Roy Allen Harich v. Richard Dugger, Secretary, Florida Department of Corrections, Respondent

TJOFLAT, Circuit Judge,

specially concurring, in which KRAVITCH, HATCHETT, ANDERSON and CLARK, Circuit Judges, join:

I agree fully with the majority’s treatment and disposition of petitioner’s ineffectiveness of counsel claim. I also agree with the majority’s disposition of petitioner’s Caldwell claim, but I do not agree with its analysis of that claim. The chief defect in the analysis, I submit, is that it focuses too heavily on whether the statements by the prosecutor and the court regarding the sentencing process were accurate in a very technical sense, and does not fully consider whether the jurors were nevertheless left with a misimpression as to the importance of their role. In my view, a proper analysis of the Caldwell claim requires an evaluation of how a reasonable juror would have understood the court’s statements in the context of the entire trial. Applying this analysis, I conclude, along with the majority, that petitioner’s Caldwell claim is without merit.

I.

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Supreme Court held that a death sentence is invalid under the eighth amendment if it rests on “a determination made by a sen-tencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639. Under the Florida capital sentencing scheme, the jury makes a sentencing recommendation and the trial judge actually imposes sentence. Fla.Stat. § 921.141 (1985). Because the trial judge is required by Florida law to give great weight to the jury’s sentencing recommendation, this court has held that the concerns voiced in Caldwell are triggered when the jury is misled into believing that its sentencing *1476role is an unimportant one. See Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (en banc).

An examination of the trial record in this case reveals the following facts pertinent to petitioner’s Caldwell claim. In the course of counsel’s voir dire of the venire, the prosecutor explained to the prospective jurors that the trial would be in two stages, a guilt phase and a sentencing phase. After describing the jury’s function in the guilt phase, he stated that

in the event the State has, in fact, proven its case of guilty of murder in the first degree, then it is necessary for the jury to determine one thing and one thing alone. And that is their recommendation concerning whether the recommendation should be life imprisonment or it should be death. Of course, it is a very serious part of the trial and a very serious proceeding. ... [It] is going to be a very vital part of the proceedings, and one which both parties will probably strenuously object as to what recommendations you might should recommend to the Court.

The prosecutor then went on to make the following statement:

Let me add that yours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court as to what the circumstances show.

The prosecutor concluded this discussion of the jury’s role by telling the prospective jurors that

[y]ou are a fact-finding body. And you must make several findings, or at least in your own mind, before you render verdict, the State has to show you what we call an aggravating circumstance or [there] might be mitigating circumstances. And you are to make a judgment, based upon those proceedings. And so it is a detailed process that we go through.

Once the jury had been selected, the trial judge delivered an opening charge. In that charge, the trial judge explained the jury’s role in the following way:

Your duty is to determine if the Defendant is guilty or not guilty, in accordance with the law. It is the Judge’s job to determine what a proper sentence would be if the Defendant is guilty.

The trial judge repeated this point verbatim in his instructions to the jury at the close of the guilt phase. The trial judge also instructed the jurors that

[t]he penalty is for the Court to decide. You are not responsible for the penalty in any way because of your verdict. The possible results of this case are to be disregarded by you when you arrive at your verdict. Your duty is to discuss only the question of whether the State has proved the guilt of the Defendant in accordance with these instructions of the law.

The jury returned a verdict of guilty on all charges. The trial judge then convened the sentencing phase of petitioner’s trial. In his opening charge to the jurors, the trial judge stated that

[t]he final decision as to what punishment shall be imposed rests solely upon the Judge of this court. However, the law requires that you, the jury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.

At the conclusion of the sentencing phase, the prosecutor and defense counsel both made closing arguments to the jury. The prosecutor reminded the jurors not to approach their task lightly, stating:

This proceeding which we have at this stage of a murder trial is always a difficult one. And I am sure it applies, likewise, to everyone concerned. Don’t think that anyone at any time takes it any lighter than anyone else, by any means.

Defense counsel, in his closing argument, expressly outlined the importance of the jury’s sentencing role:

And your recommendation carries great weight. It is true that the Judge, and the Judge alone, decides what the sentence will be. But this is not an exercise in futility for you. For what you decide has more weight for him and for the *1477Court and for our system than any other single factor in his recommending whether Roy Harich shall suffer death or be imprisoned for life.

