Citations:
Hill v. State, 477 So.2d 553 (Fla. 1985) (Direct Appeal).
Hill v. State, 515 So.2d 176 (Fla. 1987) (Direct Appeal).
Hill v. Dugger, 556 So.2d 1385 (Fla. 1990) (Postconviction).
Hill v. State, 921 So.2d 579 (Fla. 2006) (Lethal Injection).
Hill v. Moore, 175 F.3d 915 (11th Cir. 1999) (Habeas).

Final Meal:
Refused.

Final Words:
None.

Internet Sources:

Florida Department of Corrections

Offense Date: 10/19/1982
Convictions: 1ST DG MUR/PREMED, 1ST DG MUR/PREMED ATTEMPT, ROBB. GUN/DEADLY WPN (3 CTS)
Sentencing: 05/27/83

Miami Herald

"Convicted cop-killer is put to death," by Phil Long. (Wed. Sep. 20, 2006)

STARKE - Clarence E. Hill, convicted of killing a Pensacola cop during a botched bank robbery in 1982, was executed by lethal injection on Wednesday evening at Florida State Prison. Hill had been strapped to the death gurney once before, in January, and was moments away from execution then when the U.S. Supreme Court granted him a stay of execution so he could challenge Florida's method of lethal injection on the grounds it violated his civil rights. That was unsuccessful, there was no reprieve on Wednesday evening and a combination of three powerful drugs took his life at 6:12 p.m. Hill had no last words.

The execution marked the end of a crime that began in 1982 when police say Hill shot two police officers after he and an accomplice held up a savings and loan in Pensacola. Officer Stephen Taylor, 26, was one of the first on the scene when the two robbers came out of different doors of the bank, said Pensacola police Assistant Chief John Mathis. Taylor and Officer Larry Bailly were attempting to handcuff suspect Cliff Jackson when Hill came up and began shooting, according to court records. Hill shot Taylor in the side, Mathis said. Hill also wounded Bailly. Both Hill and Jackson were also hit during the exchange of gunfire. Jackson is serving a life sentence. Taylor's portrait hangs in the lobby of the Pensacola police station, Mathis said, a ''vivid reminder'' of what can happen in police work.

Hill's execution came within days of a lengthy American Bar Association study that says Florida complies with only eight of 93 ABA legal standards covering death penalty cases. Florida also leads the country in exonerations of prisoners on Death Row, with 22 since 1973. The ABA made 11 recommendations for change in Florida, including a requirement that Florida juries unanimously recommend the death sentence as they do in the 37 other death-penalty states. Today, jurors need only recommend death by a majority vote, and judges have the final say. Though it apparently hasn't happened since 1999, the report says, a judge has the authority to override a jury's recommendation of life in prison and sentence the convicted person to death.

Hill's execution was the 61st since Florida resumed executions in 1979. The U.S. Supreme Court struck down the death penalty as unconstitutional in 1974. Florida and other states revised their laws, and in 1976 the court reversed its ban.

In January, Hill's attorney, Todd Doss, won a stay of execution and later a unanimous decision from the Supreme Court, sending the case back to Florida on a narrow legal point. Hill had a right, the justices said, to file a claim in federal court that the state's method of lethal injection violated his civil rights against cruel and unusual punishment. The argument was not whether Hill would be executed. That had been settled.

Doss argued that if the first drug, a powerful anesthetic called sodium pentothal, didn't do its job properly, then when the heart-stopping third drug, potassium chloride, was administered, Hill could feel intense burning in his veins. But because the second drug in the series, pancuronium bromide, had paralyzed his muscles, there would be no way to tell he was in pain, Doss argued. State lawyers have countered that the initial anesthetic is a very high dose, is effective and does not wear off before the other drugs are administered. The Florida Supreme Court has upheld the Department of Correction's method of lethal injection, and the U.S. Supreme Court has not overturned any cases on the issue, said Carolyn Snurkowski, an assistant attorney general who handles death penalty appeals. After the Supreme Court cleared the way for Hill to challenge Florida's procedure, his claim was rejected by a federal judge in Gainesville. The 11th Circuit Court of Appeal in Atlanta upheld the lower court ruling.

With Hill's execution, there are 376 men and no women left on Florida's Death Row. They are housed in two prisons, Florida State Prison, west of Starke, and nearby Union Correctional Institution

Reuters News

"Florida executes convicted police killer Hill, by Michael Peltier." (Wed Sep 20, 2006 6:56pm ET)

ALLAHASSEE, Florida (Reuters) - Florida prison officials on Wednesday executed a 48-year-old death row inmate for the 1982 murder of a Pensacola police officer in a case that ignited debate over the use of lethal injection. Clarence Hill, 24 at the time of the murder, was pronounced dead by prison officials at 6:12 p.m. (2212 GMT), said Anthony De Luise, a spokesman for Florida Gov. Jeb Bush. His death came hours after the U.S. Supreme Court rejected his final appeal on a 5-4 vote.

was put to death for the killing of Pensacola officer Stephen Taylor, 26, who was gunned down during a botched robbery attempt at a savings and loan office. Hill's accomplice, Cliff Jackson, entered a plea agreement and is serving life in prison.

Hill was executed by lethal injection, a three-drug cocktail that anesthetizes, paralyzes the lungs and then causes a massive heart attack. In January, Hill was strapped to a gurney with tubes inserted in his arms when he got a last-minute reprieve. U.S. Supreme Court Justice Anthony Kennedy ordered a hearing into Hill's claim the execution method was so painful it violated the Constitution's ban on cruel and unusual punishment. In June, the nation's highest court unanimously sent Hill's case back for further review. Last week, a federal judge in Tallahassee and an appellate court in Atlanta rejected the appeal, basing their rulings largely on their view Hill filed it too late.

Since the initial ruling in January, states across the country have been grappling with the lethal injection issue. In August, South Dakota Gov. Mike Rounds postponed the state's first execution in 59 years, ordering prison officials to review the state's lethal injection protocol. On the same day, Oklahoma used lethal injection to execute a death row inmate for a 1994 murder. Last week, a federal judge in Missouri ruled that despite changes to that state's execution protocol, officials there had yet to convince the court the procedure was not cruel and unusual. A similar case is pending in California. Federal courts in Arkansas, Delaware and Ohio have also postponed executions until lethal injection procedures are reviewed.

Hill requested no special last meal and prison officials said he refused a meal that included tacos, a tossed salad and apple crisp.

Hill was the 61st inmate executed in Florida since the U.S. Supreme Court lifted a national death penalty ban in 1976.

Tallahassee Democrat

"Clarence Hill executed," by Paul Flemming. (Originally published September 20, 2006)

STARKE -- Clarence Hill was declared dead at 6:12 p.m., fulfilling his death sentence 24 years after he shot and killed Pensacola police officer Stephen Taylor. For Taylor's family members, who witnessed Hill's execution, it was justice fulfilled, if delayed. Death penalty opponents and Hill's lawyer decried the execution and the judicial system that refused to hear evidence that the drugs injected to kill him might cause excruciating pain.

Gary Mace, Taylor's cousin, was among the 29 people who witnessed Hill's execution. He read from a statement following the execution. "For almost 24 years our family has lived with the loss of Steve one day at a time," Mace said. "Today's actions do not close the book for us, they only turn the page that starts a new chapter. It is our prayer that in the future, when someone commits such a heinous crime as Clarence Hill and is found guilty and sentenced to death multiple times, as Hill was by the judicial system, that their sentence will be carried out in a timely manner, not 24 agonizing years later." Suzanne Vickrey, Taylor's now-remarried widow, was also a witness.

Hill, 48, was revealed to witnesses already strapped to a hospital bed, intravenous tubes visible and his head and hands restrained by leather straps. Hill did not respond when warden Randall Bryant asked him at 6 p.m. if he had any last words. He stared, unblinking, at the ceiling in the death house. At 6:02, Hill blinked several times before heavy lids drooped to near closed and his chest rose visibly twice. He showed no further signs of life. A blue-cloaked and hooded medical staffer came in at 6:11 to check Hill's vitals, followed by a similarly clothed doctor to check Hill with a stethoscope. After two nods to Bryant from the anonymous member of the execution team, the warden declared Hill dead.

None in the witness chamber showed visible emotion as Hill was killed. Afterward, Vickrey, who has since remarried, was unable to deliver prepared remarks as tears welled in her eyes, her lips trembled and she put on sunglasses.

