Gerald Eugene Stano confessed, mostly to one detective, Paul Crow of the Daytona Beach Police Department, to killing dozens of young women in Florida and elsewhere through the 1970s. He was convicted of nine murders, most of them on his own guilty pleas, and sentenced to death for three: Cathy Lee Scharf, killed in Brevard County in 1974, and Susan Bickrest and Mary Kathleen Muldoon, killed in Volusia County in 1975 and 1977. The eighteen opinions collected here, from 1984 to 1998, follow those three sentences through the Supreme Court of Florida, a district court of appeal and the Eleventh Circuit.
Much of this record is about how the confessions were obtained and what his lawyers did with them. The courts review his dealings with Crow, a jailhouse informant who testified that Stano confessed to him in the Scharf case, and the representation he received from the public defender Howard Pearl, who was later found to have held a commission as a special deputy sheriff. In 1989 a panel of the Eleventh Circuit held that the State had violated his rights in the Scharf case and reversed; the full court reheard the case and, in 1990 and 1991, rejected his claims.
The later opinions are the last years of a death penalty case: petitions filed under death warrants, requests for stays, and orders on who would represent him. The final opinion, decided on March 20, 1998, affirmed the denial of his second motion for post-conviction relief. Stano was executed in the electric chair at Florida State Prison three days later, on March 23, 1998.
Stano’s confessions are the core of this record, and they are not the same as proof: the courts accepted his guilty pleas and the convictions that rested on them, but his claims that other statements were false, coerced or fed to him appear here as arguments the courts considered and rejected. The larger count of killings he confessed to is not established by any of these opinions, and the ones never charged are mentioned only in passing.
These are public records of the Florida courts and the Eleventh Circuit. The women he was convicted of killing keep their names, as do the other victims the courts name, and the police, prosecutors, defense lawyers, experts, judges and the journalist and author whose work is discussed. We have given initials to the jailhouse informant, to a woman who survived an attack by him, and to private people who gave affidavits or dealt with him about a book.
The eighteen opinions run to about 675,000 characters and are printed complete and in date order from the Caselaw Access Project text. Several entries are single-paragraph orders on stays and counsel. The capture keeps scanning errors such as “Biekrest” for Bickrest and “postconvietion,” and they are left as printed. We closed words split across lines only where the whole word appears elsewhere in the text.
Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
No. 63947.
Supreme Court of Florida.
Nov. 1, 1984.
Rehearing Denied Jan. 15, 1985.
James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
Jim Smith, Atty. Gen. and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Stano appeals his adjudication of guilty of two counts of first-degree murder and his two death sentences. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm.
Stano pleaded guilty to first-degree murder for the strangulation/drowning death of one woman in 1975 and the shooting/drowning death of another woman in 1977. The court accepted the pleas and adjudicated Stano guilty as charged. Stano waived a sentencing jury, and, after a three-day sentencing hearing, the trial court sentenced him to death on each charge.
On appeal Stano argues that the trial court improperly imposed the death penalty and erred in denying his motion to preclude imposition of the death penalty and that section 921.141, Florida Statutes .(1983), is unconstitutional. We find no merit to any of these points. Moreover, although not raised on appeal, we find a competent basis for the trial court’s acceptance of Stano’s guilty pleas and the adjudications of guilt.
For the 1977 murder the trial court found three aggravating circumstances (previous conviction of six first-degree murders; heinous, atrocious, or cruel; and committed in a cold, calculated, and premeditated manner) and three nonstatutory mitigating circumstances (Stano’s difficult early childhood, his marital difficulties, and his confessions and guilty pleas) applicable. For the 1975 murder the trial court found the same aggravating and mitigating factors plus one additional aggravating circumstance (committed during a kidnapping). Stano now claims that the trial court found improper aggravating circumstances, considered evidence of nonstatutory aggravating circumstances, and failed to give substantial weight to relevant and appropriate mitigating factors. We disagree with these contentions.
Although Stano does not challenge the court's finding previous convictions of violent felonies in aggravation, it is important to note the court’s conclusion regarding this circumstance. Prior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years. In the instant sentencing orders the trial court stated:
The Court is aware it is not to engage in a mere mechanical tabulation of criteria, but rather it is to carefully weigh and evaluate the evidence. In this case the large number of prior murder convictions is the dominant factor. This criteria is entitled to great weight. By itself, it would outweigh the mitigating factors, and call for the death penalty. This factor is, however, accompanied by additional aggravating circumstances. The aggravating circumstances far outweigh the mitigating circumstances.
(Emphasis supplied.)
We need not depend solely on the trial court’s statement as to the weight given to the first aggravating factor as set out above, however, because, notwithstanding Stano’s contentions, we find the challenged aggravating circumstances to have been established beyond a reasonable doubt. In support of finding these murders to have been committed in a cold, calculated, and premeditated manner the trial court noted that Stano struck both women, thereby stunning them, to keep them from leaving the car, drove to isolated areas (seventeen and one-half miles in some twenty-five minutes and twenty miles in thirty-five to forty minutes in the respective cases), and then, after ordering the women to leave the car, strangled one and shot the other in the head. The trial court could discern no reason or justification for these murders and termed them “completely senseless.” These murders show the heightened premeditation needed to meet the test in Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), and the trial court did not err in finding both crimes to have been committed in a cold, calculated, and premeditated manner. Compare Card v. State, 453 So.2d 17 (Fla.1984) (Card injured victim, transported her to a secluded area, made her leave the car, and then cut her throat), and Jones v. State, 440 So.2d 570 (Fla.1983) (killed totally without provocation).
The trial court’s finding heinous, atrocious, or cruel in aggravation is also amply supported. Both women had been struck by Stano and then driven considerable distances. Each must have known what was going to happen to her. Stano argues that, after being struck, the women could have been too dazed to have contemplated their fates. In fact, however, each woman was conscious and left the car under her own power when told to do so. On the totality of the circumstances each of these cases meets the standard of State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and supports a finding of heinous, atrocious, or cruel.
Stano also argues that the court’s use of the same facts to support both of these aggravating circumstances is an improper doubling of these two factors. As we have discussed before, heinous, atrocious, or cruel pertains more to the nature of the killing and the surrounding circumstances while cold, calculated, and premeditated pertains more to state of mind, intent, and motivation. Mason v. State, 438 So.2d 374 (Fla.1983), cert, denied, — U.S. —, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The facts of these cases support both of these aggravating circumstances. See Squires v. State, 450 So.2d 208 (Fla.), cert. denied, — U.S. —, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983). These two circumstances have not been improperly doubled up, and we find no merit to this argument.