After defense counsel concluded his argument, the trial judge delivered the final charge to the jury. In the course of the charge, the judge made the following statement:

As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the Judge; however, it is your duty to follow the law which will now be given to you by the Court and render to the Court an advisory sentence....

The jury then retired for deliberations. Upon returning to the courtroom, it announced a recommendation of death, which the judge followed in imposing sentence.

II.

I begin my analysis by evaluating the prosecutor’s statements. In this case, the prosecutor’s misrepresentation of the jury’s role consisted of a single isolated statement made in the course of jury selection. In explaining to the prospective jurors how the capital sentencing process functioned, the prosecutor stated that “[t]he Court pronounces whatever sentence it sees fit.” This statement, considered by itself, does mischaracterize the nature of the jury’s role. As noted above, the trial judge is required under Florida law to give great weight to the jury’s recommendation. The prosecutor’s statement suggested, contrary to Florida law, that the judge's sentencing prerogatives would in no way be constrained by the jury’s recommendation.

In evaluating the impact of the statement on the jurors, however, we cannot ignore the context in which the statement appeared. It was immediately preceded by the comment that the jury’s sentencing determination would be a “very serious” and “very vital” juncture in the trial. It was immediately followed by the qualifying remark that the effect of the jury’s recommendation would be to “giv[e] some direction” to the trial judge. Although this qualifying remark was not itself entirely accurate, it did at least suggest, consistent with Florida law, that the jury’s recommendation would count as a factor in the final sentencing decision. In any event, the prosecutor immediately returned to his earlier theme that the jury’s determination would be the focal point of the sentencing phase by stating that the jury was a “fact-finding body” that would be required to reach a sentencing “judgment” based on the evidence presented at the sentencing proceeding.

In my view, the prosecutor’s misleading statement about the judge imposing “whatever sentence he sees fit” was effectively undermined by the statements immediately preceding and immediately following it. Those statements suggested that the jury’s sentencing determination would be a vital juncture in the trial and would count as a factor in the ultimate sentencing decision. The effect of those statements, if there was any effect, would have been to bolster, not diminish, the jury’s sense of responsibility.

The prosecutor made no other statement directly addressing the jury’s sentencing role.1 Although he did not expressly tell the jurors that the trial judge would be required to give great weight to their recommendation, he lodged no objection when defense counsel, in closing argument at the conclusion of the sentencing phase, articulated an explicit and accurate description of the jury’s sentencing role:

And your recommendation carries great weight. It is true that the Judge, and the Judge alone, decides what the sentence will be. But this is not an exercise in futility for you. For what you decide has more weight for him and for the Court and for our system than any other single factor in his recommending wheth*1478er Roy Harich shall suffer death or be imprisoned for life.

The jurors were well aware that objections to statements in closing argument would be entertained; defense counsel had interrupted the prosecutor’s closing argument several times, and the prosecutor at one point interrupted defense counsel’s closing argument on the ground that defense counsel had misrepresented the law. Thus, the jurors could have interpreted the prosecutor’s failure to object to defense counsel’s description of the jury’s sentencing role as an implicit acquiescence to that description. Such an interpretation would have been entirely logical, since defense counsel’s description was not inconsistent with the overall tone of the prosecutor’s earlier comments about the importance of the jury’s determination.

In light of these considerations, I agree with the majority’s conclusion that the prosecutor did not mislead the jurors as to the importance of their sentencing role. That conclusion does not end the matter, however; as we stated in Mann, our ultimate focus is on the trial court’s actions. We must examine the court’s actions and determine whether reasonable jurors, in light of the entire trial, would have been misled as to the importance of their decision. Mann, 844 F.2d at 1457. Thus, where the prosecutor has misled the jury, as was the case in Mann, Caldwell error occurs if the trial court implicitly puts its imprimatur on the prosecutor’s statements. By the same token, if the prosecutor has not misled the jury, as I have concluded was the case here, there is no Caldwell error provided the trial court does nothing to disturb the nonmisleading impression.2 If the court does disturb that impression, however, and affirmatively misrepresents the nature of the jury’s role, the constitutional violation is direct and unmistakable.