Todd Doss, Hill's attorney, also witnessed the execution. Doss's last-ditch appeal to the U.S. Supreme Court was denied Wednesday afternoon. Back in January, Hill was minutes away from death when the highest court granted a stay. Another death warrant against Hill, in 1989, was blocked by an appeal. Doss sought a delay of the execution to allow hearings about the state's lethal-injection procedures. He argued that the series of three drugs used by Florida could leave condemned prisoners unable to show the pain caused by the paralyzing and heart-stopping drugs that are used. "He was a man who'd looked at this twice before. This is his third time going down to the wire like this," Doss, who last spoke to Hill Tuesday night said. "I don't think anybody's better off, that's for sure. We're not any further along in this process. Florida needs to engage in a meaningful and thorough review of the death penalty -- lethal injection is just the tip of the iceberg."

First Coast News

"Clarence Hill Executed. (9/20/2006 12:39:53 PM)

JACKSONVILLE, FL (AP) -- Clarence Hill, who was once minutes from execution before the U.S. Supreme Court intervened, has been put to death by lethal injection for the 1982 slaying of a Pensacola police officer after a saving and loan robbery. Hill was pronounced dead at 6:12 p.m., never getting a hearing on the merits of his contention that the chemicals used in Florida's lethal injection procedure caused extreme pain and were unconstitutional.

Clarence Hill was strapped to a gurney with I-V tubes running into his arms in late January when the U.S. Supreme Court stepped in and stopped his execution. The high court later ruled that Hill should be able to file a challenge to Florida's execution procedure and sent the case back to lower courts to rule on Hill's claims. His claims were all rejected.

Hill's attorney has filed an appeal and a request that his execution be stayed until a hearing is held on whether inmates suffer extreme pain when they are executed. Attorneys for the state argue that Hill waited too long to challenge the execution process and his execution should go forward. Hill was convicted of killing a police officer during a robbery in Pensacola in 1982.

Bradenton Herald

"Hill executed for 1982 slaying of police officer," by Ron Word. (Associated Press Wed, Sep. 20, 2006)

STARKE, Fla. - A convicted killer who had argued that Florida's use of lethal injections amounted to cruel and unusual punishment was put to death by lethal injection Wednesday night after the U.S. Supreme Court narrowly denied him another stay. Clarence Hill, 48, was executed for the 1982 murder of a Pensacola police officer in a savings and loan robbery.

Hill, of Mobile, Ala., was pronounced dead at 6:12 p.m., never getting a hearing on the merits of his contention that the chemicals used in Florida's lethal injection procedure caused extreme pain and were unconstitutional. He stared straight at the ceiling and did not reply when asked if he had a last statement. He was wearing a white skullcap, and his head was strapped down, unlike some other executions. After the injection, he blinked his eyes a couple times, his chest heaved and his mouth drooped. The physicians, wearing blue hoods and dark goggles to protect their identities, checked his vital signs at 6:11 p.m., and pronounced him dead a minute later.

Hill, who had shot Officer Stephen Taylor from behind, received visits Tuesday from defense attorney D. Todd Doss, a death row advocate and the inmate's wife, Serena Mangano, of Modino, Italy, who married him in June in a no-contact wedding at Florida State Prison in Starke. Mangano visited him again Wednesday. He did not order a special final meal and refused to eat the prison meal of tacos, beans and a salad Wednesday morning, said Robbie Cunningham, a Department of Corrections spokesman.

In January, Hill was strapped to a gurney and his arms with hooked up with IV tubes before the Supreme Court stepped in and stopped his execution. In June, in a 9-0 vote, the high court ruled that Hill could mount a challenge to the chemicals under a civil rights motion. However, a district court in Tallahassee and an appeals court in Atlanta refused to hear those challenges, ruling that Hill should have filed earlier and accused him of trying to delay the process. An appeal was again filed with the Supreme Court, but this time it voted 5-4 to deny another stay on Wednesday. Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens voted to grant the stay, the court said in a two-sentence order.

Hill had argued that the three chemicals used in Florida executions and by many other states - sodium pentothal, pancuronium bromide and potassium chloride - can cause excruciating pain. The first drug is a painkiller. The second one paralyzes the inmate and the third causes a fatal heart attack. The state contended Hill waited too long to appeal, saying he should have raised his objections when the state switched from the electric chair in 2000. Doss claims he could not have raised the issue until Hill's death warrant was first signed in November.

After the execution, Doss called for an examination of the state's capital punishment system. "Not getting to the merits (of Hill's challenge) is obviously disturbing to me," Doss said. "I don't think anybody is better off, that's for sure." Hill was the 61st inmate to die in Florida since the state resumed the death penalty in 1979. He was the first inmate to be executed this year.

Suzanne Vickrey, the widow of the slain police officer, witnessed the execution, along with his brother and a cousin. "Justice was finally served," Vickrey said. "Twenty-four years is extremely too long for justice to be served."

On Oct. 19, 1982, Hill and a friend, Cliff Jackson, had driven from Mobile to Pensacola in a stolen car to rob the Freedom Federal Savings Bank. When an alarm went off, Hill ran out the back door and Jackson fled out the front door. Taylor and his partner arrested Jackson and were attempting to handcuff him when Hill approached them from behind and began shooting. Taylor died in the shootout, and partner Larry Bailly was wounded. Hill was shot five times and was caught a short time later. Jackson was given a life sentence.

Hill was convicted of first-degree murder and, in May 1983, sentenced to death. The Florida Supreme Court ordered a new sentencing hearing in October 1985 and in April 1986, Hill was again sentenced to death.

The U.S. Supreme Court also halted the execution of another Florida inmate, Arthur Rutherford, who also sought to challenge the lethal injection procedure. Rutherford, too, had been scheduled to die in January. He was convicted for the 1985 drowning and asphyxiation of 63-year-old Stella Salamon at her Milton home. His execution has not been rescheduled.

Pensacola News

"For third time, Hill faces death." by Paul Flemming. (Published - September, 17, 2006)

TALLAHASSEE -- Twenty-four years after the murder that brought Clarence Hill a death sentence, he's again scheduled for execution on Wednesday and his appeal is again winding its way through federal courts. Gov. Jeb Bush set a new execution date for Hill last month. Hill's remaining appeal, kicked back by the U.S. Supreme Court in June, is now before the 11th Circuit U.S. Court of Appeals. He faces death for the murder of Stephen Taylor, a Pensacola police officer shot by Hill in the midst of a daytime bank robbery attempt in 1982.

It's the third time Hill has faced an execution date -- the first in 1989; the second, earlier this year. Thus far, the result of Hill's appeal in court has been much the same as it was back in January when the 43-year-old condemned man was cinched down on a gurney with needles in his arm ready to deliver the deadly cocktail of drugs that would kill him. At the last moment, Supreme Court Justice Anthony Kennedy granted a stay.

Last week, U.S. District Judge Stephan Mickle dismissed Hill's request to delay his execution and refused to conduct hearings on whether Florida's execution methods are unconstitutional. "Hill's emotionally laden arguments raise no new evidence," Mickle wrote in a Thursday order that denied a rehearing on his earlier rejection of Hill's motion for a stay.

In June, the U.S. Supreme Court ruled in Hill's favor and said lower courts should consider as a civil rights claim his appeal that Florida's way of delivering lethal injections could be cruel and unusual punishment. It was a procedural decision that nonetheless gave Hill hope that he could get a full hearing that delivery of a three-drug cocktail that anesthetizes, paralyzes and then stops the heart could cause him unconstitutional suffering.

Death penalty opponents heralded the Supreme Court decision as a chance to review Florida's lethal injection methods, as has taken place in California and Missouri cases that are similar to Hill's. But the federal district court continued last week to decide Hill's appeal on legal grounds that haven't considered the merits of the argument that lethal injection is cruel and unusual. "The judge at the district court essentially didn't change anything (from January) and simply refused to litigate the case," said Mark Elliott, spokesman for Floridians for Alternatives to the Death Penalty.

Opponents also hoped the court's decision meant a moratorium on executions for the 376 inmates on Florida's Death Row. But when Bush renewed Hill's existing death warrant last month, that hope ended. The courts rolled into action and, thus far, have gone the state's way.

Elliott said a review of the state's methods are merited. "Whenever elected officials say there's no problem, but don't look here, that should raise red flags and the public should be looking there," Elliott said. "Our motto is 'In God We Trust,' not In Gov We Trust."

The state has argued that the Hill's argument does not offer any new information from what's already been tried before in Florida and that Hill has sought the review too late. "He's complaining about the fact that you're going to execute me, without really considering the complaint," said Carolyn Snurkowski, assistant deputy attorney general for the state. She said the Supreme Court decision meant only that Hill's appeal had to be considered by the courts as a civil rights claim. "There's no guarantee you get a stay, no guarantee of anything."