In these sentencing orders the trial court, relying on Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), stated: “While lack of remorse is in itself not an aggravating circumstance, it is a factor to be considered in determining” whether a homicide is heinous, atrocious, or cruel. In Sired we stated:
While lack of remorse cannot constitute an aggravating circumstance, it can be offered to the jury and judge as a factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel.
Id. at 971. More recently, however, we revisited this issue and held that
henceforth lack of remorse should have no place in the consideration of aggravating factors. Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor.
Pope v. State, 441 So.2d 1073, 1078 (Fla.1983) (emphasis supplied).
Stano now argues that the trial court’s reliance on Sired nullifies the finding of heinous, atrocious, or cruel. We disagree. The trial court did not find lack of remorse to be a nonstatutory aggravating circumstance; he merely used it to support a factor which is already amply supported by the record. We cannot fault the trial court for following a decision of this Court and for failing to second-guess this Court.
The facts also support the trial court’s finding the 1975 murder to have been committed during a kidnapping. That woman tried to leave the car, but Stano struck her and locked the car doors. The trial court found her confinement not merely incidental to her murder. We find no merit to Stano’s arguments on this point.
As his final challenge to the trial court’s findings as to aggravating and mitigating circumstances, Stano claims that the trial court erred in failing to find the statutory mitigating factors of being under the influence of extreme mental or emotional disturbance and impaired capacity to conform his conduct to the requirements of the law. § 921.141(6)(b), (f). Four psychiatrists and one psychologist reported to the court on Stano as to these factors. The parties stipulated that, if present, the psychologist would have testified that Stano had been under extreme mental disturbance and that his capacity to conform his conduct to the requirements of the law was substantially impaired. One of the psychiatrists testified that he had reached the same conclusions. The other three psychiatrists, on the other hand, testified that, in their opinion, Stano’s capacity to conform his conduct to the requirements of the law was not substantially impaired. Two of these doctors also stated that Stano had not been under the influence of extreme mental or emotional disturbance, while the third doctor said that he could not answer that question. After considering the testimony, reports, and arguments of counsel, the court refused to find these factors in mitigation.
Finding or not finding a specific mitigating circumstance applicable is within the trial court’s domain, and reversal is not warranted simply because an appellant draws a different conclusion. Smith v. State, 407 S.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). Moreover, it was the court’s duty to resolve the conflicts here, and his determination should be final if it is supported by competent substantial evidence. Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). The testimony relied on by the court is competent substantial evidence, and we find no error in the court’s failure to find these mitigating circumstances applicable.
Prior to sentencing Stano filed a motion to preclude imposition of the death penalty, which the trial court denied. Pursuant to plea agreements, Stano had previously received sentences of life imprisonment for six other first-degree murders that he had pleaded guilty to. He now argues that the
circumstances surrounding the murders in the instant case are no more persuasive to impose the ultimate sanction than were the circumstances surrounding the six (6) previously disposed of murders committed by Mr. Stano in Volusia County, as well as the three (3) convictions and life sentences arising from the Eighth Judicial Circuit.
Therefore, he claims that sentencing him to death for these two murders is disproportionate. We disagree. There was no plea bargain regarding the sentences in the instant cases, and, after comparing these cases with other cases where death has been imposed, we find these sentences both proportionate and warranted. Compare Mann v. State, 453 So.2d 784 (Fla.1984) (abduction and killing without reason), and Jones v. State (no provocation, no justification).
In his last point on appeal Stano presents, in summary fashion, a grab bag of challenges to the constitutionality of section 921.141, both on its face and as applied. As the state points out, and as Stano concedes, we have rejected these challenges in previous cases. We see no reason to reconsider them here and find this point to have no merit.
We affirm the adjudications of guilty of first-degree murder and the sentences of death.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.
The trial court specifically adopted the testimony of these two doctors. Stano now claims that they used an incorrect standard in evaluating him, but our review of the record reveals that this is not so.
Stano had previously confessed to a total of nine murders, but was charged with and sentenced for only six of them.
In Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Supreme Court reversed Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982). We therefore disregard Stano's reliance on the ninth circuit’s opinion. .If we did as Stano suggests and considered all of the murders Stano has confessed to together, we would be hard pressed to find anyone approaching Stano in number, senselessness, or lack of provocation or motive. Even John Ferguson’s eight death sentences (Ferguson v. State, 417 So.2d 631 (Fla.1982), and Ferguson v. State, 417 So.2d 639 (Fla.1982)) pale in comparison to Stano's history because Ferguson committed all eight murders in only two episodes and at least had robbery and rape for motives.
Gerald E. STANO, Appellant, v. STATE of Florida, Appellee.
No. 84-146.
District Court of Appeal of Florida, Fifth District.
Feb. 7, 1985.
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Ellen Phillips and Mark C. Menser, Asst. Attys. Gen., Daytona Beach, for appellee.
[OPINION BY DAUKSCH, Judge. type=majority]
DAUKSCH, Judge.
This is an appeal from a conviction for murder in the first degree. Appellant raises one issue on appeal: Whether it is error to refuse to admit in evidence at trial testimony that the accused has previously falsely confessed to other crimes.
This case was tried by the court without a jury and before trial the prosecutor moved the court to grant a motion in limine to prevent the defendant from introducing testimony from police officers that the defendant had on at least two occasions falsely confessed to other murders. The trial court did not err in granting the motion because the defendant did not repudiate his confession. We deem that to be an essential predicate to the introduction of evidence of previous false confessions of similar crimes.
Even if we were to determine there was some error in refusing to admit the proffered testimony of the homicide detective who had received the false confession, we do not deem it harmful error. It was quite clear that the confession was not false; only the murderer would have known what appellant told in his confession and separate investigation proved those statements to be true. The evidence overwhelmingly proved appellant’s guilt.
AFFIRMED.
COBB, C.J., and COWART, J., concur.
Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
No. 64687.
Supreme Court of Florida.
July 11, 1985.
Rehearing Denied Sept. 4, 1985.
James B. Gibson, Public Defender and Christopher S. Quarles, Chief, Capital Appeals, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Gerald Stano appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the conviction and sentence.
In 1981 Stano confessed to having killed a young woman in 1974, and a grand jury indicted him for first-degree murder. When the jury could not reach a unanimous verdict, the court declared a mistrial. On retrial the jury convicted Stano as charged and recommended the death penalty, which the trial court imposed.
