Executed February 26, 2014 06:32 p.m. EST by Lethal Injection in Florida

10th murderer executed in U.S. in 2014
1369th murderer executed in U.S. since 1976
3rd murderer executed in Florida in 2014
84th murderer executed in Florida since 1976

Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1369 (10)	02-26-14	FL	Lethal Injection	Paul Augustus Howell B / M / 26 - 48	06-25-65	James Herbert Fulford, Jr. OFFICER W / M / 35	02-01-92	Pipe Bomb	None	01-10-95

Summary:
Howell, Tammie Bailey, and Howell's brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder. Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, The bomb was placed inside a microwave oven which was gift-wrapped and placed in a rental car. Howell then paid Lester Watson to drive and deliver the microwave to Bailey. While traveling on I-10 toward Marianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check and the dispatcher contacted the rental car company then Howell, who advised that he had loaned the car to Watson. After giving a false name, Watson was taken to the jail by an assisting officer. A massive explosion at the scene killed Deputy Harrell instantly as he retrieved the gift-wrapped microwave.

Watson testified that while he saw Howell wrapping the box that contained the microwave oven, he never knew it was a bomb, thinking instead it held drugs. Watson was convicted of second degree murder and is serving a 40-year sentence. Howell's brother Patrick, who helped him build the bomb, was convicted of first-degree murder and sentenced to life.

Citations:
Howell v. State, 707 So.2d 674 (Fla. 1998). (Direct Appeal)
Howell v. State, 877 So.2d 697 (Fla. 2004). (PCR)
Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005). (Habeas)

Final / Special Meal:
Peanut butter and jelly sandwich.

Final Words:
Asked if he had any words, he apologized to Fulford's family and gave a two-minute statement detailing the events of the crime and placing blame on a friend for letting the bomb go off.

Internet Sources:

Florida Department of Corrections

Current Prison Sentence History:
02/01/1992 1ST DG MUR/PREMED. OR ATT. 01/10/1995 JEFFERSON 9200022 DEATH SENTENCE

Incarceration History: 01/11/1995 to 02/26/2014

Detainers: 03/23/2004 USM - TALLAHASSEE

South Florida TV-6

"Paul Howell Executed for Florida Trooper's Pipe Bomb Death." (AP Wednesday, Feb 26, 2014 9:21 PM)

A drug trafficker who placed a pipe bomb in a gift-wrapped microwave oven in a plot to kill two potential murder witnesses was executed Wednesday for the 1992 death of a Florida highway trooper who became the unintended victim. Paul Augustus Howell, 48, was pronounced dead at 6:32 p.m. following a lethal injection at the Florida State Prison in Starke, the office of Gov. Rick Scott said in an email. Howell was condemned for the killing of Florida Highway Patrol Trooper Jimmy Fulford on Feb. 1, 1992, when the package exploded during a traffic stop.

Howell's lawyers had filed an unsuccessful appeal Tuesday to the U.S. Supreme Court, arguing that a new drug Florida uses for executions wasn't tested for that purpose. This was the fifth execution in the state using the new drug, midazolam hydrochloride, as part of a three-drug mix. The Supreme Court rejected Howell's final appeals Wednesday afternoon.

The death of Fulford saved others, giving some comfort to his family as the execution of the man convicted of killing him approached. Fulford died in February 1992 along Interstate 10 in Jefferson County when a booby-trapped package exploded during a routine traffic stop. The bomb was intended for a Marianna woman who lived in an apartment complex with her baby. Another woman and other children lived in the next unit over and the bomb was powerful enough that it would have blown out windows, doors and walls if it was detonated in an enclosed area, according to court records. "I'm sure there would have been a lot more people killed besides her," said Tim Fulford, the trooper's brother. "That is a comfort. He did die saving other people's lives."

The man who built the bomb that killed Fulford is scheduled to die by injection on Wednesday, exactly one year after the original execution date set in a process that has been held up by appeals. The time it's taken for Paul Howell's sentence to be carried out has been painful for Fulford's family, especially having to be reminded of the circumstances as Howell's lawyers successfully delayed the execution the past 12 months, Fulford's brother said. "It's something our family will never get over. This process is too long," Fulford said. "Closure will never come. The only way that would happen is if my brother walked through the door and we both know that won't happen."

Fulford is remembered as an excellent officer and strong family man. It was his dream to become a trooper when he was growing up in Madison County. He was first assigned to a troop in Bradenton, where he met his wife, Keith Ann. He eventually was assigned to patrol the area where he grew up and the couple was raising a son and a daughter in Monticello when Fulford died. He was 35. "It was just a dream come true for him and things were working really well," said Madison County Sheriff Ben Stewart, who grew up with Fulford and was serving as a deputy when Fulford died.

Fulford was active in his church, singing in the choir and teaching Sunday school. He liked fishing and hunting and spending time with his family. He was always helping neighbors, Stewart said. "Jimmy was just a really good guy. He was one of the best officers I've ever known. He was very kind-hearted and he very much believed in enforcing the spirit of the law and not the letter of the law. He just believed in helping people," he said. "Just a strong Christian guy and just a country boy, but he always wanted to be a trooper."

Howell, a native of Jamaica, was a drug trafficker living in Fort Lauderdale when he built the bomb. He was trying to kill two potential witnesses in another drug-related murder. Howell paid Lester Watson to drive a rented car from Fort Lauderdale to deliver the gift-wrapped box that contained a microwave oven with a pipe bomb inside that was set to explode when the door was opened. One of the women had told Howell she needed a microwave oven to heat her baby's formula. Fulford stopped Watson for speeding in Jefferson County. Watson was driving a car rented in Howell's name and gave Fulford a false name and birthdate. A dispatcher called Howell to ask if Watson had permission to drive the car. Howell said yes, but told the dispatcher he didn't think Watson was leaving Broward County. He didn't mention the bomb in the trunk.

"This was evil intent. It was meant to kill somebody. And they didn't care. These guys had an opportunity once they were arrested, to say 'Look, don't open the thing,'" Stewart said. Two Jefferson County deputies assisted Fulford by taking Watson and his passenger to the county jail. While they were gone, Fulford opened the package setting off a massive explosion that left a depression in the highway.

"If Jimmy had not intercepted that bomb, a woman and innocent kids would have all been killed and that was the sacrifice that Jimmy made," said Florida Highway Patrol Major Mark Welch. A state and federal investigation after the death led to and the dismantling of a drug ring based in South Florida and the indictment of 28 people.

Miami Herald

"Man executed for pipe bomb death of Fla. trooper," by Brendan Farrington. (AP Wednesday, 02.26.14)

STARKE, Fla. -- A drug trafficker who placed a pipe bomb in a gift-wrapped microwave oven in a plot to kill two potential murder witnesses was executed Wednesday for the 1992 death of a Florida highway trooper who became the unintended victim. Paul Augustus Howell, 48, was pronounced dead at 6:32 p.m. following a lethal injection at the Florida State Prison in Stark, the office of Gov. Rick Scott said in an email.

Howell was condemned for the killing of Florida Highway Patrol Trooper Jimmy Fulford on Feb. 1, 1992, when the package exploded during a traffic stop. Howell built the bomb in his Fort Lauderdale home and placed it in the microwave oven, court documents stated. He then paid another man, Lester Watson, $200 to deliver the box across-state to a woman in Marianna who, along with a friend, could tie Howell to a drug-related murder, according to the records.

But Fulford pulled Watson over for speeding about an hour from his Florida Panhandle destination and the bomb never was delivered to the intended target. Instead, Watson was arrested after giving Fulford a false name and birthdate. Watson also gave Fulford permission to search the car rented in Howell's name. Before Fulford opened the package, a police dispatcher called Howell to let him know what was going on. Instead of mentioning the bomb, Howell said he had given Watson permission to drive the car, but didn't think Watson was leaving the Fort Lauderdale area. Two deputies took Watson and a passenger to a jail while Fulford took inventory of the car's contents. When the 35-year-old trooper opened the package and looked to see what was in the microwave oven, a powerful explosion took his life.

The blast — so strong that it left a depression in the roadway — occurred along Interstate 10 just east of Tallahassee. Had the blast occurred in Tammie Bailey's apartment — the woman who was supposed to have received the bomb — it would have been powerful enough to blow out doors and walls, potentially killing anyone in the apartment as well as neighbors, according to court documents. Authorities said Bailey's friend Yolanda McAllister also was an intended target. Bailey had previously told Howell she needed a microwave oven to heat her baby's bottles. "He saved a bunch of people's lives and I feel if he had to do it over again, he would have done the same thing because that's just the kind of person he was," said Sheriff Ben Stewart in Florida's Madison County, a friend who grew up with Fulford.

Fulford's death prompted a state and federal investigation that broke apart a drug ring and led to the indictment of 28 people. Howell, a native of Jamaica, was sentenced to life on federal drug charges. He was then convicted on state charges of murder and making, possessing, placing and discharging a destructive and handed the death sentence. His lawyers had filed an unsuccessful appeal Tuesday to the U.S. Supreme Court, arguing that a new drug Florida uses for executions wasn't tested for that purpose. This was the fifth execution in the state using the new drug, midazolam hydrochloride, as part of a three-drug mix.

Watson testified that while he saw Howell wrapping the box that contained the microwave oven, he never knew it was a bomb, thinking instead it held drugs. Watson was convicted of second degree murder and is serving a 40-year sentence. Howell's brother Patrick, who helped him build the bomb, was convicted of first-degree murder and sentenced to life.