Hill's attorney, Todd Doss, said there is new material about the drugs Florida uses to execute prisoners since the 2000 case that the courts have said settled the issue. Futhermore, Doss said, testimony offered in Missouri and California cases has revealed relevant material that the anesthesia used in the executions can fail to protect the condemned from excruciating pain. Mickle has "never held a hearing to take any evidence, no discovery whatsoever," Doss said. "Even absent a stay, we should be able to proceed (with hearings)."

Doss and Snurkowski said they expect a decision from the federal appellate court on Monday. Doss said that however that goes he expects the loser to appeal to the U.S. Supreme Court. But for now, Hill remains scheduled to die at 6 p.m. Wednesday at Florida State Prison outside Starke.

ProDeathPenalty.Com

Clarence Hill and his accomplice, Cliff Jackson, robbed a Savings and Loan Association in Pensacola, Florida, on October 19, 1982. In Hill's attempt to escape and prevent the immediate apprehension of Jackson, Hill stealthily approached the police officers attempting to handcuff Jackson, drew his gun and shot both officers, killing one and wounding the other. Hill was indicted for the first-degree murder of Officer Stephen Taylor, attempted first-degree murder of Officer Larry Bailly, three counts of armed robbery and possession of a firearm during the commission of a felony. Hill's trial began on April 25, 1983 and concluded on April 29, 1983, with the jury finding Hill guilty of both first-degree murder and felony murder as alleged in Count I. The sentencing phase began on April 29 and as a result, the jury returned a 10-2 death recommendation. UPDATE: Despite his argument that Florida's use of lethal injections amounted to cruel and unusual punishment Clarence Hill was put to death by lethal injection Wednesday night after the U.S. Supreme Court narrowly denied him another stay. Hill, 48, was executed for the 1982 murder of Stephen Taylor, a Pensacola police officer, during a savings and loan robbery. Hill did not reply when he was asked if he had a final statement, and stared at the ceiling. Hill was visited on Tuesday by his defense attorney and a death row advocate and the inmate's wife, Serena Mangano, of Modino, Italy, who married him in June in a no-contact wedding at Florida State Prison in Starke. Mangano visited him again Wednesday. Jack Taylor, the brother of the slain police officer, witnessed the execution.

National Coalition to Abolish the Death Penalty

Clarence Edward Hill, FL September 20, 2006
Do Not Execute Clarence Edward Hill!

Clarence Edward Hill, a black man, faces execution in Florida for the murder of a police officer during a robbery in Pensacola, Florida. Hill and his accomplice Cliff Jackson stole a car and a gun and then attempted to rob a savings and loan association. When officers arrived, Jackson ran out the front door and was apprehended, while Hill ran out the back. Hill then came to the front of the building to shoot the officers that were subduing Jackson.

Hill was 23 at the time and there is evidence to suggest that Jackson masterminded the crime. Regardless of this evidence, Jackson was able to plea bargain for a life sentence while Hill received a death sentence. There is also evidence to suggest that Hill was under the influence of cocaine at the time of the crime.

Furthermore, evidence and testimony show that Hill was known by his neighbors and family to be a caring and nonviolent person and that he had a trouble free-history throughout his years in school and in the neighborhood where he lived. In addition, Hill held a steady job from ninth grade until he became involved with drugs at age 23. Hill used money from work to help support his large family of 14 children. He also contributed time to helping raise his younger siblings. Also, although Hill remained in school until the 12th grade he never progressed beyond a fifth-grade reading level.

Clearly Hill is not the worst of the worst and therefore the death penalty is not appropriate for Clarence Edward Hill.

Please write to Gov. Jeb Bush on behalf of Clarence Hill!

Save Clarence Hill Forum

Clarence Hill Blogspot

From the BLOG Sentencing, Law and Policy :
September 20, 2006
Will Florida execute Clarence Hill today?

Almost exactly nine months ago, at roughly 6pm on January 24, 2006, Clarence Hill was strapped to a gurney and IV lines were run into his arms as Florida's execution team awaited the expected denial of Hill's final appeal to the Supreme Court. After about an hour in which Hill lay on the gurney anticipating his execution, Justice Anthony Kennedy issued a stay to allow the Supreme Court more time to consider whether Hill could attack Florida's lethal injection protocol through a 1983 action.

Though Hill prevailed in the Supreme Court, as detailed in this newspaper article, Florida is poised in less than twelve hours to try again to kill Clarence Hill again. And the merits of his 1983 action have still never been considered. Capital Defense Weekly has more on Hill's final(?) appeal to the Supreme Court, and Human Rights Watch has this interesting open letter to Florida Governor Jeb Bush urging him to postpone Hill's execution.

As I have documented via many blog posts and this recent article, much has transpired in the death penalty world over the last nine months. However, for Clarence Hill, it appears that the story will have a particular Shakespearian quality: Hill's litigation tale seems likely to end up as one "full of sound and fury; signifying nothing." Speaking of "sound and fury; signifying nothing," this newspaper article also spotlights Florida Governor Jeb Bush's unsurprising reaction to the massive ABA report criticizing Florida's death penalty (details here):

''I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive,'' Bush said, adding that if anything, it is unfair to crime victims and their families. ''It can go on for more than 10 years. For a lot of people, that is denial of justice,'' Bush said.

Floridians for Alternatives to the Death Penalty

Clarence Edward Hill
BACKGROUND INFORMATION

Clarence Edward Hill is scheduled to be killed by the people of Florida in revenge for his murder of Stephen Alan Taylor, a police officer, during a robbery in Pensacola, Florida. Hill and his accomplice Cliff Jackson stole a car and a gun and then attempted to rob a savings and loan association. When officers arrived, Jackson ran out the front door and was apprehended, while Hill ran out the back. Hill then came to the front of the building to shoot the officers that were subduing Jackson.

Hill was 23 at the time and there is evidence to suggest that Jackson masterminded the crime. Regardless of this evidence, Jackson was able to plea bargain for a life sentence while Hill received a death sentence. There is also evidence to suggest that Hill was under the influence of cocaine at the time of the crime. Evidence and testimony also show that Hill was known by his neighbors and family to be a caring and nonviolent person and that he had a trouble free-history throughout his years in school and in the neighborhood where he lived. In addition, Hill held a steady job from ninth grade until he became involved with drugs at age 23. Hill used money from work to help support his large family of 14 children. He also contributed time to helping raise his younger siblings. Also, although Hill remained in school until the 12th grade he never progressed beyond a fifth-grade reading level.

Clearly Hill is not the worst of the worst and therefore the death penalty is not appropriate for Clarence Edward Hill.

LETTER WRITING SUGGESTIONS

Please write a hand written note to Governor Bush with a message similar to the following suggested language: "I am writing to ask you to commute the death sentence of Clarence Hill to Life Without Parole. He is clearly not "the worst of the worst," and executing him will solve nothing."

Feel free to add any further language, for example: Call for a "Time-Out on Executions" in general until we can be assured that the system is both fair and accurate. If you are Christian, and especially if you are Catholic, challenge Governor Bush to adopt a completely "Pro-Life" position by respecting ALL life, and reference his positions against abortion and euthanasia. "We remember the victim, Stephen Alan Taylor, but killing Clarence Hill will do nothing to bring Officer Taylor back or heal the wounds still felt by his family.

WRITE TO: Governor Jeb Bush

South Florida Sun-Sentinel

"Florida has executed 59 inmates since 1979." (The Associated Press Posted April 5 2005) Following is a list of 59 inmates executed since Florida resumed executions in 1979:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

60. Glen Ocha, 47, was 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.

Hill v. State, 477 So.2d 553 (Fla. 1985) (Direct Appeal)

Defendant was convicted of first-degree murder, attempted first-degree murder, three counts of armed robbery, and possession of firearm during commission of felony, in Circuit Court, Escambia County, Edward T. Barfield, J., and received death penalty. Defendant appealed conviction for first-degree murder and imposition of death penalty. The Supreme Court held that: (1) denial of defendant's challenge for cause to prospective juror was reversible error, and (2) improper prosecutorial comment during trial was harmless error. Affirmed in part, vacated in part, and remanded. Adkins, J., concurred in part and dissented in part.