Numerous members of the venire for the second trial had been exposed to publicity regarding Stano, the instant crime, and the first trial. At voir dire defense counsel asked one prospective juror, how the pretrial publicity would affect her deliberations if she were selected to serve, and she responded that she would “block it out.” When defense counsel asked how she would do that, the court sustained the state’s objection to that question. Stano now claims that the court improperly limited the scope of his voir dire. We disagree.
While “counsel must have an opportunity to ascertain latent or concealed prejudgments by prospective jurors,” it is the trial court’s responsibility to control unreasonably repetitious and argumentative voir dire. Jones v. State, 378 So.2d 797, 797-98 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1114 (Fla.1980). The test for determining a juror’s competency is whether that juror can lay aside any prejudice or bias and decide the case solely on the evidence presented and the instructions given. Davis v. State, 461 So.2d 67 (Fla.1984); Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, — U.S.-, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The prospective juror that Stano now complains about met that test, as did all those persons who eventually served on the jury. Stano has shown no abuse of discretion in the trial court’s restriction of defense counsel’s voir dire.
As his second point on appeal, Stano complains that the trial court improperly restricted his presentation of evidence at both the guilt and penalty phases of his trial. Stano’s attorney proffered the testimony of a psychiatrist that certain people confess to crimes they did not commit and of a police officer to whom Stano had confessed a murder which he, Stano, did not commit. After hearing both sides’ arguments, the trial court refused to allow the jury to hear this testimony.
In arguing to the court the state relied on three cases: Grove v. State, 211 Tenn. 448, 365 S.W.2d 871 (1963); Grove v. State, 185 Md. 476, 45 A.2d 348 (1946); and State v. Humphrey, 63 Or. 540, 128 P. 824 (1912). In Humphrey the Oregon Supreme Court held that a trial court properly refused to admit testimony regarding a defendant’s false confession to several murders because that testimony would have confused the issue being tried and would have been unprofitable and irrelevant. In the Maryland Grove case the appellate court found that testimony about false confessions to other crimes would be irrelevant. The Tennessee Supreme Court reached the same conclusion in its Grove opinion.
To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983). Moreover, the person seeking admission of testimony must demonstrate its relevance. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). None of the defendants in Humphrey and the Grove cases could prove the relevance of the proffered testimony. Stano’s proffer suffers from the same defect, i.e., a lack of demonstrated relevance. The fact that some people confess to crimes they did not commit is not evidence that Stano’s confession in this case was infirm or tainted. There was no proffer of an opinion to such a contention, even though Stano’s theory of defense was that he killed someone other than the alleged victim in this case.
Turning to the sentencing portion, a defendant should be allowed to introduce in mitigation any aspect of his character or record or any evidence regarding the circumstances of the offense that might justify less than a sentence of death. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Perry v. State, 395 So.2d 170 (Fla.1980). In other words, any relevant evidence as to a defendant’s character or the circumstances of the crime is admissible at sentencing. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). Conversely, irrelevant evidence is inadmissible.
The testimony Stano sought to present at sentencing was irrelevant. The psychiatrist, who had not examined Stano, would have testified that some people confess to crimes they do not commit. The detective would have testified that Stano made a false confession to him. We fail to see (a) the relevancy of testimony not about Stano himself and (b) the relevancy and efficacy of telling the jury that Stano was a liar as well as a convicted murderer. A trial court’s discretion extends to determining what is relevant evidence at sentencing, and a trial court’s finding will not be disturbed unless an abuse of discretion is shown. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Stano has demonstrated no abuse of discretion on this point.
The victim’s parents testified at the first trial. Prior to the second trial, however, they stated that, because they were so upset, they would not testify again. The state filed a motion to compel their testimony, but the parents stated that they would not testify regardless of fines or imprisonment. The state then filed a motion of unavailability, and the parents reiterated that they would not testify and that sanctions would not induce them to testify. On the day trial was to begin, the state renewed its motion of unavailability. The parents, who were in the courtroom, again refused to testify. After holding a hearing on the matter, the trial court declared them unavailable and allowed the state to read the transcripts of their testimony at the first trial into evidence. Stano now claims that the court erred in declaring these people unavailable and in allowing their former testimony into evidence.
Subsection 90.804(l)(b), Florida Statutes (1983), provides that a witness is unavailable if he “[pjersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.” At the hearing immediately prior to trial the parents adamantly refused to testify and persisted in that refusal even when told by the court that their continued refusal could subject them to fines or imprisonment. The requirements of subsection 90.804(l)(b) have been met here. We see no purpose that would have been served in this instance in, as Stano argues, calling these people at trial to have them reiterate their refusal to testify or in actually fining or imprisoning them. The state made an adequate showing of unavailability, and we find no abuse of discretion in the trial court’s rulings. See Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla.1973).
To set the scene for reading into the record the prior testimony of the victim’s parents, a deputy court clerk testified that they had testified at the first trial and authenticated the exhibits that had been introduced through their testimony. The court reporter then read the parents’ former testimony into the record. The court overruled the defense’s objections to this procedure.
Stano now claims that allowing the deputy clerk to testify violated the rule of witness sequestration and also resulted in a loss of the trial court’s appearance of impartiality. Excluding persons from the rule of sequestration is within a trial court’s discretion, West v. State, 149 Fla. 436, 6 So.2d 7 (1942), and Stano has demonstrated no abuse of discretion or any prejudice here. Moreover, it appears that the deputy clerk’s testimony performed a purely administrative function. As such, it did not impinge upon the trial court’s appearance of impropriety. We therefore find no merit to this point.
When found, the victim’s body was in an advanced state of decomposition. At trial her former dentist identified the victim’s skull through her dental records. He had not, however, seen her for a number of years, and, in fact, the last dental charts he had made of his former patient showed twelve baby teeth. On the other hand, the five amalgam restorations (fillings) present in the victim’s first four permanent molars exactly matched the dental charts and the material the dentist used for restorations at that time. The dentist testified that, based on his dental expertise, the victim was his former patient.
The court overruled the defense’s objection to the dentist’s identification of the victim. Stano now argues that the dentist testified to an ultimate fact beyond his expertise and qualifications and that his testimony denied him a fair trial. We disagree.
An expert’s opinion must be based on facts in evidence or within his knowledge. Cirack v. State, 201 So.2d 706 (Fla.1967). The dentist’s testimony meets this standard, and he identified the victim to a reasonable medical certainty. See Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). A trial court has wide discretion concerning the admissibility of evidence and the subjects about which an expert can testify. Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). Stano has shown no abuse of discretion here.