Daily Mail

"Drug trafficker Paul Howell executed by Florida for killing state trooper with pipe bomb in a microwave." (Associated Press 12:03 EST, 27 February 2014)

A drug trafficker who placed a pipe bomb in a gift-wrapped microwave oven in a plot to kill two potential murder witnesses was executed for the 1992 death of a Florida highway officer who became the unintended victim. Paul Augustus Howell, 48, was pronounced dead Wednesday evening following a lethal injection at the Florida State Prison in Starke, the office of Gov. Rick Scott said in an email. He became the 15th man to be executed in the state since Mr Scott became governor in 2011.

Howell, a native of Jamaica, was condemned for the killing of Jimmy Fulford on February 1, 1992, when the package exploded during a traffic stop.

When the prison curtain opened revealing the execution witnesses, Howell, who had a peanut butter and jelly sandwich as his last meal, opened his eyes wide and lifted his head to stare at those gathered. He began praying. Asked if he had any words, he apologized to Fulford's family and gave a two-minute statement detailing the events of the crime and placing blame on a friend for letting the bomb go off. No one from Fulford's family witnessed the execution or gave a statement.

Howell built the bomb in his home and placed it in the microwave oven, court documents stated. He then paid another man, Lester Watson, $200 to deliver the box to a woman who, along with a friend, could tie Howell to a drug-related murder, according to the records. But Fulford pulled Watson over for speeding, and the bomb was never delivered to the intended target. Instead, Watson was arrested after giving a false name and birthdate. Watson also gave Fulford permission to search the car rented in Howell's name. When the 35-year-old officer opened the package and looked to see what was in the microwave oven, the bomb exploded. The blast was so strong that it left a depression in the roadway.

Howell was sentenced to life on federal drug charges. His lawyers had filed an unsuccessful appeal Tuesday to the U.S. Supreme Court, arguing that a new drug Florida uses for executions wasn't tested for that purpose. This was the fifth execution in the state using the new drug, midazolam hydrochloride, as part of a three-drug mix. Howell's brother Patrick, who helped him build the bomb, was convicted of first-degree murder and sentenced to life.

Reuters News

"Florida man executed for trooper's 1992 pipe-bomb death," by Bill Cotterell) (Wed Feb 26, 2014)

TALLAHASSEE, Florida (Reuters) - A South Florida drug dealer, who was convicted in the pipe-bomb killing of a state highway patrolman during a traffic stop 22 years ago, was executed on Wednesday, state prison officials said. Paul Augustus Howell met with a spiritual adviser and ate a peanut butter and jelly sandwich in the hours before his death by lethal injection at Florida State Prison. He was pronounced dead at 6:32 p.m. EST.

Howell was sentenced to die in 1995 for the death of state trooper Jimmy Fulford. The highway patrolman opened a package in the trunk of a car that Howell had rented to take the bomb to a woman in Marianna on February 1, 1992. Fulford, 35, had stopped the car for speeding on I-10 in Jefferson County. Fulford searched the car. He was killed when he opened a gift-wrapped package containing a microwave oven, in which the bomb was hidden.

At Howell's trial in Pensacola, prosecutors said he had intended to kill a Panhandle woman with the bomb because she could have implicated him and his brother in a drug-related murder. Howell, 48, died one year to the day after his initial execution date. He won a reprieve last year, but recently his court challenges over use of a new sedative drug, midazolam hydrochloride, ran out, and he became the fourth condemned man executed with the state's new three-drug combination.

The state began using the sedative last year as the first of three lethal injection chemicals, after the manufacturer of the previous knockout drug, sodium pentobarbital, stopped selling it for use in executions. In his appeals, which were dismissed last week, Howell claimed that midazolam might not completely knock him out before the other two drugs were administered to cause paralysis and then death. The state Department of Corrections has maintained in court that the drug fully anesthetizes prisoners so they do not suffer when the second and third drugs are injected. Defense lawyers and capital punishment opponents have said condemned men have shown signs of movement and stress during their executions.

Huffington Post

"Paul Augustus Howell Executed For Killing Florida Trooper With Pipe Bomb." (AP)

STARKE, Fla. (AP) — A drug trafficker who placed a pipe bomb in a gift-wrapped microwave oven in a plot to kill two potential murder witnesses was executed Wednesday for the 1992 death of a Florida highway trooper who became the unintended victim. Paul Augustus Howell, 48, was pronounced dead at 6:32 p.m. following a lethal injection at the Florida State Prison in Stark, the office of Gov. Rick Scott said in an email.

Howell was condemned for the killing of Florida Highway Patrol Trooper Jimmy Fulford on Feb. 1, 1992, when the package exploded during a traffic stop. Howell built the bomb in his Fort Lauderdale home and placed it in the microwave oven, court documents stated. He then paid another man, Lester Watson, $200 to deliver the box across-state to a woman in Marianna who, along with a friend, could tie Howell to a drug-related murder, according to the records. But Fulford pulled Watson over for speeding about an hour from his Florida Panhandle destination and the bomb never was delivered to the intended target. Instead, Watson was arrested after giving Fulford a false name and birthdate. Watson also gave Fulford permission to search the car rented in Howell's name.

Before Fulford opened the package, a police dispatcher called Howell to let him know what was going on. Instead of mentioning the bomb, Howell said he had given Watson permission to drive the car, but didn't think Watson was leaving the Fort Lauderdale area. Two deputies took Watson and a passenger to a jail while Fulford took inventory of the car's contents. When the 35-year-old trooper opened the package and looked to see what was in the microwave oven, a powerful explosion took his life.

The blast — so strong that it left a depression in the roadway — occurred along Interstate 10 just east of Tallahassee. Had the blast occurred in Tammie Bailey's apartment — the woman who was supposed to have received the bomb — it would have been powerful enough to blow out doors and walls, potentially killing anyone in the apartment as well as neighbors, according to court documents. Authorities said Bailey's friend Yolanda McAllister also was an intended target. Bailey had previously told Howell she needed a microwave oven to heat her baby's bottles. "He saved a bunch of people's lives and I feel if he had to do it over again, he would have done the same thing because that's just the kind of person he was," said Sheriff Ben Stewart in Florida's Madison County, a friend who grew up with Fulford.

Fulford's death prompted a state and federal investigation that broke apart a drug ring and led to the indictment of 28 people.

Howell, a native of Jamaica, was sentenced to life on federal drug charges. He was then convicted on state charges of murder and making, possessing, placing and discharging a destructive and handed the death sentence. His lawyers had filed an unsuccessful appeal Tuesday to the U.S. Supreme Court, arguing that a new drug Florida uses for executions wasn't tested for that purpose. This was the fifth execution in the state using the new drug, midazolam hydrochloride, as part of a three-drug mix. Watson testified that while he saw Howell wrapping the box that contained the microwave oven, he never knew it was a bomb, thinking instead it held drugs. Watson was convicted of second degree murder and is serving a 40-year sentence. Howell's brother Patrick, who helped him build the bomb, was convicted of first-degree murder and sentenced to life.

ECBPublishing

"Trooper Jimmy Fulford Remembered," by Fran Hunt. (February 6, 2013)

Friday, February 1 marked the 21st anniversary of when Florida Highway Patrol (FHP) Trooper Jimmy Fulford was murdered. As has been done every year since his death, many gathered together for a memorial service at the spot he was killed, on the westbound off ramp of I-10 at the Aucilla exit. Those gathered included local residents and dignitaries, FHP Troopers, Sheriff David Hobbs, and staff from the Jefferson County Sheriff’s Office.

Presiding over the service was BJ Tinney, who was Trooper Fulford’s lieutenant FHP. Tinney began the service with a prayer. “Jimmy was born on May 12, 1956 and he was killed on February 1, 1992. He was only 35 years old when he was killed. He would be almost 57 years old if he were still living today. He then read Psalm 23. “Jimmy was a good Christian person. He was a Deacon in his church, the First Baptist Church of Monticello, and he sang in the church.” Tinney then played a cassette tape, which was taped by First Baptist Church, and featured Trooper Fulford, Karen Trammell, and Kym Staples singing.

The song Tinney chose to play was, “God Will Make This Trial A Blessing.” “I hope this song touches you the way it touched me,” said Jimmy. He then sang the lyrics in a beautifully angelic voice. “I’ve just come into a valley one like I’ve never been before. I keep searching for a way out seems like pad locks are on the doors. Oh there must be another sunrise another sunset that I’ll see. God will make this trial a blessing that’s the love he has for me. God will make this trial a blessing though it sends me to my knees. Though my tears flow like a river yet in Him there’s sweet relief. There’s no need to get discouraged there’s no need to talk defeat. God will make this trial a blessing and the whole wide world will see. I was not the first one to come into this place. You see every child of God this test you must face. It is here that God will mold you and make you what you ought to be. God will make this trial a blessing just be patient you will see. God will make this trial a blessing though it sends me to my knees. Though my tears flow like a river yet in Him there’s sweet relief. There’s no need to get discouraged there’s no need to talk defeat. God will make this trial a blessing and the whole wide world will see. Now I’m standing on a mountain, looking back I can see. When I was in that lowest valley his strong hand was leading me. Oh it’s good to see the sunshine and to taste sweet victory. God has made this trial a blessing oh the grace He gives to me.”