PER CURIAM.
Clarence Edward Hill appeals his conviction for first-degree murder and the imposition of the death penalty for the killing of a police officer during a bank robbery. Hill was also convicted of attempted first-degree murder, three counts of armed robbery, and the possession of a firearm during the commission of a felony. He received consecutive life sentences for the attempted murder and armed robbery convictions. No sentence was imposed for the possession of a firearm conviction. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We affirm all of appellant's convictions and sentences with the exception of the death sentence. We find that the trial court erred during the jury selection process and that, consequently, we must vacate the death sentence and remand for a new sentencing proceeding before a new jury. We also note that improper prosecutorial comments were made during the course of this trial, but find that, under the circumstances of this cause, the error was harmless. The facts of this cause are as follows. On October 19, 1982, appellant stole a pistol and an automobile in Mobile, Alabama. Later that day, appellant and his accomplice, Cliff Jackson, drove to Pensacola and robbed a savings and loan association at gunpoint. When the police arrived during the robbery, appellant fled out the back of the savings and loan building. Jackson exited through the front door, where he was apprehended immediately. Appellant approached two police officers from behind as they attempted to handcuff Jackson. Testimony established that appellant drew his pistol and shot the officers, killing one and wounding the other. A gun battle ensued, during which appellant received five bullet wounds.

The jury returned guilty verdicts on all counts and, by a vote of 10 to 2, recommended that the death penalty be imposed. The trial court sentenced appellant to death for the murder conviction after finding five aggravating circumstances.

Appellant challenges his conviction and sentence on eleven grounds. Appellant asserts that the trial court erred: (1) in excusing for cause two jurors based on their views toward the death penalty; (2) in refusing to excuse for cause two jurors because of their preconceived opinions regarding this case; (3) in denying his motion for a change of venue; (4) in denying his motion for individual and sequestered voir dire; (5) in denying his request for additional peremptory challenges; (6) in denying his motions for mistrial based on alleged prosecutorial misconduct; (7) by allowing the state to introduce testimony concerning irrelevant collateral crimes; (8) by allowing the state to introduce into evidence photographs of the victim's body taken during the autopsy; (9) in refusing to give the jury specific instructions as to nonstatutory mitigating circumstances it could consider; (10) in failing to specify in its sentencing order which mitigating circumstances it considered; and (11) in finding that the murder was committed in a cold, calculated, and premeditated manner. Appellant also claims that the cumulative nature of the trial court's alleged errors deprived him of a fair trial. After a thorough review of the record, we find that none of the asserted errors affected appellant's conviction. With respect to the penalty phase, we conclude that we need only address the failure of the trial court to excuse for cause an allegedly biased juror. Our disposition of that issue makes it unnecessary to consider other penalty phase errors asserted by appellant.

Appellant contends that a prospective juror, Johnson, exhibited a strong bias in favor of imposing the death penalty on appellant based on the opinion he had formed as a result of the media coverage of this case, and that this opinion mandated Johnson's excusal for cause. Appellant expressly recognizes that his argument on this issue is directed only to the penalty phase of the trial. The voir dire examination disclosed that Johnson was about two blocks from the scene of the crime at the time it occurred; that he noticed the commotion, turned on the radio and heard a news report concerning the event; that he did not go to the scene; that he discussed the case at length with his wife, who is a former bank teller, and with a fellow employee whose husband is a police officer; that he followed media reports concerning this case, although he did not recall specific facts; that based on what he read and heard, he had formed an opinion as to the guilt or innocence of those charged with the crimes; and that he believed he could set the opinion aside and listen to the case presented in court. When asked whether he would let his prior opinion enter into his decision, he replied, “That's a hard decision to make right now. I think I can say I can. I don't know for sure.” The voir dire transcript also reveals the following colloquy:

PROSECUTOR: Have you ever thought about what type of case would deserve a death sentence?
JOHNSON: Yes, sir, premeditated murder, and felony murder. When asked by defense counsel how he was going to keep his preconceived opinion from affecting his deliberations, Mr. Johnson answered as follows: Well, basically, like I said, I have not associated that opinion with Mr. Hill. It was just a blank feeling that ··· someone that shoots someone else should be punished. ···· I feel anyone that shoots anyone else in the type of incident as much as I know about it now, the death penalty should be imposed upon them. That's basically what I felt at the time. (Emphasis supplied.) Later in the inquiry, with regard to the imposition of the death penalty, defense counsel asked: Do you feel like from under the facts that you know now, do you feel like this might be an appropriate case?
JOHNSON: I don't feel I have really been given any more facts than I have before coming into the courtroom. DEFENSE COUNSEL: You formed an opinion before though?
JOHNSON: Yes, sir.
DEFENSE COUNSEL: Have you discarded that opinion?
JOHNSON: Not necessarily.
DEFENSE COUNSEL: Do you feel that in all cases of premeditated murder that the death penalty should be applied?
JOHNSON: It's a hard question to answer.
DEFENSE COUNSEL: Yes, sir, sure is.
JOHNSON: I'm not saying in all cases, dependent upon the evidence.
DEFENSE COUNSEL: Are you still inclined towards the death penalty in this case if in fact there is a conviction?
JOHNSON: Yes, sir.
DEFENSE COUNSEL: That's the presumption that you came into this court with?
JOHNSON: Yes, sir. (Emphasis supplied.)

Trial counsel for appellant challenged Johnson for cause on the ground that Johnson had formed an opinion as to the penalty to be imposed in this case. When the trial court denied the challenge, appellant expended a peremptory challenge on Johnson. Appellant subsequently exhausted his peremptory challenges. The trial judge denied appellant's request for additional peremptory challenges and his challenge for cause to all remaining prospective jurors.

This Court recently stated: “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). In applying this test, the trial courts must utilize the following rule, set forth in Singer v. State, 109 So.2d 7 (Fla.1959): [I]f there is a basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial[,] he should be excused on motion of a party, or by [the] court on its own motion. Id. at 24. In Singer, we reaffirmed the proposition that the “statement of a juror that he can readily render a verdict according to the evidence, notwithstanding an opinion entertained, will not alone render him competent if it otherwise appears that his formed opinion is of such a fixed and settled nature as not readily to yield to the evidence.” Id. at 22 (quoting Olive v. State, 34 Fla. 203, 206, 15 So. 925, 926 (1894)). In other early cases this Court stated that “jurors should if possible be not only impartial, but beyond even the suspicion of partiality,” O'Connor v. State, 9 Fla. 215, 222, (1860), and that “[i]f there is a doubt as to the juror's sense of fairness or his mental integrity, he should be excused.” Johnson v. Reynolds, 97 Fla. 591, 598, 121 So. 793, 796 (1929).

Singer involved a defendant's challenge for cause to a prospective juror whose statements during voir dire revealed he had preconceived ideas regarding the guilt of the defendant, who was charged with the murder of the county prosecuting attorney's wife. After concluding that there was a reasonable doubt as to whether the prospective juror would be able to render a fair and impartial verdict on the evidence, this Court determined that he should have been excused for cause. We also recognized in Singer that the question of a challenged juror's competency is a mixed question of law and fact and that the decision of the trial court should not be disturbed unless the error is manifest.

We are unable to distinguish the circumstances under which error was found in Singer from the circumstances in this record. It is exceedingly important for the trial court to ensure that a prospective juror who may be required to make a recommendation concerning the imposition of the death penalty does not possess a preconceived opinion or presumption concerning the appropriate punishment for the defendant in the particular case. A juror is not impartial when one side must overcome a preconceived opinion in order to prevail. When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial recommendation as to punishment, the juror must be excused for cause. See Thomas v. State, 403 So.2d 371 (Fla.1981). This record clearly reflects that juror Johnson did not possess the requisite impartial state of mind. We find the trial judge in this case failed to apply the rules of law set forth in Singer. Consequently, his discretionary authority is not in issue in this proceeding.

The next question we must resolve is whether it was harmless error for the trial court to refuse to dismiss Johnson for cause. We find that such error cannot be harmless because it abridged appellant's right to peremptory challenges by reducing the number of those challenges available him. Florida and most other jurisdictions adhere to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied. See Singer; Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981). See also Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977); Jones v. Cloud, 119 Ga.App. 697, 168 S.E.2d 598 (1969); State v. Sugar, 408 So.2d 1329 (La.1982); State v. Ternes, 259 N.W.2d 296 (N.D.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1524, 55 L.Ed.2d 540 (1978); Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978); Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123 (1980). We conclude that the denial of appellant's challenge for cause directed to Johnson was reversible error requiring a new sentencing hearing before a new jury.

