Executed January 8, 2014 06:45 p.m. EST by Lethal Injection in Florida
1st murderer executed in U.S. in 2014
1360th murderer executed in U.S. since 1976
1st murderer executed in Florida in 2014
82nd murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
a/k/a Askari Abdullah Muhammad
B / M / 23, 29 - 62
W / M / 64
W / F / 60
Richard James Burke
OFFICER W / M / 48
Stabbing with Sharp Spoon
While awaiting trial, he and 10 other Florida inmates escaped from jail in 1974, leading to a nationwide manhunt including a top 10 fugitives listing by the FBI. During the escape, Knight was in the armed robbery of a liquor store in Cordele, Georgia where two clerks were shot, one fatally. He was never tried in that case.
Back on death row in Florida, in 1980 Knight became angry that he had to shave his beard before seeing a visitor and used a sharpened spoon to stab to death prison guard Richard Burke.
Knight v. State, 338 So.2d 201 (Fla. 1976). (Direct Appeal-Gans)
Knight v. State, 394 So.2d 997 (Fla. 1981). (PCR-Gans)
Muhammad v. State, 494 So.2d 969 (Fla. 1986). (Direct Appeal-Burke)
Knight v. State, 746 So.2d 423 (Fla. 1998). (Direct Appeal-Gans-After Resentencing)
Muhammad v. Secretary, Florida Dept. of Corrections, 733 F.3d 1065 (11th Cir. 2013). (Habeas-Gans-Reversing Granting of Writ)
Final / Special Meal:
1½ slices of sweet potato pie, one piece of coconut cake, half a loaf of banana nut bread, a quarter bottle of Sprite, two tablespoons of strawberries, butter-pecan ice cream, a small container of vanilla ice cream and a handful of Fritos corn chips.
Florida Department of CorrectionsDC Number: 017434
Current Prison Sentence History:
07/17/1974 1ST DG MUR/PREMED. OR ATT. 04/21/1975 MIAMI-DADE 7405978 DEATH SENTENCE
07/17/1974 1ST DG MUR/PREMED. OR ATT. 04/21/1975 MIAMI-DADE 7405978 DEATH SENTENCE
10/12/1980 1ST DG MUR/PREMED. OR ATT. 01/20/1983 BRADFORD 8000341 DEATH SENTENCE
Incarceration History: 04/23/1975 to 01/07/2014
Detainers: 05/19/1982 SO BRADFORD CO FL. DETAIN 02/02/1983
"Thomas Knight, who killed Miami couple and a prison guard, executed," by David Ovalle (01.07.14)
STARKE -- Over a staggering four decades in Florida’s criminal justice system, Thomas Knight repeatedly staved off execution for the brutal 1974 murders of a Bay Harbor Islands couple — breaking out of jail, murdering a prison guard and disrupting court hearings with angry outbursts. But when all the appeals had finally run out Tuesday evening, Knight exited the world without an apology to the families of his victims or any statement at all. “No,” is all Knight muttered when a corrections official asked if he had any last words. “He absolutely went out like a lamb, nothing like how he was in the courtroom,” said retired Miami-Dade homicide detective Greg Smith, who attended the execution with Miami-Dade prosecutor Gail Levine. “In the end, today was some measure of justice for the families.”
At 6:31 p.m. Tuesday at the Florida State Prison, his home for most of the past 40 years, Knight was injected with a lethal cocktail of drugs. The execution warrant was technically issued for the fatal stabbing of corrections officer Richard Burke in 1980. But he also had been sentenced to death for the brutal slayings of Sydney and Lillian Gans, who he had kidnapped and shot to death in the woods of South Miami-Dade six years earlier . Knight’s blinking eyes snapped shut. Covered in a sheet, his hands wrapped in gauze, his arms pierced by IV’s, Knight seemed to drift into slumber. His breathing slowed. A prison official tapped his eyelids and slightly shook his shoulders. At 6:45 p.m., a doctor pronounced the triple murderer — who had spent more time on death row than all but two other killers — dead.
Behind a glass pane, Burke’s daughters, who were raised near this same prison, watched in tears. So did two former co-workers of the slain officer. “It’s hard to say this is where my dad took his last breath,” Carolyn Burke Thompson, 47, of Tennessee, told reporters afterward. “But I’m at peace now.” Said Burke’s other daughter, Margaret Dela Vega: “My daddy can finally rest in peace.”
The execution caps Knight’s 40-year slog through the criminal justice system, which led one federal court to blast the “gridlock and inefficiency of death penalty litigation.” Even on Tuesday, the possibility of another delay hung over the final minutes – the execution was pushed back about a half-an-hour as the U.S. Supreme Court mulled, but denied, a final attempt at a stay. “It doesn’t bring my grandparents back … but it’s over. At least, in some sense, it allows us for move forward,” said Judd Shapiro, the grandson of the Ganses. Shapiro and his mother declined to attend an execution they believed would be too draining emotionally. “I’d like to hope, in some fashion, this helps other people, that they realize that sooner or later the right thing does happen,’’ he said. “But it shouldn’t take this long. It shouldn’t take 40 years.”
At rifle-point, Knight kidnapped Sydney Gans, a prominent businessman, and his wife in July 1974, forcing them to withdraw $50,000 from a downtown Miami bank. Gans was able to alert police, who covertly tailed their car as Knight forced them to drive south. But in a remote wooded area, Knight shot each of his hostages with a bullet to the neck before he was captured. He was found hiding in the woods, caked in mud, with the murder weapon and money.
While awaiting trial, Knight escaped from the Dade County jail. Police say he killed a shopkeeper in Georgia before his re-capture 101 days later. Knight was convicted of the Ganses’ murders in 1975 and sent to Death Row. It was there that Knight fatally stabbed Burke in the chest. He was later convicted and sent back to Death Row for the crime.
Years of appeals followed and his death sentence in the Gans case was reversed in 1986. One decade later, Knight was again sentenced to death for the Miami-Dade case. A federal judge again reversed his death sentence in the Gans case, only to have it reinstated by a federal appeals court in September. A December execution was again delayed by a month after Knight alleged that a new drug used in the lethal injection process amounted to cruel and unusual punishment. The state’s high court did not agree.
On Tuesday, the beard Knight grew for the 1996 re-sentencing was gone. So were his outbursts. His final meal, unlike his life, was mostly sweet: portions of sweet potato pie, coconut cake, banana nut bread, vanilla ice cream, strawberry-and-butter pecan ice cream and Fritos corn chips — all washed down by a quarter of a bottle of Sprite.
Knight’s dark history
July 17, 1974 – Thomas Knight kidnaps and murders Sydney and Lillian Gans of Bay Harbor Islands. He is immediately arrested.
September 1974 – Knight and 10 other inmates escape from Dade County jail. He is placed on the FBI’s Ten Most Wanted List.
October 1974 – Police believe Knight and another man fatally shoot a liquor store clerk during a robbery for $641 in Crisp County, GA. He is not charged.
December 1974 – FBI agents capture Knight in New Smyrna Beach. He is found with a shotgun and two pistols, all stolen.
April 1976 – A Miami-Dade jury convicts Knight of murdering the couple. He is sentenced to death.
October 1980 – Using a sharpened spoon, Knight stabs and kills corrections Officer Richard Burke at the Florida State Prison in Starke.
March 1981 – Knight is scheduled to be executed after Gov. Lawton Chiles signs his death warrant. A federal judge stays his execution pending more appeals.
January 1983 – Knight is convicted and sentenced to death for the Burke murder.
January 1996 – A federal appeals court overturns his death sentence in the Gans case, ordering a new penalty phase trial.
February 1996 – After a new sentencing phase, Knight is again sentenced to death. He is repeatedly banned from the courtroom because of his disruptive behavior.
March 2006 – With state courts repeatedly affirming his conviction and sentence, Knight’s lawyers appeal to a Miami federal judge.
November 2012 – Six years after the appeal was first filed, Miami U.S. Judge Adalberto Jordan reverses Knight’s death sentence. He orders a new sentencing hearing or life sentences for the convict.
September 2013 – A federal appeals court reverses Judge Jordan, reinstating the death penalty for Knight. “To learn about the gridlock and inefficiency of death penalty litigation, look no further than this appeal,” the court writes.
October 2013 – Gov. Rick Scott signs death warrant for Knight, not for the Miami-Dade murders but for the slaying of Burke. The execution is scheduled for Dec. 3.
November 2013 – The Florida Supreme Court delays the execution, ordering a Bradford judge to hold a hearing to consider whether a new drug used in the lethal injection procedure constitutes cruel and unusual punishment.
December 2013 – The state’s high court lifts the stay of execution after ruling Knight has failed to prove the drug is unsafe. Gov. Rick Scott re-schedules the execution for Jan. 7.
"Florida executes Askari Abdullah Muhammad (Thomas Knight) for killing guard, couple," by Tamara Lush. (Jan 8, 2014 - 7:06am)
STARKE | A Florida inmate was executed Tuesday for fatally stabbing a prison guard with a sharpened spoon while on death row for abducting and killing a Miami couple. Askari Abdullah Muhammad, previously known as Thomas Knight, was pronounced dead at 6:45 p.m. Tuesday after a lethal injection at Florida State Prison, the governor's office said. The execution took place in the same prison where Muhammad killed corrections officer Richard Burke in 1980.
"This is where my dad took his last breath," said the slain guard's daughter, 47-year-old Carolyn Burke Thompson. She was among several family members who witnessed the execution and could be seen crying in the front row as it was carried out. "The system finally has worked. I am at peace knowing I don't have to wait any longer. I miss my dad a lot," she said.
Muhammad, 62, was initially condemned to die for the 1974 abduction and killings of Sydney and Lillian Gans of Miami. Tuesday's execution was specifically for Burke's killing.
Muhammad was visited by his four sisters Monday and earlier Tuesday by a friend. He declined to make any statement before the sentence was carried out. A small group opposed to the death penalty protested outside the prison. His execution was delayed for so long by numerous appeals and rulings, including a 1987 federal appeals court tossing out his original death sentence because he hadn't been allowed to put character and background witnesses on the stand during the penalty phase. The U.S. Supreme Court refused to hear his final appeals, but Justice Stephen Breyer said in a dissent he would have granted a stay to hear Muhammad's claims that it may be unconstitutional to execute an inmate after such a long time on death row.
Court documents show that Muhammad fatally stabbed Burke as he was being escorted to the prison shower. The inmate had become upset, the documents say, because he was told he couldn't see a visitor unless he shaved his full beard. The documents added he had been overheard by guards to remark that "it looks like I'll have to start sticking people."
In the earlier slayings, Muhammad had worked for Gans at a paper bag company before abducting him in the business parking lot with a rifle. He ordered Gans to drive home, pick up his wife and then head to a bank to withdraw $50,000. Inside the bank, Gans asked a manager to alert authorities. Both the FBI and police were able to follow the car for a while, including use of aircraft, but lost track of it for a short time in a rural area of Miami-Dade County. Trial testimony showed that's when Muhammad shot the couple and tried to hide by burying himself, the rifle and the money in mud and weeds.
Muhammad was found soon after and arrested. While awaiting trial, he and 10 other inmates escaped from jail, leading to a nationwide manhunt including a top 10 fugitives listing by the FBI. Authorities say Muhammad was involved after his escape in the fatal October 1974 shooting of a liquor store clerk during an armed robbery in Cordele, Ga., that wounded a second clerk. He was never tried in that case. The FBI finally arrested Muhammad on New Year's Eve in 1974 in Florida.
Muhammad converted to Islam in prison, changing his name from Knight. During his 1996 resentencing, he cursed at the judge and lawyers and yelled "Allahu Akbar!" — "God is great" in Arabic.( Associated Press writer Curt Anderson in Miami contributed to this story.)
"Florida man on death row for 40 years executed; killed couple, prison guard." (Jan 7, 2014 7:24pm)
TALLAHASSEE, Fla. (Reuters) - A Florida man who spent nearly 40 years on death row for killing a Miami couple and later stabbing a prison guard was executed on Tuesday, a state prison official said. Askari Abdullah Muhammad, 62, who was known as Thomas Knight when he killed his former employer and his wife in 1974, was pronounced dead at 6:45 p.m. EDT (2345 GMT) from a lethal injection, said Misty Cash, a spokeswoman for the Florida Department of Corrections. (Reporting by Kevin Gray; Editing by Bernard Orr)
Ocala Star Banner
"State executes man who killed couple, guard," by Monivette Cordeiro. (January 7, 2014 at 10:47 pm)
RAIFORD — A Florida inmate who abducted and killed a Miami couple in 1974 and later stabbed a prison guard to death at the Florida State Prison in 1980 was executed by lethal injection Tuesday night.
Corrections officer Richard Burke's relatives watched from behind a glass window at the Florida State Prison as 62-year-old Askari Abdullah Muhammad, previously known as Thomas Knight, was executed in the killing of Burke. None of the relatives of Miami couple Sydney and Lillian Gans attended the execution.
At 6:30 p.m., the brown curtain behind the glass door was lifted and Muhammad was asked if he had any last words, to which he replied, “No.” He blinked a few times and then shut his eyes as the lethal injection began coursing through his veins at 6:31 p.m. Burke's daughter Carolyn Burke Thompson wiped tears from her face as the man who killed her father was being executed. Thompson's fiance, Harold Spencer, held her arm and hugged her as they watched Muhammad's final moments. During the final moments of the execution, Muhammad's right eye opened slightly. Fourteen minutes later, he was declared dead by a doctor at 6:45 p.m. after having been on death row for almost four decades.
A personal friend had visited Muhammad earlier Tuesday, and four of his sisters had visited him on Monday, said Florida Department of Corrections spokeswoman Jessica Cary. None of his relatives was present when he was executed, she said. Muhammad's final meal consisted mostly of desserts, including 1½ slices of sweet potato pie, one piece of coconut cake, half a loaf of banana nut bread, a quarter bottle of Sprite, two tablespoons of strawberries, butter-pecan ice cream, a small container of vanilla ice cream and a handful of Fritos corn chips. He appeared to be calm in his final hours, Cary said.
Muhammad was first condemned to die for the abduction and shooting of the Ganses in 1974. He was given the death penalty again for killing Burke, the corrections officer, in 1980 with a sharpened spoon. Sydney Gans, 64, had just given Muhammad, then 23, a job at his paper bag company 10 days before Gans was kidnapped at gunpoint. Muhammad forced Gans to drive to the couple's home, where Muhammad then abducted Gans' wife, Lillian. The three then drove to the couple's bank, where Muhammad forced Gans to walk inside and withdraw $50,000. Inside, Gans was able to ask a bank manager to call the authorities.
Although local officials and the FBI were able to follow Muhammad as he drove away with the couple, they lost track of the car in a rural area of Miami-Dade County. Authorities say that's when Muhammad shot Sydney and Lillian Gans in the head and tried to hide by burying himself, the gun and the money in the mud and weeds, but he was found by authorities.
While waiting for his trial, Knight and 10 other inmates escaped from jail, and although he was not charged, authorities said during this time he was involved in the 1974 shooting of a liquor store clerk during an armed robbery in Georgia. He was finally arrested a few months later by the FBI in Florida. Muhammad was convicted by a jury in 1975 and a judge sentenced him to death.
In 1980, in the same prison at which he was executed on Tuesday, Muhammad stabbed a sharpened spoon into the chest of the 48-year-old Burke after he became upset that officials told him he couldn't see a visitor.
Muhammad's execution on Tuesday had been delayed by numerous appeals and rulings. One ruling in 1987 from a federal appeals court set aside his original death sentence because during the penalty phase he had not been allowed to put character and background witnesses on the stand. Muhammad's execution was originally scheduled for Dec. 3 but was stayed several weeks before by the Florida Supreme Court after he filed an appeal claiming that one of the drugs used in the process, midazolam hydrochloride, may not prevent pain.
On Dec. 19, the Florida Supreme Court denied the claim, supporting the district court in Bradford County, which had ruled that there was no evidence that the drug causes “serious illness and needless suffering.” The drug, which has already been used in the previous executions of William Happ and Darius Kimbrough, is a sedative injected before two other drugs induce paralysis and then cardiac arrest. Muhammad claimed midazolam hydrochloride violated a constitutional ban on cruel and unusual punishment. Gov. Rick Scott signed the death warrant after the Florida Supreme Court rejected Muhammad's challenge in December to new chemicals used in the state's execution procedure.
For Thompson, it has been a long 33 years since her father's murder. “It's been a long time coming,” she said. “The system has finally worked. My dad would not have died if the system had worked the first time.” Thompson had traveled to the prison from Tennessee to witness the execution. Her sister Meg Dela Vega and brother-in law Glenn Dela Vega also were present. “Those families deserve the peace that I feel right now,” Thompson said. “Thank God it's over.”
"Florida executes man who killed guard, couple." (AP Updated: January 8, 2014 at 12:58 AM)
STARKE, Fla. (AP) — A Florida inmate was executed Tuesday for fatally stabbing a prison guard with a sharpened spoon while on death row for abducting and killing a Miami couple. Askari Abdullah Muhammad, previously known as Thomas Knight, was pronounced dead at 6:45 p.m. Tuesday after a lethal injection at Florida State Prison, the governor's office said. The execution took place in the same prison where Muhammad killed corrections officer Richard Burke in 1980.
"This is where my dad took his last breath," said the slain guard's daughter, 47-year-old Carolyn Burke Thompson. She was among several family members who witnessed the execution and could be seen crying in the front row as it was carried out. "The system finally has worked. I am at peace knowing I don't have to wait any longer. I miss my dad a lot," she said.
Muhammad, 62, was initially condemned to die for the 1974 abduction and killings of Sydney and Lillian Gans of Miami. Tuesday's execution was specifically for Burke's killing. Muhammad was visited by his four sisters Monday and earlier Tuesday by a friend. He declined to make any statement before the sentence was carried out. A small group opposed to the death penalty protested outside the prison.
His execution was delayed for so long by numerous appeals and rulings, including a 1987 federal appeals court tossing out his original death sentence because he hadn't been allowed to put character and background witnesses on the stand during the penalty phase. The U.S. Supreme Court refused to hear his final appeals, but Justice Stephen Breyer said in a dissent he would have granted a stay to hear Muhammad's claims that it may be unconstitutional to execute an inmate after such a long time on death row.
Court documents show that Muhammad fatally stabbed Burke as he was being escorted to the prison shower. The inmate had become upset, the documents say, because he was told he couldn't see a visitor unless he shaved his full beard. The documents added he had been overheard by guards to remark that "it looks like I'll have to start sticking people."
In the earlier slayings, Muhammad had worked for Gans at a paper bag company before abducting him in the business parking lot with a rifle. He ordered Gans to drive home, pick up his wife and then head to a bank to withdraw $50,000. Inside the bank, Gans asked a manager to alert authorities. Both the FBI and police were able to follow the car for a while, including use of aircraft, but lost track of it for a short time in a rural area of Miami-Dade County. Trial testimony showed that's when Muhammad shot the couple and tried to hide by burying himself, the rifle and the money in mud and weeds. Muhammad was found soon after and arrested. While awaiting trial, he and 10 other inmates escaped from jail, leading to a nationwide manhunt including a top 10 fugitives listing by the FBI.
Authorities say Muhammad was involved after his escape in the fatal October 1974 shooting of a liquor store clerk during an armed robbery in Cordele, Ga., that wounded a second clerk. He was never tried in that case. The FBI finally arrested Muhammad on New Year's Eve in 1974 in Florida.
Muhammad converted to Islam in prison, changing his name from Knight. During his 1996 resentencing, he cursed at the judge and lawyers and yelled "Allahu Akbar!" — "God is great" in Arabic.
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
On July 17, 1974, Askari Abdullah Muhammad (who then was named Thomas Knight) kidnapped and murdered Sydney and Lillian Gans near Miami, Florida. When Sydney arrived at work that Wednesday morning and parked his Mercedes Benz car, Knight ambushed him and ordered him back into the car. Knight commanded Sydney to drive home and pick up his wife, Lillian, and then to drive to a bank and retrieve $50,000 in cash.
Sydney went inside the bank to retrieve the money, but he also told the bank president that Knight was holding him and his wife hostage. The bank president alerted the police and Federal Bureau of Investigation. Knight then forced Sydney and Lillian to drive toward a secluded area on the outskirts of Miami. Police officers in street clothes shadowed the Mercedes in unmarked cars. A helicopter and a small fixed-wing surveillance airplane also eventually joined the surveillance. The officers followed the vehicle, but they lost sight of the car for about four or five minutes. During that time, Knight killed Sydney and Lillian with gunshots to the neck that he fired from the back seat of the car.
The police found the vehicle sitting in a construction area with the front passenger door, the right rear passenger door, and the trunk open. Police saw Knight running away from the vehicle and toward a wooded area with an automatic rifle in his hands. Police found the dead body of Lillian behind the steering wheel and the dead body of Sydney about 25 feet from the vehicle.
About four hours later, police apprehended Knight about 2,000 feet from the vehicle. Knight had blood stains on his pants; buried beneath him in the dirt were an automatic rifle and a paper bag containing $50,000.
In September 1974, Knight escaped from prison. After a massive nationwide manhunt, police finally captured Knight in December 1974. In 1975, a Florida jury convicted Knight of the murders of Sydney and Lillian, and the trial judge sentenced him to death.
In 1980, while Knight’s petition for post conviction relief was pending before Florida state courts, Knight killed again. This time, he fatally stabbed a prison guard, Officer James Burke with the sharpened end of a spoon. Knight killed Burke because he was upset that he had been denied permission to meet with a visitor. Knight was convicted and sentenced to death for that murder too. Richard Burke had only been an officer at the Florida State Prison for four months when he was killed. He was survived by his wife and two children.
UPDATE: Stayed pending a challenge over the drugs to be used in the lethal injection. These challenges are routinely failing so this stay is expected to be lifted.
Florida Commission on Capital Cases
Knight, Thomas (aka Askari Muhammad)
Case Number: 74-5978
Case Number: 80-341-CF-A
Eleventh Judicial Circuit, Dade County, Case# 74-5978
Sentencing Judge: The Honorable Gene Williams
Resentencing Judge: The Honorable Rodolfo Sorondo
Attorneys, Trial: James Mathews – Private
Attorney, Direct Appeal: William J. Hutchinson – Private
Attorney, Direct Appeal (Resentencing): Louis Campbell – Assistant Public Defender
Attorneys, Collateral Appeals: D. Todd Doss – Pro-Bono ; D. Todd Doss & Linda McDermott
Date of Offense: 07/17/74
Date of Resentence: 03/12/96
Circumstances of the Offense:
On 07/17/74 the victim, Sydney Gans, arrived at his place of business and parked his automobile. The defendant Thomas Knight, a former employee, who was carrying an automatic rifle, approached him. Knight then ordered Mr. Gans to get back into the vehicle and drive to his residence and pick up his wife, Lillian Gans. Once Mrs. Gans was in the vehicle Knight ordered Mr. Gans to drive to his bank in order to obtain $50,000. Mr. Gans did as instructed and entered the bank. While inside the bank Mr. Gans notified the bank president of the abduction, and the police and FBI were alerted. Mr. Gans then returned to his wife and their car with the money. The defendant then ordered Mrs. Gans to drive the car in an evasive route toward South Dade County. The FBI and local law enforcement were in pursuit, and had remained undetected, however they briefly lost sight of the vehicle. The defendant ordered the couple to stop the vehicle in a remote area and then shot both victims in the back of the head at close range. The defendant fled the scene, but was apprehended shortly thereafter. Knight attempted to hide from the police by burying himself in the dirt and weeds of a heavily wooded area. Police noticed bloodstains on the defendant’s pants and discovered the automatic rifle and $50,000 hidden underneath him.