At trial Stano moved for a judgment of acquittal, claiming that the state’s evidence failed to prove the corpus delicti with respect to the criminal agency of another being the cause of the victim’s death. The court denied the motion, and Stano now argues that the trial court erred in doing so.
There are three elements to the corpus delicti of a homicide: 1) The fact of death; 2) the criminal agency of another; and 3) the identity of the victim. Bassett v. State, 449 So.2d 803 (Fla.1984); Stone v. State. Proof of the corpus delicti beyond a reasonable doubt is not necessary, Bassett, nor is the state “obligated to rebut conclusively every possible variation ... or to explain every possible construction in a way which is consistent only with the allegations against the defendant.” State v. Allen, 335 So.2d 823, 826 (Fla.1976).
The state produced substantial evidence to support establishing the corpus delicti. Although he could not pinpoint a cause of death, the medical examiner ruled out natural causes. Hunters found the teenage victim’s body covered with palm fronds in a ditch near a dirt road in a remote and heavily overgrown area thirty miles from her home. A police investigator testified that, in his opinion, the palm fronds had been arranged over the body deliberately. Finally, the details Stano mentioned in his confession correlate well with the crime scene and the physical appearance of the victim and her belongings. We hold, therefore, that the state produced sufficient evidence to establish the victim’s death through the criminal agency of another person.
As his final challenge to the guilt phase of his trial, Stano argues that the trial court violated his constitutional right to be present at all stages of the trial by conducting portions of the trial outside his presence. The first instance occurred at a status conference prior to his first trial, and the second occurred during a communication with the jury. After examining the record, we find no reversible error.
The state presented two motions at the status conference. In the first the state asked that the defense be compelled to disclose the addresses of two potential defense witnesses. The court’s granting this motion was a purely ministerial act and does not constitute error. Additionally, these witnesses did not testify at the second trial, so there is simply no way Stano’s absence caused him any prejudice. In the second motion the state requested that Stano be compelled to undergo a psychiatric examination to determine his capacity to appreciate the criminality of his conduct. The court specifically deferred ruling on this motion because of Stano’s absence. The court’s action demonstrates a scrupulous concern for Stano’s rights, and we find no error here. We therefore find this status conference to have been a noncritical stage of the trial as defined by Florida Rule of Criminal Procedure 3.180 and that the court did not err by ruling during Stano’s involuntary absence. See Herzog v. State, 439 So.2d 1372 (Fla.1983).
While deliberating, Stano’s second jury requested a tape player, a list of the evidence, and a color photograph. Defense counsel waived Stano’s presence while the judge answered the request. Stano now claims that every stage of a trial is a crucial stage and that a defendant must be present at each. We disagree and find Stano’s reliance on Ivory v. State, 351 So.2d 26 (Fla.1977), misplaced.
In Ivory we stated: “Any communication with the jury outside the presence of the prosecutor, the defendant, and the defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.” Id. at 28. Here, however, both the prosecutor and defense counsel were present. In view of the lack of an objection to the court’s answering the request, and in view of defense counsel’s waiver of Stano’s presence, we find any error, if indeed there be any here, to be harmless beyond a reasonable doubt, at the worst.
Florida Rule of Appellate Procedure 9.140(f) directs us to review the evidence when a defendant is sentenced to death regardless of whether insufficiency of the evidence is an issue on appeal. After reviewing this record, we find the conviction to be supported by competent, substantial evidence. We therefore affirm Stano’s conviction of first-degree murder.
Stano testified in his own behalf at the sentencing proceeding. On cross-examination the state asked him about his previous convictions and whether he planned to attack his former attorney’s performance in a collateral proceeding. The state also argued to the jury that it needed to return an appeal-proof sentence. Stano now claims that the cross-examination and argument deprived him of his constitutional rights to due process and a fair trial.
The control of cross-examination is within a trial court’s discretion, and wide latitude should be permitted in cross-examining a witness. Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943). The same is true regarding prosecutorial comments. Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, — U.S.-, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984); Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Stano has demonstrated no abuse of discretion in the trial court’s allowing the state’s cross-examination. Additionally, he has not shown the prosecutor’s argument to be so inflammatory as to produce a more severe sentence than otherwise would have been recommended. See Mason v. State, 438 So.2d 374 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). In any event we find the prosecutor’s argument to have been harmless beyond a reasonable doubt. State v. Murray, 443 So.2d 955 (Fla.1984).
During the sentencing phase, the state introduced evidence regarding Stano’s eight prior convictions of first-degree murder to support finding prior conviction of violent felony in aggravation. Stano now argues that this evidence improperly became a feature of the sentencing proceeding. After examining the record, we disagree.
In Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), this Court held that similar fact evidence regarding collateral crimes can be admissible. Such evidence of unrelated crimes, however, cannot be made a feature of the trial. Williams v. State, 117 So.2d 473 (Fla.1960). In a sentencing proceeding the state may introduce testimony as to the circumstances of a prior conviction, rather than just the bare fact of that conviction. Mann v. State, 453 So.2d 784 (Fla.1984), cert. denied, — U.S. -, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985); Elledge v. State, 346 So.2d 998 (Fla.1977).
One person with eight prior convictions of first-degree murder presents an unusual situation. Stano v. State, 460 So.2d 890, 894 n. 4 (Fla.1984). Considering the totality of the circumstances, we find that the trial judge did not abuse his discretion in allowing into evidence details of these other homicides. The state’s argument about these other crimes approached the outermost limits of propriety, but we conclude that neither this evidence nor the argument about it was so egregious as to warrant reversal.
In sentencing Stano to death the trial court found the following aggravating circumstances: prior conviction of violent felony; committed while engaged in a kidnapping; heinous, atrocious, or cruel; and committed in a cold, calculated, and premeditated manner. The trial court found that no statutory or nonstatutory mitigating circumstances existed. Stano now argues that the court erred in finding the last three aggravating factors and in not finding numerous statutory and nonstatutory mitigating factors.
After examining this record and after comparing it with other death sentence cases, we hold that the trial court’s findings are adequately supported. Picking up the teenage victim, striking her to keep her quiet, and driving her a considerable distance to a remote and desolate location support finding that Stano kidnapped her. Compare Stano, 460 So.2d at 893 (similar situation). These events, when coupled with Stano’s confession to a fellow inmate that he alternately choked and revived the victim and stabbed her numerous times, support finding the murder to have been heinous, atrocious, or cruel. We have previously held that the cold, calculated, and premeditated aggravating factor can be applied to homicides committed prior to its adoption. Justus v. State, 438 So.2d 358 (Fla.1983), cert. denied, — U.S.-, 104 S.Ct. 1332, 79 L.Ed.2d 726 (1984). The circumstances surrounding this killing adequately demonstrate that Stano had the state of mind, intent, and motivation necessary to finding that he killed the victim in a cold, calculated, and premeditated manner. Mason.