Appellant has also alleged several instances of improper prosecutorial comment during the trial. We find the prosecutor acted improperly by asking the jury to consider him a “thirteenth juror” when it retired to deliberate its verdict in the guilt phase, but find the error harmless under the circumstances of this cause. See United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Had the case involved substantial factual disputes, this “inexcusable prosecutorial overkill” would have resulted in harmful error requiring reversal of each of appellant's convictions. Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). We again caution prosecutors to note that repeated failure to curb this misconduct adds fuel to the flame of those who advocate the adoption of a per se rule of reversal for such misconduct.

We find that none of the alleged trial court errors asserted by appellant affected his convictions. Accordingly, we affirm appellant's convictions and sentences with the exception of the death sentence. For the reasons expressed, we vacate the sentence of death and remand for a new sentencing proceeding before a new jury. It is so ordered.

Hill v. State, 515 So.2d 176 (Fla. 1987) (Direct Appeal)

Defendant was convicted in the Circuit Court, Escambia County, William S. Rowley, J., of murder and sentenced to death and defendant appealed. The Supreme Court, 477 So.2d 553, affirmed conviction but vacated sentence and remanded for new sentencing proceeding before new jury. In resentencing proceeding death penalty was again imposed and appeal was taken. The Supreme Court, held that: (1) trial court did not abuse its discretion in excluding certain testimony of defendant's parents which focused more on parents' character than that of defendant; (2) evidence did not warrant instruction to jury on statutory mitigating circumstances that defendant was acting under extreme duress or under substantial domination of another person when he shot arresting police officer; and (3) aggravating circumstances proven beyond a reasonable doubt were sufficient to support death penalty. Affirmed.

PER CURIAM.
This is a direct appeal from a resentencing in a capital case. We previously affirmed the conviction, but reversed the imposition of the death sentence, requiring a new sentencing proceeding before a new jury. Hill v. State, 477 So.2d 553 (Fla.1985). In this resentencing proceeding, the jury recommended, and the trial judge imposed, the death sentence. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the sentence.

The facts relevant to this sentencing proceeding reflect that on October 19, 1982, appellant and his accomplice, Cliff Jackson, stole a pistol and an automobile in Mobile, Alabama. Later that day, appellant and Jackson drove to Pensacola and robbed a savings and loan association at gunpoint. The police arrived during the robbery and, upon their arrival, appellant fled the savings and loan building through a back door. Jackson exited through the front door, where he was apprehended by police. Appellant approached two police officers from behind as they attempted to handcuff Jackson, and shot the officers, killing one and wounding the other. By an eleven-to-one vote, the resentencing jury recommended the death sentence. The judge, in reimposing the death sentence, found the following statutory aggravating circumstances: (1) the defendant had previously been convicted of another capital offense or violent felony; (2) the defendant knowingly created a great risk of harm or death to many persons; (3) the murder was committed while the defendant was engaged in the commission of a robbery; (4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or escaping from custody; and (5) the murder was cold, calculated, and premeditated. In mitigation, the judge found the appellant's age as a possible factor. Appellant's age at the time of the offense was twenty-three years.

In this appeal, appellant contends the trial court erred by: (1) allowing the state to introduce irrelevant collateral crime evidence; (2) excluding certain testimony concerning appellant's family background and a defense witness's health problems; (3) refusing to instruct the jury on the statutory mitigating circumstance that defendant acted under extreme duress or under the substantial domination of another person; (4) disclosing to the new penalty jury the original jury's premeditation finding; (5) finding the homicide cold, calculated, and premeditated, and (6) permitting prosecutorial misconduct which denied appellant a fair trial. With regard to the first contention, Hill asserts that evidence of the theft of the car and pistol in Mobile, Alabama, was irrelevant collateral crime evidence to the robbery/murder at the savings and loan association in Pensacola. We note that both the car and pistol were utilized in this offense and their acquisition was part of a series of events culminating in the crimes for which appellant has been convicted. We rejected this claim in appellant's prior appeal and we refuse to address it in these proceedings.

In his second point, Hill claims the trial judge erred by excluding certain allegedly mitigating testimony concerning his background and character. The record reflects that five persons, including Hill's mother and father, testified as character witnesses for the defense. The judge refused to permit appellant's mother to testify that she cared for appellant's cousins, as well as her own children. Similarly, the judge declined to allow defense counsel to question appellant's father regarding his own ill health and past job responsibilities. In our view, the excluded evidence focused substantially more on the witnesses's character than on appellant's. There has been no showing that the trial judge abused his discretion in excluding the testimony and we find no violation of the United States Supreme Court's recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), or Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), or Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The third claim concerns the trial judge's refusal to instruct the jury on the statutory mitigating circumstance that Hill was acting under extreme duress or under the substantial domination of another person when he shot the arresting police officer. In support of the claim, Hill argues that his codefendant, Jackson, suggested the bank robbery, purchased the sunglasses for disguise, and directed actions during the crime. According to Hill, Jackson was the leader in the bungled robbery. We disagree. The unrefuted facts in this record establish that, when the twenty-three-year-old Hill and the eighteen-year-old Jackson entered the bank, Hill was armed and Jackson was not. Hill did most of the talking, demanded money, and threatened that he would “blow some brains out.” Hill also physically abused a bank teller by kicking him and pulling him by the hair while he lay on the floor. Finally, Hill chose to help Jackson rather than utilize his opportunity to escape, and later testified that neither he nor Jackson was a leader, claiming, “We did it together.” Clearly, under these circumstances, we find the “substantial domination” mitigating factor does not apply.

We summarily reject Hill's fourth claim that the trial judge impermissibly disclosed to the new penalty jury the original jury's finding that the homicide was premeditated. We previously affirmed appellant's premeditated first-degree murder conviction against the various challenges presented in that proceeding, and its introduction during this resentencing phase was essential for the jury to carry out its responsibility.

As to Hill's fifth claim, we must again, as we did in his first appeal, address the claim of prosecutorial misconduct in the final argument to the jury. Specifically, the prosecutor, during closing argument, stated to the jury: I want to end with this, if I can have one minute to tell you this. The more things change, the more they stay the same. And in America things haven't changed. Processes have changed a lot, but things are still the same. One hundred and fifty years ago if the defendant left a town and stole a horse to come over to Pensacola, some desperado robbing a woman of her horse and he rode over here with a companion, and they robbed a bank in the main street of the town, and they were seen by hundreds of people, not hundreds of people, but many people in the main street of town, and the deputy sheriff came up to arrest the defendant's buddy, and the defendant shot the deputy in the back, they would have strung him up from the nearest tree that day. Now, the process has changed. He now has a jury trial. It's now taking years to do it, but things still remain the same. The crime calls for the sternest punishment for killing the deputy. He must hang from a tree. We're more merciful now. We'll shock him until he's dead. But that is the sentence that is appropriate in this case under the law. Thank you.

We conclude, given the total circumstances of this case, that these comments did not deprive the appellant of a fair sentencing hearing, and that they constitute harmless error. The comments were, in our view, ill-advised, and, in another context and factual situation, could result in harmful error. The trial courts of this state must accept more responsibility for controlling prosecutorial comments. The purpose of closing argument is to help the jury understand the issues by applying the evidence to the law applicable to the case. The statements made by the prosecutor in this case are clearly unrelated to that purpose. We caution that failure to eliminate unjustified prosecutorial comments wastes valuable resources. Prosecutors may be walking a dangerous line that could result in a defendant's release from custody should the prosecutorial misconduct be deemed intentional, resulting in the application of the double jeopardy clause.

In his fifth point, Hill challenges the trial court's finding that the murder was cold, calculated, and premeditated, arguing that the evidence does not demonstrate a “heightened degree of premeditation, calculation or planning.” The evidence indicates that appellant's actions were committed while attempting to escape from a hopelessly bungled robbery. We find an absence of any evidence that appellant carefully planned or prearranged to kill a person or persons during the course of this robbery. While there is sufficient evidence to support simple premeditation, we conclude as we did in Rogers v. State, 511 So.2d 526 (Fla.1987), that there is insufficient evidence to support the heightened premeditation necessary to apply this aggravating circumstance.

Appellant does not take issue with the finding that four of the aggravating circumstances were proven beyond a reasonable doubt. Given these four remaining aggravating circumstances, and the one mitigating circumstance, we find the erroneous consideration of the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner is not such a change under the circumstances of this sentencing proceeding that its elimination could possibly compromise the weighing process of either the jury or the judge. See Bassett v. State, 449 So.2d 803 (Fla.1984); Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Elledge v. State, 346 So.2d 998 (Fla.1977). For the reasons expressed, we affirm the death sentence. It is so ordered.