On 09/19/74, while awaiting his trial, the defendant along with ten inmates escaped from the Dade County Jail. The defendant was placed on the FBI’s Ten Most Wanted List and an extensive manhunt ensued.
While on escape status the defendant allegedly committed a murder and armed robbery in Cordele, Georgia. (Crisp County) The following circumstances were received from the Crisp County Authorities: Knight and another subject committed an Armed Robbery, Murder and Aggravated Battery. On 10/21/74, they both entered a liquor store and asked for a bottle. As the clerk retrieved the bottle, he was told to hand over the money. The defendant and codefendant then demanded both clerks’ wallets and started shooting. Mr. William Culpepper was shot three times and was killed; Mr. A.V. Norton was shot twice. The defendant and codefendant fled taking $641.00. FBI agents arrested the subject in New Smyrna Beach, FL on 12/31/74. At the time of his arrest the subject was in possession of a sawed-off shotgun, a .38 caliber revolver and a 9mm automatic. These weapons were reported stolen from Titusville, FL. Previous reports indicate that Georgia authorities did not prosecute the subject due to his Florida death sentence. The subject’s codefendant was charged with only the Aggravated Battery charge.
Knight was arrested and stood trial for the fatal stabbing of a prison guard while he was incarcerated on death row (CC# 80-341CF); the murder occurred on 10/12/80. Knight was convicted and sentenced to death for this offense on 01/20/83. Knight’s new sentencing date in 1996 is the starting point for all subsequent appeals, although he was initially sentenced over 25 years ago.
There have been mental health issues throughout this case most of which were presented to the trial court. Numerous mental health experts have testified on Knight’s behalf, claiming that he has longstanding mental health problems that may include schizophrenia. Experts for the State determined that Knight did, in fact, have a personality disorder but was a “malingerer” and not schizophrenic. Knight was determined competent to stand trial. There has not been any executive intervention relating to Knight’s alleged mental illness.
08/30/74 Defendant arraigned, entered a plea of not guilty.
09/19/74 Prior to trial, defendant escaped from jail.
12/31/75 Defendant captured and returned to jail.
01/06/75 PD dismissed due to conflict, Court appointed Special Counsel James Mathews.
04/01/75 Plea of Not Guilty by Reason of Insanity entered.
04/19/75 Defendant found guilty by the trial jury of two counts of First-Degree Murder, as charged in the indictment. Upon advisory sentencing the Jury, by a majority, recommended the death penalty.
04/21/75 Defendant was sentenced as follows: Count I: First-Degree Murder (Lillian Gans) – Death Count II: First-Degree Murder (Sydney Gans) – Death
01/18/96 Order to return defendant for resentencing.
02/01/96 Hearing held; Court found defendant competent to proceed.
02/08/96 Upon advisory sentencing, the jury recommended death sentence by a vote of 9-3
03/12/96 Resentenced as follows: Count I: First-Degree Murder (Lillian Gans) – Death Count II: First-Degree Murder (Sydney Gans) – Death
Florida Supreme Court – Direct Appeal
338 So. 2d 201 (Fla.1976)
05/20/75 Appeal filed
09/30/76 FSC affirmed convictions and death sentence
Florida Supreme Court – Petition for Writ of Habeas Corpus
01/22/80 Petition filed
02/06/80 FSC transferred petition to trial court to be treated as a 3.850 Motion for PCR
State Circuit Court – 3.850 Motion
02/12/80 Motion received per Florida Supreme Court order on 02/06/80
08/15/80 Trial court dismissed motion, should be treated as a Habeas by the FSC
Florida Supreme Court – Petition for Writ of Habeas Corpus
394 So.2d 997 (Fla. 1981)
10/01/80 Petition filed
02/24/81 Petition denied
State Circuit Court – 3.850 Motion
02/20/81 Motion filed
08/25/81 Motion denied
United States District Court, Southern District – Petition for Writ of Habeas Corpus
Florida Supreme Court – 3.850 Appeal
426 So. 2d 533 (Fla. 1982)
11/03/81 Appeal filed
04/11/83 Mandate issued
United States Supreme Court – Petition for Writ of Certiorari
06/09/83 Petition filed
10/06/83 Petition denied
United States Court of Appeals, 11th Circuit – Habeas Appeal
863 F 2d at 708
07/30/86 Appeal filed
09/06/89 Remanded to United States District Court to grant Habeas Petition.
09/06/89 Mandate issued
Florida Supreme Court – Direct Appeal (Resentencing)
721 So. 2d 287 (Fla. 1998)
04/22/96 Appeal filed
11/12/98 FSC affirmed conviction and death sentence
03/11/99 Rehearing denied
United States Supreme Court – Petition for Writ of Certiorari
528 U.S. 990; 120 S. Ct. 459 (1999)
06/09/99 Petition filed
11/08/99 Petition denied
State Circuit Court – 3.850 Motion
11/07/00 Motion filed
01/15/03 Motion denied
Florida Supreme Court – 3.850 Appeal
923 So.2d 387
04/08/03 Appeal filed
11/03/05 FSC affirmed Circuit Court’s order denying 3.850 Motion
02/24/06 Rehearing denied
03/13/06 Mandate issued
Florida Supreme Court – Petition for Writ of Habeas Corpus
923 So.2d 387
07/12/04 Petition filed
11/03/05 Petition denied
02/24/06 Rehearing denied
03/13/06 Mandate issued
United States District Court, Southern District – Petition for Writ of Habeas Corpus
USDC# 06-20570 (Pending)
03/07/06 Petition filed
On 05/20/75, Knight filed a Direct Appeal to the Florida Supreme Court. Among several issues raised, Knight claimed the trial court erred in the denial of his challenge for cause as to the impartiality of a juror. Second, Knight claimed the trial court erred in denying his motion for additional peremptory challenges because of pervasive pre-trial publicity. Third, Knight alleged the trail court erred in allowing the State to prosecute the charges under a theory of felony murder when the indictment charged premeditated murder to be absolutely contrary to established precedent. Fourth, Knight claimed the introduction of the testimony of Mr. Gill (the bank president), to the effect that Mr. Gans (the victim) had told him that he had been kidnapped and his wife was being held for $50,000 ransom and describing what had occurred thus far, into evidence was error as it was not within the res gestae of the crime charged. Finally, he claimed the trial court erred in denying his motion for change of venue. Having carefully evaluated all other points raised on appeal by appellant, the Court found none of them meritorious as to constitute reversible error. Furthermore, the allegations of the indictment were sufficient to charge Knight with First-Degree murder. On 09/30/76, the Court affirmed Knight’s convictions and sentence.
Knight filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court on 01/22/80. On 02/06/80, the Court transferred the petition to the trial court and ordered that it be treated as a 3.850 Motion for Post Conviction Relief. On 02/12/80, the trial court received and reviewed the motion. On 08/15/80, the trial court dismissed the motion, determined it was properly filed originally as a Habeas Petition, and requested that it be properly filed to the Florida Supreme Court. On 10/01/80, Knight filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court, who acknowledged the trial court was correct in determining the appeal should be processed as a Habeas Petition. However, the Court denied the Petition on 02/24/81. On 02/20/81, Knight filed a 3.850 Motion to the Circuit Court, which was denied on 08/25/081. Knight filed a 3.850 Appeal to the Florida Supreme Court on 11/03/81. The Court affirmed the trial court’s denial of the 3.850 Motion on 12/16/82. The rehearing was denied on 03/02/83. The mandate was issued on 04/11/83. On 02/24/81, Knight filed a Petition for Writ of Habeas Corpus to the United States District Court, Southern District. The Court held the Petition and granted a Stay of Execution on 02/26/81. The Court retained jurisdiction over the petition and ordered Knight to exhaust his appeals in State court. The Petition was dismissed on 06/27/86. On 06/09/83, Knight filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on 10/06/83.
On 07/30/86, Knight filed a Habeas Appeal to the United States Court of Appeals, 11th Circuit. On 09/06/89, the Court remanded the case to the trial court for resentencing based on a Hitchcock error, which requires the courts to consider non-statutory, as well as statutory mitigating evidence proffered by a capital defendant. This decision was made prior to the Supreme Court’s decision in Hitchcock, and was originally made in accordance with Lockett.
Knight filed a Direct Appeal after resentencing to the Florida Supreme Court on 04/22/96. On 11/112/98, the Court affirmed the conviction and sentence. The rehearing was denied on 03/11/99. On 06/09/99, Knight filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on 11/08/99. On 11/07/00, Knight filed a 3.850 Motion to the Circuit Court, which was denied on 01/15/03.
On 04/08/03, Knight filed a 3.850 Appeal to the Florida Supreme Court. Upon careful review of Knight’s motion, the Court found no error in the Circuit Court’s determination that denial was appropriate on each claim made by Knight. On 11/03/05, the Court affirmed the Circuit Court’s denial of the 3.850 Motion because Knight’s claims are either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, or without merit as a matter of law. On 02/24/06, the rehearing was denied. The mandate was issued on 03/13/06.
On 07/12/04, Knight filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court. The petition was denied on 11/03/05 because Knight raised the same issues that were raised in his 3.850 Appeal, which cannot be relitigated in the Habeas Petition. On 02/24/06, the rehearing was denied. The mandate was issued on 03/13/06. On 03/06/07, Knight filed a Petition for Writ of Habeas Corpus in the United States District Court, Southern District. This petition is currently pending. KNIGHT, Thomas (B/M) AKA: Askari Abdullah Muhammad
Eighth Judicial Circuit, Bradford County, Case# 80-341CF
Sentencing Judge: The Honorable Chester B. Chance
Trial Attorney: Pro se
Attorney, Direct Appeal: David Davis – Assistant Public Defender
Attorney, Collateral Appeals: D. Todd Doss & Linda McDermott – Registry and Federal
Date of Offense: 10/12/80
Date of Sentence: 01/20/83
Circumstances of the Offense:
On 10/12/80 at 9:45 a.m., a guard at the Florida State Prison, told the subject, a death row inmate in Dade County Case# F74-5978, that he had a visitor; however, prior to the approval of the visit, he must shave in compliance with prison regulations. He refused to comply and therefore was denied the visit. When the guard was exiting, he and another guard overheard the subject state, “Well, it looks like I will have to start sticking people.” Later, Officer Burke, the victim, was escorting the death row inmates to the showers. When he unlocked the subject’s cell, the subject attacked him with a homemade knife (a sharpened spoon). While this was occurring, another officer overheard the screams of Officer Burke and called for help. Within seconds, two other officers were present and observed Officer Burke lying on his back trying to fend off the subject’s blows. The subject complied with an order to back off, and discarded the weapon in a trash container. More than a dozen wounds were inflicted on Officer Burke, with one being a fatal stab wound to the heart.
12/03/80 Original counsel Joseph H. Forbes dismissed as Special Appointed Counsel.
12/03/80 Susan Cary remained as counsel of record.
12/17/80 Steven Bernstein appointed as co-counsel.
01/21/81 Judge R.A. Green Jr. recused himself.
01/22/81 Judge Wayne M. Carlisle appointed.
05/25/82 Trial ended in a mistrial.
05/26/82 Judge Wayne M. Carlisle recused himself. Reassigned to Judge Chester B. Chance
06/07/82 Court ordered that the defendant was competent to stand trial.
06/15/82 Ggranted motion to allow defendant to represent himself.
06/15/82 Stephen Bernstein was discharged as legal counsel. (standby)
07/20/80 Court granted motion for Stephen Bernstein to be relieved as standby counsel.
10/26/82 Defendant was found guilty (under the name of Askari Abdullah Muhammad) by jury of First-Degree Murder as charged in the indictment. Defendant waived consideration by the jury of an advisory sentence; therefore, the cause proceeded to the Court without the jury recommendation.
01/20/83 The defendant was sentenced as followed: Count I: First-Degree Murder – Death
Florida Supreme Court – Direct Appeal
494 So. 2d 969 (Fla. 1986)
10/01/84 Appeal filed
07/17/86 FSC affirmed conviction and death sentence
10/22/86 Motion for rehearing denied
11/25/86 Mandate issued
United States Supreme Court – Petition for Writ of Certiorari
497 U.S. 1101 (1987)
01/09/87 Petition filed
02/23/87 Petition denied
State Circuit Court – 3.850 Motion
02/23/89 Motion filed
08/31/89 Motion denied
Florida Supreme Court – 3.850 Appeal
603 So. 2d 488 (Fla. 1992)
11/27/89 Appeal filed
06/11/92 FSC reversed and remanded for an evidentiary hearing
09/17/92 Rehearing denied and mandate issued
State Circuit Court – 3.850 Motion (On Remand from FSC)
09/17/92 Appeal filed
06/12/00 Evidentiary hearing held
05/21/01 Trial court granted PCR, ordered new sentencing hearing
Florida Supreme Court – Appeal of 3.850 Motion (Filed by State)
866 So. 2d 1195
06/26/01 Appeal filed
08/21/03 FSC reversed the trial court’s order vacating death sentence
Florida Supreme Court – Petition for Writ of Habeas Corpus
866 So. 2d 1195
05/13/02 Petition filed
08/21/03 Petition denied
01/20/04 Mandate issued
United States Supreme Court – Petition for Writ of Certiorari
124 S. Ct. 2396; 158 L. Ed. 2d 969 (2004)
03/18/04 Petition filed
05/24/04 Petition denied
United States District Court, Middle District – Petition for Writ of Habeas Corpus
01/18/05 Petition filed
03/26/08 Petition denied; dismissed with prejudice
07/02/08 Certificate of Appealability filed
08/25/08 Certificate denied
United States Court of Appeals, 11th Circuit – Habeas Appeal
06/16/08 Appeal filed
01/09/09 Certificate of Appealability denied
United State Supreme Court – Petition for Writ of Certiorari
130 S.Ct. 1281
07/13/09 Petition filed
01/25/10 Petition denied
Circuit Court – 3.851 Motion
07/24/08 Motion filed
09/09/08 Motion denied
Florida Supreme Court – 3.850 Appeal
22 So.3d 538
02/02/09 Appeal filed
11/05/09 FSC affirmed the disposition of the lower court
Knight filed a Direct Appeal to the Florida Supreme Court on 10/01/84. Among several issues that were raised, Knight claimed the trial court failed to follow the dictates of Florida Rule of Criminal Procedure 3.210, a rule which requires the court to appoint “no more than three and no fewer than two experts” to examine the defendant. Second, Knight claimed that he did not know the purpose of the competency examination, and that neither his attorney nor competency examiner informed him of the reason for the interview. Third, Knight also claimed the competency report failed to include matters required by Florida Rules of Criminal Procedure 3.216(e) and 3.211(a)(1). Finally, Knight claimed the trial court improperly applied two aggravating factors when it found that he was under a sentence of imprisonment and that he had been convicted of a violent or capital felony. On 07/17/86, the Court affirmed Knight’s convictions and sentence. On 10/22/86, the rehearing was denied. The mandate was issued on 11/25/86
On 01/09/87, Knight filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on 02/23/87. On 02/23/89, Knight filed a 3.850 Motion to the Circuit Court, which was denied on 08/31/89. Knight filed a 3.850 Appeal to the Florida Supreme Court on 11/27/89. The Court reversed the trial court’s ruling and remanded the case back to the trial court for an evidentiary hearing, regarding their ruling on a Brady violation. The evidentiary hearing (on remand from the Florida Supreme Court) was held on 06/12/00. The delay in proceeding with the evidentiary hearing was related to the United States Court of Appeals ordering the defendant to be resentenced in his Dade County case. Subsequent to the evidentiary hearing, the trial court, on 08/21/03, ordered the defendant to be resentenced. The State appealed the trial court’s decision to the Florida Supreme Court on 06/26/01. On 08/21/03, the Court issued an opinion in which they reversed the trial court’s order which vacated Knight’s death sentence. The opinion also denied a Petition for Writ of Habeas Corpus, which Muhammad had filed on 05/13/02. The mandate for the Habeas was issued on 01/20/04. Knight filed a Petition for Writ of Certiorari to the United States Supreme Court on 03/18/04, which was denied on 05/24/04. On 01/18/05, Knight filed a Petition for Writ of Habeas Corpus to the United States District Court, Middle District, which was denied on 03/26/08 and dismissed with prejudice. A Certificate of Appealability of was filed on 07/02/08 and denied on 08/25/08. Knight filed a Habeas appeal in the United States Court of Appeals, 11th Circuit on 06/16/08. The Certificate of Appealability was denied on 01/09/09. Knight filed a Petition for Writ of Certiorari to the United States Supreme Court on 07/13/09. The petition was denied on 01/25/10. On 07/24/08, Knight filed a 3.851 Motion in the Circuit Court. This motion was denied on 09/09/08. On 02/02/09, Knight filed a 3.850 Appeal in the Florida Supreme Court. The disposition of the lower court was affirmed on 11/05/09.
Knight v. State, 338 So.2d 201 (Fla. 1976). (Direct Appeal-Gans)
Defendant was convicted in Circuit Court, Dade County, Gene Williams, J., of first-degree murder and sentenced to death, and he appealed. The Supreme Court held, inter alia, that certain testimony was properly admitted as part of the res gestae of the crime charged; that the trial court did not err in allowing the State to prosecute the charges under a theory of felony-murder when the indictment charged premeditated murder; and that imposition of the death penalty was warranted. Affirmed.
This cause is before us on direct appeal to review the convictions of Thomas Knight on two counts of murder in the first degree and sentence to death. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.
Appellant was indicted for the first degree murder of Lillian and Sydney Gans in that he did kill and murder them from premeditated design by shooting them with a rifle. Briefly the facts leading up to the murder and defendant's apprehension by the authorities are as follows. Upon arriving at his place of business and parking in his designated space, Mr. Gans was approached by the defendant who was carrying an automatic rifle and was told to re-enter his automobile, to drive home and get Mrs. Gans, and to drive to the bank and get $50,000. While inside the bank, Mr. Gans informed the president about the abduction. The police and FBI were alerted. Mr. Gans then returned to his car with the money. He and his wife, shortly thereafter, were found shot to death, the fatal shots-perforating through their necks-having been fired from the rear seat of the vehicle. Thereafter, appellant was apprehended and taken into custody in a weeded area about 2,000 feet from the Gans' vehicle. Underneath him buried in the dirt was an automatic rifle and a paper bag containing $50,000. There were blood stains on his pants.
After an extensive trial, the jury returned verdicts of guilty of both counts of murder in the first degree and, after separate hearing on sentencing, recommended the death penalty be imposed. The trial judge agreed that under the circumstances the death penalty was the appropriate sentence and wrote his order on sentence carefully evaluating the mitigating and aggravating circumstances, stating in part: ‘1. That the aggravating circumstances found by the Court to be present and listed by the Court with the lettering as set forth in Florida Statute 921.141(5), are as follows: ‘(d) That the capital felonies were committed while the defendant was engaged in the commission of or in flight after committing the crime of kidnapping of Lillian Gans, and/or the robbery of Sidney Gans. ‘(e) That the capital felonies were committed for the purpose of avoiding or preventing a lawful arrest. ‘(f) That the capital felonies were committed for pecuniary gain. ‘(h) That the capital felonies were especially heinous, atrocious or cruel.
‘It might be considered a close question as to whether these murders were especially heinous, atrocious or cruel, because of the fact that when the defendant actually killed the victims, death was almost instantaneous. However, the Court is of the opinion that the hours preceding the actual killings constituted exceedingly cruel treatment of the victims. Mr. Gans was continually under severe strain, not only thinking of his own life but that of his wife. Mrs. Gans was also under continuous strain. Mr. and Mrs. Gans proceeded to follow the directions of the defendant hoping to escape death, although probably fearing for their lives at every instant. When it became apparent to them that the defendant was forcing them to a deserted area, it probably also became apparent to them they were going to be murdered. This feeling no doubt continued up to the actual moment of the deaths. Mr. Gans' actions were particularly noteworthy. After the initial danger, he could have escaped when directed by defendant to the bank. However, Mr. Gans, with commendable courage, attempting to save the life of his wife, again voluntarily submitted himself to the control of the defendant, only to lose his life together with his wife. All of these circumstances constitute particularly cruel, heinous and atrocious actions by the defendant when he finally shot the victims.
‘3. That as to mitigating circumstances, the Court finds as follows: ‘(a) the defendant has a history of prior criminal activity. ‘(b) the defendant was not under the influence of extreme mental or emotional disturbance when the capital felonies were committed. ‘(c) the victims were not participants in the defendant's conduct nor did they consent to his acts. ‘(d) the defendant was not an accomplice in the capital felonies committed by another person and his participation was not relatively minor. ‘(e) the defendant did not act under extreme duress or under the substantial domination of another person. ‘(f) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired. ‘(g) the age of the defendant at the time of the crime was 23 years. The Court finds age not to be a mitigating circumstance. The Court finds that the defendant is of at least average intelligence and experience as an adult.
‘. . . The Court finds, as did the jury, that the defendant is legally sane, knows right from wrong, knows the nature and consequences of his actions and did at the time of the commission of the two murders.’
Twenty three points have been stated as points on appeal by appellant although not all of these points are argued. Careful review of the briefs and voluminous transcript of record reveal that none of these contentions constitutes reversible error.
Appellant urges error in the trial court's denial of his challenge for cause as to the impartiality of a juror. Preliminarily, it must be noted that the record does not reveal any challenge for cause of Juror Hochstadt. The record examination of Juror Hochstadt does not indicate any showing of partiality toward the State. In fact, the record evidences that the subject juror had formed no opinion as to the guilt or innocence of the defendant and would be completely impartial.
The trial court did not err in denying appellant's motion for additional peremptory challenges because of pervasive pre-trial publicity. He expressly determined that no showing of prejudice had been made. Additionally we note that the record clearly shows that the trial judge was extremely liberal in excusing jurors for cause in order that an impartial trial would be secured.