The decision as to whether or not mitigating circumstances have been established is within the trial court’s domain, and such decision will not be reversed simply because an appellant draws a different conclusion. Stano; Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). The trial judge here properly resolved the conflicts in the evidence, and his findings are supported by competent substantial evidence. Stano; Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). We therefore hold that the trial court did not err by failing to find anything in mitigation.
As his last point on appeal, Stano presents numerous challenges to the constitutionality of the death penalty. He concedes that all of these points have been presented to and rejected by this Court on numerous occasions. We see no reason to revisit these claims here.
Therefore, we affirm both Stano’s conviction of first-degree murder and sentence of death.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.
Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
No. 68982.
Supreme Court of Florida.
Oct. 16, 1986.
Rehearing Denied Dec. 22, 1986.
Larry Helm Spalding, Capital Collateral Representative, and Mark Evan Olive, Litigation Director, Office of the Capital Collateral Representative, Tallahassee, for appellant.
Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Stano, a Florida prisoner for whom a death warrant has been signed, appeals the trial court’s denial of his motion for post-conviction relief. We have jurisdiction. Fla.R.Crim.P. 3.850. We affirm the trial court’s denial of relief and vacate the stay of execution that we previously granted.
Stano has a lengthy history in this state’s courts. The death warrant which prompted these proceedings is based on his conviction at trial of one count of first-degree murder and sentence of death, which this Court affirmed. Stano v. State, 473 So.2d 1282 (Fla.1985), cert. denied, — U.S. -, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986). Stano is also under two more sentences of death for two murders to which he pleaded guilty and which this Court also affirmed. Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). Moreover, Stano has pleaded guilty to six other counts of first-degree murder for which he received consecutive terms of life imprisonment with no possibility of parole for twenty-five years. These last six guilty pleas are central to Stano’s 3.850 motion.
Stano raised six points in that motion: 1) confessions which led to the six prior guilty pleas, introduced as aggravating evidence at the trial which ultimately resulted in Stano’s death warrant, were coerced; 2) the state improperly withheld exculpatory evidence (i.e., that the confessions leading to the prior guilty pleas were coerced) from Stano’s trial counsel; 3) ineffectiveness of trial counsel for failure to cross-examine a state’s witness adequatley; 4) ineffectiveness of trial counsel for failure to object to the state’s cross-examination of Stano during the sentencing proceeding; 5) two psychiatrists should not have been allowed to testify for the state at sentencing as to the statutory mitigating circumstances; and 6) the incompetency of the defense’s expert who made a psychological study of Stano. Stano’s current counsel filed this 3.850 motion less than twenty-four hours prior to Stano’s scheduled execution. The trial court immediately heard the parties as to whether the motion stated facts sufficient to warrant holding an evidentiary hearing on the allegations.
At that hearing, Stano’s counsel argued that he needed more time to do more investigating and to secure the presence of witnesses. The state’s representative said that he could not oppose the motion for continuance, “not because of the merits of what they [Stano’s counsel] had to argue, but because of their failure to commence their work timely and permit this [trial] court to do its work timely.” The trial court commented that most of the matters in the 3.850 motion were covered by evidence that had been presented to the trial court previously and that the new material consisted primarily of allegations of unfounded improprieties, some letters written by Stano confessing to miscellaneous other murders, a defense psychiatric evaluation previously not released to the court indicating that Stano confessed to that doctor murdering the victim for which he was tried, and copies of articles written after Stano’s prior confessions. The court then stated that these matters had been previously ruled on, could have been presented on appeal, “or contained allegations which would constitute inadmissible evidence or attempt to invade the province of the jury or the finders of fact about comment or opinion on the evidence presented, or relate to matters that are not material to the consideration of this Court.”
The trial court concluded that ineffectiveness of counsel was the only cognizable claim presented in the 3.850 motion. The court went on to note the presence of three witnesses who could directly address this issue, i.e., Stano and his trial attorneys (Russo and Friedland), and asked if either Stano or the state wished to present those witnesses as to the claims of ineffectiveness. Stano’s current counsel asked to proffer the live testimony of witnesses other than Stano and his former attorneys to establish trial counsel’s substandard performance. He also asked for time to secure those witnesses’ presence and stated: “Judge, we can’t present the claim, unless you order us to, of ineffective assistance of counsel at this time.” The state indicated that it was ready to proceed with those persons present in the courtroom, stating: “If the defense counsel evaluated and made a tactical choice, the case law is clear on the state and federal level, that that will not be the predicate for ineffective assistance of counsel.” Stano’s counsel then argued again for more time. The court responded: “I understand what defense counsel means by proffer, those are things that are in the motion and have been presented by motion and should have been presented by motion.” The court then denied the proffer of live witnesses other than those present and continued: “I’m now sitting here with defense counsel indicating that they will proceed, although reluctantly, but concede to me that if they do, they can’t prevail.” Under those circumstances the court considered it foolish to proceed and denied the 3.850 motion. He granted a stay until 10:00 a.m. July 2, in order for the parties to come to this Court, and refused to hear anything more from Stano’s counsel.
On appeal Stano claims that the files and records do not show conclusively that he was not entitled to relief and that the trial court, therefore, erred by not conducting an evidentiary hearing on the claimed ineffectiveness. Furthermore, Stano claims the trial court also erred by attempting to limit the evidentiary hearing to effectiveness of counsel. We disagree. The court properly ruled that most of the instant issues were ruled on previously or could have been presented on appeal. He also held that some of the allegations were simply not cognizable.
We agree that ineffectiveness was the only matter which might have required a hearing. The state indicated its willingness to proceed with such an evidentiary hearing because of the presence of the main witnesses as to ineffectiveness, the defendant and his former counsel. Stano’s current counsel, however, maintained that the “allegations of effective assistance of counsel have not and could never be resolved upon the basis of the attorneys’ testimony.” Contrary to this contention, former counsel frequently testify as to their past performance at trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 678, 104 S.Ct. 2052, 2060, 80 L.Ed.2d 674 (1984); Tafero v. State, 459 So.2d 1034, 1036 (Fla.1984).