In my view, none of the trial court’s statements disturbed the nonmisleading impression created by the prosecutor. The trial judge first referred to the jury’s role during the guilt phase, when he charged the jury. In the course of the charge, the court told the jurors that “[y]cm are not responsible for the penalty in any way because of your verdict.” This statement, taken in context, merely reminded the jurors that the guilt and sentencing phases are two distinct phases, and that their decision on guilt should not be influenced by the possibility that the death penalty might be imposed should they return a verdict of guilty. Such a reminder by the trial judge was entirely proper. Although the judge could have made the point with a bit more clarity, any ambiguity as to what he meant was removed by his immediately subsequent statement that “[t]he possible results of this case are to be disregarded by you when you arrive at your verdict.”3

The trial judge also made reference to the jury's role in his initial and final charges at the sentencing proceeding. In those charges, the judge stated that “the final decision as to what punishment shall be imposed rests solely upon the Judge of this court.” This statement, properly analyzed, no more supports a finding of Caldwell error than does the earlier statement.

As the majority notes, the statement was technically accurate, at least in the sense that Fla.Stat. § 921.141(3) identifies the trial judge as the actor who actually imposes sentence. That observation is not disposi-tive of the Caldwell issue, however; the dispositive question is how a reasonable juror would have understood the statement in the context of the entire trial. See Mann, 844 F.2d at 1457.4 In Mann, the *1479trial judge made the very same statement, and we found Caldwell error. In that case, however, the prosecutor had specifically and repeatedly downplayed the significance of the jury’s role throughout the trial. Thus, when the jury in that case finally heard the judge say that the final sentencing decision rested with the court, they would have likely understood the judge to be saying “yes, the prosecutor has accurately described your role as an essentially meaningless one and I am now reiterating that point.” By thus putting its imprimatur on the misimpression created by the prosecutor, the trial court violated Mann’s rights under the eighth amend.ment.

Here, the statement was made by the trial judge under entirely different circumstances. As discussed above, the overall effect of the prosecutor’s comments would have, if anything, bolstered the jury’s sense of responsibility. Furthermore, the judge’s statement was immediately preceded by defense counsel’s accurate and explicit description of the jury’s role, to which the prosecutor lodged no objection.5 Under these circumstances, the trial judge’s statement, which was technically accurate to begin with, would not have misled the jurors. Rather, the jurors were likely left with something very close to an accurate understanding of the nature of the sentencing process: the trial judge would be the final sentencer, but would be required by law to give great weight to their recommendation. Because the jurors were therefore not misled into believing that their role was an unimportant one, petitioner’s sentence is valid under the eighth amendment.

. In his closing argument at the conclusion of the sentencing phase, the prosecutor noted that the capital sentencing decision is "always a difficult one" for "everyone concerned.” This statement, construed as an indirect reference to the jury's sentencing role, would only bolster the jurors' sense of responsibility.

. Under Caldwell, the eighth amendment does not require that the capital sentencer be affirmatively instructed as to the importance of its role; it requires only that the sentencer not be misled into believing that sentencing responsibility rests elsewhere.

. The trial judge’s statement during the guilt phase that it would be his "job” to determine sentence is properly understood as intended to reinforce this admonition.

.It is also not dispositive to note that the references to the jury’s "advisory” function were accurate in the technical sense that Fla.Stat. § 921.141(2) contains the term "advisory.” The question remains as to what meaning the jurors would have attributed to that term in light of everything else they were told. As we noted in Mann, nothing in the common meaning of the term "advisory" would suggest to the jurors that *1479the trial judge would be required to give their recommendation great weight.

. In Mann, defense counsel also made a reference to the weight that would be accorded the jury’s recommendation. That reference, however, was made early in the trial and was directly contradicted by numerous statements by the prosecutor. For these reasons, we concluded that “when the jurors heard the trial judge say ‘as you have been told,’ they understood the reference to be to the prosecutor’s portrayal of their role.” Mann, 844 F.2d at 1458 n. 14.