Appellant's argument that the court erred in denying his motion for change of venue is without merit. He has failed to prove that he did not receive a fair and impartial trial and that the setting of his trial was inherently prejudicial. Recently, in Dobbert v. State, 328 So.2d 433 (Fla.1976), this Court restated the requirements set out by the Supreme Court of the United States in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), relative to a fair and impartial trial, as follows:
‘The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, ‘indifferent’ jurors.' Irvin v. Dowd, supra, 366 U.S. (717), at 722, 81 S.Ct. (1639), at 1642, (6 L.Ed.2d 751). Qualified jurors need not, however, be totally ignorant of the facts and issues involved. “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' Id., at 723, 81 S.Ct. (1639) at 1642. ‘At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ Ibid.
‘The Voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner's past crimes, but none betrayed any belief in the relevance of petitioner's past to the present case. Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime-a predisposition that could only operate in petitioner's favor.’
Appellant submits that the introduction of the testimony of Mr. Gill, the bank president, to the effect that Mr. Gans, the deceased victim had told him that he had been kidnapped and his wife was being held for $50,000 ransom and describing what had occurred thus far, into evidence was error as it was not within the res gestae of the crime charged. The testimony given by Mr. Gill was admissible as being within the res gestae of the crime of kidnapping, one of the felonies enumerated in the felony murder statute, section 782.04(1)(a), Florida Statutes. The crime for which appellant was charged was murder in the first degree, and he could be tried and convicted under the indictment if the killing was committed by him in the perpetration of any robbery or kidnapping. The trial court properly held this evidence admissible as res gestae, an exception to the hearsay rule. Cf. State v. Williams, 198 So.2d 21 (Fla.1967), Campbell v. State, 227 So.2d 873 (Fla.1969).
We find appellant's allegation that the court erred in allowing the State to prosecute the chartges under a theory of felony murder when the indictment charged premeditated murder to be absolutely contrary to established precedent. In Larry v. State, 104 So.2d 352 (Fla.1958), this Court explained: ‘Furthermore, we think there was ample evidence to sustain a verdict for murder in the first degree committed in the perpetration of a robbery. The trial judge instructed the jury on this phrase of the law. His instruction was warranted by the evidence and in such a case premeditation is presumed as a matter of law. Leiby v. State, Fla., 50 So.2d 529. Proof of a homicide committed in the perpetration of the felonies set forth in s 782.04, Florida Statutes, F.S.A., may be shown under an indictment charging the unlawful killing of a human being from a premeditated design. Killen v. State, Fla., 92 So.2d 825; Everett v. State, Fla., 97 So.2d 241.’ (emphasis supplied)
Subsequently in Barton v. State, 193 So.2d 618 (Fla.App.2d 1967), authored by Justice Adkins while temporarily assigned to the District Court as an Associate Judge, that court opined and we agree: ‘The indictment was in the usual form charging murder to have been committed with a premeditated design to effect the death of Corbin. The appellant argues that he should have been furnished with a bill of particulars specifying whether the State would proceed on the theory of felony murder or premeditated murder. Without being apprised of the specific theory under which the State was electing to proceed, appellant says he was placed at a burdensome disadvantage by being forced to prepare defenses to each, which defenses necessarily are inconsistent. Appellant contends that forcing such a burden upon him constituted a denial of due process. ‘The allegations of the indictment were sufficient to charge murder in the first degree, regardless of whether the murder was committed in the perpetration of any of the felonies mentioned in F.S.A. s 782.04 or was committed with a premeditated design. Southworth v. State, 98 Fla. 1184, 125 So. 345. Under such a charge evidence under either theory may be introduced and defendant may be convicted either on the theory that the killing was carried out as a result of a premeditated design to effect death or on the theory of felony murder. Larry v. State, 104 So.2d 352 (Fla.1958).’ Cf. Hargrett v. State, 255 So.2d 298 (Fla.App. 3, 1971).
Having carefully evaluated all other points raised on appeal by appellant, we find none of them meritorious as to constitute reversible error. We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record, sub judice, does not reveal that the ends of justice require that a new trial be awarded.
Furthermore, we find appellant's position that the death penalty is not warranted under the particular facts of this case to be untenable. The atrocious, cruel, and heinous nature of the crimes committed by the appellant was carefully explained by the trial judge in his written findings of fact relative to the sentencing portion of this cause. Review of the record and consideration of the enumerated aggravating and mitigating circumstances support the conclusion that the death sentence recommended by the jury and imposed by the judge is appropriate under the particular facts of this cause.
Accordingly, no reversible error appearing, the judgments and sentence of the Circuit Court here under review are affirmed. It is so ordered. OVERTON, C.J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, J., took no part in the consideration of this case.
Knight v. State, 394 So.2d 997 (Fla. 1981). (PCR-Gans)
Defendant, who had been convicted of murder and sentenced to death, submitted petition for writ of habeas corpus predicated on assertion of ineffective assistance of appellate counsel. The Supreme Court held that there was no substantial deficiency in representation of defendant on appeal by which defendant was prejudiced. Petition denied. Sundberg, C. J., concurred in result only.
We have for consideration a petition for writ of habeas corpus by Thomas Knight whose conviction and sentence of death were affirmed by this Court in Knight v. State, 338 So.2d 201 (Fla.1976). We originally transferred this petition to the Eleventh Judicial Circuit and directed that it be treated as a motion for post-conviction relief. The trial judge in considering the petition properly determined that since petitioner's claim for relief is predicated on the assertion of ineffective assistance of appellate counsel, such relief can only be granted by habeas corpus in the appellate court unless it was caused by an act or omission of the trial court. The ineffective assistance of counsel allegations stem from acts or omissions before this Court, and therefore we have jurisdiction and will consider the petition for habeas corpus on its merits.
The Governor has signed a death warrant for petitioner's execution, which has been set for March 3, 1981. We received a motion for stay of execution and supporting briefs from the petitioner, Knight, as well as the extensive legal arguments contained in the petition for writ of habeas corpus. The state has filed a responding brief, and the Court has heard oral argument in the cause.
In summary, and for the reasons hereafter expressed, we deny the petition for writ of habeas corpus. We find that counsel on the initial appeal for the petitioner was court appointed and his representation was a result of state action. We have considered each of the asserted failures and omissions of this appellate counsel and have determined that the assertions individually and collectively are without merit. We expressly find that none of the asserted failures or omissions establish a serious incompetency that falls measurably below the performance expected of appellate counsel and that these specific asserted failures or omissions did not affect the outcome of the appellate proceedings to the prejudice of the appellant. We reach this conclusion and finding after a review of not only the record on this petition for habeas corpus but also the record on the initial appeal to this Court.
I. Facts in the Instant Case
Because of the issues and circumstances in this proceeding, we restate the facts of this unusual and bizarre abduction and slaying. On July 17, 1974, at approximately 8:00 a. m., one of the victims, Sydney Gans, left his wife at their home and drove his gold 4-door Mercedes to his business. As he began to get out of his car at his business, he was met by a black male who approached him with an automatic rifle and told him to get back into the car and drive to his residence and get his wife. The black male abductor got into the rear of the car and Mr. Gans drove back to his home and obtained his wife, who got into the front passenger seat. The black male abductor told Mr. Gans that he wanted $50,000. Mr. Gans drove to a bank in downtown Miami, got out of the car and went inside the bank while his wife moved into the driver's seat and began driving the car around the downtown area. Once inside the bank, Mr. Gans advised the president of the circumstances and the demand for $50,000. The president called the Federal Bureau of Investigation, which sent agents to the president's office and coordinated surveillance of the vehicle driven by Mrs. Gans with the City of Miami police department. Officers stationed in the vicinity of the bank, including an agent for the FBI, observed the Gans vehicle stopped at a traffic light and observed the weapon on the lap of the abductor in the rear seat. Mr. Gans received $50,000 in marked funds which were placed in a paper bag. He went outside and was picked up by his wife and the abductor. Surveillance units followed the Gans vehicle but lost it for about four or five minutes. Subsequently, two officers came upon the vehicle in a construction area with the front passenger door open, the right rear passenger door open, and the trunk open. As the officers approached the vehicle, they observed the back of a black male approximately 150 feet from the vehicle who turned and had a rifle-type weapon in his hands. No shots were fired, and the black male turned and ran into a thick growth of scrub trees and bushes. The body of Mrs. Gans was found behind the steering wheel. The body of Mr. Gans was found lying about 25 feet from the vehicle. It appeared he had been dragged from the vehicle after he had been shot. Both died as a result of gunshot wounds perforating their necks, the fatal shots having apparently been fired from the rear seat of the Gans vehicle. A search of the surrounding area was commenced. Approximately four and a half hours later, the petitioner, Thomas Knight, was apprehended in a high weeded area about 2000 feet from the Gans vehicle. Underneath the petitioner when he was apprehended was an automatic rifle and a paper bag containing $50,000 buried in the dirt.
There were numerous law enforcement eyewitnesses to the events subsequent to Mr. Gans leaving the bank and immediately prior to the victims being killed. Four law enforcement officers positively identified Knight as being the abductor in the Gans vehicle. Knight's fingerprint was on the trunk of the vehicle. The issue of the petitioner's competency at the time of the offense was presented to the jury. Five expert witnesses testified, four of whom rendered opinions that the petitioner was sane at the time of the offense. The fifth expert witness, presented on the behalf of the petitioner, believed Knight was not sane at the time of the offense and that he had a severe paranoid-schizophrenic mental condition. Four private attorneys were appointed to represent the petitioner at his trial, including a former United States District Attorney and a former Assistant United States District Attorney for the Southern District of Florida. One of the four trial counsel was also the counsel on appeal.
II. Effectiveness of Counsel Standards
The state contends that petitioner's original counsel on appeal was in reality the same as privately retained counsel and that the standard for effective assistance of counsel under these facts, especially in light of this Court's mandatory review in death penalty cases, is not far above the “farce and mockery” test rejected for trial counsel effectiveness in Meeks v. State, 382 So.2d 673 (Fla.1980). We reject this contention by the state. Counsel who represented the petitioner on appeal was appointed by the trial court immediately following the sentencing. Although the petitioner did ask for the named appellate counsel to be appointed, it should be noted that this counsel was one of four appointed counsel who represented the petitioner at trial. In view of this holding, we need not address in this cause the differences, if any, in standards of competency between appointed and privately retained counsel.
Establishing the appropriate test or standard for determining reasonably effective assistance of counsel has been considered by some a bramble bush thicket. The United States Supreme Court has avoided speaking definitely on this issue. See Maryland v. Marzullo, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White and Rehnquist, JJ., dissenting). Numerous commentators have written recently on this issue.[FN1] Several courts have found guidance in the American Bar Association Standards for Criminal Justice ch. 4 (2d ed. 1980), relating to the function of defense counsel.[FN2]
FN1. See, e. g., Erickson, Standards of Competency for Defense Counsel in a Criminal Case, 17 Am.Crim.L.Rev. 233 (1979); Gard, Ineffective Assistance of Counsel Standards and Remedies, 41 Mo.L.Rev. 483 (1976). FN2. See, e. g., Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974); People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975); State v. Hester, 45 Ohio 2d 71, 341 N.E.2d 304 (1976); Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973). See generally Erickson, supra note 1.
In determining whether defendant has been provided with reasonably effective assistance of counsel, we believe the following four-step process encompassed in United States v. DeCoster (DeCoster III), 624 F.2d 196 (D.C.Cir.1979) (en banc), provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel's legal and tactical conduct at trial or on appeal. We adopt the following four principles as a standard to determine whether an attorney has provided reasonably effective assistance of counsel to his client.
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in DeCoster III : “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel's acts or omissions deviated from a checklist of standards.” 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.[FN3] FN3. At least five circuit courts of appeals have indicated general agreement. See Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980), on remand 623 F.2d 366 (5th Cir. 1980); Cooper v. Fitzharris, 586 F.2d 1325, 1331-32 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); United States v. Cooper, 580 F.2d 259, 263 n. 8 (7th Cir. 1978); Harshaw v. United States, 542 F.2d 455, 456-57 (8th Cir. 1976); United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115-16 (3d Cir. 1970). Contra, Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); but see United States v. Sumlin, 567 F.2d 684, 689 (6th Cir. 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). See also Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.) (placing burden on government to show lack of prejudice), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). At least sixteen states have indicated agreement with the majority federal rule. See Erickson, supra note 1, at 249 n. 137.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III.
III. Habeas Corpus Disposition
The petition for habeas corpus asserts that the briefs submitted to this Court on appeal were poorly written and failed to properly present the necessary legal issues to provide a fair review of petitioner's trial. The briefs by counsel on the initial appeal, while not a model of legal writing, did set forth 23 asserted points of error. In our opinion, reported at 338 So.2d 201, we expressly discussed issues concerning the partiality of a juror, the pervasiveness of the pretrial publicity, the denial of a change of venue, the admission of certain evidence as being part of the res gestae, the authority to prosecute upon felony murder when the indictment charged premeditated murder, and the appropriateness of the death sentence. Poor writing style is not a ground for relief.
The petitioner sets forth four legal errors which he contends his appellate counsel should have presented to this Court on appeal, arguing that the failure to present those issues to the Court resulted in his being denied reasonably effective assistance of counsel. The asserted legal errors concern: (1) the trial court's failure to instruct the jury on elements of the underlying felony; (2) the trial court's failure to instruct the jury on the result of a verdict of not guilty by reason of insanity; (3) the trial court's exclusion of the witness Pat Duval from testifying in the cause; (4) the trial court's application of the statutory aggravating and mitigating circumstances and its failure to find any mitigating circumstances.
We will address these points individually and apply the standards adopted in Part II to determine whether counsel for this petitioner provided reasonably effective assistance in the initial appeal. The first issue concerns the trial judge's failure to instruct the jury on the elements of the underlying felony. The petitioner contends that our decision in Robles v. State, 188 So.2d 789 (Fla.1966), is determinative and that a trial court's failure to give an adequate instruction on the underlying felony is a fatal error even when such instruction has not been requested by the defendant. Subsequent to our opinion on the initial appeal in this cause, we decided State v. Jones, 377 So.2d 1163 (Fla.1979), which reaffirmed our decision in Robles v. State. The record in the instant case reflects that the trial judge gave the general definitive instructions for homicide but did not specifically instruct upon the elements of the underlying felony of kidnapping or robbery. There was no request or objection by petitioner's trial counsel to this failure to give these instructions.
It is clear that in both Robles and Jones the primary charge was felony murder and the state in neither case contended the evidence was sufficient to establish premeditated murder. We expressly noted in Jones that there was no contention that there was sufficient evidence to establish premeditated murder. We conclude that where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. See Frazier v. State, 107 So.2d 16 (Fla.1958).
We find the failure of appellate counsel, who was also trial counsel, to raise this issue is not an omission that was a serious deficiency, and we further find that no prejudice was shown. In fact, an argument could be made under the facts of this case that giving the underlying felony instruction would have been more of a detriment than a benefit to this petitioner. This stems from the fact that one of the arguments of the petitioner at trial was the lack of direct evidence that Knight actually killed the victims. Indeed, the record reflects that there was strong circumstantial evidence but no direct eyewitness evidence of the actual killings, in contrast to the considerable direct evidence, including numerous law enforcement eyewitnesses, that Knight was the perpetrator of the kidnapping and robbery.
However, the record in this cause, and in particular the final argument of counsel, demonstrates that the state, although it mentioned felony murder, strongly argued premeditated murder to the jury. The record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. We find that under the circumstances of this case and our review of the record that neither Robles nor Jones applies, but Frazier does apply. We are satisfied beyond a reasonable doubt that the failure to give the instruction at issue was not prejudicial and did not contribute to the petitioner's conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The second identified failure of appellate counsel is the assertion that he should have anticipated this Court's ruling in Roberts v. State, 335 So.2d 285 (Fla.1976), and requested an instruction on the consequences of the verdict of not guilty by reason of insanity. Our decision in Roberts was decided subsequent to trial, briefs and oral argument in this cause. In Roberts there was a specific request at the trial court level for the instruction, and we adopted the rule of law expressed in Lyles v. United States, 254 F.2d 725 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), cert. denied, 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960), cert. denied, 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed.2d 529 (1962). Clearly, our Roberts decision did not adopt a rule of law dictated by the United States Supreme Court, the United States constitution, or the Florida constitution, nor did it apply retroactively to any pending decisions except those in which that issue had been preserved and which were actually pending on appeal. Petitioner's counsel in oral argument recognized the well established rule of law that there is no requirement that counsel, to be reasonably effective, must anticipate changes in the law. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). There clearly was no substantial deficiency by appellate counsel and no prejudice stemming from the failure to raise this issue.
The third asserted omission by appellate counsel concerns his failure to raise as error the exclusion of testimony by witness Pat Duval. The testimony of this witness was proffered at trial to show the jury that, given the family history of abuse and incest by the father of the petitioner, the feelings professed by the petitioner to the expert witnesses about his father were in fact “inappropriate.” The proposed witness Duval was not an expert witness and our review of the record reveals that the ruling of the trial judge was clearly within his discretion and was proper under the circumstances of this case. The failure to raise this issue on appeal was not a substantial deficiency by appellate counsel, and there was no prejudice.
The fourth asserted omission of appellate counsel concerns his failure to argue an improper doubling of the aggravating circumstances and of failure to properly present mitigating circumstances for reevaluation by this Court. The record does reflect that the trial judge doubled up certain listed aggravating circumstances but that in and of itself is not error. See Hargrave v. State, 366 So.2d 1 (Fla.1978); Washington v. State, 362 So.2d 658 (Fla.1978); Elledge v. State, 346 So.2d 998 (Fla.1977). What is important is that the aggravating circumstances considered by the trial judge were in fact statutory aggravating circumstances. The full sentencing order is set forth in the original opinion and reflects full and considered judgment by the trial judge and this Court of all the aggravating and mitigating circumstances. The trial judge specifically addressed and evaluated the mental condition of the petitioner as it should be applied under section 921.141(6)(b), (f), Florida Statutes (1973). He had heard the testimony of five experts concerning the mental condition of the petitioner and determined that it should not be considered a mitigating factor.
Our decision in Provence v. State, 337 So.2d 783 (Fla.1976), upon which the petitioner principally relies, does not control because there were no mitigating circumstances. See Elledge v. State. Provence was decided in July of 1976, seven months after the initial brief was filed on the appeal and three months after oral argument. Under the circumstances, we find there was no substantial deficiency in appellate counsel for failure to present this issue to the Court and no demonstrated prejudice to the petitioner.
We have carefully reviewed the petition, the record in this cause, and the record in the original cause concerning the asserted issues to make our findings in this proceeding. We are very mindful that this is a death case, that an execution warrant has been signed, and that our findings from these records must now be presumed correct by any federal court that reviews these proceedings, absent certain factors enumerated in 28 U.S.C. s 2254(d) (1976). See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66L.Ed.2d 722 (1981).
We conclude the record is clear that there was no substantial deficiency in the petitioner's representation on appeal by which the petitioner was prejudiced. The petition for habeas corpus is denied, as is the stay of execution of sentence. No petition for rehearing will be entertained. It is so ordered. ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur. SUNDBERG, C. J., concurs in result only. ENGLAND, J., did not participate in the consideration of this case.
Muhammad v. State, 494 So.2d 969 (Fla. 1986). (Direct Appeal-Burke)
Defendant was convicted of murder and sentenced to death in the Circuit Court, Bradford County, Chester B. Chance, J. On review, the Supreme Court held that: (1) sufficient evidence supported determination of competency to stand trial; (2) defendant was competent to waive counsel and proceed pro se; (3) defendant had waived any claim of error in ruling that trial counsel could not present evidence of insanity due to defendant's refusal to cooperate with court experts; (4) court did not err in not finding that defendant's mental condition was mitigating factor in sentencing; and (5) court did not improperly apply aggravating factors for imposition of death sentence. Affirmed.
This case is before us for review of a death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. Muhammad, awaiting execution on death row,FN1 fatally stabbed a prison guard in the late afternoon of October 12, 1980. The incident apparently arose out of Muhammad's frustration at being denied permission to see a visitor after he refused to shave his beard. In the past Muhammad had been issued a pass excusing him from shaving regulations for medical reasons. A guard checked with the medical department and determined that Muhammad had no current exemption from the rule. At that time Muhammad was heard to say he would have to start “sticking people.”
FN1. Muhammad had been sentenced to death for the murders of a Miami couple. Knight v. State, 338 So.2d 201 (Fla.1976). Muhammad's original name was Thomas Knight. While imprisoned, the defendant adopted his new name pursuant to his beliefs in Islam. He insisted on use of the new name throughout the proceedings below and, after initial resistance from the judges, succeeded in having the new name placed on the caption of the case.
James Burke, a guard on a later shift who had not been involved with the shaving incident, was routinely taking death row inmates one at a time to be showered. When he unlocked Muhammad's cell, the defendant attacked Burke with a knife made from a sharpened serving spoon. Muhammad inflicted more than a dozen wounds on Burke, including a fatal wound to the heart. The weapon was bent during the attack, but Muhammad continued to stab Burke, who attempted to fend off the blows and yelled for help. The other guard on the prison wing saw the incident from a secure position and summoned help from other areas of the prison. When help arrived, Muhammad ceased his efforts and dropped the knife into a trash box.
Two lawyers were initially appointed to represent Muhammad. One, Susan Cary, had represented Muhammad in matters related to his prior murder case. The other was a public defender. The public defender withdrew after differences arose with Cary. For reasons undisclosed in the record, the original trial judge, Judge Green, ended Cary's appointment and appointed Stephen Bernstein to represent the defendant from the beginning of 1981.
The first indication in the record that Muhammad desired to proceed pro se is found in a transcript of a hearing that took place on January 12, 1981 before Judge Green. At the hearing, Bernstein moved to withdraw and, as the judge observed at the hearing, Muhammad argued “eloquently and obviously with much thought and consideration” to represent himself. Judge Green, advising Muhammad against proceeding pro se, noted Muhammad seemed competent to do so, but asked him to “sleep on it” and write the judge a letter with his final decision. Muhammad wrote the letter, electing to proceed pro se, but insisting, as he had at the hearing, that he wanted “assistance of counsel” in the sense of having a lawyer available to aid in preparation of the case. January 21, 1981, Judge Green recused himself for reasons not known by or raised before this Court, and also denied Muhammad's motion to proceed pro se. Judge Green's order stated that Muhammad did not have the capacity to conduct his own defense either because of the difficulty of preparing while on death row, or because of incompetence, or both.