Hill v. Dugger, 556 So.2d 1385 (Fla. 1990) (Postconviction)

Defendant was convicted of murder and sentenced to death before the Circuit Court, Escambia County, Edward T. Barfield, J. He appealed. The Supreme Court, 477 So.2d 553, affirmed conviction but vacated sentence and remanded for new sentencing proceeding before new jury. Death penalty was again imposed after resentencing proceeding before the Circuit Court, William S. Rowley, J., and appeal was taken. The Supreme Court, 515 So.2d 176, affirmed. Defendant sought postconviction and habeas corpus relief. The Circuit Court denied relief, and defendant appealed. The Supreme Court held that: (1) additional evidence of defendant's substance abuse, which might have been helpful to mental health professionals testifying at trial, did not rise to level of objectively established head injury and was merely cumulative; (2) trial counsel was not ineffective; and (3) appellate counsel was not ineffective for failing to raise on appeal alleged improper peremptory excusal by state of prospective black jurors under law at time of appeal. Denial of postconviction relief affirmed; request for habeas corpus denied. Kogan, J., filed an opinion concurring in part and dissenting in part. PER CURIAM.
Clarence Edward Hill appeals the trial court's denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, petitions this Court for a writ of habeas corpus, and seeks a stay of his scheduled execution. We have jurisdiction. Art. V, § 3(b)(1) & (9), Fla. Const. We deny relief and vacate the temporary stay, which we previously entered, effective January 29, 1990, at 7:00 a.m.

This is the third time this matter has been before this Court. On October 19, 1982, Clarence Hill and his accomplice, Cliff Jackson, stole a pistol and an automobile in Mobile, Alabama, which they later used to rob a savings and loan association in Pensacola. During the robbery, the police arrived, and Hill and Jackson fled the savings and loan building from different exits. The police immediately apprehended Jackson, who had exited through the front door. Hill, who had fled out the back door, approached two officers from behind as they attempted to handcuff Jackson. Hill shot the officers, killing one and wounding the other. Hill was convicted of first-degree murder, attempted first-degree murder, three counts of armed robbery, and possession of a firearm during the commission of a felony. The trial court sentenced Hill to death for the first-degree murder conviction and to consecutive life sentences for the attempted murder and robbery convictions. On appeal, we affirmed all of Hill's convictions and sentences with the exception of the death sentence. We remanded the cause for a new sentencing hearing before a new jury because of error in the jury selection process. Hill v. State, 477 So.2d 553 (Fla.1985).

In the resentencing proceeding, a second jury recommended the death sentence by an eleven-to-one vote. The trial court reimposed the death sentence, finding five aggravating circumstances and one mitigating circumstance. We affirmed the resentence, finding that four of the five aggravating circumstances were proven beyond a reasonable doubt and concluding that consideration of the erroneous aggravating circumstance, that the murder was committed in a cold, calculated, and premeditated manner, could not possibly have compromised the weighing process of either the jury or the judge. Hill v. State, 515 So.2d 176 (Fla.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).

Hill timely filed a motion for rule 3.850 relief on the following grounds: (1) the prosecutor peremptorily excused black prospective jurors solely based upon their race, in violation of the sixth, eighth, and fourteenth amendments to the United States Constitution and article one, section 16, of the Florida Constitution, and appellate counsel was ineffective in not arguing this issue on direct appeal; (2) the trial court erred when it responded to questions from the jury and refused to disclose to Hill and his counsel the questions asked, in violation of Hill's fifth, sixth, eighth, and fourteenth amendment rights; (3) Hill's capital trial and sentencing proceedings were rendered fundamentally unfair and unreliable, and violated the fifth, sixth, eighth, and fourteenth amendments, due to the prosecution's deliberate and knowing presentation and use of false evidence and arguments and its intentional deception of the jury, the court, and defense counsel; (4) Hill was denied the effective assistance of counsel at the guilt-innocence phase of his trial, in violation of the sixth, eighth, and fourteenth amendments; (5) Hill was denied the effective assistance of counsel at the sentencing phase of his trial, in violation of the sixth, eighth, and fourteenth amendments; (6) Hill's sixth, eighth, and fourteenth amendment rights were violated because counsel unreasonably failed to present critical mitigating evidence and failed to adequately develop and employ expert mental health assistance, and because the experts retained at the time of trial failed to conduct professionally adequate mental health evaluations; (7) the cold, calculated, and premeditated aggravating circumstance was applied to Hill's case, in violation of the eighth and fourteenth amendments; (8) this Court's failure to remand for resentencing after striking an aggravating circumstance on direct appeal denied Hill the protections afforded under Florida's capital sentencing statute, in violation of due process, equal protection, and the eighth and fourteenth amendments; (9) Hill was denied his eighth and fourteenth amendment rights because the jury was not properly instructed concerning the improper doubling of aggravating factors; (10) Hill's death sentence was imposed in violation of the eighth and fourteenth amendments because his jury was prevented from giving appropriate consideration to, and his trial judge refused to consider, all evidence proffered in mitigation of punishment, contrary to Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); (11) during the course of Hill's trial the court improperly stated that sympathy and mercy toward Hill were improper considerations, in violation of the eighth and fourteenth amendments; (12) Hill's sentence of death was based upon an unconstitutionally obtained prior conviction and therefore upon misinformation of constitutional magnitude, in violation of the eighth and fourteenth amendments; (13) Hill's jury was improperly instructed, resulting in fundamentally unfair convictions and sentences, in violation of the fifth, eighth, and fourteenth amendments; (14) Hill's sentence of death violates the fifth, sixth, eighth, and fourteenth amendments because the penalty phase jury instructions shifted the burden to Hill to prove that death was inappropriate and because the sentencing judge himself employed this improper standard in sentencing Hill to death; and (15) the application of rule 3.851 to Hill's case will violate, and the present warrant has violated, his rights to due process and equal protection of the law and denied him his right of reasonable access to the courts.

The trial court denied relief on claims (1), (2), (3), (7), (8), (9), (10), (11), (12), (13), and (14) on grounds that they were procedurally barred and could have been or should have been raised on direct appeal. With regard to claims (4), (5), and (6), Hill contended below that his trial counsel failed to investigate and present evidence of Hill's mental condition and drug intoxication, causing an ineffective presentation by his mental health expert, which resulted in his inability to present three substantial mitigating factors, specifically: (a) that Hill was under extreme mental duress at the time of the offense; (b) that he lacked the substantial capacity to conform his conduct to the requirements of law at the time of the offense; and (c) that at the time of the offense he was under the substantial domination of his codefendant, Clifford Jackson. First, to support these allegations, in his rule 3.850 motion Hill proffered affidavits from additional family members and acquaintances, giving information concerning his family background and drug use. We note that at the second sentencing four family members testified on Hill's behalf. Second, Hill proffered reports from two new mental health professionals who stated that they would have testified that Hill's conduct in this incident was the result of cocaine ingestion, his below average intelligence, and Jackson's domination. Third, Hill asserts that his expert witness at his sentencing proceeding would now testify that he did not have sufficient information concerning Hill's history of substance abuse and intoxication at the time of the offense and that, given Hill's borderline intelligence and those two factors, he would now testify that Hill suffered from extreme mental disturbance at the time of the offense and that his poor mental ability impaired his judgment sufficiently to impair his capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law. Finally, Hill's former trial counsel submitted an affidavit, appended to Hill's motion for rehearing before the trial court, setting forth matters that he failed to do, particularly, failing to adequately investigate Hill's background and family history and failing to obtain an independent expert on blood testing.

At the hearing on the rule 3.850 motion, the trial judge found that defense counsel's “record of conduct and performance did not fail or fall below any adequate, effective representation of his client which operated to his client's detriment,” and he denied the request for an evidentiary hearing on the three ineffective-assistance-of-counsel claims. In his written order, the judge also summarily denied relief on claim (15), citing our decision in Cave v. State, 529 So.2d 293 (Fla.1988). The trial judge also denied, without comment, Hill's motion for rehearing that was supplemented by trial counsel's affidavit.