As the tape was played, tears began to well in the eyes of those present. Tinney then read the poem “Life Is Long Enough,” by Tricia Mae Chua. “Life is too short to be spent griping about the past, things you don’t have, places you haven’t seen, things you haven’t done. Life is too short to be spent holding grievances against another, finding fault in your brother, counting the wrongs done on you. Life is just long enough to enjoy the beauty of a sunrise the smell of wet earth and the sound of laughter after a long day’s work.Life is just long enough to practice compassion and generosity, to comfort the grieving, to lend strength to the fainthearted, and direction to the lost.”

“Jimmy believed that our days are numbered,” said Tinney. “He believed the Bible, and he lived what he believed. Not a day goes by that I don’t see or hear something that makes me think of Jimmy. We worked together for 12 years, from 1980 until he was killed in 1992. Jimmy was like a son to me. My wife and I have two daughters. I have often told her that if I ever had a son, I would want him to be just like Jimmy. I have been coming to this spot every February 1 for the past 21 years, and I am going to keep coming back every year on this day.”

He invited those present to say a few words about Jimmy. “He was a real man among men,” said Danny Monroe. Following a concluding prayer, Tinney said another one who is like a son to me is (David) Hobbs. The first time I met him he was riding with Jimmy and Jimmy brought him by the station and introduced him to me.” The man adjudicated guilty of the first-degree murder of Jimmy Fulford, Paul Augustus Howell, is scheduled to be executed on February 26 at 6 p.m.

Wikipedia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor

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

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

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

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

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

67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr

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

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

70. Manuel Valle 28 September 2011 lethal injection Louis Pena

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

72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer

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

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

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

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

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

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

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

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

81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins

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

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

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

ProDeathPenalty.Com

In January of 1992, Paul Augustus Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. Bailey, Howell, and Howell's brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder.

The bomb was placed inside a microwave oven and then the oven was gift-wrapped. Howell paid Lester Watson to drive and deliver the microwave to Bailey. Although he knew that Howell had often made pipe bombs, Watson testified that he thought the microwave contained drugs. Howell rented a car for Watson to use for the trip. Watson was accompanied on the trip by Curtis Williams. While traveling on I-10 toward Marianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check on the car and a license check on Watson, who gave the trooper a false name and birth date because he did not have a valid driver's license. The radio dispatcher contacted the car rental company and was informed that Howell had rented the car.

The dispatcher contacted Howell at his home in Fort Lauderdale, Florida, to determine whether the rental car had been stolen from him. Howell told the dispatcher that he had loaned the car to Watson but did not know that Watson would be traveling so far with the vehicle. Howell was informed by the dispatcher that Watson was going to be taken to the Jefferson County Jail. Howell did not give any warning to the dispatcher regarding the bomb. Deputies Harrell and Blount of the Jefferson County Sheriff's Department arrived at the scene and Watson gave them permission to search the vehicle. Trooper Fulford and the deputies observed the gift-wrapped microwave in the trunk of the car. Watson was arrested for speeding and driving without a valid driver's license and was transported, along with Williams, to the jail by Deputy Blount.

Deputy Harrell also proceeded to the jail, leaving Trooper Fulford alone with the rental car. Shortly thereafter, a massive explosion took place at the scene. Testimony presented at Howell's trial by the State's explosives expert indicated that Trooper Fulford had been holding the microwave in his hands when the bomb went off. Trooper Fulford died instantly due to the massive trauma caused by the explosion. Howell was arrested and charged with Trooper Fulford's murder.

Frank Sheffield, a private attorney, was appointed to represent Howell due to a conflict of interest asserted by the Public Defender's Office for the Second Judicial Circuit. Venue of the trial was transferred from Jefferson County to Escambia County. The jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a destructive device or bomb. The jury also returned a special verdict finding that the charge of first-degree murder was established by both proof of premeditated design and felony murder. At the penalty phase, the jury recommended death by a vote of ten to two.

Florida Commission on Capital Cases

The Commission on Capital Cases was not funded in the FY 2011-2012 General Appropriations Act, and the Commission ceased operations on June 30, 2011. This site and the Commission website are being retained to provide access to historical materials.

HOWELL, Paul (B/M)
DC # 123792
DOB: 06/25/65

Second Judicial Circuit, Jefferson County, Case # 92-22
Sentencing Judge: The Honorable F. E. Steinmeyer
Trial Attorney: Frank Sheffield – Private
Attorney, Direct Appeal: Robert A. Norgard – Private
Attorney, Collateral Appeals: Clyde Taylor – Registry

Date of Offense: 02/01/92
Date of Sentence: 01/10/95

Circumstances of the Offense:

Paul Howell made a bomb in January of 1992 for the specific purpose of murdering Tammie Bailey at her Marianna, Florida, home. Howell, Bailey and Howell’s brother, Patrick, were involved in a drug ring that transported drugs from Ft. Lauderdale, Florida, to be sold in Marianna. Bailey could link Howell and his brother to a prior murder; therefore, Howell intended to eliminate Bailey as a witness. After constructing the bomb, Howell placed it in a microwave oven and wrapped it so that it looked like a present. Howell commissioned Lester Watson to drive to Bailey’s house and deliver the present. Watson had knowledge that Howell made pipe bombs; however, he suspected that drugs were in the microwave. Watson drove in a car rented by Howell and was accompanied by Curtis Williams.

Trooper Jimmy Fulford stopped Watson for speeding on I-10 on his way to Marianna. Fulford ran a registration check, but when he asked for Watson’s license, Watson gave him a false name and date of birth due to his lack of a valid driver’s license. When Fulford called into dispatch, they relayed to him that the car had been rented to Howell. Dispatch contacted Howell who, when asked if the rental car was stolen, relayed that he had loaned the vehicle to Watson, but claimed he was unaware that he would traveling so far from his home in Ft. Lauderdale. Dispatch told Howell that Watson would be taken to the Jefferson County Jail; however, Howell did not give any indication to dispatch that there was a bomb in the car.

Jefferson County Sheriff’s Department deputies Harrell and Blount arrived at the scene and were granted permission by Watson to search the car. The deputies and Trooper Fulford noticed the gift-wrapped package in the trunk. Watson was arrested for driving without a valid license and speeding. The deputies took him, along with Williams, to the jail. Trooper Fulford was left alone with the car and, shortly thereafter, there was a massive explosion at the scene. The State’s explosive expert testified at trial that Fulford was holding the package when the bomb detonated. Fulford’s instantaneous death was a direct result of massive trauma from the explosion.

Howell was arrested and charged with the murder of Trooper Fulford and the venue of the trial was transferred from Jefferson County to Escambia County.

Codefendant Information: Lester Watson, the driver of the vehicle, was convicted of Second-Degree Murder and sentenced to 40 years in prison. The defendant’s brother, Patrick Howell, is serving a life sentence without eligibility of parole for 25 years for his involvement in the murder. Trial Summary:

02/19/92 Defendant indicted with the following: Count I: First-Degree Murder Count II: Making, Possessing, Placing, or Discharging a Destructive Device Count III: Making, Possessing, Placing, or Discharging a Destructive Device Count IV: Possession of an Explosive Device

10/18/94 Defendant was found guilty by the trial jury of Counts I and II

10/21/94 The jury recommended Death by a vote of 10 to 2 for both Counts I and II

01/10/95 Defendant was sentenced as follows: Count I: First-Degree Murder – Death Count II: Making, Possessing, Placing, or Discharging a Destructive Device – Death Count III: Making, Possessing, Placing, or Discharging a Destructive Device – Nolle Prosequi Count IV: Possession of an Explosive Device – Nolle

Appeal Summary:

Florida State Supreme Court – Direct Appeal
FSC #85,193
707 So. 2d 674
02/20/95 Appeal filed.
02/12/98 FSC affirmed the conviction and sentence.
03/16/98 Mandate issued.

United States Supreme Court – Petition for Writ of Certiorari
USSC #97-9042
524 U.S. 958
05/11/98 Petition filed.
06/26/98 Petition denied.

State Circuit Court – 3.850 Motion
CC #92-22
08/30/99 Motion filed.
01/02/03 Motion denied.

Florida Supreme Court – 3.850 Appeal
FSC #SC03-103
877 So. 2d 697
01/22/03 Appeal filed.
05/06/04 FSC affirmed denial of 3.850 Motion.
06/25/04 Rehearing denied.
07/26/04 Mandate issued.

U.S. District Court. Northern District – Petition for Writ of Habeas Corpus
USDC# 04-299
07/26/04 Petition filed.
12/01/04 USDC dismissed Petition.

U.S. Court of Appeals, 11th Circuit – Petition for Writ of Habeas Corpus Appeal
USCA# 04-16542
415 F. 3d 1250
12/22/04 Appeal filed.
07/06/05 USCA affirmed dismissal of Petition.
08/16/05 Mandate issued.

U.S. Supreme Court – Petition for Writ of Certiorari
USSC# 05-7406
126 S. Ct. 1059
10/28/05 Petition filed.
01/09/06 USSC denied petition.

Case Information:

A Petition for Writ of Certiorari was filed on 05/11/98 and denied on 06/26/98.

A 3.850 motion was filed with the circuit court on 08/30/99 and denied on 01/02/03.