Muhammad's attorneys were concerned about his mental state from the start. Shortly after the murder, they had Dr. Amin appointed as a defense advisor pursuant to the newly adopted Florida Rule of Criminal Procedure 3.216(a).FN2 Dr. Amin had examined Muhammad in matters relating to his prior conviction. February 25, 1981, attorney Bernstein filed a notice of intent to claim the defense of insanity. June 10, 1981, Judge Carlisle, who had been appointed to replace Judge Green, filed an order appointing Doctors Barnard and Carrera, psychiatrists, to examine Muhammad to determine his competency to stand trial and his sanity at the time of the offense. Fla.R.Crim.P. 3.210(b) and 3.216(d). Muhammad refused to meet the doctors when they tried to examine him July 4, 1981, and met them but refused to cooperate at a second attempt that November.
FN2. The rule reads: (a) When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense, he may so inform the court who shall appoint one expert to examine the defendant in order to assist his attorney in the preparation of his defense. Such expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.
Based on Muhammad's refusal to speak with the court-appointed experts, Judge Carlisle ruled in a hearing March 8, 1982, that Muhammad would not be allowed to present expert testimony regarding his insanity defense but that he would be allowed to raise the defense. Two weeks prior to the trial date of May 24, 1982, Bernstein filed a written proffer of the evidence and testimony he planned to present relating to the insanity defense. The proffer included a summary of findings by a psychiatrist and psychologist who treated the defendant during a hospitalization at Northeast Florida State Hospital in 1971, suggesting he was suffering from early stages of schizophrenia. A clinical psychologist diagnosed the defendant a paranoid schizophrenic in 1975 after an examination for a competency hearing before the trial for the prior murders. The diagnosis was echoed by another psychologist in a 1979 evaluation. Finally, Dr. Amin's findings as a defense expert were summarized, including a diagnosis of “schizophreniaform illness” but recommending further testing to rule out epilepsy.
At a hearing May 17, 1982, a week before trial, Bernstein requested a competency hearing. The judge agreed to a final effort to have the two appointed psychiatrists evaluate Muhammad. At Bernstein's urging, the judge also appointed Dr. Amin as a third expert for the court evaluation. Bernstein also told the judge that Muhammad had refused to meet with him for several months, and that Dr. Amin had not spoken with Muhammad for almost one year, although Dr. Amin had made two attempts during that period.
A letter from Drs. Barnard and Carrera states they were again rebuffed May 18, 1982, and that they were unable to determine the defendant's competency to stand trial, despite “relevant case materials” provided by defense and prosecution attorneys. Dr. Amin was more successful, meeting with the defendant and determining that he was competent to stand trial. A letter to that effect was filed May 19. May 20, 1982, Judge Carlisle, Bernstein, the state attorney and Muhammad were present at a competency hearing at Florida State Prison. The hearing was unrecorded, although the judge had requested a reporter when the hearing was set. The reconstructed record prepared by defendant's appellate counsel is sketchy, but states that “[b]ased upon Mohammad's [sic] refusal to cooperate with Drs. Barnard and Carrera, and Dr. Amin's report, the court found Mohammad [sic] competent to stand trial. What argument defense counsel made in opposition to the court's order is unknown.” Muhammad also raised anew his request to proceed pro se.
Trial was begun May 24, 1982. In a hearing before voir dire began, Judge Carlisle ruled that no evidence of any kind could be presented concerning Muhammad's sanity at the time of the crime. Muhammad again moved to proceed pro se and was denied. The trial ended in mistrial the next day for reasons unknown and not raised to this Court. Two days later, Judge Carlisle filed a recusal and Judge Chance was assigned to the case. Judge Chance conducted a hearing on Muhammad's motion to proceed pro se June 7, 1982. The judge attempted to dissuade Muhammad, explaining in detail disadvantages and soliciting comment from Muhammad. The hearing ended with the ruling that Muhammad could represent himself. Bernstein was appointed as “standby” counsel, to step in should Muhammad be unable to continue with trial. Muhammad also, for the first time, complained about the competency interview with Dr. Amin. He stated that he thought Amin was meeting with him in his capacity as a defense advisor, not as a court-appointed expert. He said he probably would not have spoken with Dr. Amin had he known the true circumstances of the interview, just as he had not spoken to the other two experts. Although objecting to the determination of competency based on the Amin report, Muhammad did not move to strike the report or suggest any other relief.
Muhammad renewed his objection to the Amin interview at a July 19, 1982 motion hearing. Prior to trial the court allowed Bernstein to withdraw as standby counsel and appointed a public defender. September 3, 1982, Muhammad filed a motion withdrawing his notice of intent to use the insanity defense. In a pretrial conference, the state withdrew its motion to strike the insanity defense and the judge granted Muhammad's motion. At trial, Muhammad's defense consisted solely of holding the state to its burden of proof by pointing out inconsistencies in the testimony of the state's witnesses. The jury found Muhammad guilty as charged. He waived his right to a jury recommendation in the penalty phase and the trial judge sentenced him to death, finding nothing in mitigation and three aggravating circumstances: the defendant was under a sentence of imprisonment, he had been convicted of a prior capital felony, and the murder was heinous, atrocious or cruel.
COMPETENCY TO STAND TRIAL
Muhammad's appellate counsel first challenges the findings by the trial court that the defendant was competent to stand trial and that he validly waived his right to counsel. Muhammad's competency is the primary question in this case. As appellate counsel for the defendant stated at oral argument, the question is whether a person is competent if he refuses to raise an insanity defense when there is a substantial question of his sanity at the time of the offense. However, that is not the question to be answered regarding competency. The standard of competency to stand trial is this: A person is incompetent to stand trial within the meaning of this chapter if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he has no rational, as well as factual, understanding of the proceedings against him. § 916.12(1), Fla.Stat.(1981).
Muhammad attacks the determination that he was competent on the ground that it is not supported by sufficient evidence. First, he claims the trial court failed to follow the dictates of Florida Rule of Criminal Procedure 3.210. The rule requires the court to appoint “no more than three nor fewer than two experts” to examine the defendant. However, it does not require that the experts succeed in examining the defendant. Muhammad refused to cooperate on three separate occasions with Drs. Barnard and Carrera. Dr. Amin's examination found Muhammad competent. Appellant refers us to Ross v. State, 386 So.2d 1191 (Fla.1980), wherein we held that an unequivocal finding of competency by one expert is sufficient and it is not error to refuse to appoint a second expert when the defense fails to present evidence that further examination is needed. Here, appellant argues, Dr. Amin's report was not unequivocal and the evidence in the proffer suggested the need for further examination.
We find no merit in this argument. Three experts had been appointed and the defendant consistently refused to be examined by two of them. There is no duty for the court to order a futile attempt at further examination. A defendant may not thwart the process by refusing to be examined. The lack of expert testimony under these circumstances is alone not grounds for finding error. The reports of experts are “merely advisory to the Court, which itself retains the responsibility of the decision.” Brown v. State, 245 So.2d 68, 70 (Fla.1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972).
If the court has followed the procedures of the rules and the defendant's own intransigence deprives the court of expert testimony, the court must still proceed to determine competency in the absence of such evidence. The record demonstrates that Judge Carlisle had an opportunity to observe Muhammad's behavior at the competency hearing, to review a letter and various pleadings handwritten by the defendant and a part of the file, and to review the proffer of expert evidence. The proffer indicates Muhammad suffered mental problems, but one need not be mentally healthy to be competent to stand trial. Nothing in the record available to Judge Carlisle dispositively demonstrates Muhammad was incompetent. See Williams v. State, 396 So.2d 267 (Fla. 3d DCA), review denied, 407 So.2d 1107 (Fla.1981) (probability that defendant was “more likely than not” incompetent at time of trial insufficient grounds to order new trial). Muhammad's pleadings and behavior both before and after the determination of competency clearly indicate he had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and had a] rational, as well as factual, understanding of the proceedings against him.” § 916.12(1), Fla.Stat. (1982). Even if the Amin report were excluded, there is sufficient evidence to support the determination of competency.
In light of this conclusion, Muhammad's challenge to the Amin report cannot be sustained on any ground. However, we discuss the issue because the report buttresses the other evidence supporting the finding that Muhammad was competent. Muhammad claims he did not know the purpose of Dr. Amin's competency examination, that neither his attorney nor Dr. Amin informed him of the reason for the interview, and that he thought he was meeting with Dr. Amin in the role of defense expert pursuant to his appointment under Florida Rule of Criminal Procedure 3.216(a), and thus his communications were protected by the attorney-client privilege of the rule. See State v. Hamilton, 448 So.2d 1007 (Fla.1984).
We find no merit in this claim. Muhammad waived the privilege when he failed to object to submission of the report at the May 20, 1982 competency hearing. The record shows Judge Carlisle's handwritten annotation on the report that it was submitted as a joint exhibit, indicating that Bernstein waived any alleged privilege as to the report, and the reconstructed record does not indicate Muhammad raised any objection to the waiver. Compare Lebowitz v. State, 313 So.2d 473 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 19 (Fla.), vacated on other grounds, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 68 (1976) (defendant may impeach witness by eliciting psychiatrist's opinion as to competence of witness, but content of conversations with the witness is protected by psychiatrist-patient privilege of section 90.242, Florida Statutes (1973)).
Muhammad also attacks the Amin report for alleged failure to include matters required by Florida Rules of Criminal Procedure 3.216(e) and 3.211(a)(1). A cooperative defendant objecting to admission of reports substantially deficient under these rules may well be entitled to have those objections sustained. See Livingston v. State, 415 So.2d 872 (Fla. 2d DCA 1982) (defendant entitled to new competency hearing when experts' testimony fails to show the matters outlined in rules 3.211 and 3.216 were considered). Muhammad neither cooperated nor objected. An expert's report is merely evidence for the court to utilize in determining competency. A determination of competency is not invalid because of deficiencies in a report unless the deficiencies substantially undermine the sufficiency of evidence supporting competency.
COMPETENCY TO WAIVE COUNSEL
Muhammad's appellate counsel next raises the question of whether Judge Chance properly granted Muhammad's motion to proceed pro se. Appellant urges that the judge failed to question whether Muhammad was competent to make the decision to waive counsel and to conduct his own defense. Appellant relies on Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), wherein the Court held that, despite a prior determination of competency to stand trial, an inquiry must be made into whether a defendant is competent to waive his right to counsel and conduct his own defense. See also Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135 (1954): “One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.” Id. at 108, 75 S.Ct. at 147. Appellant concedes that Judge Chance properly determined that Muhammad knowingly and voluntarily waived his right to counsel. The argument is that the judge should also have determined whether Muhammad was competent to do so and whether he was competent to proceed pro se. This would appear to be a bifurcated question: one might be competent to make the decision to waive counsel but still not be sufficiently competent to proceed on the consequences of that waiver, i.e. conduct the defense. However, Muhammad draws our attention to a unitary test adopted by the American Bar Association Standards for Criminal Justice, standard 7-5.3(b) (1984):
The test for determining the competence to waive counsel and to represent oneself at trial should be whether the defendant has the present ability to knowingly, voluntarily and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case.
Assuming the propriety of utilizing this test, Muhammad argues that the trial judge failed to adequately determine that he was competent. The alleged primary indicators that Muhammad was incompetent are his refusal to raise the insanity defense and his failure to introduce any evidence of his psychological problems in mitigation during the penalty phase. Appellate counsel also points to Muhammad's repeated insistence on being referred to in court and in the style of the case by his Moslem name and his rambling discourses during hearings and at trial.
We reject the argument of counsel. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court found that the defendant should have been allowed to waive counsel because “[t]he record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” 422 U.S. at 835, 95 S.Ct. at 2541. This is the appropriate standard to apply in the instant case, Jones v. State, 449 So.2d 253 (Fla.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), and the record supports Muhammad's waiver.
Judge Chance conducted a lengthy and detailed inquiry pursuant to the requirements of Faretta before accepting Muhammad's waiver with this finding: I personally think you're making a mistake, I really do, but that is your decision. And I'm convinced from talking with you and from the time we spent here today that you're competent and capable to make a mistake. Everybody can make a mistake. I made a mistake last week and blew the engine on my car. I can do that. You can make a mistake just like I did. If you want to, and all I want to make sure today is, that you know what you're doing and that's what you want to do. Now, I'm not going to stand in your way, although I don't think you're making a good decision. But that's-I'm not going on trial and so I don't have that decision to make. So I'm going to grant your motion. Judge Chance's ruling sums up the dilemma of permitting a defendant to proceed pro se. It also embodies a determination of competency and compliance with the Faretta standard.
The Faretta standard does not require a determination that a defendant meet some special competency requirement as to his ability to represent himself. The Faretta Court noted that the question of whether the defendant had sufficient technical legal skills to represent himself was irrelevant to waiver of counsel. If one may be intellectually incompetent in legal skills yet waive counsel, then no standard of mental competence beyond competence to stand trial is required. Mental competency in the context of Faretta only relates to the ability to waive the right to counsel. Competency may be, however, only one of several factors to be considered when a defendant waives a right, as in the case of waiver of counsel- Faretta requires that the court find that the defendant is not only competent, but also “literate ... and understanding, and that he [is] voluntarily exercising his informed free will.” 422 U.S. at 835, 95 S.Ct. at 2541. The requirements of literacy and understanding appear to be the factors suggested in Massey, which in combination with competency constitute “capacity to stand trial without benefit of counsel.” 348 U.S. at 105, 75 S.Ct. at 145.
Inherent in appellant's argument is the assumption that the level of competency necessary to waive counsel is greater than the level required to simply stand trial. Competency to waive counsel is at the very least the same as competency to stand trial. Faretta. Judge Chance's determination of competency avoided reliance on Dr. Amin's report (to which Muhammad had objected earlier in the hearing). Thus, whatever claim of error that might be raised regarding the initial determination of competency to stand trial in reliance on the Amin report is mooted by Judge Chance's determination without reliance on the report that Muhammad was competent to waive counsel.
Appellate counsel also argues that the judge should have appointed experts for a determination of competency regarding the waiver and self-representation. Counsel claims Muhammad asked for an examination on this point, but it is clear from the context of his statement that his intention was that Dr. Amin consult with him as a defense expert under Florida Rule of Criminal Procedure 3.216(a), and nothing indicates that Muhammad had changed his position regarding the other experts. Also, the Faretta hearing occurred less than a month after the prior determination of competency to stand trial and nothing in the record suggests that Muhammad's mental condition had changed in the interim necessitating another, most likely futile, attempt at expert evaluation.
Appellate counsel's alleged indicia of incompetence are without merit. Muhammad's refusal to cooperate in raising an insanity defense is not in itself an indicator of incompetence. The record shows that Muhammad adamantly refused to seek any excuse for the murder based on his mental condition, apparently based on his interpretation of Moslem teachings that he should take responsibility for his actions. Society permits a defendant to seek refuge in an insanity defense; it does not require it. Cf. Alvord v. State, 396 So.2d 184 (Fla.1981) (trial counsel not ineffective for failing to convince defendant to plead insanity defense). One might have been legally insane at the time he commits a crime, but, so long as he is subsequently competent to make the decision, he may refuse to seek excuse.
Muhammad's insistence on use of his Moslem name is likewise not an indicator of incompetence. In fact, his attention to this detail is consistent with his entire behavior, which seems to be guided by his interpretation of Moslem dictates. His refusal to shave was apparently based on his perception of religious principle, and the murder may be viewed as his taking a stand on this principle. Insistence on recognition of the Moslem name is another manifestation of Muhammad's desire to stand on principle. A prisoner on death row lives in a world of extremely limited options, and standing on principle on matters such as this, which might appear to be minor annoyances to a free person, can easily take on far greater significance to a prisoner to whom a shaving pass may constitute a victory of will amidst multitudinous defeats. We have reviewed in detail Muhammad's alleged ramblings at hearings and trial and find them wordy and at times flowery, but they clearly demonstrate an intelligence well aware of what is going on and responding in an appropriate manner.
REMAINING SANITY ISSUES
Appellate counsel next asserts error in the trial court's ruling that appointed trial counsel would be unable to present any evidence of insanity because of the defendant's refusal to cooperate with the court experts. Subsequent to this ruling, Muhammad filed a pro se motion a month before trial to withdraw the notice of intent to raise the insanity defense. The trial court permitted the state to withdraw its motion to strike the insanity defense and granted Muhammad's motion. Muhammad was competent to make the motion and therefore he has waived any claim of error. Appellate counsel also asserts error in the trial court's failure to find that Muhammad's mental condition was a mitigating factor. However, based on Muhammad's position regarding responsibility for his actions, the trial court was not obliged to infer a mitigating circumstance, contrary to the wishes of a competent defendant proceeding pro se who neither requested mitigation on these grounds nor presented any evidence to support such a conclusion. The trial judge properly considered and rejected finding that the defendant was under the influence of extreme mental or emotional disturbance or suffered from a substantial impairment of the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Muhammad contends that the trial court improperly applied two aggravating factors when it found that he was under a sentence of imprisonment and that he had been convicted of a violent or capital felony. §§ 921.141(5)(a) & .141(5)(b). We have consistently rejected the argument that these two factors improperly double aggravating circumstances. See, e.g., Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Agan v. State, 445 So.2d 326 (Fla.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984); Williams v. State, 438 So.2d 781 (Fla.1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984).
We have reviewed the record and find no fundamental error. Indeed, Muhammad conducted his defense as well as any layman could be expected to do. Accordingly, the judgment and sentence of the trial court are affirmed. It is so ordered. McDONALD, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.
Knight v. State, 746 So.2d 423 (Fla. 1998). (Direct Appeal-Gans-After Resentencing)
After remand for resentencing ordered by federal court, 863 F.2d 705, in habeas corpus case, the Circuit Court, Dade County, Rodolfo Sorondo, Jr., J., again sentenced defendant to death for murders. Defendant appealed. The Supreme Court, held that: (1) trial court could allow detective to remain in courtroom throughout sentencing proceeding; (2) prosecutor did not impermissibly inject future dangerousness into the proceeding as an unlawful nonstatutory aggravating circumstance; (3) a future dangerousness nonstatutory aggravating factor does not exist; (4) judge was not required to tell the jury of intent to impose consecutive life sentences if jury recommended life imprisonment; (5) defendant was not prejudiced by trial court's explanation regarding defendant's daily removal from courtroom for unruly behavior; (6) trial court could remove three jurors who heard improper remarks by courthouse employee; (7) evidence supported finding of five aggravators; and (8) death sentences were not disproportionate. Affirmed. Harding, C.J., concurred specially and filed opinion in which Overton, J., joined. Wells, J., concurred in part, dissented in part, and filed opinion.
We have on appeal the sentences of the trial court imposing the death penalty on resentencing upon appellant Thomas Knight, n/k/a Askari Abdullah Muhammad. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the imposition of the death sentences.
This case is a direct appeal from a resentencing proceeding, wherein the jury recommended two death sentences by a vote of nine to three. The trial judge accepted the jury's recommendation and imposed the death sentences on February 20, 1996.FN1 The resentencing proceeding had been ordered by a federal appeals court on the basis of an error under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (requiring trial courts to consider non-statutory, as well as statutory, mitigating evidence proffered by a capital defendant). Knight v. Dugger, 863 F.2d 705 (11th Cir.1988). FN1. The trial court found the following statutory aggravators: (1) Knight was previously convicted of a felony involving the use or threat of violence to the person, § 921.141(5)(b), Fla. Stat. (1995); (2) the murders were committed while Knight was engaged in the commission of a kidnapping, § 921.141(5)(d); (3) the murders were committed for the purpose of avoiding or preventing a lawful arrest, § 921.141(5)(e); (4) the murders were committed for pecuniary gain, § 921.141(5)(f); (5) the murders were especially heinous, atrocious, or cruel (HAC), § 921.141(5)(h); and (6) the murders were committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP), § 921.141(5)(i). The trial court considered and rejected Knight's proffered statutory mental mitigators. In nonstatutory mitigation, the trial court found and gave weight to the fact that Knight was a victim of childhood abuse; that he suffered from some degree of paranoia; and that he was raised in poverty.
Knight was convicted of the murders of Sydney and Lillian Gans and was sentenced to death. We affirmed his convictions and sentences on direct appeal. Knight v. State, 338 So.2d 201 (Fla.1976). Knight's subsequent habeas petition was dismissed by the trial court. Knight also fatally stabbed a prison guard, Officer James Burke, in his cell on death row on October 12, 1980, and was convicted and sentenced to death for that crime. This Court affirmed both the conviction and the sentence on direct appeal. Muhammad v. State, 494 So.2d 969 (Fla.1986). In his subsequent appeal of the trial court's denial of his 3.850 motion, this Court reversed the summary denial of Knight's Brady FN2 claim and remanded for an evidentiary hearing on that issue alone. Muhammad v. State, 603 So.2d 488 (Fla.1992). FN2. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Subsequently, we rejected Knight's contention that he had received ineffective assistance of appellate counsel on direct appeal of his convictions for the Gans' murders. Knight v. State, 394 So.2d 997 (Fla.1981). After the Governor signed a death warrant for the Gans' murders, Knight filed a habeas petition and a motion for stay of execution in the federal district court. The district court granted the motion, retained jurisdiction over the petition, and ordered Knight to exhaust his alleged remaining state law claims.
Knight then filed a 3.850 motion in state court, which was denied, and on appeal the denial was affirmed. Muhammad v. State, 426 So.2d 533 (Fla.1982). Knight then resumed prosecution of his federal petition, and, after the trial court dismissed Knight's petition, the Eleventh Circuit affirmed on six of the seven issues presented, but reversed on the Hitchcock issue.FN3 The resentencing proceeding now being reviewed was mandated by that decision. FN3. The court noted that the district court rendered its opinion prior to the Supreme Court's decision in Hitchcock. Knight, 863 F.2d at 708.
On direct appeal, we related the following material facts: Upon arriving at his place of business and parking in his designated space, Mr. Gans was approached by the defendant who was carrying an automatic rifle and was told to re-enter his automobile, to drive home and get Mrs. Gans, and to drive to the bank and get $50,000. While inside the bank, Mr. Gans informed the president about the abduction. The police and FBI were alerted. Mr. Gans then returned to his car with the money. He and his wife, shortly thereafter, were found shot to death, the fatal shots-perforating through their necks-having been fired from the rear seat of the vehicle. Thereafter, Knight was apprehended and taken into custody in a weeded area about 2,000 feet from the Gans' vehicle. Underneath him buried in the dirt was an automatic rifle and a paper bag containing $50,000. There were blood stains on his pants. Knight, 338 So.2d at 202. During the resentencing hearing, FBI Agent Terry Nelson testified that he was involved in all stages of the surveillance of the criminal episode. He arrived at City National Bank in an unmarked car, and observed the Gans' Mercedes, with Mrs. Gans driving and a black male with a rifle across his lap sitting in the right rear. After Mr. Gans returned to the car, the vehicle departed and followed a circuitous route before heading toward an unpopulated area of south Dade County.
