied, 547 U.S. 1181, 126 S.Ct. 2356, 165 L.Ed.2d 283 (2006). In judging the adequacy of counsel's investigation of potential mitigating circumstances, we consider “counsel's perspective at the time investigative decisions are made” and give “a heavy measure of deference to counsel's judgments.” Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (internal quotation marks omitted).
[19] The district court determined, we think properly, that Grossman's counsel did an effective and competent preparation for the penalty phase. Grossman's attorneys talked to Grossman, his mother, and his grandmother; attempted to develop other witnesses based on those conversations; notably researched Grossman's past addresses, and his educational, medical, and emotional background; located witnesses who had known Grossman while he was in jail and who could testify about his courteous, cooperative, and nonviolent demeanor; and explored the possibility of mental mitigating facts with Dr. Sidney Merin. Grossman's trial counsel presented four mitigating witnesses, including Myra Grossman (Grossman's mother), Steven Nicholas Martakas (Grossman's best friend), and two jail employees who interacted with Grossman while he was incarcerated.FN16
FN16. These efforts far exceed those the Supreme Court found deficient in Rompilla. In that case, the Court found deficient performance where defense counsel failed to examine a prior conviction file that the state attorneys said they intended to use (and quote from) at the penalty phase. Rompilla, 545 U.S. 374, 125 S.Ct. at 2467, 162 L.Ed.2d 360. Here, Grossman does not allege that his counsel failed to review any files they knew the state would present at the penalty phase; indeed, the state presented no evidence at the penalty stage. More importantly, defense counsel undertook substantial efforts in preparation for the penalty phase.
As the district court recognized, “[t]he defense strategy for penalty phase was to demonstrate that Grossman was not an animal but a young man with positive characteristics who did not deserve to die.” Grossman III, 359 F.Supp.2d at 1268. The district judge addressed the thirty-three affidavits this way, and, after thorough review, we agree with her analysis:
Many of the affidavits offered to support Grossman's argument in this case presented facts cumulative to the testimony of Myra Grossman and Steve Martakas. In addition, many of the affidavits, and much of the mitigation now suggested by the defense, were inconsistent with the penalty phase strategy, because the evidence would have reminded the jury of Grossman's negative character traits, such as his drug use and prior criminal history.
The affidavits themselves were of limited evidentiary value. They are distinctly one-sided, and the testimony at the state evidentiary hearing established that the affiants had very limited knowledge of Martin Grossman. The affiants who knew Grossman as a child had lost touch with him after his family moved to New Port Richey, Florida. Some of the affidavits were identified as inaccurate; some affiants felt pressured into signing the statements, and many affidavits were based on speculation and information heard through other people.
Both Attorney McCoun's and Attorney Ira Berman's testimony revealed why they would not have used as witnesses many of the affiants, such as Rosol and Paul Melton, who were instrumental in turning Grossman in to the *1347 police. They chose not to put on witnesses who would have had negative things to say about Grossman or his mother, or who would have opened the door to testimony about Grossman's drug and alcohol abuse and his previous criminal activities. The testimony of the social worker, Kevin Sullivan, strategically would not have been presented for the same reason.
Id. at 1268-69 (citations and footnote omitted).
The district judge made clear that many of the affiants were rejected for sound and considered reasons. The practice of submitting post-hoc affidavits is not out of the ordinary, and it is not often successful:
It is common practice for petitioners attacking their death sentences to submit affidavits from witnesses who say they could have supplied additional mitigating circumstance evidence, had they been called, or, if they were called, had they been asked the right questions .... But the existence of such affidavits, artfully drafted though they may be, usually proves little of significance .... That other witnesses could have been called or other testimony elicited usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of prior counsel. As we have noted before, in retrospect, one may always identify shortcomings, but perfection is not the standard of effective assistance.
The widespread use of the tactic of attacking trial counsel by showing what “might have been” proves that nothing is clearer than hindsight-except perhaps the rule that we will not judge trial counsel's performance through hindsight. We reiterate: The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.
Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir.1995) (citations, internal quotation marks, and alterations omitted). Grossman's counsel conducted an investigation, interviewed Grossman's family members and friends, had a strategy for the penalty phase, and called mitigation witnesses. The Supreme Court of Florida did not unreasonably apply clearly established federal law in finding the performance was not ineffective.
Moreover, we agree with the district court that even if the performance was ineffective, Grossman has not successfully established the prejudice prong of the Strickland analysis. As the Supreme Court of Florida held, the conduct of Grossman's attorneys “did not come close to being so prejudicial to the Defendant that it affected the outcome of the case.” Grossman II, 708 So.2d at 251 (quoting the state post-conviction court's opinion). The trial testimony shows that “Grossman committed outrageous and brutal acts against a young female wildlife officer, striking her repeatedly with her own flashlight and then shooting her in the head with her own gun.” Grossman III, 359 F.Supp.2d at 1270. Against a very substantial array of evidence, there is simply no “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We can discern nothing unreasonable in the state court's determination on this point either.
*1348 [20] Grossman also argues that counsel was ineffective for failing to object to the state's introduction of non-statutory aggravating factors. Specifically, he claims that the prosecution elicited prejudicial, irrelevant testimony from Myra Grossman about a time when Grossman allegedly vandalized Brian Hancock's car and when Grossman allegedly threatened to kill Hancock. As the district court noted, this testimony was proper rebuttal evidence, offered in response to Myra Grossman's direct testimony that Grossman, her son, was a normal, nonviolent person who acted wholly out of character when he murdered the victim. Counsel's performance was neither deficient nor prejudicial on this score.