A 3.850 Appeal was filed with the Florida Supreme Court on 01/22/03, citing allegations of ineffective assistance of counsel and Ring claims. On 05/06/04, the denial of the 3.850 Motion was affirmed.

A Petition for Writ of Habeas Corpus was filed with the U.S. District Court, Northern District on 07/26/04 that was dismissed on 12/01/04.

A Petition for Writ of Habeas Corpus Appeal was filed with the U.S. Court of Appeals, 11th Circuit on 12/22/04. On 07/08/05, the USCA affirmed the dismissal of the Petition.

A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 10/28/05 and was denied on 01/09/06.

© 2010 Commission on Capital Cases

Howell v. State, 707 So.2d 674 (Fla. 1998). (Direct Appeal)

Defendant was convicted in the Circuit Court in and for Jefferson County, F.E. Steinmeyer, J., of first-degree murder and of making, possessing, placing, or discharging destructive device or bomb, and sentenced to death. Defendant appealed. The Supreme Court held: (1) disqualification of defense counsel was not required; (2) refusal to appoint second defense attorney did not amount to ineffective assistance; (3) great risk of death to many persons aggravator was applicable in penalty phase of murder prosecution; (4) cold, calculated and premeditated (CCP) aggravator could be applied in penalty phase even though killing was of unintended victim; and (5) death sentence was proportional to defendant's culpability. Affirmed. Anstead, J., concurred in result only as to conviction and concurred as to sentence.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Paul Howell. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In January of 1992, Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. Bailey, Howell, and Howell's brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder. The bomb was placed inside a microwave oven and then the oven was gift-wrapped. Howell paid Lester Watson to drive and deliver the microwave to Bailey. Although he knew that Howell had often made pipe bombs, Watson testified that he thought the microwave contained drugs. Howell rented a car for Watson to use for the trip. Watson was accompanied on the trip by Curtis Williams.

While traveling on I–10 toward Marianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check on the car and a license check on Watson, who gave the trooper a false name and birth date because he did not have a valid driver's license. The radio dispatcher contacted the car rental company and was informed that Howell had rented the car. The dispatcher contacted Howell at his home in Fort Lauderdale, Florida, to determine whether the rental car had been stolen from him. Howell told the dispatcher that he had loaned the car to Watson but did not know that Watson would be traveling so far with the vehicle. Howell was informed by the dispatcher that Watson was going to be taken to the Jefferson County Jail. Howell did not give any warning to the dispatcher regarding the bomb.

Deputies Harrell and Blount of the Jefferson County Sheriff's Department arrived at the scene and Watson gave them permission to search the vehicle. Trooper Fulford and the deputies observed the gift-wrapped microwave in the trunk of the car. Watson was arrested for speeding and driving without a valid driver's license and was transported, along with Williams, to the jail by Deputy Blount. Deputy Harrell also proceeded to the jail, leaving Trooper Fulford alone with the rental car. Shortly thereafter, a massive explosion took place at the scene. Testimony presented at Howell's trial by the State's explosives expert indicated that Trooper Fulford had been holding the microwave in his hands when the bomb went off. Trooper Fulford died instantly due to the massive trauma caused by the explosion. Howell was arrested and charged with Trooper Fulford's murder. Frank Sheffield, a private attorney, was appointed to represent Howell due to a conflict of interest asserted by the Public Defender's Office for the Second Judicial Circuit. Venue of the trial was transferred from Jefferson County to Escambia County.

The jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a destructive device or bomb. The jury also returned a special verdict finding that the charge of first-degree murder was established by both proof of premeditated design and felony murder. At the penalty phase, the jury recommended death by a vote of ten to two. The trial court found that the following aggravators applied to the murder: (1) Howell knowingly created a great risk of death to many persons; (2) the murder was committed while Howell was engaged in the unlawful making, possessing, placing, or discharging of a destructive device or bomb; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (4) the victim was a law enforcement officer engaged in the performance of his official duties; and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The trial court also found that the following statutory and nonstatutory mitigators applied: (1) Howell had no significant history of prior criminal activity; (2) the murder was committed while Howell was under the influence of extreme mental or emotional disturbance (given little weight); (3) Howell had served in the military and received an honorable discharge (given little weight); (4) Howell displayed good behavior as a pretrial detainee; and (5) Howell was a good family man (deemed inconsequential). The trial court found that the enormity of the proved aggravating circumstances far outweighed the mitigating circumstances and imposed the death penalty in conformance with the jury's recommendation that Howell be sentenced to death. The trial court declined to impose a sentence on Howell's conviction for constructing the bomb because this charge and the murder charge both arose from a single underlying offense.

Howell raises one guilt-phase issue and eight penalty-phase issues on appeal.

THE GUILT PHASE

Howell's only point on appeal with reference to his conviction is his contention that the trial court erred in refusing to appoint different counsel for him and in refusing to appoint a second attorney. The facts surrounding this claim are set forth below. Because of a conflict of interest asserted by the public defender's office, attorney Frank Sheffield was appointed to represent Howell in the defense of this case. Howell also faced federal charges arising out of much of the same conduct which had given rise to the State's indictment. Sheffield had also been appointed to represent Howell in defense of the federal charges. On March 18, 1993, the state attorney moved to disqualify Sheffield from this case, noting the fact that Sheffield had been allowed to withdraw from the federal prosecution. Three days before, Howell had written to the judge complaining that Sheffield had failed to communicate with him and that he wanted William Pfeiffer, who had replaced Sheffield during the federal trial, to serve as his counsel in state court and asked that attorney Clyde Taylor be appointed to assist Pfeiffer. At the hearing, the prosecutor stated that the State's motion was not predicated upon any belief that Sheffield was not rendering effective assistance but rather had been filed to bring to the court's attention that he had been relieved from representing Howell in federal court. Sheffield explained that he had received a telephone threat during the federal trial and that he had requested leave to withdraw, which had been granted. With respect to the current representation, Sheffield stated: I am perfectly willing to continue representing Mr. Howell in this state case. I have tons and tons of discovery. We have taken depositions. I have no qualms whatsoever about my reputation as far as my abilities to represent him. I have handled over a dozen death cases. I have the experience in handling death cases, and I am more than willing to continue representing him. I see no reason why there should be a change at this point.

On June 4, 1993, the State filed a motion for rehearing, attaching partial transcripts of the federal proceeding. However, this motion was not called up for hearing until November 19, 1993, at which point Judge Steinmeyer was presiding over the case. The prosecutor explained that the transcripts shed further light on the telephone incident which indicated “an apparent conflict” and that he felt that the court should inquire further of Sheffield and Howell in this respect. Sheffield then recounted some of the difficulties he had encountered during the federal proceeding and stated that under the federal practice during the trial he had been continuously served with new discovery but that Mr. Howell would not communicate with him concerning these matters, and their relationship became strained. At this point, Sheffield had obtained a psychological evaluation of Howell. The doctor reported that he was not incompetent to proceed, but that because of some perceived problem that Howell had with Sheffield at that point, he had a problem communicating with Sheffield. However, U.S. District Judge William Stafford denied Sheffield's motion to withdraw as counsel, indicating that he did not believe there were sufficient grounds to remove him. Sheffield went on to explain that on the following day his wife received a phone call at Sheffield's office from an unknown source in which the caller said that “if Paul Howell goes down, Mr. Sheffield is going down too.” Sheffield explained that when he brought this to Judge Stafford's attention, the judge granted his motion for discharge. Sheffield then stated:

Since that time Mr. Howell and I have communicated with one another. He has communicated with me in this case. This is not a case where there are [Jencks] Act rules that you have to deal with and that you don't get discovery in. We are getting discovery. We have taken depositions. I have visited him in the Broward County Jail. We have no problems between us with me continuing to represent him in this case, and the problems that were occurring at that time in the federal case no longer exist. Secondly, I am not concerned at this point in time that there is somebody out there coming to get me. I have had threats before. I am sure I will have threats again. I am perfectly willing to continue on this case to represent Mr. Howell and to represent his best interests in this case. .... So I certainly have no problem continuing to represent Mr. Howell. I have been working in this case since the beginning; and certainly from the standpoint of continuing with the case from the judicial perspective, there will be a substantial delay if new counsel is put in because they are going to have to come up to speed on everything that has been going in this case. We have been down to at least two week-long sessions taking depositions in it. I have prepared motions and have worked with the other counsel in the case. I see nothing to be gained from the standpoint of pursuing this case by changing counsel. I don't think that Mr. Howell at this point wants to change counsel. So I think it's a moot point.