Nelson momentarily lost sight of the Mercedes, and after regaining contact, Nelson again lost sight of the Mercedes as it proceeded along a canal ridge. When Nelson exited his vehicle for a better view, he received a radio call that two individuals had been shot and a black male was seen running into the woods nearby. The surveillance lasted for approximately an hour and covered about twenty miles. Nelson testified that Knight took no actions indicating he was aware of the surveillance.FN4 The FBI and Dade County police vehicles participating were unmarked and none of the officers were in uniform. One STOL FN5 aircraft and a helicopter were also involved in parts of the surveillance. FN4. Nelson testified that Knight never became “hinge key,” which is an FBI term for a suspect who is looking over his shoulder or who is concerned and paranoid that somebody might be following him. FN5. STOL stands for Short Takeoff and Landing, like the United States Marine Corps AV-8B Harrier aircraft.
Dr. Joseph Davis, the original medical examiner, testified that Mrs. Gans was killed instantly from a bullet which entered the back right side of her neck and exited her left cheek. Mr. Gans was shot in the lower right side of the face, with the bullet having exited his jaw. His wound had stippling or gunpowder marks burnt into the flesh, indicating that he had been shot at point-blank range. Mr. Gans was found in the underbrush, a trail of blood indicating that he had been dragged out and away from the vehicle after being shot.
Detective Greg Smith testified that he was a member of the cold-case squad, having been assigned to the case in 1989 because the former lead detective, Detective Ojeda, had retired from the police department. Smith reviewed the trial testimony and reports of witnesses who were no longer available. Smith recounted to the judge and jury the testimony of the deceased Gans' company comptroller, Milton Marinek, the testimony of Detective Ojeda and, in rebuttal testimony, the sworn statement of the helicopter pilot, as well as relating the physical evidence presented at trial.
Numerous witnesses testified on Knight's behalf. They presented testimony that Knight, the second oldest of nine children, came from a family with a history of mental illness and neurological problems. Knight's sisters Mary Ann, Doris, and Edna, as well as Deputy Patrick Duval, detailed the poverty, hunger, and brutal beatings Knight had sustained during his childhood in Fort Pierce. Knight's father was an alcoholic who had stopped providing for his family in 1960. Knight's father beat him often and with brutality. The Knight children often went without food or clothing. In June 1960, Knight's father raped Knight's sister Mary Ann. Knight, nine years old at the time, either witnessed his sister's rape and tried to stop it, or was told about it by Mary Ann immediately thereafter.
Knight was first arrested at age nine for theft. When he was arrested on the same charge several months later, he was committed to the Florida School for Boys, the youngest child ever sent there. He was continually in trouble thereafter, until at age fifteen he was sent to state prison on a burglary conviction. At age nineteen, he was committed to the Northeast Florida State Hospital where he was diagnosed with drug and poison intoxication, excessive drinking, and paranoid personality.
Numerous mental health experts testified to Knight's longstanding mental problems. Dr. Brad Fisher, a forensic psychologist, opined that Knight was a chronic schizophrenic. He testified that Knight was acting under an extreme mental or emotional disturbance at the time of the murders and that his ability to appreciate the criminality of his conduct was substantially impaired. Dr. Joyce Carbonell, a clinical psychologist, testified that Knight was a schizophrenic and that the statutory mental mitigators were manifested at the time of the murders. Dr. Thomas McLaine, a psychiatrist, testified that he evaluated Knight in 1991, concluding that he fell “somewhere between the severe personality disorder and the schizophrenic.” He also opined that at the time of the killings, Knight was under the influence of an extreme mental or emotional disturbance and that his ability to conform his conduct to the requirements of the law was “somewhat impaired all the time and [has] been for most of his 45 years.” Dr. Jethro Toomer, a psychologist, opined that the statutory mental mitigators applied at the time of the murders. Dr. David Rothenberg, a clinical psychologist, testified that Knight was a chronic paranoid schizophrenic. Dr. William Corwin, a psychiatrist, stated that Knight was argumentative, evasive, hostile, angry and that “there was some conscious exaggeration of his symptoms with a tendency to present himself as being actually ill.” Dr. Arthur Wells, a psychologist, testified that when Knight committed the murders, he was “50 percent or more out of control, had no ability to reason, to judge what he was doing.”
In rebuttal, the State called Dr. Eileen Fennell, a neuro-psychologist. She testified that Knight has a paranoid personality disorder, but is a malingerer who does not suffer from paranoid schizophrenia. Dr. Lloyd Miller, a forensic psychologist, likewise testified that Knight is a malingerer who does not have any major mental illnesses. Similarly, Dr. Charles Mutter, a forensic psychiatrist, found Knight to have a paranoid and antisocial personality, but no major mental illness.
Finally, Detective Smith was recalled on rebuttal and testified that his review of the prior testimony confirmed that no uniformed officers or marked vehicles were involved in the surveillance. Moreover, he testified that the STOL pilot's prior sworn testimony reflected that the pilot first saw the Mercedes after it had stopped and Knight was fleeing and that the helicopter pilot's prior sworn statement confirmed that observation. As noted above, the jury recommended a death sentence for both murders and the judge agreed.
Knight raises seventeen claims of error on appeal,FN6 several of which we resolve summarily.FN7 We address the remaining issues in turn. FN6. The claims are: (1) the trial court erred in allowing the presentation of Detective Smith's hearsay testimony; (2) the trial court erred in allowing Detective Smith to remain in the courtroom throughout the proceeding; (3) the prosecutor improperly relied on the future dangerousness nonstatutory aggravator; (4) the trial court in not instructing the jury that any life sentences would be consecutive; (5) the trial court erred in instructing the jury that Knight's absence was caused by his courtroom misconduct; (6) the trial court erred in allowing Dr. Miller's testimony; (7) the trial court erred in denying the defense's peremptory challenge of juror Rivero-Saiz; (8) the trial court erred in excluding jurors Weldon, Zaribaf, and Cunningham from the panel; (9) improper prosecutorial argument denied Knight a fundamentally fair and reliable sentencing proceeding; (10) the trial court erred in not instructing the jury on merged aggravators; (11) the trial court erred in instructing the jury on the prior violent felony aggravator; (12) the trial court erred in instructing the jury on the cold, calculated, and premeditated (CCP) aggravator; (13) the trial court erred in instructing the jury on the heinous, atrocious, or cruel (HAC) aggravator; (14) the trial court erred in not instructing the jury on Knight's requested instruction on statutory mental mitigators; (15) the trial court erred in sentencing Knight to death; (16) Florida's death penalty statute is unconstitutional; and (17) executing Knight after his prolonged incarceration on death row constitutes cruel and unusual punishment.
FN7. Claim (7) is procedurally barred because the defense did not renew its objection before the jury was sworn. Melbourne v. State, 679 So.2d 759, 765 (Fla.1996). Claim (13) is without merit, having been rejected by this Court on numerous occasions where, as here, the HAC standard jury instruction is the same instruction approved in Hall v. State, 614 So.2d 473, 478 (Fla.1993), and found sufficient to withstand vagueness challenges to both the instruction and the aggravator. See Chandler v. State, 702 So.2d 186, 201 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998); Monlyn v. State, 705 So.2d 1 (Fla.1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2378, 141 L.Ed.2d 745 (1998); Davis v. State, 698 So.2d 1182 (Fla.1997), cert. denied, 522 U.S. 1127, 118 S.Ct. 1076, 140 L.Ed.2d 134 (1998). Finally, claim (16) has been consistently rejected by this Court, most recently in Richardson v. State, 706 So.2d 1349, 1356 (Fla.1998). See also San Martin v. State, 705 So.2d 1337, 1350 (Fla.1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998); Williamson v. State, 681 So.2d 688 (Fla.1996); Hunter v. State, 660 So.2d 244 (Fla.1995).
DETECTIVE SMITH'S TESTIMONY
In his first claim, Knight contends that Detective Smith's hearsay testimony violated his right to confrontation, due process, and a reliable sentencing proceeding. The gravamen of Knight's claim is that Detective Smith's recounting, on rebuttal, of the helicopter pilot's prior sworn statement violated his Confrontation Clause right to confront and cross-examine witnesses because, unlike Smith's earlier testimony summarizing prior trial testimony, the pilot's statement had never been subjected to adversarial testing and lacked the reliability accorded former testimony. However, because Knight never specifically objected to Smith's testifying as to the contents of the pilot's statement, we find this claim procedurally barred. FN8. We also note that the trial court, in considering Knight's objection to Smith presenting a summary of former trial testimony, offered Knight the opportunity to have that testimony read to the jury as an alternative to Smith's presentation. In addition, Nelson's nonhearsay testimony covered much of the same ground and he participated throughout the surveillance, while the helicopter pilot only became involved at the end. Moreover, while Smith admittedly was called to the stand to rebut the defense's theory that the air surveillance caused Knight's loss of mental faculties, his recitation of Detective Ojeda's trial testimony recounted the same subject matter as that presented by Nelson.
DETECTIVE SMITH'S PRESENCE IN COURTROOM
Knight next contends that the trial judge erred in granting the State's motion to allow Detective Smith to remain in the courtroom throughout the proceeding. The purpose of the rule of sequestration is “to avoid a witness coloring his or her testimony by hearing the testimony of another,” thereby discouraging “fabrication, inaccuracy and collusion.” Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.). Section 90.616(2)(c), Florida Statutes (1997), allows an exception to the rule of sequestration for “[a] person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause.” This exception is applied most commonly to expert witnesses because “experts are testifying to their opinions rather than to factual matters.” Ehrhardt, supra § 616.1, at 510. However, as Professor Ehrhardt has noted, in applying this exception to the rule of sequestration, the trial court “has wide discretion in determining which witnesses are essential.” Id. at 509.
While recognizing that Detective Smith was a fact witness, we conclude that the trial court did not abuse its discretion in ruling that the theory underlying exceptions to the rule is equally applicable to the unique facts of this case. Smith was testifying as to what others had testified to two decades earlier, or as to what others had stated in sworn statements. Therefore, he was, in a sense, a reporter of what other individuals had long since said under oath in a recorded statement. His testimony was subject to being carefully checked by comparison to the transcripts of the trial testimony. Obviously, the prior statements of the individuals he was standing in for could not change based upon his presence during the testimony of the witnesses who preceded him. See Randolph v. State, 463 So.2d 186, 191 (Fla.1984) (noting that “[t]his is not a situation where the witness who was excluded from the sequestration rule was a principal actor in the crime, nor is this a case where the testimony of the witness was actually suggested by what he heard in the courtroom”).FN9 Accordingly, Smith's ongoing courtroom presence did not implicate any of the dangers normally implicit when a witness hears other testimony prior to testifying. As such, we conclude that the trial judge acted within his discretion on this issue. FN9. We likewise reject on procedural grounds Knight's claim that statements by the STOL pilot and Detective Ojeda should not have been admitted (through the testimony of Smith) absent a showing that the pilot and the detective were unavailable. Knight did not object to Smith's testimony as to statements made by either of these persons.
FUTURE DANGEROUSNESS AS A NONSTATUTORY AGGRAVATOR
Knight argues that because a defendant's future dangerousness cannot be used as a nonstatutory aggravating circumstance, the State impermissibly turned expert testimony that he had a longstanding mental illness into a nonstatutory aggravator by eliciting testimony that Knight's illness was almost impossible to cure, that Knight needed heavy structure and medication, and other similar comments. Knight further contends that the prosecutor accentuated this impropriety during closing argument by offering that Knight's own expert witness thought he was dangerous and untreatable and one who would “kill, and kill and kill again” if not executed.
The State correctly notes that none of the instances of alleged impropriety were objected to or argued to the trial court and, therefore, they are procedurally barred. See San Martin v. State, 705 So.2d 1337, 1345 (Fla.1997). Ordinarily, allegedly improper prosecutorial comments not constituting fundamental error are not cognizable on appeal absent a contemporaneous objection. See Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). FN10. On the merits, Knight is certainly correct that a future dangerousness nonstatutory aggravating factor does not exist in Florida. See Kormondy v. State, 703 So.2d 454, 463 (Fla.1997) (noting that Florida's death penalty statute “does not authorize a dangerousness aggravating factor”). Of course, “the only matters that may be asserted in aggravation are those set out in the death penalty statute.” See Moore v. State, 701 So.2d 545, 552 (Fla.1997) (Anstead, J., concurring in part and dissenting in part), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998) and cases cited therein. Consequently, there is no such thing as a nonstatutory aggravating factor in Florida. At the same time, the State makes the argument that the prosecutor's “kill, and kill and kill again” comment was a proper statement of the evidence regarding Knight's past murders of Mr. and Mrs. Gans and Officer Burke and not a prediction of future homicidal violence if released. Cf. Walker v. State, 707 So.2d 300, 313-14 (Fla.1997) (finding improper prosecutor's query of neuropsychologist, “[w]ell, do you think [Walker] may kill again?”). Although the comment approaches the border of impropriety, and was probably subject to a valid objection, we conclude that the State did not impermissibly inject Knight's “future dangerousness” into the proceeding as an unlawful nonstatutory aggravating circumstance sufficiently to constitute fundamental error.
JURY INSTRUCTIONS ON CONSECUTIVE LIFE SENTENCES
Knight argues that because he had already served twenty-two years on death row by the time of resentencing, his parole ineligibility was a critical factor to be weighed with the jury's consideration of other mitigators. He contends that because the jury was aware that he could possibly be eligible for parole within three years if sentenced to concurrent life terms, the judge's withholding of his sentencing intentions if this contingency arose skewed the balancing process in favor of death, thus violating the Eighth Amendment. As the State points out, we recently rejected a similar claim in Walker v. State, 707 So.2d 300 (Fla.1997). There, as here, the defendant was accused of a double homicide. Likewise, Walker argued to the jury that consecutive life sentences, each without the possibility of parole for twenty-five years, effectively precluded him from ever being released during his natural life. Id. at 314. While Knight correctly identifies the different times when he and Walker made their motions, the fact that both defense counsel and the trial judge informed the jury here that consecutive life sentences totaling a minimum mandatory of fifty years could be imposed was sufficient to fully apprise the jury of the consequences of a life recommendation, and we find no abuse of discretion in the trial court's ruling. We find that reasoning equally applicable irrespective of when the requested sentencing determination is made.
JURY INSTRUCTION ON KNIGHT'S ABSENCE FROM COURTROOM
Knight was removed from the courtroom on a daily basis due to his refusal to remain silent. Nevertheless, Knight contends on appeal that the judge's explanation to the jury that the proceedings were not started on time because he “would not conform to accepted courtroom behavior” was unfairly prejudicial. Our review of the record reveals that the trial judge bent over backwards to accord Knight his right to be present in the courtroom. Despite rambling monologues and general obstructionist conduct, the trial judge let Knight return to the courtroom every morning for another opportunity to behave properly and remain for the proceeding. However, without exception, Knight daily refused to obey the judge's instruction that he remain silent until the proper time. The judge was remarkably patient, even allowing a lengthy, uninterrupted monologue by Knight on the second day of voir dire, January 24, 1996. Shortly thereafter, Knight was again removed from the courtroom for refusing to obey the judge's instructions. Even then, the judge resolved to give Knight a daily opportunity to act acceptably in court. FN11. Immediately after Knight's second removal from the courtroom, the following exchange took place between the prosecutor, Mr. Laeser, and the trial judge:
Mr. Laeser: I think the first thing that concerns me is whether or not we are going to spend an hour every morning going through the theater of the absurd or whether this proceeding is not going to have the benefit of Mr. Knight on future days. The Court: No. I am afraid that we are going to have to-it was not an hour. I actually counted 25 minutes. I feel obligated to ensure that no other judge is ever going to have to go through this, and I want the defendant here every day. If he can behave and he can announce-or it appears that he can behave, we will let him stay.
Moreover, the judge's actions were consistent with this Court's case law, as well as United States Supreme Court precedent. See Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.”); Valdes v. State, 626 So.2d 1316, 1321 (Fla.1993) (pronouncing that “[t]rial judges must be given sufficient discretion to meet the circumstances of each case where a defendant disrupts the proceedings”); Diaz v. State, 513 So.2d 1045, 1047 (Fla.1987) (applying Allen in finding that the “court's obligation to maintain safety and security in the courtroom outweighs, under proper circumstances, the risk that the security measures may impair the defendant's presumption of innocence”); accord Joseph v. State, 625 So.2d 109 (Fla. 3d DCA 1993). We find no error in the judge's instruction to the jury.
From the record it is apparent that Knight had every opportunity to remain in the courtroom, but chose to misbehave. Indeed, his consistently obstinate behavior, which he undoubtedly knew would cause his exclusion from the courtroom, also borders on invited error. See San Martin v. State, 705 So.2d 1337, 1347 (Fla.1997) (prohibiting party from inviting error and then complaining about it on appeal). Accordingly, we find that the judge acted within his discretion in repeatedly removing Knight from the courtroom, especially considering the testimony of numerous guards and jailhouse officials that Knight's out-of-court demeanor was completely at odds with his in-court histrionics. The judge's explanation to the jury was reasonable because it accurately reflected the obvious ongoing dilemma of the trial court in balancing Knight's rights with the need to maintain proper order and decorum in the courtroom.
DR. MILLER'S TESTIMONY
In his next claim of error, Knight correctly notes that Dr. Lloyd Miller had been twice appointed by the court for the sole purpose of evaluating Knight's competence and each time concluded that he was a malingerer. However, Knight claims that the State improperly called Dr. Miller to testify during its rebuttal case in violation of the confidentiality provision of Florida Rule of Criminal Procedure 3.211, Knight's Fifth Amendment right against self-incrimination, and his Sixth Amendment right to counsel. Knight also asserts that Dr. Miller's testimony was irrelevant and exceeded the proper scope of rebuttal.
At the outset, we agree with the State that Knight never raised the confidentiality provision, Fifth Amendment, or Sixth Amendment issues in the trial court. Therefore, those sub-claims are procedurally barred. See San Martin, 705 So.2d at 1345 (citing Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982), for proposition that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below”). As to the proper scope of rebuttal, the State persuasively argues that the defense opened the door to Dr. Miller's rebuttal testimony by addressing the issue of Knight's competence and referencing Dr. Miller's competency examination report itself. Appellee's Answer Brief at 57-58. Miller's testimony focused exclusively on the manner in which he conducts competency evaluations in general and some of the questions he asked Knight in particular. Therefore, we can discern no unfair prejudice to Knight from this line of questioning. Accordingly, we find no merit in this claim.
REMOVAL OF JURORS WELDON, ZARIBAF, AND CUNNINGHAM
As his next claim of error, Knight challenges the trial court's removal of jurors Weldon, Zaribaf, and Cunningham because of extrinsic communications with a courthouse employee. For example, juror Cunningham told the trial court that the employee said that Knight was “a total pscyho ... he is in a wheelchair ... [and] he is trying to starve himself to death.” Despite asking the employee to cease commenting about the case three times, the employee kept talking and also mentioned that Knight had tried to commit suicide. During individual voir dire after the incident, all of the jurors said they could set it aside and be fair to both parties. However, on the State's motion, the court excused the three jurors on the basis that they now had outside information about Knight. Knight contends that the trial court's ruling violated his right to counsel because he alone was prejudiced by this improper contact, not the State.
We conclude that this incident presented a presumptive instance of prejudice where the jurors heard obviously improper commentary from a courthouse employee relating to Knight's mental health problems. Accordingly, we find no abuse of discretion in the trial court's removal of the three jurors.
Knight claims that through comments and questions to defense expert witnesses, the prosecutor placed before the jury irrelevant, highly prejudicial and inflammatory information. However, we agree with the State that this claim is procedurally barred because none of these arguments were raised in the trial court. San Martin, 705 So.2d at 1345. Even if this issue was properly preserved, we still would find no error. Although one of the cited prosecutor's comments regarding the value of Knight's and victims' lives was clearly improper, see Urbin, 714 So.2d at 420-21, we conclude this isolated instance of misconduct was not egregious enough to warrant voiding of the entire proceeding. See Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985); see also Shellito v. State, 701 So.2d 837, 842 (Fla.1997) (determining that prosecutor's “brief reference to [defendant's] lack of remorse was of minor consequence and constituted harmless error”), cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140 L.Ed.2d 686 (1998).
JURY INSTRUCTIONS ON MERGING OF AGGRAVATORS
Knight next claims that the trial court erred in refusing to instruct the jury on the merging of aggravators based on a common aspect of the offense. Knight contends that because the jurors could properly conclude that the kidnapping merged with either the HAC, avoid arrest, or pecuniary gain aggravators, the failure to give the merging instruction undermined the reliability of the jury's sentencing recommendation. We agree with the State that this issue was not preserved below because no such argument regarding these specific grounds was made. Therefore, this claim is procedurally barred. San Martin; Gore v. State, 706 So.2d 1328 (Fla.1997), cert. denied, 525 U.S. 892, 119 S.Ct. 212, 142 L.Ed.2d 174 (1998).
JURY INSTRUCTION ON PRIOR VIOLENT FELONY AGGRAVATOR
Knight claims that the trial court erred in instructing the jury on the prior violent felony aggravator. The State correctly notes that under Elledge v. State, 346 So.2d 998 (Fla.1977), and its progeny, previous violent felony convictions suffice for purposes of the prior violent felony aggravator so long as the convictions predate the sentencing, even when the crimes underlying the conviction occurred after the crime for which the defendant is being sentenced. Moreover, the State is also correct that even if the above analysis was inapplicable, any error would be harmless since each of the contemporaneous murders involved herein qualify as prior violent felony convictions, a rule of law recently reaffirmed by this Court. See Mahn v. State, 714 So.2d 391, 399 (Fla.1998) (citing Windom v. State, 656 So.2d 432, 440 (Fla.1995)).
JURY INSTRUCTION ON CCP AGGRAVATOR
Knight next asserts that the application of the CCP aggravator to the crimes he committed in 1974 is an ex post facto violation because the legislature did not enact that aggravator until 1979. Knight further contends that both the aggravator and jury instruction are unconstitutionally vague. As Knight acknowledges, we have previously determined that application of the CCP aggravator in this situation is not an ex post facto violation. Combs v. State, 403 So.2d 418 (Fla.1981). Moreover, the jury instruction given here was the same instruction approved in Jackson v. State, 648 So.2d 85 (Fla.1994), an interim instruction we have repeatedly found constitutional. FN12 See, e.g., Walker, 707 So.2d at 316; Bell v. State, 699 So.2d 674, 678 (Fla.1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998). FN12. The new standard CCP jury instruction was approved by this Court on December 7, 1995. See Standard Jury Instructions in Criminal Cases, 665 So.2d 212 (Fla.1995).