Trial courts should grant evidentiary hearings on 3.850 motions when warranted. Porter v. State, 478 So.2d 33 (Fla.1985). By his words to and actions before the trial court, it appears that that court correctly concluded that counsel felt he could not prevail in an evidentiary hearing regarding ineffectiveness. Holding such a hearing, therefore, obviously was not warranted. We find no error in the trial court’s ultimate determination that an evidentiary hearing should not be held.
We affirm the trial court’s order and vacate our previously entered stay of execution.
It is so ordered.
McDonald, C.J., and ADKINS, BOYD and OVERTON, JJ., concur.
EHRLICH, SHAW and BARKETT, JJ., dissent.
Stano claims that the six guilty pleas were unreliable because his then-attorney (Jacobson) colluded with a police detective (Crow) and Stano's psychologist (McMillan) who coerced his confessions for their own personal and professional gain. These confessions were the primary predicate for the guilty pleas.
The trial court, anticipating a 3.850 hearing and realizing that time is of the essence after a death warrant is signed, made numerous telephone calls to Stano’s current counsel urging an earlier filing and had previously reserved time for such a hearing. Current counsel failed to comply with the trial court’s requests for timely handling of this case.
In anticipation of the 3.850 hearing the trial court had summoned Stano’s two trial attorneys and had arranged for Stano to be present.
The first prong of the test for ineffectiveness from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The second part of that test is prejudice.
Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
No. 87-3588.
United States Court of Appeals, Eleventh Circuit.
Aug. 25, 1987.
Larry H. Spalding, Capital Collateral Representative, Mark Evan Olive, Chief Asst., Capital Collateral Representative, L.G., Staff Atty., Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
[OPINION BY BY THE COURT: type=majority]
BY THE COURT:
The Emergency Motion of Petitioner, Gerald Eugene Stano, for Stay of Execution is GRANTED until 1:00 p.m. Friday, August 28, 1987, unless further extended by the Court. Oral Argument on petitioner’s application for certificate of probable is scheduled for 9:00 a.m. on Friday, August 28, 1987, in Atlanta, Georgia.
Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
No. 87-3588.
United States Court of Appeals, Eleventh Circuit.
Aug. 28, 1987.
Larry H. Spalding, Capital Collateral Representative, Mark Evan Olive, Chief Asst., Capital Collateral Representative, and L.G., Staff Atty., Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
[OPINION BY BY THE COURT: type=majority]
BY THE COURT:
It is ordered that appellant’s application for a certificate of probable cause is hereby GRANTED. The execution of appellant is STAYED pending further order of this court.
Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
No. 70700.
Supreme Court of Florida.
Feb. 25, 1988.
Rehearing Denied April 19, 1988.
Larry Helm Spalding, Capital Collateral Representative, Mark Evan Olive, Chief Asst., and L.G., Staff Atty., Office of Capital Collateral Representative, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Stano appeals the trial court’s denial of his motion for postconviction relief. We have jurisdiction pursuant to article V, section 3(b)(1) of the state constitution and Florida Rule of Criminal Procedure 3.850, and we affirm the trial court’s order.
After being arrested for aggravated battery in 1980, Stano confessed to having murdered numerous women. He pled guilty to six counts of first-degree murder and, pursuant to a plea agreement, received six consecutive life sentences. He later pled guilty to the two homicides central to the instant case (Volusia County) and went to trial for the murder of yet another woman (Brevard County) and currently has received a total of three death sentences. On appeal this Court affirmed those sentences. Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985) (guilty pleas); Stano v. State, 473 So.2d 1282 (Fla.1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986) (trial).
In late 1986 the governor signed a death warrant for Stano on his guilty plea death sentences. Stano then filed a rule 3.850 motion, and the trial court granted a stay in order to conduct an evidentiary hearing. Following several preliminary hearings and conferences, the court decided that the record conclusively demonstrated that no evidentiary hearing needed to be held and denied the motion for posteonviction relief.
Stano now claims that the trial court erred by not holding an evidentiary hearing and reargues the issues raised in his 3.850 motion. Those issues mainly allege ineffective assistance of counsel, i.e., that if counsel had made a proper investigation Stano would not have pled guilty; that counsel did so little as to leave Stano without counsel, thereby rendering his plea and waiver of his rights involuntary; that counsel should not have allowed the introduction of psychiatric reports based on Stano’s unwarned statements; that counsel should have had mental health experts appointed to assist in preparing a defense; and that counsel should have precluded any use whatsoever of the presentence investigation (PSI) report. He also argues that the trial judge should have recused himself because he had previously accepted three of Stano’s pleas of guilty to first-degree murder.
As the basis for complaining that trial counsel should have investigated more, Stano attacks the six guilty pleas that he made earlier. He claims that a police detective, his psychologist, and the attorney who represented him on those pleas coerced him into confessing for their own personal and professional gain. He argues that his trial counsel in the instant case should have discovered this and, instead of acceding to Stano’s wishes to plead guilty, should have done more.
These claims regarding ineffectiveness of counsel’s assistance and the involuntariness of Stano’s plea are an attempt to go behind the plea. Stano now says that he is innocent of these two murders to which he pled guilty. Paced with a “seemingly unending dilemma,” the trial court held: “Once the Defendant enters a plea of guilty before this Court, and assures the Court under oath that the plea is voluntary, the Court will not go behind the plea. The plea cuts off inquiry into all that precedes it. The Defendant is barred from contesting events happening before the plea.” Having previously found that there was a competent basis for the trial court’s acceptance of Stano’s guilty pleas and because it is clear that Stano’s guilty pleas were freely and voluntarily given, without any duress, we agree. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Robinson v. State, 373 So.2d 898 (Fla.1979); Steinhauser v. State, 228 So.2d 446 (Fla. 2d DCA 1969).
An evidentiary hearing is not required when the record demonstrates conclusively that postconviction relief is not warranted. E.g., Agan v. State, 503 So.2d 1254 (Fla.1987); Lightbourne v. State, 471 So.2d 27 (Fla.1985). The trial court included numerous quotations from the original record in the order denying Stano’s 3.850 motion. These portions of the record show an evidentiary hearing to be unwarranted.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set out a two-part test for determining claims of ineffective assistance of counsel. Under that test, a petitioner must show both that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result would have been different. Id. Stano’s claims, as demonstrated by the record, do not meet this test.
As pointed out by the trial court, Stano’s counsel advised the court, at the plea hearing and in Stano’s presence, that he had not received full discovery in the case. Counsel went on to state:
I’m just making my position clear in Mr. Stano's presence about the entry of this plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.