The state attorney then sought an affirmative representation from the defendant with respect to whether to remove Sheffield from the case. Upon being sworn, Howell said that he wanted to hear about the results of the investigation regarding the bomb threat because his wife and mother had been upset by insinuations that they had precipitated the threat. A special agent of the U.S. Drug Enforcement Administration then testified that he had investigated the threat but was unable to substantiate from the phone records that a telephone call had been made to Sheffield's office at the time it was reported. When interrogated by Sheffield, the agent expressed the opinion that his wife had either falsified the bomb threat or that there was a mistake in the company's computer system. When asked his position with respect to Mr. Sheffield, Howell expressed concern over the allegation of the bomb threat should it happen again. At this point, the following colloquy occurred:

THE COURT: The point is, is there any problem between you and Mr. Sheffield? If there is no problem between you and Mr. Sheffield, it makes no difference to me what the problem is between Mr. Sheffield and the Drug Enforcement Agency. DEFENDANT PAUL HOWELL: That matter has not been resolved yet. THE COURT: Right. DEFENDANT PAUL HOWELL: Until somebody announces it never happened, it's still a problem. THE COURT: Well— MR. SHEFFIELD: Judge, I can tell you that if it is a problem, it is only a problem with Mr. Howell because I can represent to this Court that I intend to represent Mr. Howell, as I have told him, to the fullest extent that I can possibly do so, to whatever it takes. And I have already indicated on the record that if Jefferson County goes broke paying me to represent Mr. Howell, I intend to do it. MR. SCHNEIDER: The essence, I think, of the inquiry is exactly what Mr. Sheffield said. You know, as far as he's concerned it's fine, but that is not the inquiry that the Court needs to make. And until and unless Mr. Howell expresses on the record an affirmative waiver of any sort of conflict that may be caused by this information, I think that we have a— THE COURT: I am not going to require M. Howell to express anything on the record, affirmatively or negatively, if he chooses not to; but I am giving him an opportunity to be heard in this regard, and if he wants to say anything to me he can say something to me about that. But it appears to me at this point that there does not, there is not a conflict between Mr. Sheffield and Mr. Howell that would interfere with Mr. Sheffield's ability to represent him. Now, Mr. Howell, if you want to make any comments other than that I will be happy to hear you, but at this point you and Mr. Sheffield appear to be able to communicate. And as Judge Stafford said in the transcript in the federal case, Mr. Sheffield is probably as good as you're going to get around here, and I think it would certainly be to your benefit to have him represent you. But I want to hear from you if you want to say anything. DEFENDANT PAUL HOWELL: As I said before, the Court can determine it. THE COURT: Well, if you leave it up to the Court, at this point I see no reason to disqualify Mr. Sheffield from representing Mr. Howell and I will deny the motion.

It is evident that any apprehension that Sheffield had concerning the bomb threat which had allegedly occurred some nine months before had dissipated. When Howell was asked concerning his position on the matter, he deferred to the court's judgment. From this record, we cannot say that the court abused its discretion in not disqualifying Sheffield from representing defendant. The State had made the motion out of an abundance of caution, and at no time during the hearing before Judge Steinmeyer did Howell ask that Sheffield be removed as his attorney.

The next event relevant to this point on appeal occurred approximately nine months later when attorney Sheffield moved to have a second attorney appointed due to the alleged complexity of the case and the extensive preparation involved. After hearing the argument, the court denied the motion, noting that Sheffield had been able to familiarize himself with the charges by virtue of his participating in the federal proceedings. Thereafter, it was brought to the court's attention that Sheffield had obtained the appointment of a mental health expert but that Howell refused to speak with this individual because he did not wish the case to be defended on the grounds of incompetency. While Sheffield maintained that the insanity defense was the “only defense” available, Howell disputed this and the judge observed that this was Howell's choice to make. During the trial, which commenced on October 12, 1994, after a change of venue to Escambia County, Howell also made various complaints concerning Sheffield's representation. However, Howell never requested the opportunity to represent himself. In each instance, the trial court considered Howell's complaints and concluded that Sheffield was providing him with proper representation.

In Hardwick v. State, 521 So.2d 1071 (Fla.1988), this Court adopted the procedure announced in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to be followed when a defendant complains that his appointed counsel is providing him with ineffective representation. When this occurs, the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant. However, the trial judge's inquiry can only be as specific as the defendant's complaint. Lowe v. State, 650 So.2d 969 (Fla.1994). Here, the trial court made an adequate inquiry into Howell's complaints of ineffectiveness and properly determined them to be without merit. Because Howell never requested to represent himself, he was not entitled to an inquiry on the subject of self-representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Further, we find no abuse of discretion in the trial court's denial of Howell's request for the appointment of another attorney to assist Sheffield in his defense. Armstrong v. State, 642 So.2d 730 (Fla.1994); Reaves v. State, 639 So.2d 1 (Fla.1994).

PENALTY PHASE

Howell challenges several of the statutory aggravating circumstances which the trial court found applicable to the murder. Howell first asserts that the trial court erred in finding that he had knowingly created a great risk to many persons because Trooper Fulford was alone when the bomb exploded and that the trial court's conjecture and speculation about who might have been killed cannot be used as a basis to support this aggravator. The trial court's sentencing order addressed this aggravator as follows:

The evidence presented compelled the conclusion that the Defendant constructed the bomb, which exploded and killed Florida Highway Patrol Trooper James Fulford, or the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. The Defendant knew that the intended victim had at least one small child who lived with her and that Lester Watson, who he paid to deliver the bomb, would be present when the bomb was delivered. The Defendant also sent Lester Watson to Yolanda McAllister to take him to Tammie Bailey's house and, therefore, could reasonably have expected her to accompany him to the house. In fact, Tammie Bailey lived in a duplex with a mother and two children living in the other side. The photographs at the scene of the explosion introduced into evidence in the guilt phase of the trial showed the magnitude of the force of the bomb. The testimony indicated that on more than one occasion the Defendant, or friends of his, had exploded other pipe bombs so that the Defendant knew of the force of the intended explosion and the effect it would have on anyone close by as well as the structure in which the explosion would take place. The Defendant concealed the bomb in a microwave oven wrapped as a gift and it, therefore, created a high probability that many persons would be present to open the gift. This aggravating circumstance was proved beyond a reasonable doubt.

This Court has previously held that this aggravator requires the defendant to have knowingly created an immediate and present risk of death to many persons. Williams v. State, 574 So.2d 136, 138 (Fla.1991). We have interpreted the term “many persons” to require that a risk of death be posed to more than three other persons besides the homicide victim. See Fitzpatrick v. State, 437 So.2d 1072 (Fla.1983). The majority of this Court's prior opinions addressing this aggravator have addressed situations where persons present at the scene of the crime were at risk of being injured or killed by gunfire. See, e.g., Johnson v. State, 696 So.2d 326 (Fla.1997) (great risk of death to many people aggravator found where four people other than victim were in laundromat when defendant broke in and began shooting). However, the instant case poses a situation more akin to our decisions addressing the risk of death to many persons caused by arson or poisoning. In Welty v. State, 402 So.2d 1159 (Fla.1981), we found that setting fire to a condominium when six elderly people were asleep in other units created a great risk of death to many persons. In Trepal v. State, 621 So.2d 1361 (Fla.1993), the defendant argued that it was mere speculation that the bottles of cola (laced with lethal doses of thallium, a deadly poison) he placed in the victims' household posed a great risk of harm to many persons because only four persons lived in the house. We rejected this argument and found that the aggravator applied based on the fact that seven persons lived on the victims' property, family members visited regularly, and the defendant knew that many people came and went on the victims' property.

As pointed out by the trial court, if the bomb Howell constructed had reached its intended destination, Tammie Bailey, Bailey's child, Lester Watson, Yolanda McAllister, and the mother and two children residing in the adjoining apartment would have been potentially at risk of death. Furthermore, even though the victim Howell originally targeted was not killed, this case involved a sophisticated and lethal bomb of great magnitude transported on major interstate highways all the way from Fort Lauderdale to Marianna, Florida. That fortuitously only one person was killed does not change the fact that Howell knew that the bomb he constructed and caused to be transported through the length and breadth of Florida had the capacity to kill a “great number of people” as we have previously defined that term. Based on the expert testimony presented regarding the violence of the explosion and the fire that it caused, there was a likelihood or high probability that the occupants of any vehicles driving on I–10 in the near vicinity at the time of the explosion were at risk of death. See Delap v. State, 440 So.2d 1242, 1256 (Fla.1983) ( “great risk of death to many persons aggravator” supported by evidence that Delap drove erratically on a highway while struggling with victim, thereby presenting a danger to the lives of motorists on the highway). We therefore reject Howell's challenge to this aggravator and hold that the trial court properly found that this aggravator applied to the murder.

Howell also asserts that the trial court erred in finding that the murder was committed to avoid or prevent arrest. The trial court's sentencing order states: The evidence in the guilt phase established that the reason for the construction and delivery of the bomb was to eliminate the intended victim as a witness that could link Defendant and his brother to a prior murder. Killing to eliminate a witness to a prior crime is a basis for this factor. Fotopoulos v. State, 608 So.2d 784 (Fla.1992). The killing of an unintended victim is immaterial because the intended act remains the same. Sweet v. State 624 So.2d 1138 (Fla.1993). The evidence is clear that this aggravating circumstance was applicable, the jury was instructed with regard to it and the Court finds that it was proved beyond a reasonable doubt.

Howell argues that in order for this aggravator to apply to the intended murder of a layperson, as opposed to the murder of a law enforcement officer, witness elimination must be the defendant's dominant motive, and that in this case, there was evidence presented that Howell wanted to murder Bailey for financial reasons. Howell asserts that he was angry at Bailey because he had sent money to her to travel down to Fort Lauderdale but she had never made the trip. Howell further asserts that the concept of “transferred intent” set forth in Sweet v. State, 624 So.2d 1138 (Fla.1993), only applies where witness elimination is the dominant motive for the crime.