REQUESTED JURY INSTRUCTION ON STATUTORY MENTAL MITIGATORS
Knight argues that the trial court's refusal to give expanded jury instructions on statutory mental mitigators was error because, among other things, Dr. Mutter suggested that to qualify as mitigating, a mental disturbance must be such that Knight did not know right from wrong. We find no error in the trial court's refusal to issue the expanded instructions. This Court has repeatedly upheld the Florida standard jury instructions on mitigators, without requiring more. Walls v. State, 641 So.2d 381, 389 (Fla.1994). Accordingly, we affirm the trial court's ruling on this issue.
IMPOSITION OF DEATH SENTENCE
Knight challenges the evidentiary basis of the trial court's imposition of death in this case. He contends that the trial court improperly weighed the proffered mitigation and erroneously found six aggravators. The trial judge's lengthy and detailed sentencing order, replete with citations to the record and case law, is a comprehensive evaluation of all the salient weighing factors. The trial judge specified the sometimes conflicting evidence presented, analyzed the evidentiary basis of the proposed aggravators, evaluated the proffered mitigators and weighed those he found established. He further assessed the credibility of the expert witnesses, assigned weight to the expert opinions, and ruled accordingly. Consequently, Knight is hard pressed to show that the trial court erred in carrying out its responsibility to carefully consider each of the relevant aggravators and mitigators and assign proportionate weight to each.
As to the aggravators, the trial court's sentencing order details the evidence in support of the aggravators it found. As demonstrated above in our discussion on another issue, there really is no debate as to the validity of the prior violent felony aggravator. Likewise, the evidence outlined above supports the judge's finding that the murders were committed for pecuniary gain, especially the fact that even in flight, Knight still had the presence of mind to retain the paper bag containing $50,000. Similarly, there can be little doubt that the murders were committed during the commission of a kidnapping. Further, as noted in the judge's sentencing order, Knight did not challenge the applicability of this aggravator in his sentencing memorandum to the court. Hence, the finding as to three statutory aggravators is virtually undisputed.
As we have recently reaffirmed, to support a valid avoid arrest aggravator where the victim is not a law enforcement officer, “the proof must demonstrate beyond a reasonable doubt that the victim was murdered solely or predominantly for the purpose of witness elimination.” Urbin, 714 So.2d at 416. In finding that the State had met that burden in this case, the trial court observed: Had the sole motive for the murders been financial gain, the defendant's purpose would have been accomplished upon the receipt of the money. Even if he had wanted to perfect his get-away he could have taken the car after he asked the Ganses to exit the vehicle and driven away. His actions clearly indicate however that he ordered them back into the car, told them to drive to an even more secluded area and executed them. Obviously, Knight had some purpose in mind, regardless of the state of his mental faculties, in killing the victims execution style at the end of his rambling journey to a remote location. We conclude that although the issue may be contested, there is sufficient evidence, including circumstantial evidence, to support the trial court's finding. Hence, we affirm the trial court's finding of the avoid arrest aggravator. Urbin.
However, as to HAC, we conclude that the trial court's description of the victims' ordeal during the time they were being abducted up to and including the time they were murdered was largely based upon conjecture and speculation. While the trial court's speculation as to what took place may well have occurred, there simply is no evidence in the record to fill in this void in the tragic episode or to rule out other possible scenarios. There simply is no evidence of what took place between the victims and Knight during the trip in the automobile before the execution-style killings took place. Hence, we conclude that the trial court erred in finding this aggravator. However, we find the error harmless in view of the finding of five other valid aggravators.
Finally, as to CCP, the trial court cited evidence to support a finding as to all elements of that aggravator. Even if Knight did not make the final decision to execute the two victims until sometime during his lengthy journey to his final destination, that journey provided an abundance of time for Knight to coldly and calmly decide to kill. Based on our own review of the evidence in the record, we affirm the trial court's finding of this aggravator.
As to mitigation, in Chandler v. State, 702 So.2d 186 (Fla.1997), we reiterated the approved procedure by which trial courts must address such proffered evidence: The sentencing judge must expressly evaluate in his or her sentencing order each statutory and non-statutory mitigating circumstance proposed by the defendant. This evaluation must determine if the statutory mitigating circumstance is supported by the evidence and if the non-statutory mitigating circumstance is truly of a mitigating nature. A mitigator is supported by evidence if it is mitigating in nature and reasonably established by the greater weight of the evidence. Id. at 200 (quoting Ferrell v. State, 653 So.2d 367, 371 (Fla.1995)). As a general matter, if the trial court conducts the proper inquiry, see Walker, 707 So.2d at 319 (directing trial courts to conduct “a thoughtful and comprehensive analysis of any evidence that mitigates against the imposition of the death penalty”), it is within its power to determine whether mitigating circumstances have been established by a preponderance of the evidence. Foster v. State, 679 So.2d 747, 755 (Fla.1996). On the discrete issue of expert psychological evaluations of a defendant's mental health, “expert testimony alone does not require a finding of extreme mental or emotional disturbance. Even uncontroverted opinion testimony can be rejected, especially when it is hard to reconcile with the other evidence presented in the case.” Id. at 755 (citation omitted); see also Walls, 641 So.2d at 390-91 (reasoning that opinion testimony “gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking”).
In this case, the trial judge spent over twenty pages evaluating Knight's proffered mitigators. The judge resolved the conflicts in the evidence regarding the statutory mental mitigators against Knight, finding the State's expert witnesses more credible and compelling. Consequently, after devoting nine pages in analyzing the often contradictory expert testimony, the judge found that the statutory mental mitigators had not been established. As underscored in Chandler, this is the process required by Campbell v. State, 571 So.2d 415 (Fla.1990), and Ferrell. See Chandler, 702 So.2d at 201. Moreover, because we find that the trial court properly considered and weighed all of the evidence presented, we find no error in the court's rejection of Knight's proffered statutory mental mitigators. Foster; accord Gudinas v. State, 693 So.2d 953, 967 (Fla.) (affirming trial court's rejection of statutory mental mitigator where court concluded expert's opinion was “too heavily based upon unsupported facts”), cert. denied, 522 U.S. 936, 118 S.Ct. 345, 139 L.Ed.2d 267 (1997). While the judge found no statutory mitigators established, we also recognize that the judge found and weighed the proffered nonstatutory mitigation, including the fact that Knight suffered from “some degree of paranoia.” The judge then properly exercised his discretion and determined that the nonstatutory mitigation had been established. Chandler, 702 So.2d at 201. We find no error in the trial court's handling of the various sub-claims in this issue.
In conjunction with our consideration of the previous claim, we address the issue of proportionality, as is our constitutional duty.FN13 See Art. I, § 17, Fla. Const.; Tillman v. State, 591 So.2d 167, 169 (Fla.1991) (identifying several state constitutional provisions which collectively mandate proportionality review in capital cases, “the purpose of which is to foster uniformity in death-penalty law”); see also Urbin, 714 So.2d at 417 (reaffirming that “proportionality review involves consideration of ‘the totality of circumstances in a case’ in comparison with other death penalty cases”). FN13. Neither party addressed this issue in their briefs. After fully considering the evidence in this case as we have outlined above, we conclude that Knight's death sentences are proportional to other cases where sentences of death have been imposed. See Rolling v. State, 695 So.2d 278 (Fla.) (affirming death sentences for multiple murders despite defendant's significant statutory and nonstatutory mental mitigation, including family's history of mental illness and defendant's physically and mentally abusive childhood), cert. denied, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997); Henyard v. State, 689 So.2d 239 (Fla.1996) (affirming two death sentences despite trial court's finding of both statutory mental mitigators and nonstatutory mitigation involving defendant's stunted emotional level, low intelligence, impoverished upbringing, and dysfunctional family), cert. denied, 522 U.S. 846, 118 S.Ct. 130, 139 L.Ed.2d 80 (1997).
EXTENDED DEATH ROW INCARCERATION AS CRUEL AND UNUSUAL PUNISHMENT
Finally, Knight claims that to execute him after he has already endured more than two decades on death row is unconstitutionally cruel and unusual punishment. He also argues that Florida has forfeited its right to execute Knight under binding norms of international law. Although Knight makes an interesting argument, we find it lacks merit. As the State points out, no federal or state courts have accepted Knight's argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay. See, e.g., White v. Johnson, 79 F.3d 432 (5th Cir.1996); State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996). We also note that the Arizona Supreme Court recently rejected this precise claim. See State v. Schackart, 190 Ariz. 238, 947 P.2d 315, 336 (1997) (finding “no evidence that Arizona has set up a scheme prolonging incarceration in order to torture inmates prior to their execution”), cert. denied, 525 U.S. 862, 119 S.Ct. 149, 142 L.Ed.2d 122 (1998). Second, we also consider that irrespective of the status of this case, Knight has been and will remain incarcerated on death row for his 1980 murder of Officer Burke until that case is finalized. We similarly reject Knight's claim under international law.
Accordingly, we affirm Knight's sentences of death. It is so ordered. SHAW, KOGAN, ANSTEAD and PARIENTE, JJ., concur. HARDING, C.J., concurs specially with an opinion, in which OVERTON, J., concurs. WELLS, J., concurs in part and dissents in part with an opinion.
HARDING, C.J., specially concurring.
I write separately to express my agreement with the majority's conclusion that the trial court erred in finding the heinous, atrocious, or cruel aggravating factor applicable in the instant case. I also write to explain why the instant case is distinguishable from Preston v. State, 607 So.2d 404 (Fla.1992), which both the sentencing order and Justice Wells cite in support of applying the HAC aggravator in this case.
As expressed in its sentencing order, the trial court concluded that the heinous, atrocious, or cruel nature of the murders committed by Knight “lies not in the method of [the victims'] execution[-]style murder[s] but in the torturous hours that preceded them.” Execution-style killings are not generally HAC unless the State has presented other evidence to show some physical or mental torture of the victim. Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). While the factual circumstances preceding the victims' killings in the instant case (being abducted at gunpoint, being coerced to withdraw money from their bank account, and being forced to drive to the remote location where they were shot) are supported by the record, the court's description of the victims' thoughts and feelings during their ordeal is based on conjecture and speculation. The sentencing order repeatedly states that the events “must have been horrifying” to the victims and that they must have anticipated “a horrible and painful death.” “Speculation that the victim may have realized that the defendant[ ] intended more than a robbery when forcing the victim to drive to the field is insufficient to support [the HAC] aggravating factor.” Hartley, 686 So.2d at 1323-24.
In order for the HAC aggravating circumstance to apply, the murder must be both conscienceless or pitiless and unnecessarily torturous to the victim. Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992). While I agree with the trial court that “common sense” tells us that almost anyone faced with a loaded weapon would experience uncertainty, confusion, and fear, these normal responses are not enough to support the HAC aggravator nor do they rise to the level of “unnecessarily torturous to the victim,” without additional acts that set the crime apart from the norm of capital felonies. See, e.g., Wyatt v. State, 641 So.2d 1336, 1340-41 (Fla.1994) (concluding that HAC finding was proper based upon victims' “mental anguish” where defendant subjected them to twenty minutes of abuse prior to their deaths, including pistol-whipping one victim, raping the second victim, and taunting the third victim “to listen real close to hear the bullet coming” as he aimed a gun at the victim's ear); Rivera v. State, 561 So.2d 536, 540 (Fla.1990) (upholding HAC based upon “fear and emotional strain preceding a victim's death” where defendant abducted eleven-year-old girl, took her to a field where he sexually assaulted her, and testimony indicated that victim screamed and resisted until he was able to kill her by asphyxiation); Adams v. State, 412 So.2d 850, 857 (Fla.1982) (upholding HAC based upon “fear and emotional strain” preceding eight-year-old girl's death where record evidence showed that victim was “screaming” prior to death and was strangled by defendant).
In Preston, we concluded that the victim “[u]ndoubtedly” suffered fear and terror when Preston forced her “to drive to a remote location, made her walk at knifepoint through a dark field, forced her to disrobe, and then inflicted a wound certain to be fatal.” Preston, 607 So.2d at 409. While this language might appear to support the application of the HAC aggravator in the instant case, the language of Preston must be considered within the factual circumstances of that case. The wound that Preston inflicted was “ ‘[t]he deliberate slashing of the throat of the victim from one side to the other with the force necessary to sever the jugular veins, trachea and main arteries.’ ” Preston v. State, 444 So.2d 939, 945 (Fla.1984) (quoting from the original sentencing order).FN14 This knife wound to the victim's throat resulted “in her near decapitation.” 607 So.2d at 406. The victim also sustained “multiple stab wounds and lacerations.” Id.
FN14. On appeal from the denial of relief on Preston's second postconviction motion, this Court vacated Preston's death sentence and ordered resentencing. Preston v. State, 564 So.2d 120 (Fla.1990). Preston's prior felony conviction was set aside due to ineffective assistance of trial counsel, leaving only two of the four aggravating circumstances found by the trial court. Obviously, the factual circumstances of the wounds inflicted on the victim did not change when the original sentencing order was vacated by this Court.
This Court has consistently upheld the heinous, atrocious, or cruel aggravator where the victim was repeatedly stabbed. See Derrick v. State, 641 So.2d 378, 381 (Fla.1994); Floyd v. State, 569 So.2d 1225, 1232 (Fla.1990); Haliburton v. State, 561 So.2d 248, 252 (Fla.1990); Nibert v. State, 508 So.2d 1, 4 (Fla.1987); Johnston v. State, 497 So.2d 863, 871 (Fla.1986). Thus, the very nature of the attack in Preston supported the HAC finding. This was also the circumstance in many of the cases where the “fear and emotional strain preceding [the] victim's almost instantaneous death” was considered as contributing to the heinous nature of the murder. Adams, 412 So.2d at 857 (finding that victim's murder by strangulation was HAC and noting that Court has found this method of homicide to be HAC); see also Hitchcock v. State, 578 So.2d 685, 693 (Fla.1990) (upholding HAC aggravator and stating that strangulations are nearly per se heinous). If we approved the application of the HAC aggravating factor in the instant case without some factual proof of the victims' mental torture, then the factor would apply in every instance where a normal person might feel fear. This would exclude only those homicides where the victim was ambushed or killed without awareness of the assailant. This clearly would go far beyond finding the HAC factor to be “appropriate in a ‘conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” Richardson, 604 So.2d at 1109 (quoting Sochor v. Florida, 504 U.S. 527, 536, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992)). I believe that such a broad interpretation of the HAC aggravating factor would render it unconstitutional because it would not provide the sentencer with adequate guidance. See Sochor, 504 U.S. at 536, 112 S.Ct. 2114. Accordingly, I conclude that the HAC factor is not permissible based on the present facts and concur with the majority opinion in striking this aggravator.
OVERTON, J., concurs.
WELLS, J., concurring in part and dissenting in part.
I concur in result only with the majority's decision. I do not concur with footnote 10 that the prosecutor's comment was “probably subject to a valid objection.” Further, I do not concur in the striking of HAC, and I believe under these facts that HAC is supported by competent, substantial evidence and that the application of the aggravator is consistent with this Court's decision in Preston v. State, 607 So.2d 404 (Fla.1992). To conclude that this ordeal, which lasted several hours, did not provide factual proof of the victims' mental torture means that our law has to ignore the obvious and defy common sense and human experience. I do not believe our law has to do this, and I will not. While I agree that the length of time Knight has been on death row does not create a constitutional impediment to his execution, I do again state my view that such an extended time period to finally adjudicate these cases is totally unacceptable and is this Court's and the State's prime responsibility to correct. See Elledge v. Florida, 525 U.S. 944, 119 S.Ct. 366, 142 L.Ed.2d 303 (1998) (No. 98-5410) (Breyer, J., dissenting). The murders in this case were committed in July 1974; Knight was convicted of the murders in April 1975. The courts and the State must be able to do better, and any explanation of why we are unable to do so is insufficient.
Muhammad v. Secretary, Florida Dept. of Corrections, 733 F.3d 1065 (11th Cir. 2013). (Habeas-Gans-Reversing Granting of Writ)
Background: Following affirmance of his state-court conviction for capital murder, 338 So.2d 201, petitioner sought federal habeas relief. The United States District Court for the Southern District of Florida, Adalberto Jordan, J., 905 F.Supp.2d 1281, conditionally granted petition. State appealed.
Holdings: The Court of Appeals, Pryor, Circuit Judge, held that: (1) hearsay testimony at resentencing hearing did not violate defendant's Confrontation Clause rights, and (2) retroactive application on resentencing of the cold, calculated, and premeditated statutory aggravating factor did not violate Ex Post Facto Clause. Reversed. Wilson, Circuit Judge, filed opinion concurring in part and dissenting in part.
PRYOR, Circuit Judge:
To learn about the gridlock and inefficiency of death penalty litigation, look no further than this appeal. Askari Abdullah Muhammad kidnapped and murdered Sydney and Lillian Gans four decades ago, in 1974. A Florida jury convicted Muhammad of murder, a Florida judge sentenced him to death, and the Supreme Court of Florida affirmed his conviction and sentence on direct appeal. While he awaited state collateral review, Muhammad killed again; this time, Muhammad murdered a prison guard because he was upset that he had been denied permission to meet with a visitor. In 1988, after the Florida courts denied Muhammad postconviction relief, we granted Muhammad's petition for a writ of habeas corpus and vacated his death sentence because of impermissible comments by the trial judge and counsel for both parties. A state trial judge resentenced Muhammad to death, and the Supreme Court of Florida again affirmed his conviction on direct appeal and collateral review, but in 2012 the district court granted Muhammad a federal writ of habeas corpus on the ground that his right to confrontation had been violated at his resentencing hearing.
Now, four decades after Muhammad killed Sydney and Lillian, we reverse the grant of the writ and deny Muhammad's petition. Muhammad's claim that the admission of hearsay testimony at his resentencing hearing violated his rights under the Confrontation Clause, U.S. Const. Amend. VI, fails because hearsay is admissible at capital sentencing and Muhammad had an opportunity to rebut the hearsay. Muhammad's claim that the application of the cold, calculated, and premeditated statutory aggravating factor violated his rights under the Ex Post Facto Clause, id. Art. I, § 9, fails because the retrospective application of the factor did not disadvantage Muhammad. We reverse the judgment in favor of Muhammad and render a judgment in favor of the Secretary.
On July 17, 1974, Muhammad (who then was named Thomas Knight) kidnapped and murdered Sydney and Lillian Gans near Miami, Florida. When Sydney arrived at work that Wednesday morning and parked his Mercedes Benz car, Muhammad ambushed him and ordered him back into the car. Muhammad commanded Sydney to drive home and pick up his wife, Lillian, and then to drive to a bank and retrieve $50,000 in cash. Sydney went inside the bank to retrieve the money, but he also told the bank president that Muhammad was holding him and his wife hostage. The bank president alerted the police and Federal Bureau of Investigation.
Muhammad then forced Sydney and Lillian to drive toward a secluded area on the outskirts of Miami. Police officers in street clothes shadowed the Mercedes in unmarked cars. A helicopter and a small fixed-wing surveillance airplane also eventually joined the surveillance. The officers followed the vehicle, but they lost sight of the car for about four or five minutes. During that time, Muhammad killed Sydney and Lillian with gunshots to the neck that he fired from the back seat of the car. The police found the vehicle sitting in a construction area with the front passenger door, the right rear passenger door, and the trunk open. Police saw Muhammad running away from the vehicle and toward a wooded area with an automatic rifle in his hands. Police found the dead body of Lillian behind the steering wheel and the dead body of Sydney about 25 feet from the vehicle. About four hours later, police apprehended Muhammad about 2,000 feet from the vehicle. Muhammad had blood stains on his pants; buried beneath him in the dirt were an automatic rifle and a paper bag containing $50,000.
In September 1974, Muhammad escaped from prison. After a massive nationwide manhunt, police finally captured Muhammad in December 1974. In 1975, a Florida jury convicted Muhammad of the murders of Sydney and Lillian, and the trial judge sentenced him to death. The Supreme Court of Florida affirmed his conviction and sentence on direct review. See Knight v. State, 338 So.2d 201 (Fla.1976). In 1980, while Muhammad's petition for postconviction relief was pending before Florida state courts, Muhammad killed again. This time, he fatally stabbed a prison guard, Officer James Burke. Muhammad killed Burke because he was upset that he had been denied permission to meet with a visitor. Muhammad was convicted and sentenced to death for that murder too, and Muhammad currently awaits execution for the murder of Burke.
After his convictions for the murders of Sydney and Lillian became final, Muhammad embarked on an odyssey for postconviction relief that has spanned more than three decades. The Florida state courts denied Muhammad postconviction relief. See Knight v. State, 394 So.2d 997 (Fla.1981); Muhammad v. State, 426 So.2d 533 (Fla.1982). After a federal district court denied Muhammad's petition for a writ of habeas corpus, we vacated his death sentence, but not his conviction. Knight v. Dugger, 863 F.2d 705 (11th Cir.1988). We held that comments of the trial judge, prosecutor, and defense counsel suggested that the jury was permitted to consider only statutory mitigating factors at the penalty phase, in violation of the Eighth and Fourteenth Amendments, U.S. Const. Amends. VIII, XIV, as interpreted by the Supreme Court of the United States in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Knight, 863 F.2d at 709–10. We remanded the matter for the State to either resentence Muhammad or impose a lesser sentence than death. Id. at 710. Eight years later, in 1996, a Florida trial court resentenced Muhammad to death for the murders of Sydney and Lillian. This appeal concerns whether Muhammad's rights under the Confrontation Clause and the Ex Post Facto Clause were violated at that resentencing hearing.
At Muhammad's resentencing hearing, Detective Greg Smith testified on behalf of the State about some of the evidence presented at the guilt phase of Muhammad's trial. Smith had not testified at the trial in 1975, but he had been assigned to the case after the lead investigator, Detective Julio Ojeda, retired from the police force. Smith's testimony began on January 31, 1996. When Smith first began to testify about the sworn testimony of one of Sydney's co-workers named Milton Marinek, Muhammad's lawyer objected that Smith's testimony would violate Muhammad's rights under the Confrontation Clause. Muhammad's lawyer argued that Smith was “telling the jury what other people did, what other people said, ... and the objection I raise is this violates the ... confrontation rights of the defendant.” Muhammad requested a “continuing objection” to Smith's testimony. The trial court overruled Muhammad's objection, but stated that it “will accept this objection as a continuing objection for all testimony from this witness referring to what other people told him or anything that is hearsay.” After Smith completed his summary of Marinek's trial testimony, the prosecutor asked Smith to discuss prior statements of Howard Perry, who witnessed Sydney and Muhammad arrive at the Gans home to pick up Lillian. Muhammad's lawyer objected that the State did not present evidence that “Perry is dead or deceased and cannot be here to testify.” The district court overruled the objection and told Muhammad's lawyer, “You have made your confrontation rule argument. I have accepted your objection, your object [sic] to all of it. I don't want another sidebar on the subject of hearsay. You have preserved your record.” Smith then testified about the prior statements of Perry.