I have spoken with Mr. Nixon [assistant state attorney], I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delicti in both of these cases. And Mr. Stano tells me that this is so.
Further, I have asked him about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.
He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.
I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.
He tells me he does not want a trial. When the court asked if he had any comment on what counsel had said, Stano responded: “No. I believe everything was quite sufficient that he said.” The record also demonstrates that Stano made his guilty plea freely and voluntarily after discussions with trial counsel and that Stano had no questions to ask counsel before he pled guilty.
By insisting on pleading guilty and by telling counsel that he had confessed freely and voluntarily, Stano rendered any further investigation pointless. Stano had been found competent to stand trial and, therefore, competent to assist in his defense. We cannot see how acceding to the wishes of a competent client could or should be construed as ineffectiveness years after the fact and only when execution of sentence is imminent. The record conclusively demonstrates no substandard performance by Stano’s counsel regarding his investigation. See Agan.
We also see no deficient performance regarding the mental health experts or the PSI. That Stano has now found experts whose opinions may be more favorable to him is of no consequence. The trial court relied, in part, on one psychologist’s report to find that several nonstatutory mitigating factors had been established. We, like the trial court, cannot fault trial counsel’s conduct regarding the mitigating evidence. Given Stano’s desire to plead guilty and the extant expert’s reports, we fail to see how counsel could have divined any need for more and different expert testimony. Regarding the PSI, the record shows that counsel succeeded in having it considered only for purposes of mitigation. Counsel’s effectiveness in this regard is, therefore, obvious.
The guilty plea proceedings also addressed the instant trial judge’s sitting on this case. The record shows that Stano had no objection to appearing before this judge and refutes the current contention that the judge held Stano’s previous confessions and the disposition of those cases against Stano. The recusal issue should have been raised on appeal, if at all, and is procedurally barred from these proceedings.
The record demonstrates conclusively that the trial court correctly denied the 3.850 motion without an evidentiary hearing. We affirm the order denying relief.
It is so ordered.
MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
Stano made a similar claim in a 3.850 motion filed with the trial court (Brevard County) after the governor signed a warrant on the death sentence Stano received after being tried and convicted of one count of first-degree murder. Stano v. State, 497 So.2d 1185 (Fla.1986), cert. denied, — U.S. -, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).
The Strickland v. Washington test applies to challenges to guilty pleas based on claims of ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). .Any claimed violation of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), should have been made on appeal and is, therefore, procedurally barred in postconviction proceedings.
Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), is factually distinguishable from and inapplicable to this case.
That current counsel, through hindsight, would now do things differently than original counsel did is not the test for ineffectiveness.
Gerald Eugene STANO, Petitioner, v. Richard L. DUGGER, etc., Respondent.
No. 72403.
Supreme Court of Florida.
May 16, 1988.
Larry Helm Spalding, Capital Collateral Representative and L.G., Staff Atty., Office of the Capital Collateral Representative, and Mark Evan Olive, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., and Margene A. Roper and Belle B. Turner, Asst. Attys. Gen., Daytona Beach, for respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Stano, currently under a death warrant, petitions the Court for a writ of habeas corpus and requests a stay of execution. We have jurisdiction pursuant to article V, section 3(b)(9), Florida Constitution, and deny both the petition and the requested stay.
Stano pled guilty to two counts of first-degree murder and waived sentencing before a jury. The trial court imposed two death sentences, which this Court affirmed. Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). In 1986 the governor signed Stano’s death warrant, and Stano filed a motion for postconviction relief. The trial court stayed the execution, but, later, denied relief. We affirmed that denial. Stano v. State, 520 So.2d 278 (Fla.1988). The governor recently signed another warrant on Stano, prompting the instant petition.
Stano first claims that the circumstances surrounding his guilty pleas violated his constitutional rights and that the trial court did not provide a record that conclusively shows that Stano knowingly, intelligently, and voluntarily waived his right to trial. In reality these issues boil down to a complaint about the voluntariness of Stano’s guilty pleas and trial counsel’s effectiveness regarding these pleas. This Court, however, has considered these issues previously. On direct appeal we stated and held: “Moreover, although not raised on appeal, we find a competent basis for the trial court’s acceptance of Stano’s guilty pleas and the adjudications of guilt.” 460 So.2d at 892. Additionally, on appeal of denial of the postconviction motion, we studied the record again and agreed with the trial court that counsel had rendered effective assistance. We also agreed with the trial court that Stano was barred from attacking events before entry of the pleas because “there was a competent basis for the trial court’s acceptance of Stano’s guilty pleas and because it is clear that Stano’s guilty pleas were freely and voluntarily given, without any duress.” 520 So. 2d at 280. Later in the postconviction opinion we reiterated these results of our study of the record: “The record also demonstrates that Stano made his guilty pleas freely and voluntarily after discussions with trial counsel and that Stano had no questions to ask counsel before he pled guilty.” Id. Because we have previously considered these first two issues, we find them to have been raised improperly in this petition.
In his third claim Stano argues that the trial court erred in considering the PSI report. We have previously found trial counsel not to have been ineffective for failing to preclude consideration of the PSI. 520 So.2d at 281. Moreover, the PSI supports the nonstatutory mitigating circumstances found by the trial court (Stano’s childhood and marital difficulties and the fact that he confessed and pled guilty). See 460 So.2d at 892. Current counsel argues that the trial court’s statements regarding the limited purpose of its consideration of the PSI were not adequate to offset what he contends to be improper information about Stano in the report. We find neither Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), nor Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), demonstrate fundamental error which would provide habeas relief on this issue.
As his fourth claim, Stano argues that subsection 921.141(5)(i), Florida Statutes (1979), the cold, calculated, and premeditated aggravating factor, should not be applied retroactively. We disposed of this claim adversely to this contention in Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982), and have not receded from that position. We also conclude that, even if this aggravating circumstance were eliminated from consideration, there would be no reasonable probability that the elimination of this aggravating factor would change the sentence of Stano. We note the elimination of this aggravating factor changes no facts and circumstances that were before the judge. We reject the claim that Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), is controlling under the circumstances of this case.
Stano’s last claim is that appellate counsel rendered ineffective assistance by not raising the first four claims. As discussed above, we considered the circumstances surrounding Stano’s guilty plea on both the direct and postconviction appeals and found no error. Stano, therefore, cannot establish prejudice, the second part of the test for ineffectiveness set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We find no merit in the remaining claims of the petitioner. Finding no basis for relief presented by this petition, we deny the petition for writ of habeas corpus and refuse to grant a stay of execution.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
NO MOTION FOR REHEARING WILL BE ALLOWED.