[21] Next, Grossman argues that counsel was ineffective for failing to object to the prosecution's improper use of a “Golden Rule” argument. “A ‘golden rule’ argument asks the jurors to place themselves in the victim's position, asks the jurors to imagine the victim's pain and terror or imagine how they would feel if the victim were a relative.” Hutchinson v. State, 882 So.2d 943, 954 (Fla.2004). Grossman complains because the prosecutor, in closing argument, told the jury there was “terror and pain” in the victim's voice when she made a transmission on her police radio, that Officer Park suffered fear and pain before she died, and that the blows to her head with the flashlight were “terrorizing,” and because the prosecutor described the struggle that occurred before Officer Park died. The district court determined that these comments were not improper “Golden Rule” arguments because they were not designed to elicit sympathy for the victim, but rather were presented to the jury as relevant arguments in support of the “heinous, atrocious, or cruel” aggravating factor. We agree.
In Kennedy v. Dugger, the prosecutor offered the following argument to the jury: “Can you imagine, in your own living room not bothering a soul on a Saturday afternoon? He stopped up at his relative's house and had a beer and he walked back down to your own house, and, a total stranger, because you got in his way, destroys you.” 933 F.2d 905, 913 (11th Cir.1991). We found that was not an improper “Golden Rule” argument because it was relevant to the defendant's future dangerousness. Id. This case is even clearer, where the prosecutor was permitted to comment on those aspects of the crime that made this particular murder arguably heinous, atrocious, or cruel. Indeed, the prosecutor here never asked the jurors to place themselves in the victim's position; he simply described the circumstances of her death, which undeniably involved physical pain and enormous emotional terror, circumstances that are plainly relevant to whether the murder was heinous, atrocious, or cruel. There was no “Golden Rule” violation, and Grossman's counsel did not provide deficient representation by failing to object.FN17
FN17. Moreover, we agree with the district court that even if there was error, there was no showing of prejudice. The comments were not a focal point of the closing argument, and, in light of the significant number of aggravating circumstances, there is no reasonable probability that the outcome would have been different if the prosecutor had not made them. See Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985) (noting that because the jury's recommendation is only advisory, prosecutorial misconduct must be egregious before a new penalty phase is appropriate, and finding that an improper Golden Rule argument did not warrant re-sentencing).
[22] Finally, Grossman argues that his attorneys were ineffective because they *1349 did not present an effective closing argument. Grossman maintains that they should have presented additional mitigating factors and explained in greater detail why the aggravating factors were not satisfied. The district court rejected this claim and explained its reasoning in these terms:
A review of defense counsel's closing argument refutes Grossman's claim of ineffectiveness based on the alleged inadequacy of the closing argument. While the defense may not have focused on emphasizing particular mitigating factors to current counsel's satisfaction, the overall theme of the closing argument was to repeatedly stress the penalty phase strategy emphasizing that Grossman was a normal child, with family and friends who cared about him; that he was not a morally corrupt beast and that this incident was totally out of character for him; and that his ability to behave appropriately in prison demonstrated that there was no need for him to be executed, as society would be protected by the imposition of a life sentence. Counsel also emphasized the gravity of the decision the jury was being asked to make and the importance of disregarding feelings of anger, sympathy or revenge.
Grossman III, 359 F.Supp.2d at 1272 (citations omitted). Grossman's attorneys presented a reasoned and rational theme to the jury during closing argument. That is all the Constitution requires. See Chandler, 218 F.3d at 1314 (noting that “counsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken might be considered sound trial strategy” (internal quotation marks omitted)).
VI.
In short, the decisions of the Florida courts were neither contrary to nor unreasonable applications of clearly established federal law; nor were the decisions based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, we affirm the district court's denial of habeas relief.
AFFIRMED.
DC#: 089742
DOB: 01/19/65
Attorney, Trial: Thomas B. McCoun, III – Private
Attorney, Direct Appeal: Elizabeth Mansfield – Private
Attorney, Collateral Appeals: Richard Kiley and James Viggiano– CCRC-M
Date of Sentence: 12/13/85
01/16/85 Not guilty plea entered.
10/29/85 Jury returned guilty verdict
10/31/85 Jury recommended the death sentence by a vote of 12-0.
12/13/85 Sentenced to death on the sole count of the indictment.
FSC# 68,096
525 So. 2d 833
01/02/86 Direct appeal filed
02/18/88 FSC affirmed conviction and death sentence
05/25/88 Rehearing denied
06/27/88 Mandate issued
USSC# 88-5136
489 U.S. 1071
07/25/88 Petition filed
03/06/89 USSC denied petition
FSC# 75,738
708 So. 2d 249
03/23/90 Petition filed
12/18/97 FSC denied petition
02/26/98 Rehearing denied
04/06/98 Mandate issued
CC# 84-11698
08/13/90 Motion filed
10/05/95 Circuit Court denied motion
FSC# 87,121
708 So. 2d 249
01/04/96 Appeal filed
12/18/97 FSC affirmed denial of 3.850 motion
02/26/98 Rehearing denied
04/06/98 Mandate issued
USDC# 98-1929
09/18/98 Petition filed
02/10/99 USDC struck Petition
03/10/99 Amended Petition filed
07/22/02 Administratively closed pending decision in FSC Bottoson/King cases
01/23/03 Case reopened
08/12/03 Administratively closed pending filing of supplemental brief
08/25/04 Amended Petition filed
01/31/05 USDC denied Petition
FSC# 03-1413
880 So.2d 1211
08/14/03 Petition filed
05/07/04 FSC denied petition without an opinion
07/15/04 Rehearing denied
USCA# 05-11150
466 F. 3d 1325
02/25/05 Appeal filed
10/16/06 USCA affirmed denial of petition
01/05/07 Mandate issued
10/26/88 Clemency hearing held (denied)