Evidence was presented at trial establishing that Bailey was involved in the cover-up following the murder of Alphonso Tillman by Patrick Howell and that she had personal knowledge of Howell's attempts to dispose of the vehicle in which Tillman was murdered. Trevor Sealey testified that Howell asked him to transport a package to “some girls” who had “snitched” on his brother. Sealey also said that he understood from the context of the conversation and from Howell's gestures that the package would contain a bomb. While it may have been true that Howell was also upset with Bailey because of the money he had sent her, we find that ample evidence was presented in support of the conclusion that witness elimination was Howell's dominant motive for the murder of Bailey. The fact that Howell may have had other motives for murdering Bailey does not preclude the application of this aggravator. See Fotopoulos v. State 608 So.2d 784, 792 (Fla.1992). Pursuant to our decision in Sweet that the concept of “transferred intent” may be used when applying the avoid arrest aggravator, we find that even though Trooper Fulford, rather than the intended victim, was killed by the bomb, the avoid arrest aggravator is applicable to the murder.

We also reject Howell's challenge to the CCP aggravator. Howell does not attack the evidence presented at trial to establish that the murder was committed in a cold, calculated, and premeditated manner without pretense of moral justification. Howell instead asserts that he had no intent to kill Trooper Fulford and that the CCP aggravator should not apply in cases where the only premeditation arises solely from transferred intent. We disagree. We have held that the heightened premeditation necessary for the aggravating circumstance does not have to be directed toward the specific victim. Provenzano v. State, 497 So.2d 1177 (Fla.1986). The key to this factor is the level of planning rather than the success or failure of the plan. Sweet. In addition, at the time Howell was informed that law enforcement officers had the rental car containing the bomb in their custody, and chose not to inform them of the presence of the bomb, he had sufficient opportunity to formulate the intent that law enforcement personnel would be the bomb's intended victim.

Howell also challenges the finding that the victim, Trooper Fulford, was a law enforcement officer engaged in the performance of his official duties. Howell asserts that this aggravator should not have been applied to the murder because the evidence did not establish that he knowingly killed a law enforcement officer. However, he had knowledge that Lester Watson had been arrested and that law enforcement officers had custody of the car. At the time the dispatcher called Howell to ask whether the rental car had been stolen, Howell chose not to warn the officers of the lethal bomb in the trunk. Based on this knowledge, Howell knew or could have reasonably foreseen that law enforcement personnel would search the vehicle and its contents and thereby detonate the bomb. We find that this aggravator was properly found by the trial court.

Howell's final claim FN1 asserts that his death sentence is disproportionate. His primary argument is predicated on the fact that the other two named codefendants, Lester Watson and Patrick Howell, did not receive death sentences. Addressing this issue, the trial court's sentencing order states: FN1. We reject without discussion Howell's remaining penalty-phase claims, to wit: (1) failure to give special requested penalty-phase instructions was error; (2) felony-murder aggravating circumstance is unconstitutional; and (3) sentencing order failed to properly evaluate mitigating circumstances and to properly weigh aggravating circumstances against mitigating circumstances.

Defendant's brother, Patrick Howell, received a sentence of life imprisonment without eligibility of parole for twenty five years. According to statements made by the prosecutor at the time the Court agreed to accept the plea of the brother, the State only had one uncorroborated witness as to the brother's involvement which was to direct the Defendant to commit the crime. The other defendant, Lester Watson, pled to Second Degree Murder and was sentenced to forty years in prison. His involvement was to drive the car with the giftwrapped bomb in the trunk and deliver the bomb to the intended victim. There was some question as to whether he knew that the bomb was in the car, he indicated that he thought the package contained drugs for sale. In any event as soon as he learned of the Trooper's death he cooperated completely with law enforcement officers which resulted in a compelling case against the Defendant. There is no question but that this Defendant is by far the most culpable of those involved and, therefore, that there is no problem of proportionality with a sentence of death for this Defendant.

Disparate treatment of defendants is not impermissible in situations where a particular defendant is more culpable. See Larzelere v. State, 676 So.2d 394 (Fla.), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996); Cardona v. State 641 So.2d 361 (Fla.1994); Hoffman v. State, 474 So.2d 1178 (Fla.1985) (it is permissible to impose different sentences on capital defendants whose various degrees of participation and culpability are different from one another). Based on the evidence presented regarding Howell's greater culpability in the murder as compared to his codefendants, we find that his death sentence is proportional. The evidence fully supports the trial court's conclusion that the evidence in mitigation pales “into insignificance when considering the enormity of the proved aggravating factors weighed against the want of mitigating circumstances and compels the sentence in accordance with the recommendation of the jury.”

CONCLUSION

We affirm Howell's conviction of first-degree murder and sentence of death. We also affirm his convictions for making, possessing, placing, or discharging a destructive device or bomb. It is so ordered. KOGAN, C.J., OVERTON, SHAW, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur. ANSTEAD, J., concurs in result only as to conviction and concurs as to sentence.

Howell v. State, 877 So.2d 697 (Fla. 2004). (PCR)

Background: Defendant convicted of capital murder and sentenced to death, affirmed at 707 So.2d 674, filed petition for postconviction relief. The Circuit Court, Jefferson County, F.E. Steinmeyer III, J., denied motion, and defendant appealed.

Holdings: The Supreme Court held that: (1) defendant did not receive ineffective assistance of counsel during guilt or sentencing phase of trial, and (2) death sentence did not violate Ring. Affirmed. Cantero, J., filed concurring opinion. Anstead, C.J., specially concurred, with opinion.

PER CURIAM.

Howell appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Howell asserts that trial counsel was ineffective in declining to present evidence, in support of a defense of intervening cause in the guilt phase and as nonstatutory mitigation in the penalty phase, that the victim in this case, a Florida Highway Patrol (FHP) trooper, violated agency policy in conducting a search of the package containing the bomb that caused the trooper's death. Howell also asserts that his sentence is unconstitutional in light of recent United States Supreme Court decisions. For the reasons that follow, we reject both contentions and affirm the denial of the motion for postconviction relief.

I. FACTS AND PROCEDURAL HISTORY

Most of the pertinent facts from trial are contained in this Court's opinion in the direct appeal: In January of 1992, Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. Bailey, Howell, and Howell's brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder. The bomb was placed inside a microwave oven and then the oven was gift-wrapped. Howell paid Lester Watson to drive and deliver the microwave to Bailey. Although he knew that Howell had often made pipe bombs, Watson testified that he thought the microwave contained drugs. Howell rented a car for Watson to use for the trip. Watson was accompanied on the trip by Curtis Williams.

While traveling on I–10 toward Marianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check on the car and a license check on Watson, who gave the trooper a false name and birth date because he did not have a valid driver's license. The radio dispatcher contacted the car rental company and was informed that Howell had rented the car. The dispatcher contacted Howell at his home in Fort Lauderdale, Florida, to determine whether the rental car had been stolen from him. Howell told the dispatcher that he had loaned the car to Watson but did not know that Watson would be traveling so far with the vehicle. Howell was informed by the dispatcher that Watson was going to be taken to the Jefferson County Jail. Howell did not give any warning to the dispatcher regarding the bomb.

Deputies Harrell and Blount of the Jefferson County Sheriff's Department arrived at the scene and Watson gave them permission to search the vehicle. Trooper Fulford and the deputies observed the gift-wrapped microwave in the trunk of the car. Watson was arrested for speeding and driving without a valid driver's license and was transported, along with Williams, to the jail by Deputy Blount. Deputy Harrell also proceeded to the jail, leaving Trooper Fulford alone with the rental car. Shortly thereafter, a massive explosion took place at the scene. Testimony presented at Howell's trial by the State's explosives expert indicated that Trooper Fulford had been holding the microwave in his hands when the bomb went off. Trooper Fulford died instantly due to the massive trauma caused by the explosion. Howell v. State, 707 So.2d 674, 676 (Fla.1998).

Attorney Frank Sheffield was appointed to represent Howell both in the state prosecution for the murder of Trooper Fulford and in a related federal drug conspiracy prosecution. The federal case was tried first. Sheffield withdrew from the federal case after jury selection because his wife received a phone call threatening Sheffield if Howell “goes down.” Id. at 678. Sheffield remained counsel in the state murder prosecution, and the case went to trial nine months after the threat was made. Id. at 678–79. Because an impartial jury could not be impaneled in Jefferson County, where Trooper Fulford was killed, the trial was transferred to Escambia County. The jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a bomb. In a special verdict, the jury also found that Howell committed both premeditated and felony murder.FN1 In the penalty phase, the jury recommended death by a vote of ten to two. The trial court concluded that the aggravating circumstances far outweighed the mitigating circumstances and imposed death for the murder. See id. at 676–77.FN2

FN1. The jury had been instructed on unlawfully throwing, placing, or discharging a destructive device or bomb and drug trafficking as the predicate felonies for first-degree felony murder. FN2. The trial court found the following aggravating circumstances: (1) Howell knowingly created a great risk of death to many persons, (2) the murder was committed while Howell was unlawfully making, possessing, placing, or discharging a bomb, (3) the murder was committed to prevent lawful arrest, (4) the victim was a law enforcement officer engaged in official duties, and (5) the murder was cold, calculated, and premeditated (CCP). The court found the mitigating circumstances of (1) no significant criminal history (no assignment of weight), (2) the murder was committed while Howell was under the influence of extreme mental or emotional disturbance (little weight), (3) Howell served in and was honorably discharged from the military (little weight), (4) Howell behaved well as a pretrial detainee (no assignment of weight), and (5) Howell was a good family man (deemed inconsequential).