Smith then testified about prior statements of Detective Ojeda, the lead investigator. Smith's summary was based on both the testimony of Ojeda during the guilt phase of Muhammad's trial and written reports that Ojeda prepared in the investigation. Muhammad did not object that the State failed to establish that Ojeda was unavailable to testify. After Smith testified at length about Ojeda's prior statements, Muhammad raised what he called a “due process” objection to Smith's testimony. Muhammad objected that, when Smith provided a summary of Ojeda's prior statements, Smith failed to distinguish between Ojeda's statements at trial and his statements in the written reports. The district court overruled that objection.
Smith's testimony established that Ojeda tracked Muhammad's vehicle based on information that the police dispatcher provided him. Ojeda then pursued the vehicle on foot and eventually discovered the vehicle and Lillian's dead body inside. Ojeda then saw, about 150 feet away, a black man running away from the vehicle. The man turned and pointed his gun in the direction of Ojeda, who took cover and lost sight of the suspect. When he took cover, Ojeda heard the surveillance helicopter overhead and motioned for the pilot to fly toward the person Ojeda saw running away from the vehicle. Ojeda later identified Muhammad as the man he saw running away from the vehicle. At his resentencing hearing, Muhammad attempted to establish that the murders of Sydney and Lillian were not premeditated. Muhammad argued that he never intended to kill Sydney and Lillian when he ordered them to drive to the outskirts of Miami. Muhammad presented expert testimony that he suffered from schizophrenia and that he “snapped” and lost self-control when he discovered that the police and aircraft were following him. Muhammad argued, based on this testimony, that the murders were not premeditated. A critical issue at the sentencing hearing concerned when Muhammad became aware of the police surveillance.
To rebut Muhammad's suggestion that the murders were not premeditated, the State argued that Muhammad was unaware of the police surveillance at the time of the murders. On February 7, 1996, as part of its rebuttal case, the State recalled Detective Smith to the witness stand. Smith testified about a sworn statement that the helicopter pilot gave to police and the trial testimony and a sworn statement of the airplane pilot. Muhammad's lawyers never objected that Smith's rebuttal testimony about the pilots violated the Confrontation Clause or that the State failed to establish that the airplane pilot was unavailable to testify at the resentencing hearing. Smith's testimony established that neither the helicopter pilot nor the airplane pilot located Muhammad until after he had killed Sydney and Lillian. According to Smith, the airplane pilot testified that he had first located the vehicle after it was stopped and Muhammad had already left the vehicle. And the helicopter pilot testified that he was not asked to join the search until about the time of the murders, but that police ordered him to land when they lost sight of the vehicle to ensure that the surveillance would not be compromised. The helicopter pilot did not return to the air until after the vehicle had been found and Muhammad was on foot. When Muhammad's lawyer asked Smith if he thought that Muhammad had heard the helicopter, Smith replied, “Absolutely not.” The State argued, based on Smith's testimony and the evidence that only plainclothes officers and unmarked vehicles participated in the surveillance, that Muhammad did not become aware of police surveillance until after he committed the murders.
The jury recommended that Muhammad should be sentenced to death, and the trial court imposed a sentence of death. The trial court found that six statutory aggravating factors applied to the murders, including that Muhammad committed the murder in a cold, calculated, and premeditated manner. The five other statutory aggravating factors were that (1) Muhammad committed other violent felonies, including the contemporaneous murder of the other victim; (2) Muhammad committed the murders during the course of a kidnapping; (3) Muhammad murdered Sydney and Lillian to avoid arrest; (4) Muhammad acted for pecuniary gain; and (5) the murders were especially heinous, atrocious, and cruel. The Supreme Court of Florida affirmed the sentence of death. See Knight v. State, 746 So.2d 423 (Fla.1998).
Muhammad argued on direct appeal to the Supreme Court of Florida that Smith's testimony about the prior statements of Ojeda, the helicopter pilot, and the airplane pilot violated his rights under the Confrontation Clause. Muhammad argued that the statements of Ojeda and the pilots were inadmissible hearsay and that the State never established that Ojeda and the airplane pilot were unavailable to testify at the resentencing hearing. The State responded both that Muhammad waived those arguments and that the trial testimony was admissible. The Supreme Court of Florida rejected Muhammad's claim on procedural grounds. The Supreme Court of Florida stated that, “because [Muhammad] never specifically objected to Smith's testifying as to the contents of the pilot's statement, we find this claim procedurally barred.” Id. at 430. And the Supreme Court of Florida stated that it “likewise reject[s] on procedural grounds [Muhammad's] claim that statements by the [airplane] pilot and Detective Ojeda should not have been admitted (through the testimony of Smith) absent a showing that the pilot and the detective were unavailable” because “[Muhammad] did not object to Smith's testimony as to statements made by either of these persons.” Id. at 430 n. 9.
Muhammad also argued that the application of the “cold, calculated, and premeditated” aggravating factor violated his rights under the Ex Post Facto Clause, but the Supreme Court of Florida rejected that argument too. Id. at 434. The Supreme Court of Florida acknowledged that Muhammad committed the murders in 1974, five years before the legislature enacted the aggravator in 1979. Id. But the Supreme Court of Florida explained that it had already held in Combs v. State, 403 So.2d 418 (Fla.1981), that the “application of the [cold, calculated, and premeditated] aggravator in this situation is not an ex post facto violation.” Knight, 746 So.2d at 434. The Supreme Court of Florida later denied Muhammad postconviction relief. Knight v. State, 923 So.2d 387 (Fla.2005).
On November 9, 2012, more than half a decade after the Supreme Court of Florida denied Muhammad postconviction relief, the district court granted Muhammad's petition for a federal writ of habeas corpus on the ground that Muhammad's right to confrontation had been violated at his resentencing hearing. The district court concluded that the procedural bar applied by the Supreme Court of Florida was “inadequate” because Muhammad's general standing objection to Smith's hearsay testimony preserved the more specific claims that he raised before the Supreme Court of Florida. The district court applied de novo review, instead of the deferential standard of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), because the Supreme Court of Florida had not reached the merits of Muhammad's claims under the Confrontation Clause. The district court concluded that the right to confrontation applies at capital sentencing. Although the district court acknowledged that the Supreme Court had held in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), that unsworn and out-of-court statements are admissible at capital sentencing proceedings, the district court concluded that we had held in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), that Williams was abrogated and that the right to cross-examine adverse witnesses applies to capital sentencing. The district court ruled that Muhammad's confrontation rights were violated because the State never established that the testimony of the helicopter pilot was reliable or that the helicopter pilot and Ojeda were unavailable to testify at the resentencing hearings. And the district court ruled that the error was not harmless. The district court granted Muhammad's petition for a writ of habeas corpus and instructed Florida to either resentence Muhammad or commute his sentence to life imprisonment.
The district court also concluded that the Supreme Court of Florida did not err when it decided that the application of the cold, calculated, and premeditated aggravator was not a violation of the Ex Post Facto Clause. The district court reasoned that it was bound by our decision in Francis v. Dugger, 908 F.2d 696 (11th Cir.1990), which held that a retrospective application of the factor did not violate the Ex Post Facto Clause. Florida appealed the grant of Muhammad's petition, and Muhammad cross-appealed the denial of relief on the ground that the application of the cold, calculated, and premeditated factor violated the Ex Post Facto Clause.
II. STANDARD OF REVIEW
We review de novo the grant or denial of a writ of habeas corpus by a district court. Fotopoulos v. Sec'y, Dep't of Corr., 516 F.3d 1229, 1232 (11th Cir.2008); Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir.2002). If a state court adjudicates a federal claim on the merits and denies relief on that claim, we cannot grant a petition for a writ of habeas corpus based on that claim unless the adjudication of that claim resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); see Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). But if a state court “did not reach the merits of [the petitioner's] claim, federal habeas review is not subject to the deferential standard that applies under [section 2254(d)] to ‘any claim that was adjudicated on the merits in State court proceedings.’ Instead, the claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (citation omitted).
We divide our discussion in two parts. First, we discuss why the admission of Smith's testimony did not violate Muhammad's rights under the Confrontation Clause. Second, we discuss why the adjudication by the Supreme Court of Florida of Muhammad's claim about the cold, calculated, and premeditated aggravating factor did not result in a decision that was contrary to or based on an unreasonable application of clearly established law.
A. Admission of Smith's Testimony Did Not Violate Muhammad's Rights Under Confrontation Clause.
We divide our discussion of Muhammad's claim under the Confrontation Clause in two parts. First, we discuss why we do not decide whether the procedural bar of Florida was an adequate bar to relief. Second, we discuss why Muhammad's rights under the Confrontation Clause were not violated because hearsay is admissible at capital sentencing and Muhammad had an opportunity to rebut the hearsay.
1. We Need Not Decide Whether the Procedural Bar of Florida Was Adequate.
Before we address the merits of the claim under the Confrontation Clause, we first explain why we do not address the argument of the Secretary that Muhammad procedurally defaulted that claim. The Supreme Court of Florida denied Muhammad's claim under the Confrontation Clause on the ground that Muhammad failed to make a contemporaneous and specific objection to Smith's testimony about prior statements of Ojeda and the pilots. When a state court dismisses a federal claim on a state procedural ground, we treat the claim as procedurally barred and dismiss it without reaching its merits, unless the procedural bar is not an “independent” and “adequate” bar to relief. See Walker v. Martin, ––– U.S. ––––, ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011).
The Secretary argues that the district court erred when it concluded that the procedural bar applied by the Supreme Court of Florida was inadequate. The district court held that Muhammad preserved his claim under the Confrontation Clause because he had a standing objection and “Florida law consistently recognizes that a standing objection preserves an issue for appeal.” The Secretary contends that the Supreme Court of Florida also has a firmly established and regularly followed rule that parties must make “contemporaneous” and “specific” objections to alleged errors at trial, see, e.g., Corona v. State, 64 So.3d 1232, 1242 (Fla.2011); Overton v. State, 976 So.2d 536, 547 (Fla.2007), and that Muhammad did not make a specific and contemporaneous objection to Smith's testimony about Ojeda and the pilots. The Secretary argues that Muhammad's general objection, and the standing objection granted by the trial court, were insufficient to preserve the more specific objections he now raises on appeal. The Secretary relies on the decision of the Supreme Court of Florida in Silvia v. State, 60 So.3d 959 (Fla.2011), where the defendant raised before the trial court a “general objection” to the admission of victim impact evidence and the trial judge granted the defendant a “standing objection” on the issue, but the Florida Supreme Court held that this general objection was inadequate to preserve an objection to the admission of a particular victim impact letter. Id. at 977–78.
We need not decide this messy procedural issue. The Supreme Court has explained that “[t]he ‘independent and adequate state ground’ doctrine is not technically jurisdictional when a federal court considers a state prisoner's petition for habeas corpus pursuant to 28 U.S.C. § 2254,” Lambrix v. Singletary, 520 U.S. 518, 522, 117 S.Ct. 1517, 1522, 137 L.Ed.2d 771 (1997), and that, although the procedural bar issue “ordinarily should be” decided first, it need not “invariably be resolved first,” id. at 525, 117 S.Ct. at 1523. The Supreme Court has explained that, when it appears that another issue is more “easily resolvable against the habeas petitioner, whereas the procedural-bar issue involve[s] complicated issues of state law,” a federal court may avoid the procedural bar issue. Id. Because the procedural bar involves a complicated issue of state law and this petition is more easily resolvable against Muhammad on the merits, we assume without deciding that the procedural bar is inadequate.
2. The Resentencing Hearing Did Not Violate Muhammad's Rights Under the Confrontation Clause.
Muhammad argues that his rights under the Confrontation Clause were violated at his sentencing hearing because he did not have an opportunity to cross-examine Ojeda or the pilots and because the State did not establish that Ojeda and the airplane pilot were unavailable. The Secretary and Muhammad agree that the Supreme Court of Florida dismissed the claim under the Confrontation Clause on a procedural ground. “Because the [Florida] courts did not reach the merits of [Muhammad's Confrontation Clause] claim, ... the claim is reviewed de novo.” Cone, 556 U.S. at 472, 129 S.Ct. at 1784. The Supreme Court of the United States has held that hearsay testimony is admissible at capital sentencing hearings. Williams, 337 U.S. at 252, 69 S.Ct. at 1085. In Williams, a state judge sentenced the defendant to death based in part on information contained in a presentence investigation report that was presented to the judge outside the courtroom. Id. at 244, 69 S.Ct. at 1081. The judge described the contents of the report to the parties and neither party challenged the accuracy of the report, but the defendant did not have an opportunity to cross-examine either the author of the report or the persons who spoke about the defendant in the report. Id. at 244, 69 S.Ct. at 1081–82. The defendant challenged his death sentence as violative of due process because his “sentence of death was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal.” Id. at 243, 69 S.Ct. at 1081 (quotation marks omitted). But the Supreme Court held that the Due Process Clause, U.S. Const. Amend XIV, § 1, does not provide defendants a right to confront the witnesses against them at sentencing. Id. at 251–52, 69 S.Ct. at 1085. And the Supreme Court expressly declined to “draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed.” Id. at 251, 69 S.Ct. at 1085.
Although hearsay is admissible at capital sentencing proceedings, the Supreme Court has held that a court may not impose the death penalty “on the basis of confidential information which is not disclosed to the defendant or his counsel.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977) (plurality opinion). The defendant in Gardner was sentenced to death based in part on information contained in a presentence investigation report that was held in confidence by the judge and not disclosed to the defendant. Id. at 353, 97 S.Ct. at 1202. In four separate opinions, the Supreme Court held that the defendant had a constitutional right to the disclosure of the information in the report. See id. at 362, 97 S.Ct. at 1207 (finding a due process violation); id. at 364, 97 S.Ct. at 1208 (White, J., concurring in the judgment) (finding an Eighth Amendment violation); id. (Blackmun, J., concurring in the judgment) (same); id. (Brennan, J.) (finding a due process violation). The Supreme Court has since adopted Justice White's concurrence as the rule of Gardner and explained that the holding of Gardner is that “ ‘[a] procedure for selecting people for the death penalty which permits consideration of ... secret information relevant to the character and record of the individual offender’ violates the Eighth Amendment's requirement of ‘reliability in the determination that death is the appropriate punishment.’ ” O'Dell v. Netherland, 521 U.S. 151, 162, 117 S.Ct. 1969, 1976, 138 L.Ed.2d 351 (1997) (quoting Gardner, 430 U.S. at 364, 97 S.Ct. at 1207–08 (White, J., concurring in the judgment)) (emphasis deleted). Justice White explained in Gardner that the procedure in that case was inadequate because the defendant “had no opportunity to respond” to the confidential information admitted against him. Gardner, 430 U.S. at 364, 97 S.Ct. at 1207 (White, J., concurring in the judgment). The plurality similarly concluded that there was a violation of due process because the defendant was sentenced to death at least in part “on the basis of information which he had no opportunity to deny or explain.” Id. at 362, 97 S.Ct. at 1207 (plurality).
Williams and Gardner together stand for the proposition that a defendant does not have a right to confront hearsay declarants at a capital sentencing hearing, but that he does have a right to rebut information relevant to his character and record that is admitted against him at the sentencing hearing. Both Williams and Gardner are still good law. Although the law of capital sentencing has changed in some respects since Williams, “the Supreme Court of the United States has never questioned the precise holding of Williams v. New York.” Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.2003). And the Supreme Court has repeated time and again that only it has the authority to overrule its prior decisions. See, e.g., Tenet v. Doe, 544 U.S. 1, 10–11, 125 S.Ct. 1230, 1237, 161 L.Ed.2d 82 (2005) (explaining that if “precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921–22, 104 L.Ed.2d 526 (1989))); United States v. Hatter, 532 U.S. 557, 567, 121 S.Ct. 1782, 1790, 149 L.Ed.2d 820 (2001) (explaining that “it is this Court's prerogative alone to overrule one of its precedents” (quoting State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997))); Hohn v. United States, 524 U.S. 236, 252–53, 118 S.Ct. 1969, 1978, 141 L.Ed.2d 242 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); see also Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249, 1263 (11th Cir.2012) (explaining that we must heed Judge Hand's admonition to resist the “exhilarating opportunity of anticipating” the overruling of a decision of the Supreme Court (quoting Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (Hand, J., dissenting))). Our conclusion that Williams is still good law and that hearsay is admissible at capital sentencing is also consistent with the decisions of our sister circuits. See United States v. Fields, 483 F.3d 313, 326 (5th Cir.2007) (concluding, after a comprehensive review of the law, that “the Confrontation Clause does not operate to bar the admission of [hearsay] testimony relevant only to a capital sentencing authority's selection decision”); Szabo, 313 F.3d at 398 (explaining that “the Supreme Court has held that the Confrontation Clause does not apply to capital sentencing,” and that the right to confrontation “applies through the finding of guilt, but not to sentencing, even when that sentence is the death penalty”); see also United States v. Barrett, 496 F.3d 1079, 1100 (10th Cir.2007) (explaining that “[i]t is far from clear that the Confrontation Clause applies to a capital sentencing proceeding” (quoting United States v. Higgs, 353 F.3d 281, 324 (4th Cir.2003))); Higgs, 353 F.3d at 324 (same).
Muhammad argues that, notwithstanding the decision of the Supreme Court in Williams, we held in Proffitt, 685 F.2d 1227, that the Confrontation Clause bars the admission of all hearsay at capital sentencing, but this argument fails because it confuses the holding of Proffitt with its dicta. In Proffitt, we recognized only a limited right to cross-examine the author of psychiatric reports admitted at capital sentencing hearings. In that case, a state court judge sentenced the defendant to death based in part on a psychiatric report, but the author of the report did not testify at the capital sentencing hearing. Id. at 1250. We vacated the death sentence on the ground that the defendant had a constitutional right to cross-examine the author of the report. Id. at 1255. We acknowledged that the Supreme Court had held in Williams that the right to confrontation and cross-examination does not apply at capital sentencing, but we explained that “[t]he constitutional requirements governing capital sentencing ... have undergone substantial evolution in the wake of Furman v. Georgia, [408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ].” Proffitt, 685 F.2d at 1252. We recognized as follows that, since Williams, the Supreme Court has made clear that death is different:
The Supreme Court ... has imposed procedural, as well as substantive, limitations on capital sentence decisionmaking. The view, once prevalent, that the procedural requirements applicable to capital sentencing are no more rigorous than those governing noncapital sentencing decisions, see, e.g., Williams, 337 U.S. at 251–52, 69 S.Ct. at 1085, is no longer valid. Proffitt, 685 F.2d at 1253 (citation omitted). We looked for guidance to the decision of the Supreme Court in Gardner, which we understood to be “premised on the principle that death sentences may not constitutionally be imposed on the basis of information that the capital defendant has been afforded no opportunity to rebut.” Id. at 1253–54. We explained that cross-examination is necessary to test the accuracy of expert opinion testimony, id. at 1254, and we concluded that “the right to cross-examine adverse witnesses applies to capital sentencing proceedings, at least where necessary to ensure the reliability of the witnesses' testimony,” id. at 1255.
Eight months after we issued our first opinion in Proffitt, but before we issued the mandate in that appeal, we expressly limited our holding to cases involving the admission of psychiatric reports. See Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir.1983). We modified our opinion in Proffitt to add a footnote that our “decision that the right to cross-examination of adverse witnesses is extended to capital sentencing proceedings is necessarily limited to the facts of the case before us, involving psychiatric reports.” Id. We made clear what was implicit before: our decision could not establish a categorical bar of hearsay at capital sentencing, but held only that the district court had erred by admitting psychiatric reports.
Muhammad argues that some of our decisions have understood Proffitt to bar the admission of hearsay at capital sentencing hearings, but to the extent these decisions suggest as much, they do so only in dicta. In some cases, we suggested that the Confrontation Clause applies at capital sentencing, but we then denied relief on the ground that any right under the Confrontation Clause was not violated. See Hodges v. Att'y Gen., State of Fla., 506 F.3d 1337, 1344 (11th Cir.2007); Duren v. Hopper, 161 F.3d 655, 666 (11th Cir.1998). In another case, we concluded that the defendant had a right to confrontation at his capital sentencing hearing, but we rejected his argument because any error was harmless. See Mason v. Allen, 605 F.3d 1114, 1124 (11th Cir.2010). “[T]he holding of a case is, as the Supreme Court observed, comprised both of the result of the case and ‘those portions of the opinion necessary to that result by which we are bound.’ ” United States v. Kaley, 579 F.3d 1246, 1253 n. 10 (11th Cir.2009) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 1129, 134 L.Ed.2d 252 (1996)). All that was “necessary to the result” in Hodges, Duren, and Mason was that any right to confrontation was not violated or that any violation was harmless. Because “[t]he holdings of a prior decision can reach only as far as the facts and circumstances frame the precise issue presented in that case,” Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1275 (11th Cir.2006), any extraneous language in those cases about whether a right to confrontation bars the admission of hearsay in a capital sentencing hearing was dicta. Other decisions cited by Muhammad do not even involve collateral attacks to state capital sentencing hearings, so those decisions could not have held that a right to confrontation bars the admission of hearsay in a state capital sentencing. See United States v. Brown, 441 F.3d 1330, 1361 n. 12 (11th Cir.2006) (avoiding the question whether the right to confrontation exists at federal capital sentencing because there was no violation of the right); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005) (holding that there is no right to confrontation at non-capital sentencing); see also Moore v. Zant, 885 F.2d 1497, 1511–12 (11th Cir.1989) (en banc) (holding that a district court did not abuse its discretion when it concluded that the state prisoner's failure to include a claim based on Proffitt in his first federal petition constituted an abuse of the writ).
We cleared up any confusion in our case law in Chandler v. Moore, 240 F.3d 907, 918 (11th Cir.2001), when we confirmed that hearsay is admissible at capital sentencing and that a defendant's rights under the Confrontation Clause are not violated if the defendant has an opportunity to rebut the hearsay. In Chandler, a police officer summarized at the capital sentencing hearing the testimony of several witnesses at the guilt phase trial. Id. The defendant argued that the admission of this hearsay evidence violated his rights under the Confrontation Clause, but we rejected that argument. Id. We first explained that, although “[t]he Sixth Amendment guarantees a defendant an adequate opportunity to cross-examine adverse witnesses,” the defendant had an opportunity to cross-examine the witnesses at the original trial. Id. “Moreover,” we added, “there is no Confrontation Clause violation because we agree with the Seventh Circuit that hearsay evidence is admissible at a capital sentencing. Del Vecchio v. Ill. Dep't of Corr., 31 F.3d 1363, 1387–88 (7th Cir.1994). This proposition does contain one caveat: that the state statute protect a defendant's rights by giving him/her the opportunity to rebut any hearsay information.” Chandler, 240 F.3d at 918. We explained that the hearsay evidence against Chandler was admitted under a Florida law that provides that hearsay evidence may be admissible at a capital sentencing, “regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” Id. (quoting Fla. Stat. § 921.141(1)). Because the defendant had an opportunity “to rebut the hearsay,” we denied his claim under the Confrontation Clause. Id. Our citation of Del Vecchio establishes that we viewed Williams to still be good law because Del Vecchio expressly relied on Williams for the proposition that hearsay is admissible at capital sentencing. See Del Vecchio, 31 F.3d at 1387–88.