Counsel for Hill, in his arguments concerning Hill's mental state, relies largely on State v. Sireci, 502 So.2d 1221 (Fla.1987), and State v. Sireci, 536 So.2d 231 (Fla.1988). In those decisions, we first affirmed the trial court's determination to have an evidentiary hearing where it was discovered that two court-appointed mental health professionals were unaware that Sireci had previously suffered a severe concussion sufficient to put him in a semicoma for two weeks. Second, we affirmed the trial judge who, after conducting an evidentiary hearing, determined that a new sentencing proceeding was required, and we stated: Essentially, the state argues that Sireci's original psychiatric examinations were adequate. We acknowledge that there is evidence in the record which would justify this conclusion. On the other hand, there is also competent substantial evidence to support the trial court's findings. This is a classic illustration of a case in which the appellate court should not substitute its judgment for that of the trial judge who has personally heard the pertinent testimony. 536 So.2d at 233. In the instant case, the omission of the asserted information, which might have been helpful to the mental health professional, does not, in our view, rise to the level of the objectively established head injury in Sireci. Further, we find that the only evidence in this record to show that Hill was intoxicated by drug use at the time of this incident was his own testimony at trial. There was evidence of prior drug use presented to the jury, but there is no allegation that any additional evidence is available to show that Hill was under the influence of drugs at the time of this incident. In our view, the evidence proffered is nothing more than cumulative to the evidence already presented to the jury.

We find the trial court properly concluded that there was no valid claim of ineffective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to justify an evidentiary hearing in this cause. In Strickland, the United States Supreme Court stated: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064. Accepting as true the alleged failures set forth by trial counsel in his affidavit, we find none of them “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Further, we find that none of counsel's asserted failures were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Accordingly, we find that the trial court correctly denied all rule 3.850 relief.

Hill also seeks habeas corpus relief in this Court on the identical grounds contained in the rule 3.850 motion and on the claim that appellate counsel was ineffective for failing to raise on appeal the alleged improper peremptory excusal by the state of black prospective jurors, pursuant to our decision in State v. Neil, 457 So.2d 481 (Fla.1984), and the United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Given the state of the law on the Neil issue at the time of this appeal, as well as the record in this case on the inquiry and reasons given by the prosecution for the excusal of the prospective jurors, we find that appellate counsel was not ineffective under the Strickland test. Accordingly, we deny petitioner's request for habeas corpus relief. We vacate our temporary stay, effective January 29, 1990, at 7:00 a.m. It is so ordered. No petition for rehearing will be entertained.

KOGAN, Justice, concurring in part and dissenting in part.
I concur in all matters except the trial court's denial of an evidentiary hearing on the claim of ineffective assistance of counsel. The attorney who represented the defendant during the penalty phase has filed an affidavit acknowledging he was ineffective at trial. Indeed, the attorney stated that he had failed to properly challenge state expert witnesses, failed to use effective investigation techniques, failed to properly develop mitigating evidence, failed to properly inform mental health experts that Hill had suffered child abuse and deprivation, and failed to properly investigate Hill's background. The attorney stated on several occasions that he had no strategic reason for these omissions. Accordingly, I must conclude that a hearing is constitutionally required.

Hill v. Moore, 175 F.3d 915 (11th Cir. 1999) (Habeas).

After his conviction for first-degree murder and death sentence were upheld on direct appeal, 477 So.2d 553, 515 So.2d 176, petitioner sought federal habeas corpus relief. The United States District Court for the Northern District of Florida granted relief with respect to sentence. Petitioner moved Florida Supreme Court to reopen his direct appeal, which was granted, and the Florida Supreme Court, 643 So.2d 1071, again affirmed sentence. Petitioner filed amended habeas petition. The District Court, No. TCA 90-40023- WS, William Stafford, J., denied relief. Petitioner appealed. The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) Florida Supreme Court acted within its province when it limited the scope of reopened direct appeal of death sentence; (2) petitioner was not prejudiced by trial counsel's alleged deficiency in failing to elicit testimony elaborating on amounts of cocaine that defendant used prior to bank robbery leading to prosecution; (3) in finding death sentence appropriate, Florida Supreme Court acted within its province when it reweighed aggravating and mitigating circumstances, including all nonstatutory mitigating evidence presented during sentencing phase of capital trial; (4) failure to offer evidence of defendant's drug use on day of murder as mitigating evidence did not prejudice defendant; (5) erroneous exclusion of sentencing phase testimony of petitioner's parents was harmless error not warranting habeas relief; (6) instruction on mitigating factor of substantial domination was not warranted; and (7) prosecutor's manifestly inappropriate comments did not taint proceedings so as to render death sentence constitutionally deficient. Affirmed.

TJOFLAT, Circuit Judge:
In these consolidated appeals, the petitioner, a Florida death row inmate, asks that we reverse the district court's refusal to grant a writ of habeas corpus either setting aside his conviction or his sentence for murder. We affirm.

In the early afternoon of October 19, 1982, after stealing a pistol and an automobile, petitioner and an accomplice, Cliff Jackson, robbed a savings and loan association in Pensacola, Florida. When police arrived at the scene and foiled their robbery plans, petitioner and Jackson fled. Jackson exited the savings and loan through the front door and was immediately apprehended. As the police placed Jackson in custody, petitioner, who had fled through the rear of the building, approached the arresting officers from behind and shot them, killing one officer and wounding another. A gun battle ensued, during which police shot petitioner five times. Though wounded, petitioner fled the scene. The police apprehended him a short time later.

Following his arrest, an Escambia County grand jury indicted petitioner on one count of first degree murder, one count of attempted first degree murder, three counts of armed robbery, and one count of possession of a firearm during a felony.FN1 A petit jury found him guilty on all counts. Because the State sought the death penalty on the murder count, the jury, after returning its verdicts, reconvened for the sentencing phase of the case. At the conclusion of that proceeding, the jury recommended that petitioner be sentenced to death. At the sentencing hearing held at a later date, the trial judge followed the jury's recommendation and imposed a death sentence.FN2

FN1. The grand jury also indicted Jackson for the same offenses. Prior to trial, Jackson and the State entered into a plea agreement, under which Jackson pled guilty to first degree murder and was sentenced to prison for life. He subsequently testified as a defense witness in the sentencing phase of petitioner's trial.

FN2. In Florida, once a defendant is convicted of capital murder, the trial court must engage in a separate sentencing phase to determine whether death is in fact the appropriate sentence. In order for the defendant to receive the death penalty, the State must establish the existence of one or more statutory aggravating factors under Fla. Stat. ch. 921.141(5) (1997). If aggravating circumstances are established, the defendant may offer evidence of the existence of one or more statutory mitigating factors, see Fla. Stat. ch. 921.141(6), and any other non-statutory mitigating evidence he wishes to introduce. The jury, which renders an advisory sentence, and the trial judge, who decides the actual sentence, must weigh the aggravating and mitigating circumstances against each other in determining the proper sentence. Before sentencing petitioner, the court in this case found that the evidence established five aggravating circumstances: (1) that the defendant had been convicted of a prior felony involving the threat of violence to another; (2) in committing the murder, the defendant knowingly created a great risk of death to many persons; (3) the murder was committed while the defendant was fleeing from an attempted robbery; (4) the murder was committed for the purpose of avoiding arrest; and (5) the murder was committed in a “cold, calculated, and premeditated manner.” See Fla. Stat. ch. 921.141(5)(b), (c), (d), (e), (I). The court also found one statutory mitigating circumstance, the defendant's young age, 23. See Fla. Stat. ch. 921.141(6)(g). Finally, although petitioner had presented several items of non-statutory mitigating evidence, all relating to his upbringing and background, the court found that such evidence and petitioner's age “d[id] little to mitigate the circumstances of the killing.” Concluding that the aggravating circumstances outweighed the mitigating circumstances in the case, the court imposed the death penalty. The court imposed prison sentences for the other offenses-attempted murder, armed robbery, and possession of a firearm during commission of a felony-of which petitioner was convicted. Neither those convictions nor the corresponding sentences are before us.

On direct appeal, the Florida Supreme Court affirmed petitioner's convictions, but vacated his death sentence and remanded the case for a new sentencing proceeding because the trial judge failed to dismiss a juror who was predisposed to recommend a death sentence. See Hill v. State, 477 So.2d 553, 557 (Fla.1985). On remand, a new judge empaneled a jury and the sentencing phase of the case was relitigated. The new jury, like its predecessor, recommended the death sentence. At the ensuing sentencing hearing, the court followed the jury's recommendation and imposed the death penalty.FN3

FN3. The trial judge found the same aggravating circumstances the previous judge had found. See supra note 2. He also found a statutory mitigating circumstance in the defendant's age. After summarizing the other evidence petitioner adduced in mitigation, all of a non-statutory nature, the court found that it was insufficient to amount to mitigation. The court disposed of this evidence with the following statement on the record: “Any other aspect of the defendant's character or record and any other circumstances of the offense-several witnesses, James Wilson knew the defendant for 19 years and was a school mate; Lucille Tillie knew the defendant and his family for 19 years; Miss Petway knew the defendant and his family for a number of years in Mobile, since 1968; Grace Singleton, 79 years old, knew the defendant when he was a little boy; Patsy McCaskill, his sister-in-law, knew him about six years; and the mother and father of the defendant testified as to the particulars of his character when he was a boy for honesty and peacefulness. On cross-examination Tillie didn't know the defendant had been arrested for robbery in Mobile, as did Petway. Singleton was not aware of the robbery. McCaskill did not know about the robbery. The Court is of the opinion that this evidence is insufficient to support [the finding of any non-statutory mitigating factors].” Thereafter, the court balanced the aggravating circumstances against the defendant's age, found that the former outweighed the latter, and imposed a death sentence.