On direct appeal, this Court affirmed Howell's convictions and death sentence. See id. at 679. The Court rejected Howell's guilt-phase claim that the trial court erred in refusing to appoint different counsel or a second attorney. The Court also rejected Howell's challenge to the aggravators of knowingly creating a great risk to many persons, commission of the murder to prevent arrest, CCP, and that the victim was a law enforcement officer engaged in official duties. See id. at 680–82. Addressing the claim that Howell did not knowingly kill a law enforcement officer, this Court stated: [Howell] had knowledge that Lester Watson had been arrested and that law enforcement officers had custody of the car. At the time the dispatcher called Howell to ask whether the rental car had been stolen, Howell chose not to warn the officers of the lethal bomb in the trunk. Based on this knowledge, Howell knew or could have reasonably foreseen that law enforcement personnel would search the vehicle and its contents and thereby detonate the bomb. We find that this aggravator was properly found by the trial court. Id. at 682. Finally, this Court held that the death penalty was not disproportionate. See id. at 682–83.

Howell's initial postconviction counsel filed a “shell” motion for postconviction relief, and successor counsel filed an amended motion. Many of the claims initially raised were abandoned below, and only two issues are presented in this appeal: (1) whether trial counsel was ineffective in both the guilt and penalty phases in failing to assert that the trooper's violation of FHP procedures in opening the package containing the bomb constituted an intervening cause, and (2) whether Florida's death penalty is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The trial court conducted an evidentiary hearing on the first of these claims. Attorney William Pfeiffer testified that he represented Howell in his federal drug conspiracy trial. Pfeiffer assumed representation in the federal case after jury selection and three days before trial when Sheffield, who had previously been appointed counsel, withdrew. Based on a policy statement in an FHP manual that officers were not permitted to search closed and wrapped containers, Pfeiffer moved in the federal trial to suppress the physical evidence concerning the explosion that killed Fulford. The motion was denied on grounds that Howell lacked standing to contest the search because the vehicle that he rented was not in his possession.

Sheffield testified that he withdrew from the federal case because of the threat communicated to his wife just before trial. Sheffield testified that he remained Howell's counsel on the state murder case, which was tried nine months after the threat, because tensions had subsided and because he was both more experienced than Pfeiffer in murder cases and more familiar with this particular case. In the murder trial, Sheffield originally considered an insanity defense, but it did not “materialize.” He also considered and rejected raising any guilt- or penalty-phase issue that would have blamed Fulford for his own death. The theory of defense used at trial was that Howell did not make the bomb, based on an assertion that several of the witnesses who identified him as the bombmaker were not credible because they made deals with the State for lesser sentences. Sheffield also attempted to shift the blame to Watson, who was “the most guilty because he knew exactly what was in the package, and he was the one that was standing looking Trooper Fulford in the eye, and he didn't say anything.”

Sheffield said he rejected an “intervening cause” argument in both the guilt and penalty phases despite his belief that Fulford violated FHP policy in opening the package. Among the considerations that influenced counsel's decision was the fact that although Howell was contacted by the FHP dispatcher during the stop of Watson and was told that the car rented in his name would be impounded, Howell did not give any warning about the bomb in the microwave oven. Sheffield also stated that it was his understanding that the package would be searched at some point, either on the side of the road or at an impound lot. Moreover, although the trial was moved from Jefferson County, where passions ran high, the case was tried in Escambia County, where in Sheffield's experience the jurors tended to be “very law-and-order, very pro-prosecution oriented.” Sheffield stated that after discussion with Howell, he did argue to the jury that there was no intent to kill an officer.

In light of these considerations, Sheffield maintained that any argument that Fulford was responsible for his own death was “no defense” or, at best, a legal argument that would have resulted in a unanimous death recommendation rather than the ten-to-two death recommendation actually rendered. Accordingly, trial counsel did not present evidence or argument, in either the guilt or penalty phase, that Fulford violated FHP rules in opening the package containing the bomb. The trial court denied the motion for postconviction relief on all grounds. The court specifically addressed the “intervening cause” claim, and found that because of the concern over alienating the jury, trial counsel was “not ineffective for failing to attempt to shift blame for the explosion to the trooper for his actions.”

II. ANALYSIS
A. Ineffective Assistance Claim

This claim concerns a paragraph in the Florida Highway Patrol Policy Manual concerning items in impounded vehicles: 11.04.04 Impounded Vehicle Inventories - In order to secure the owner's property and to protect the Department from claims, it is necessary to inventory the contents of all vehicles being towed and/or stowed. The contents of the vehicle include, but are not limited to, all packages and containers located within the passenger compartment, the trunk, or any other secured area of the vehicle. Unless locked or securely wrapped, all luggage, packages, and containers, whether opened or closed, shall be opened and their contents inventoried. Locked or securely wrapped luggage, packages, and containers shall not be opened except as otherwise authorized by law or by owner consent, but shall be indicated on the inventory list as locked or securely wrapped items.

Howell claims that trial counsel was prejudicially deficient in failing to assert, in support of both a defense of intervening cause during the guilt phase and as nonstatutory mitigation during the penalty phase, that Trooper Fulford violated this policy statement, thereby contributing to his own demise. The State responds that there is no evidence that the trooper violated the policy, because he was acting pursuant to consent to search given by the car's driver. The State also relies upon trial counsel's testimony during the rule 3.850 hearing that he did not consider any claim that blamed the trooper for his own death to be viable trial strategy because it would have offended the jurors. Howell counters that the evidence of the trooper's policy violation could have been presented in a sensitive and inoffensive manner, that this would have been a better strategy than the meritless defense presented at trial, and that the evidence would have supported a penalty-phase theme of lack of specific intent to kill Trooper Fulford. In addressing Howell's claim, we assume but do not decide that the policy relied upon by Howell actually applied to the facts in this case.

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case the right to assistance of counsel. A defendant seeking to establish a denial of this right because of counsel's ineffectiveness must make a two-pronged showing of deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Rutherford v. State, 727 So.2d 216, 219 (Fla.1998). Second, the deficiency must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. The two prongs are related, in that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052) (alteration in original). In reviewing a trial court's ruling on an ineffective assistance claim in postconviction proceedings, this Court defers to findings of fact based on competent, substantial evidence but independently assesses deficiency and prejudice as mixed questions of law and fact. See Freeman v. State, 858 So.2d 319, 323 (Fla.2003); Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999).

Howell acknowledges that this is not a case of inadequate investigation of a viable defense in which trial counsel overlooked the alleged policy violation. Rather, trial counsel concluded that a defense based on the violation was not viable and, as a strategic matter, would only have inflamed the jury. In Strickland, the Supreme Court stated that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. 2052. See also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (stating that “the deference owed such strategic judgments” under Strickland is defined “in terms of the adequacy of the investigations supporting those judgments”). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Additionally, this Court has recognized that a concern about being perceived as blaming the victim for his or her own death is a valid reason for declining to introduce particular evidence. See Spencer v. State, 842 So.2d 52, 61–62 (Fla.2003) (concluding that trial counsel was not ineffective in choosing not to present evidence of an antagonistic relationship between the defendant and the victim for fear of being perceived of blaming the victim for the defendant's actions).

Howell concedes that the alleged policy violation would not have been an intervening cause as a matter of law, but asserts nonetheless that had trial counsel introduced the evidence and requested an instruction thereon, the jury might have returned a verdict other than guilty of first-degree murder. In support of this contention, Howell cites State v. Rushing, 532 So.2d 1338 (Fla. 4th DCA 1988), in which the court reversed the dismissal of an information charging manslaughter by culpable negligence based on the defendant's act of giving a loaded gun to the suicidal victim. The court concluded in Rushing that because “as a matter of law it cannot be said that it was unforeseeable that the victim would do that very thing which she had already announced she would,” the question of foreseeability was for the jury. Id. at 1340. See also Miller v. State, 782 So.2d 426, 430 (Fla. 2d DCA 2001) (holding that the issue of whether the defendant's removal of a stop sign from an intersection was the proximate cause of a motorist's death was a jury question).

In this case, death was a clearly foreseeable result of Howell's act of placing a bomb in a gift-wrapped microwave oven and setting it to explode when the oven door was opened. Indeed, it was almost certain that Howell's actions would result in the death of someone, if not his intended victim. Therefore, the alleged policy violation by the trooper in searching the package's contents would not have negated any of the elements of first-degree murder, including that the death was caused by Howell's criminal act. Moreover, evidence presented during the guilt phase showed that by the time Fulford opened the package, Howell could have foreseen that law enforcement personnel, rather than Bailey, would detonate the bomb. The jury heard testimony that on the day of Fulford's death, Howell was informed by a police dispatcher that the car that contained the bomb and was rented in his name would be impounded, yet he gave no warning of its contents. As this Court previously noted in relying upon this evidence to reject the challenge to the CCP aggravator in the direct appeal, Howell “had sufficient opportunity to formulate the intent that law enforcement personnel would be the bomb's intended victim.” Howell, 707 So.2d at 682.