Muhammad's rights under the Confrontation Clause were not violated because Muhammad had an opportunity to rebut the hearsay information. The hearsay was admissible at Muhammad's capital sentencing hearings. Williams, 337 U.S. at 252, 69 S.Ct. at 1085; Chandler, 240 F.3d at 918. And Muhammad had an “opportunity to respond” to the hearsay. See Gardner, 430 U.S. at 364, 97 S.Ct. at 1207 (White, J., concurring in the judgment); see also id. at 362, 97 S.Ct. at 1207 (plurality); Chandler, 240 F.3d at 918. The hearsay testimony was not given in secret, but instead was presented by Smith in open court. Compare Gardner, 430 U.S. at 353, 97 S.Ct. at 1202 (plurality). Muhammad cross-examined Smith at the sentencing hearing, and he had the opportunity to present his own witnesses too. Muhammad also had the opportunity to cross-examine both Ojeda and the airplane pilot at the guilt phase of his trial.
Although Muhammad did not have a prior opportunity to cross-examine the helicopter pilot, he had “the opportunity to rebut any hearsay information.” See Chandler, 240 F.3d at 918. The Supreme Court “has never said that the right to ‘deny or explain’ sentencing information includes the confrontation rights that Williams rejected.” Fields, 483 F.3d at 329 (quotation marks omitted). And we explained in Hodges that the right to rebut hearsay at capital sentencing does not include the right to cross-examine the hearsay declarant. Hodges, 506 F.3d at 1344. In that case, we held that a defendant had a “fair opportunity to rebut any hearsay statements” at his capital sentencing even though the defendant did not have an opportunity to cross-examine the hearsay declarant herself. Id. (quotation marks omitted). Muhammad does not argue that he was denied access to the prior statements of the helicopter pilot, that he could not cross-examine Smith, or that he could not call his own witnesses. Because Muhammad had an opportunity to rebut the hearsay, his claim under the Confrontation Clause fails.
B. The Application of the Cold, Calculated, and Premeditated Aggravator Did Not Violate the Ex Post Facto Clause.
Muhammad argues that the application of the “cold, calculated, and premeditated” statutory aggravating factor to his case violates the Ex Post Facto Clause, U.S. Const. Art. I, § 9, because that factor was not enacted until after he committed the murders, but that argument fails. Because the Florida Supreme Court adjudicated this claim on the merits, we may not grant Muhammad's petition for a writ of habeas corpus with respect to this claim “unless the state court's decision ‘was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ [28 U.S.C.] § 2254(d)(1).” Evans v. Sec'y, Dep't of Corr., 703 F.3d 1316, 1325 (11th Cir.2013) (en banc) (quoting Johnson v. Upton, 615 F.3d 1318, 1329 (11th Cir.2010)). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Richter, ––– U.S. at ––––, 131 S.Ct. at 786 (quotation marks omitted). Muhammad must establish that the decision of the Supreme Court of Florida “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786–87.
The Supreme Court of Florida dismissed Muhammad's claim on the ground that it had already concluded, in Combs, 403 So.2d 418, “that application of the [cold, calculated, and premeditated] aggravator in this situation is not an ex post facto violation.” Knight, 746 So.2d at 434. The defendant in Combs, like Muhammad, was convicted of first-degree murder and sentenced to death. Combs, 403 So.2d at 419. The sentencing judge in Combs found that one aggravating factor for the murder was that the defendant had committed the murder in a cold, calculated, and premeditated manner. Id. at 421. The Supreme Court of Florida explained that the application of the factor did not violate the Ex Post Facto Clause because, although the factor was enacted after the defendant committed the murder, the factor did not disadvantage the defendant. Id. The court stated that the factor “reiterates in part what is already present in the elements of premeditated murder” and that the trial judge is already permitted to consider the elements of the offense at sentencing. Id. The court stated that application of the factor actually benefits the defendant because the factor limits the ways in which the trial judge may consider the elements of the charged offense. Id. The court explained that, with the addition of the new factor, the “premeditation” element of the offense can only be considered if “the premeditation [was] ‘cold, calculated and ... without any pretense of moral or legal justification.’ ” Id. The court concluded that application of the new aggravating factor did not violate the Ex Post Facto Clause because the new factor “adds nothing new to the elements of the crimes for which petitioner stands convicted but rather adds limitations to those elements for use in aggravation, limitations which inure to the benefit of a defendant.” Id.
The decision of the Supreme Court of Florida in this appeal was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” See Richter, ––– U.S. at ––––, 131 S.Ct. at 786–87. A law violates the Ex Post Facto Clause if it (1) “appl[ies] to events occurring before its enactment” and (2) “disadvantage[s] the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (quotation marks and citation omitted). Muhammad, like the defendant in Combs, was convicted of first-degree murder, so the sentencing judge was permitted to consider the statutory element that Muhammad acted in a premeditated fashion. As in Combs, any application of the statutory aggravating factor did not “disadvantage [Muhammad] by ... altering the definition of criminal conduct or increasing the punishment for the crime.” Id. (quotation marks omitted). And we cannot say that the decision of the Supreme Court of Florida in Combs was unreasonable because Muhammad has not identified any decision of the Supreme Court that conflicts with Combs.
Moreover, in Francis, 908 F.2d at 705, we rejected a claim almost identical to the one Muhammad now raises on appeal. In that appeal, a defendant convicted of first-degree murder and sentenced to death in Florida argued that the application of the cold, calculated, and premeditated factor to his case violated the Ex Post Facto Clause, but we rejected that argument. Id. at 704–05. We explained that the facts on which the trial judge relied to apply the factor “were the same facts underlying application of other aggravating factors, such as ‘hindering law enforcement’ and ‘especially atrocious and cruel.’ ” Id. at 705 (quotation marks omitted). We explained that, because the Florida sentencing scheme does not require judges to merely tabulate the aggravating and mitigating factors, but instead to weigh the underlying facts, the application of the factor did not disadvantage the defendant because it was redundant with other factors that the trial judge found weigh against the defendant. Id. In this matter, as in Francis, the trial judge found that both the cold, calculated, premeditated aggravator, and the atrocious and cruel aggravator, applied to Muhammad's case. Based on our decision in Francis, we cannot say that the decision of the Supreme Court of Florida was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.
We REVERSE the judgment in favor of Muhammad and RENDER a judgment in favor of the Secretary.
WILSON, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority's opinion insofar as it holds that the application of the “cold, calculated, and premeditated” statutory aggravating factor in this case does not violate the ex post facto clause of the United States Constitution. U.S. Const. art. I, § 9. Relying upon clear precedent, the Florida Supreme Court determined that, although this aggravating factor was enacted after Muhammad committed the Gans murders, its application did not add anything new to the elements of the crimes for which he was convicted and did not disadvantage him. Knight v. State, 746 So.2d 423, 434 (Fla.1998) (holding that the application of the “cold, calculated, and premeditated” factor is not an ex post facto violation where defendant was already convicted of premeditated first degree murder); see Combs v. State, 403 So.2d 418, 421 (Fla.1981) (holding that the application of this aggravating factor did not violate the ex post facto clause because it “reiterates in part what is already present in the elements of premeditated murder”).
Indeed, the Florida Supreme Court's decision in this case was neither contrary to nor an unreasonable application of clearly established Federal law. See 28 U.S.C. § 2254(d)(1); Evans v. Sec'y, Dept. of Corr., 703 F.3d 1316, 1325 (11th Cir.2013) (en banc). A law violates the ex post facto clause if it applies to events occurring prior to its enactment and disadvantages the offender by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); see Carmell v. Texas, 529 U.S. 513, 568, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). Specifically, this court previously rejected the claim that this aggravating factor violates the ex post facto clause where the facts that the trial judge relied upon in applying the factor were the same as those underlying other aggravating factors and thus did not disadvantage the defendant. Francis v. Dugger, 908 F.2d 696, 705 (11th Cir.1990) (holding that no ex post facto violation occurred because the application of the aggravating factor “cold, calculated, and premeditated” did not disadvantage the defendant). Where, as here, the application of the “cold, calculating, and premeditated” factor did not disadvantage Muhammad, I agree that the state's decision is not contrary to or an unreasonable application of Federal law as established by the Supreme Court. Nevertheless, I have reservations about the majority's finding that it need not determine whether Florida's procedural bar was adequate, and its conclusion that Muhammad's 1996 resentencing hearing did not violate his rights under the Confrontation Clause of the Sixth Amendment.
A. Florida's procedural bar on Muhammad's Confrontation Clause claim was inadequate
First, with regard to Florida's procedural bar, I respectfully disagree that it is too complex an issue to decide. A federal court reviewing petitions for habeas corpus will not review a claim rejected by a state court “if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir.2011); Smith v. Dep't of Corr., 572 F.3d 1327, 1336–37 (11th Cir.2009). In order to qualify as an “adequate” procedural ground, the state rule must be “firmly established and regularly followed.” Walker v. Martin, ––– U.S. ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011). Also, in order to be “adequate,” the rule cannot have been applied by the state court in an inconsistent or manifestly unfair manner. See Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir.1995); Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.), cert. denied, Alabama v. Hansbrough, 513 U.S. 914, 115 S.Ct. 291, 130 L.Ed.2d 205 (1994).
In this case, the district court correctly found that the Florida Supreme Court's decision to bar Muhammad's Confrontation Clause argument did not rest on a “firmly established and regularly followed” Florida procedural rule, as required. Muhammad v. Tucker, 905 F.Supp.2d 1281, 1293 (S.D.Fla.2012) (citing Conner, 645 F.3d at 1288). It is evident that, at his resentencing hearing, Muhammad's counsel specifically made a standing objection to the hearsay testimony proffered by Detective Smith grounded in the Confrontation Clause of the Sixth Amendment.FN1 Indeed, throughout Detective Smith's testimony, Muhammad's counsel continued to object, provoking the judge's explicit acknowledgement that the testimony was hearsay and that Muhammad raised a Confrontation Clause argument.FN2 Nevertheless, the Florida Supreme Court barred this claim, finding that there had been no objection to testimony about out of court statements made by the airplane pilot or Detective Ojeda. Knight v. State, 746 So.2d 423, 429–30 (Fla.1998). Given Florida courts routinely accept standing objections when the court is put on notice of the basis for the objection, this procedural bar is inadequate. Corona v. State, 64 So.3d 1232, 1242 (Fla.2011) (holding that a standing objection which informs the court of the perceived error is sufficient to preserve a Confrontation Clause argument on appeal); Floyd v. State, 850 So.2d 383, 393 n. 20 (Fla.2002) (recognizing petitioner's continuing objection before the trial judge); Hopkins v. State, 632 So.2d 1372, 1376 (Fla.1994) (finding that the standing objection was preserved where the trial court was put on notice of the potential error by the pretrial hearing and defense counsel's request for a continuing objection).
FN1. Prior to Detective Smith's testimony, Muhammad's counsel stated: “My basic objection as to what the State intends to use this witness for which is to come in here and give some kind of summary of everything that happened which involves the witness based on his investigation, telling the jury what other people did, what other people said, either over the radio or in person, and the objection I raise is this violates the rights of—the confrontation rights of the defendant on the Sixth Amendment and Article 1616, whatever it is, of the Florida Constitution. I would like to have a standing objection.” Muhammad v. Tucker, 905 F.Supp.2d 1281, 1293 (S.D.Fla.2012) (citing Transcript of Trial, App. FF, at 2352–53.) FN2. “I don't want to hear the same objection and be brought sidebar for the same objection. This is hearsay. It is hearsay. You made your confrontation rule argument. I have accepted your objection, your [sic] object to all of it.” Id. at 1294; see Principal and Response Brief of Appellee/Cross–Appellant, p. 23.
Further, the cases cited by the Secretary for the proposition that Muhammad's objections were insufficient are distinguishable. For example, in Ferguson v. Secretary for the Department of Corrections, this court noted that the trial record showed defense counsel requested an evidentiary hearing to permit the introduction of further mitigating evidence as opposed to making a due process objection. 580 F.3d 1183, 1213 (11th Cir.2009). In fact, Ferguson's counsel failed to object when the judge specifically asked whether there was any legal reason why it should not resentence him. Id. This court clarified that under the contemporaneous objection rule, “an issue is properly preserved if the trial court knows that an objection was made, clearly understands the nature of the objection, and denies that request.” Id. at 1212. In Corona v. State, 64 So.3d 1232, 1242 (Fla.2011), the Florida Supreme Court concluded that the trial court was aware of the nature of the defendant's objections regarding his daughter's hearsay testimony, largely because it overruled similar objections in a pretrial conference. Thus, the Corona court concluded that because the defendant fairly apprised the court of the basis of his objections and the relief sought, he preserved his Confrontation Clause argument on appeal. Id. at 1243. Finally, the Secretary's reliance on Silvia v. State, 60 So.3d 959 (Fla.2011), is unpersuasive. In Silvia, the defendant made a general objection to victim impact evidence and not to any particular statement in the letters that were read during the penalty phase of trial. Id. at 977–78. The Florida Supreme Court clarified that because defense counsel had not specifically objected or articulated the basis for any objections, the defendant must establish on appeal that a fundamental error or a violation of due process occurred. Id. at 977. Here, unlike in Silvia, Muhammad's counsel repeatedly objected to the introduction of testimony, both on the basis of hearsay and the Confrontation Clause. In fact, counsel's objections were so clear and specific that the trial judge asked counsel to stop making them. See Tucker, 905 F.Supp.2d at 1294 (quoting the trial judge's warning that it did “n[o]t want to hear the same objection [that] ... [t]his is hearsay [or] your confrontation rule argument”).
In addition to being unpersuasive, the Secretary's argument that Muhammad's objections lacked the specificity to be preserved does not reflect the Florida Supreme Court's actual basis for finding the procedural bar. Instead of finding that Muhammad's objections were insufficiently specific, the court precluded Muhammad's Confrontation Clause argument on direct appeal because it found that he did not object to Smith's testimony as to statements made by Detective Ojeda or the pilot at all. See Knight v. State, 746 So.2d 423, 430 n. 9 (Fla.1998). In sum, Florida courts have routinely considered issues upon which parties made a standing objection to be preserved for appeal, see, e.g. Floyd, 850 So.2d at 393 n. 20, and the Secretary's arguments for why Muhammad's arguments should be procedurally barred are unavailing. Therefore, the district court correctly held that the Florida Supreme Court's procedural bar under these circumstances was inadequate and appropriately considered Muhammad's Confrontation Clause argument.
B. The resentencing hearing violated Muhammad's rights under he Confrontation Clause
While agreeing that the legal precedent on this issue is complicated, I ultimately agree with the district court that the Confrontation Clause of the Sixth Amendment applies in capital sentencing proceedings. The Supreme Court has held that trial courts may consider hearsay testimony at capital sentencing hearings. Williams v. New York, 337 U.S. 241, 250–51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (holding that courts may consider presentence investigative reports, which were described to the parties but not subject to cross-examination without violating due process); Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (holding that courts may consider “unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics” at capital sentencing). Subsequently, the Supreme Court clarified that a court may not impose the death penalty on the basis of confidential information which is not disclosed to the defendant. Gardner v. Florida, 430 U.S. 349, 358, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
However, the Williams decisions precede the application of the Sixth Amendment to state criminal prosecutions through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (holding that the right of an accused to confront witnesses against him is a fundamental right). Since then, the Supreme Court has expanded the application of the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 825–26, 829, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (refusing to limit Confrontation Clause protections to formal testimonial statements); Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (barring out-of-court statements to police investigators absent witness unavailability and prior opportunity by the defendant to cross-examine). Moreover, this court has explicitly held that “the right to cross-examine adverse witnesses applies to capital sentencing hearings.” Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir.1982). In Proffitt, we noted that “[b]ecause the death penalty ... is permanent and irrevocable, the procedures by which the decision to impose a capital sentence is made bring into play constitutional limitations not present in other sentencing decisions.” Id. at 1253. Proffitt specifically addressed the Supreme Court's trend towards imposing more procedural requirements in capital cases in order to reduce the risk of arbitrary decision making. Id. For example, we noted that the Supreme Court's more recent decision in Gardner, banning reliance on information not disclosed to the defendant or his attorney, was “premised on the principle that death sentences may not constitutionally be imposed on the basis of information that the capital defendant has been afforded no opportunity to rebut.” Id. at 1253–54 (citing Gardner, 430 U.S. at 362, 97 S.Ct. 1197). Based upon this analysis of Supreme Court precedent, we concluded that “the right to cross-examine adverse witnesses applies to capital sentencing hearings.” Proffitt, 685 F.2d at 1254.
The majority insists that this conclusion in Proffitt was merely dicta and that by limiting its holding, in a subsequent addendum to the opinion, to cases involving the admission of psychiatric reports, this court clarified that it did not create a categorical bar to hearsay at capital sentencing hearings.FN3 See Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir.1983). At oral argument, Muhammad's counsel argued that the addendum to Proffitt could be read as simply saying that under these circumstances, where the sources and authors of a psychiatric report have not been cross-examined, use of the report in a sentencing violates the Sixth Amendment. The addendum's use of the phrase “necessarily limited to the facts of the case before us,” id., suggests that the court merely pointed out that the case did not present an opportunity for a broader expansion of Confrontation Clause rights.
FN3. “Our decision that the right of cross-examination of adverse witnesses is extended to capital sentencing proceedings is necessarily limited to the facts of the case before us, involving psychiatric reports.” Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir.1983).
Regardless of the addendum's significance at the time, this court has routinely cited Proffitt as authority for the proposition that the Confrontation Clause applies at a capital sentencing. Perhaps most significantly, in Moore v. Zant, 885 F.2d 1497, 1512 (11th Cir.1989) (en banc), this court announced that “[i]n light of [the Supreme Court's trend toward expanding Sixth Amendment protections], reasonably competent counsel reasonably could have anticipated the extension of ... the right of confrontation[ ] to capital sentencing proceedings.” Id. In other words, Zant held that the district court did not abuse its discretion in finding counsel's failure to raise Confrontation Clause objections to a presentence investigation report in a capital sentencing hearing inexcusable. Remarkably, we affirmed a district court finding that counsel's failure to raise the issue was inexcusable before Proffitt was even decided because reasonably competent counsel could have anticipated the extension of the Confrontation Clause to capital sentencing hearings. Id. at 1511–12. Now the majority asserts that such an extension was never made, despite Proffitt 's subsequent announcement.
More recently, this court has continued to cite Proffitt for its general proposition without limiting it to the narrow facts presented in that case. For example, in United States v. Brown, 441 F.3d 1330, 1361 n. 12 (11th Cir.2006) (per curiam), the court noted that “death is different,” and cited Proffitt for the proposition that “the constitutional right to cross-examine witnesses applies to capital sentencing hearings.” Id. In United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005), while refusing to extend Crawford to non-capital sentencing, this court again recognized that death is different, noting that “we have recognized a right to cross-examination in the context of capital sentencing.” Id. (citing Proffitt, 685 F.2d at 1254–55); see also United States v. Sanchez, 278 Fed.Appx. 927, 929 n. * (11th Cir.2008) (distinguishing the sentencing at issue from a capital sentencing proceeding by noting that “ Proffitt recognized a right to cross-examination in the context of capital sentencing”). Whatever the significance of Proffitt at the time, our subsequent treatment of Proffitt renders its broader proposition—that the right to cross-examine witnesses applies to capital sentencing hearings—binding law in this Circuit.
To be clear, the Sixth Amendment right to confrontation is not as fulsome in a capital sentencing as during the guilt phase of a trial. For example, in 2001, this court rejected a Confrontation Clause claim in Chandler v. Moore, 240 F.3d 907, 918 (11th Cir.2001). In Chandler, the defendant had the opportunity during the guilt phase to cross-examine each of the State's witnesses to whom the officer referred during the resentencing, and the State did not prevent him from rebutting the hearsay evidence of its witnesses. 240 F.3d at 918. Without citing Proffitt or the subsequent cases affirming the right to confrontation in a capital sentencing, this court explained that if it were to determine that hearsay evidence was per se inadmissible in a capital sentencing, it would be announcing a new rule of law. FN4 Id. At oral argument, Muhammad argued that Chandler can be read narrowly to show that, in that circumstance, the court identified indicia of reliability such that the testimony need not have been excluded. Second, the court characterized defendant's failure to cross-examine witnesses during sentencing as a choice: “[t]he Sixth Amendment guarantees a defendant an adequate opportunity to cross-examine adverse witnesses. Chandler had this opportunity and capitalized on it during trial but chose not to during his re-sentencing phase.” Id. (citation omitted) (emphasis added). Indeed, Chandler recognized that “the state [must] protect a defendant's rights by giving him/her the opportunity to rebut any hearsay information.” Id. By contrast, in the present case, Muhammad did not have the choice of whether or not to cross-examine witnesses during his resentencing, and Detective Smith's testimony included hearsay statements that were not included at trial. FN5 Accordingly, Muhammad did not have the meaningful opportunity to rebut contemplated in Chandler.
FN4. I am troubled by the majority's argument that because Chandler cites Del Vecchio v. Ill. Dep't of Corr., 31 F.3d 1363, 1387–88 (7th Cir.1994), which relies upon Williams for the proposition that hearsay is admissible at a capital sentencing, the Circuit viewed Williams to be good law in 2001. While no party contests that the Supreme Court's decisions in the Williams cases have not been overturned, it is evident that the Supreme Court, along with our Circuit, has developed subsequent case law expanding Sixth Amendment protections in capital sentencing hearings. See, e.g. Davis v. Washington, 547 U.S. 813, 823–24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir.1982). FN5. Further, it appears that the State did not even attempt to show the unavailability of the witnesses at issue in Muhammad's 1996 resentencing.
The majority maintains that Muhammad had the opportunity to cross-examine Detective Ojeda and the airplane pilot during the guilt phase of his trial, to cross-examine Detective Smith during the resentencing, and to present his own witnesses. Accordingly, the majority is satisfied that Muhammad had an opportunity to rebut the hearsay evidence that is consistent with the legal precedent. Upon review, however, I am inclined to agree with the district court that Proffitt is good law which this court has repeatedly cited to acknowledge the applicability of the Confrontation Clause to capital sentencing proceedings. Proffitt has been understood by this court to extend Confrontation Clause protections to capital sentencing in cases decided before and after Chandler. Because I conclude that the Confrontation Clause of the Sixth Amendment applied to Muhammad's capital resentencing proceeding, I respectfully dissent.