Again petitioner appealed his sentence of death, but this time the Florida Supreme Court affirmed. See Hill v. State, 515 So.2d 176 (Fla.1987). The court did so although the evidence did not support one of the aggravating circumstances-that the murder was cold, calculated, and premeditated. Given the existence of the four other aggravating circumstances and one statutory mitigating circumstance (petitioner's age), the trial judge's consideration of the erroneous factor was “not such a change under the circumstances of this sentencing proceeding that its elimination could possibly compromise the weighing process of either the jury or the judge.” Id. at 179.

After unsuccessfully petitioning the United States Supreme Court for a writ of certiorari, petitioner moved the trial court, pursuant to Fla. R.Crim. P. 3.850, to vacate his capital conviction and sentence. He contended that his conviction and sentence should be set aside because of constitutional errors committed by the trial court and the Florida Supreme Court, and because his trial attorneys had rendered ineffective assistance of counsel in both guilt and sentencing phases of his case. The trial court summarily denied relief with respect to petitioner's claims of trial court and supreme court error on the ground that those claims were procedurally defaulted (for failure to raise those claims on direct appeal). As for petitioner's ineffective assistance of counsel claim, the court concluded that petitioner's allegations, when considered in the light of the record of his prosecution, were insufficient as a matter of law. The court therefore denied relief on that claim without holding an evidentiary hearing. On appeal, the Florida Supreme Court affirmed. See Hill v. Dugger, 556 So.2d 1385 (Fla.1990).

At that point, petitioner repaired to the United States District Court for the Northern District of Florida for relief. He petitioned that court to grant a writ of habeas corpus setting aside his murder conviction and corresponding death sentence. His petition presented several claims for relief.FN4 The district court denied relief with respect to the conviction but issued the writ with respect to the sentence.FN5 The court held that the trial judge, in sentencing petitioner, failed to recognize as mitigating evidence several aspects of petitioner's background.FN6 Thereafter, the Florida Supreme Court, in affirming petitioner's sentence on harmless error grounds, failed to cure this error by acknowledging the presence of such mitigating factors and placing them in the sentencing balance; that is, by determining whether the aggravating circumstances outweighed the mitigating circumstances (in addition to the statutory mitigating factor, age, which the trial court found). As the district court noted, Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), requires that a reviewing court in a “weighing” jurisdiction, such as Florida, engage in such weighing, and explicitly state that it is doing so in determining whether the trial court would have imposed the death sentence had it considered the mitigating evidence.

* * *

The State appealed the district court's decision regarding the death sentence; petitioner cross-appealed the court's denial of relief on other grounds (with respect to both his murder conviction and his sentence). While the appeal was pending, the State dismissed its appeal, and petitioner moved the Florida Supreme Court to reopen his direct appeal. We stayed our consideration of petitioner's cross-appeal pending the supreme court's decision. The Florida Supreme Court reopened petitioner's appeal from his death sentence, limiting its review to the question whether it had conducted the proper harmless error analysis in affirming petitioner's death sentence. The court affirmed the sentence. Following that decision, petitioner filed an amended habeas petition in the district court, challenging the supreme court's decision affirming his sentence. The district court, concluding that the supreme court had satisfied the dictates of Parker, denied relief. Petitioner now appeals.

* * *

Petitioner contends that his counsel were ineffective during the sentencing phase of his trial, primarily due to their failure to offer evidence of petitioner's drug use on the day of the murder-this time as a mitigating circumstance rather than as a defense to premeditated murder. Petitioner contends further that counsel were ineffective for failing to present background evidence to the court-appointed psychologist (thereby “causing” an incorrect evaluation) and for failing to pursue evidence of his history of drug and alcohol abuse and evidence of his abusive and neglect-ridden childhood. The district court concluded that none of this evidence was “so compelling that it would have changed the result of the proceedings in this case.”

We agree. As we indicated earlier, Strickland requires that a petitioner demonstrate a reasonable probability that the proffered evidence would have changed the result in the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The evidence petitioner proffered in his habeas petition regarding his drug use the day of the murder is largely irrelevant. It does not matter that he was seen with a bag of cocaine that morning; nor does it matter that Jackson had supplied petitioner with drugs prior to the commission of the crime; nor is it enough to allege that another drug test (which defense counsel could not have obtained) may have shown a smaller, “recreational” amount of cocaine in his blood on the day of the robbery. Petitioner has not, and cannot, show that there was any measurable amount of cocaine in his blood. In the end, the only evidence he has proffered that would support his claim that he was intoxicated during the robbery is the statement of his accomplice that they had been using drugs that day. That evidence is insufficient to demonstrate a reasonable probability that, had counsel put that evidence before the jury, it would not have recommended, and the trial court would not have imposed, a death sentence. We reach the same result as to petitioner's claim that counsel failed to pursue evidence of his childhood neglect. The extent of his proffer in this regard is that his mother often gave him “good whippings.” While times have changed and corporal punishment is becoming less accepted as an appropriate means of disciplining a child, we cannot reasonably conclude that counsel's failure to pursue this evidence affected petitioner's sentence.

As to petitioner's argument that counsel failed to provide the psychologist evaluating petitioner's mental state with vital information regarding his background, the district court changed its course and concluded that petitioner failed to satisfy the deficiency prong of the Strickland test. See id. at 687-88, 104 S.Ct. at 2064-65. We cannot fault the court's conclusion. Given the time the court-appointed psychologist invested in his evaluation of petitioner and his knowledge that mitigating factors were vital to petitioner's defense, we cannot conclude that counsel were deficient for failing to provide their expert witness with information that, if it existed, the witness was in a position to discover. Because the petitioner could not satisfy the requirements of Strickland, he cannot demonstrate that the evidence proffered, if true, would entitle him to relief. Thus, he is not entitled to an evidentiary hearing on this claim.

* * *

Finally, petitioner contends that the prosecutor made improper and inflammatory comments before the jury during the sentencing phase of his trial. The prosecutor told the jury that petitioner did not deserve the same life sentence Jackson received because petitioner elected to stand on his not guilty plea and to put the State to its proof at a trial. The prosecutor ended his closing statement with the following remarks:

I want to end with this, if I can have one minute to tell you this. The more things change, the more they stay the same. And in America things haven't changed. Processes have changed a lot, but things are still the same. 150 years ago if the defendant left a town and stole a horse to come over to Pensacola, some desperado robbing a woman of the horse and he rode here with a companion, and they robbed a bank in the main street of the town, and they were seen by ··· many people in the main street of town, and the deputy sheriff came up to arrest the defendant's buddy, and the defendant shot the deputy in the back, they would have strung him up from the nearest tree that day. Now, the process has changed. He now has a jury trial. It's now taking years to do it, but things still remain the same. The crime calls for the sternest punishment for killing the deputy. He must hang from a tree. We're more merciful now. We'll shock him until he's dead. But that is the sentence that is appropriate in this case under the law. Thank you.

The State has not contended that such comments were appropriate; rather, its position is that the comments, if misguided, were harmless. The district court agreed, stating: “[t]here being no reasonable probability that, but for the prosecutor's improper remarks, the verdict or sentence would have been different, Hill's request for habeas corpus relief on the basis of improper prosecutorial comment must be denied.” The prosecutor's comments certainly were crass and manifestly inappropriate; they did not, however, so taint the proceedings as to render petitioner's death sentence constitutionally deficient. There was ample evidence in the record to support a sentence of death, and the trial judge charged the jury to make its decision on the basis of the evidence alone. That being the case, we will not upset the determination of the Florida Supreme Court that the prosecutor's conduct did not affect petitioner's sentence.

For the foregoing reasons, the district court's denial of habeas relief is AFFIRMED.