Accordingly, we conclude that the low probability of success, combined with the tremendous potential for alienating the jury by blaming the trooper for his own death, fully justifies trial counsel's strategic decision to forego presentation of the alleged policy violation during the guilt phase as being well within the wide range of reasonable professional assistance. FN3 The same lack of merit in an “intervening cause” defense based on the alleged policy violation leads us to conclude that Howell has also failed to establish prejudice under Strickland. Had counsel raised this defense, there is no probability, sufficient to undermine confidence in the outcome, of a different verdict. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Additionally, to the extent that Howell questions the sufficiency of the evidence to establish either premeditation or felony-murder, and reasserts the alleged conflict of interest based on the alleged death threat during the federal trial addressed in the direct appeal, these issues are procedurally barred on collateral review. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that claims that were or could have been raised on direct appeal are procedurally barred from consideration in a rule 3.850 motion).

In regard to the penalty phase, Howell asserts that trial counsel was ineffective in declining to use the alleged policy violation in support of a nonstatutory mitigating factor that there was no intent to injure the trooper and that his death was unforeseeable. We conclude again that counsel made a reasonable strategic decision that introducing the evidence of the policy violation would have alienated the jury without contributing substantially to mitigation. Concerning nonstatutory mitigation, we have stated that “[e]vidence is mitigating if, in fairness or in the totality of the defendant's life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed.” Merck v. State, 763 So.2d 295, 298 (Fla.2000). In this case, the jury was made aware during the guilt phase that the bomb was intended for Tammie Bailey and not Trooper Fulford. Counsel could reasonably have concluded that evidence of the alleged policy violation would not have further reduced or extenuated Howell's moral culpability for the bomb's premature detonation. Further, on the question of whether the alleged policy violation made the death less foreseeable and therefore mitigated against imposition of the death penalty, Howell does not assert that he knew of the policy. Therefore, evidence of the alleged policy violation would not have appreciably changed the circumstances that led the jury to recommend death, the trial judge to impose death, and this Court to conclude, in rejecting the challenge to the law-enforcement aggravator in the direct appeal, that “Howell knew or could have reasonably foreseen that law enforcement personnel would search the vehicle and its contents and thereby detonate the bomb.” Howell, 707 So.2d at 682.

Moreover, counsel made a reasonable strategic decision that any benefit in introducing the alleged policy violation during the penalty phase would have been outweighed by the perception that the defense was blaming Trooper Fulford for his own death. The jury in this case recommended death by a ten-to-two vote, and the trial court found five aggravating factors which it concluded far outweighed the two statutory mitigating factors, one of which was given little weight, and the three nonstatutory mitigators, two of which were given little weight or deemed inconsequential. See id. at 677. Indeed, as trial counsel testified at the evidentiary hearing, had he asserted the policy violation in advocating a nonstatutory mitigator, thus necessarily suggesting to some extent that the victim could be blamed for his own death, the recommendation of death might have been unanimous. Therefore, his performance was not constitutionally deficient under Strickland. Even if counsel's decision to forego presentation of the alleged policy violation in the penalty phase could be viewed as unreasonable, we conclude that there is no probability that the decision affected the outcome of the penalty phase, and thus Howell's claim fails to satisfy the second prong of Strickland.

In Strickland, the Court stated: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” 466 U.S. at 689, 104 S.Ct. 2052. Even in hindsight, trial counsel appears to have made a sound strategic decision not to introduce evidence, in either the guilt or penalty phase of Howell's capital trial, that Fulford may have violated FHP policy in opening the gift-wrapped package. As found by the trial court, counsel's decision “was appropriate given the probability that such an argument may have influenced the jury against the defendant.” Accordingly, Howell has not overcome the presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and has not shown that the alleged deficiency affected the outcome of either phase of his capital trial. Because he has not satisfied either the deficiency or prejudice prong of Strickland, we conclude that the trial court did not err in denying this claim of ineffective assistance.

B. Ring Issue

Howell asserts that the United States Supreme Court decisions in Ring and Apprendi render Florida's capital sentencing statute, section 921.141, Florida Statutes (2003), unconstitutional. In Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1069, 123 S.Ct. 662, 154 L.Ed.2d 563 (2002), this Court denied relief under Ring. Subsequently, this Court has rejected postconviction challenges to section 921.141 that relied on Apprendi and Ring.. See, e.g., Jones v. State, 855 So.2d 611, 619 (Fla.2003); Wright v. State, 857 So.2d 861, 877–78 (Fla.2003), cert. denied, 541 U.S. 961, 124 S.Ct. 1715, 158 L.Ed.2d 402 (2004); Chandler v. State, 848 So.2d 1031, 1034 n. 4 (Fla.2003).

In addition, the trial court in this case found that the murder was committed in the course of the felony of making, possessing, placing, or discharging a bomb, and the jury also unanimously found Howell guilty of this separate felony beyond a reasonable doubt. This Court has relied upon the same aggravator resting on contemporaneous convictions in rejecting Ring claims in several cases. See Lugo v. State, 845 So.2d 74, 119 n. 79 (Fla.), cert. denied, 540 U.S. 920, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003); Jones v. State, 845 So.2d 55, 74 (Fla.2003); Banks v. State, 842 So.2d 788, 793 (Fla.2003). Howell likewise is not entitled to relief on this claim.

III. CONCLUSION

For the reasons explained above, we affirm the denial of Howell's motion for postconviction relief. It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur. CANTERO, J., concurs with an opinion, in which WELLS and BELL, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion.

CANTERO, J., concurring.

I concur in the majority opinion. Moreover, regarding Howell's claim that Florida's capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01–2706 & SC02–2142, 886 So.2d 915, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively. WELLS and BELL, JJ., concur.

Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005). (Habeas)

Background: Following affirmance of his first-degree murder conviction and death sentence, 707 So.2d 674, petitioner sought habeas corpus relief. The United States District Court for the Northern District of Florida, No. 04-00299-CV-MCR-MD, M. Casey Rodgers, J., dismissed petition as untimely. Petitioner appealed.

Holdings: The Court of Appeals, Pryor, Circuit Judge, held that: (1) failure of petitioner's attorney to file petition for state postconviction relief within one year after petitioner's conviction and sentence became final was not because of extraordinary circumstances beyond petitioner's control, and (2) District Court did not clearly err in determining that petitioner was not diligent with respect to such failure. Affirmed.

PRYOR, Circuit Judge:

The only issue in this appeal is whether the district court erred when it dismissed as untimely the petition for a writ of habeas corpus filed by Paul A. Howell, a Florida prisoner under a sentence of death. Howell concedes that he did not file his petition within the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), but Howell argues that he is entitled to equitable tolling under section 2244(d)(2). Howell contends that the statute of limitations should be tolled because the private attorney appointed to represent Howell during his state postconviction proceedings failed to file a petition for state postconviction relief within one year after Howell's conviction and sentence became final. Because any negligence of Howell's attorney fails to satisfy either of the two prerequisites for equitable tolling, we affirm the dismissal of Howell's petition.

A Florida jury convicted Howell of making the pipe bomb that killed Florida State Trooper Jimmy Fulford. Howell's conviction and capital murder sentence became final on June 26, 1998, when the Supreme Court of the United States denied Howell's petition for a writ of certiorari. Howell v. State, 707 So.2d 674 (Fla.), cert. denied, 524 U.S. 958, 118 S.Ct. 2381, 141 L.Ed.2d 747 (1998). Howell had one year within which he could file a petition for a writ of habeas corpus in a federal district court, but “a properly filed application for State post-conviction or other collateral review” would have tolled the federal statute of limitations. 28 U.S.C. § 2244(d)(1)(A), (d)(2). On December 21, 1998, the Circuit Court of Jefferson County, Florida, appointed an attorney to represent Howell in his state postconviction proceeding. On March 19, 1999, Howell's attorney filed a motion for an extension of time within which to file a petition for postconviction relief. That motion was granted, and Howell's attorney filed a state petition for postconviction relief on August 30, 1999, more than two months after the federal limitations period elapsed. It is undisputed that Howell's motion for an extension of time did not meet the criteria of section 2244(d)(2) as a “a properly filed application” for postconviction relief. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000) (“an application” for state postconviction relief “is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings”); State v. Boyd, 846 So.2d 458, 459-60 (Fla.2003) (distinguishing motions for extensions of time, under Fla. R.Crim. P. 3.050, and those for postconviction relief, under Fla. R.Crim. P. 3.850).

Howell must rely on equitable tolling, “an extraordinary remedy which is typically applied sparingly,” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000), to have his federal habeas petition considered. “Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). “This Court reviews de novo a district court's determination that a petition for federal habeas corpus relief is time-barred.” Nix v. Sec'y for the Dep't of Corrs., 393 F.3d 1235, 1236 (11th Cir.2004). “We also review a district court's legal decision on equitable tolling de novo. However, the district court's determinations of the relevant facts will be reversed only if clearly erroneous.” Drew v. Dep't of Corrs., 297 F.3d 1278, 1283 (11th Cir.2002) (internal citations omitted). Whether a petitioner was diligent is a finding of fact. Id.

Howell's argument for equitable tolling fails. Howell was not a victim of extraordinary circumstances beyond his control, and the district court did not commit clear error when it determined that Howell was not diligent. As we concluded in Sandvik, Steed, and Helton v. Secretary for the Department of Corrections, 259 F.3d 1310, 1313 (11th Cir.2001), attorney negligence is not a basis for equitable tolling, especially when the petitioner cannot establish his own diligence in ascertaining the federal habeas filing deadline. The dismissal of Howell's petition as untimely by the district court is, therefore, AFFIRMED.