Gerald Eugene STANO, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.
No. 88-3375.
United States Court of Appeals, Eleventh Circuit.
May 18, 1988.
Mark E. Olive, Capital Collateral Representative, L.G., Tallahassee, Fla., for petitioner.
Belle Turner, Asst. Atty. Gen., Daytona Beach, Fla., for respondent.
Before TJOFLAT, FAY and JOHNSON, Circuit Judges.
[OPINION BY BY THE COURT: type=majority]
BY THE COURT:
The petitioner, Gerald Eugene Stano, seeks a certificate of probable cause to appeal from the judgment of the district court, entered earlier today, denying his petition for a writ of habeas corpus. See 28 U.S.C. § 2253 (1982). He also seeks a stay of his execution, which is scheduled to take place tomorrow morning at 7:00.
Stano’s petition contains numerous claims for relief. Stano filed his petition in the district court yesterday, after the Supreme Court of Florida refused his application for a writ of habeas corpus and a stay of execution. After it received Stano’s petition, the district court convened a hearing to assess the nature of Stano’s multiple claims and to receive evidence. At the conclusion of the hearing, which consumed over eight hours, ending at 9:30 this morning, the court, in a 42-page order, denied Stano’s petition. The court also denied his application for a certificate of probable cause to appeal and his request for stay of execution.
Stano’s petition for a writ of habeas corpus challenges, among other things, the validity of his pleas of guilty to two counts of murder. At the time Stano pled guilty, Stano was indigent and was represented by court-appointed counsel. When the hearing began, counsel made the following statement to the court:
[DEFENSE COUNSEL]: Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue.
At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials has not yet been received by the State and [the prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that.
THE COURT: So, you’re not complaining, you’re just stating this for the record.
[DEFENSE COUNSEL]: No, that is not a complaint. I’m just making my position clear in Mr. Stano’s presence about the entry of this plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.
I have spoken with [the prosecutor]. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delecti in both of these cases. And Mr. Stano tells me that that is so.
Further, I have asked him about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.
He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.
I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.
He tells me he does not want a trial.
THE COURT: Okay.
Mr. Stano, do you care to comment on what [defense counsel] has just said?
THE DEFENDANT: No. I believe everything was quite sufficient that he said.
THE COURT: He stated things accurately?
THE DEFENDANT: Yes.
THE COURT: You’re in agreement with what he said?
THE DEFENDANT: Yes, sir.
Stano alleges that the foregoing colloquy demonstrates that, at the time he pled guilty, he was, in effect, proceeding without the services of an attorney; in other words, his attorney knew so little about the case as to be incapable of rendering any meaningful service to Stano. This allegation forms the basis of Stano’s claim, set forth on page 30 of his petition, that at the time he pled guilty he was proceeding pro se “without a knowing, voluntary, and intelligent waiver of counsel.”
The district court did not address this claim in its dispositive order. Accordingly, to deny Stano a certificate of probable cause and a stay of execution, we must be prepared to hold that this particular claim does not amount to a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). This we cannot do.
Under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a criminal defendant has a sixth amendment right to proceed pro se. But a defendant who seeks to proceed pro se does not give up his sixth amendment right to counsel unless he has “knowingly and intelligently” relinquished that right. Id. at 835, 95 S.Ct. at 2541 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). The defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with his eyes open.’ ” Id.
In evaluating whether a defendant has knowingly and intelligently waived his right to counsel, “[t]he ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.” Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986). Thus, there need not have been an express examination on the matter by the trial court in order for there to have been a waiver. Id. But no waiver can be found unless there are facts which show that the defendant knew and understood that he was relinquishing his sixth amendment right to counsel.
Here, a cogent argument can be made that Stano was proceeding pro se when he entered his guilty pleas. Because the trial court did not expressly examine him on the matter, and because we cannot conclude from the record that Stano had waived his right to counsel, we cannot say that this claim is frivolous. At the very least, an evidentiary hearing may be necessary to determine whether Stano made a knowing and intelligent waiver.
For the foregoing reasons, Stano’s applications for a certificate of probable cause and for a stay of his execution are
GRANTED.
Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.
No. 87-3588.
United States Court of Appeals, Eleventh Circuit.
Aug. 22, 1989.
Order on Grant of Rehearing Oct. 31, 1989.
Mark Evan Olive, Atlanta, Ga., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
[OPINION BY FAY, Circuit Judge. type=majority]
FAY, Circuit Judge.
Gerald Eugene Stano appeals the district court’s denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (1982). Stano asserts fourteen errors claiming violations of his rights under the fifth, sixth, eighth and fourteenth amendments to the United States Constitution. Among the violations, Stano claims a denial of his right to state-held exculpatory evidence concerning both the guilt/innocence and sentencing phases of his trial, to present fully evidence necessary for his defense, to a reliable and unbiased jury recommendation regarding the death sentence, to effective assistance of counsel, to confront the witnesses against him, and to a fair and impartial trial. We find no violation of Stano’s constitutional rights as asserted in these claims and therefore affirm the district court’s order denying habeas relief.
1. BACKGROUND
In 1981 Gerald Stano confessed to killing a young woman in 1974, and a grand jury indicted him for first-degree murder. Stano was twice tried for the murder of Cathy Scharf in Brevard County Circuit Court. The first trial in September, 1983 ended in a mistrial after the jury failed to reach a unanimous verdict. The jury in the second trial returned a guilty verdict on December 2, 1983 and recommended the death sentence. Stano appealed the conviction and sentence to the Florida Supreme Court, which affirmed. Stano v. State, 473 So.2d 1282 (Fla.1985). The United States Supreme Court denied certiorari on January 21, 1986. Stano v. Florida, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986).
Stano’s application for executive clemency was denied on May 22, 1986. His execution was scheduled for July 2, 1986 at 7:00 a.m. Stano then filed a postconviction relief motion on July 1, 1986, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which the state circuit court denied. The Florida Supreme Court granted an initial stay of execution pending review of the state circuit court’s order, but ultimately affirmed the denial of relief on October 16, 1986 finding no error in the trial court’s determination that an evidentiary hearing was not required. Stano v. Florida, 497 So.2d 1185 (Fla.1986). The United States Supreme Court refused certiorari on May 18, 1987. Stano v. Florida, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). On June 4, 1987, the Governor signed Stano’s second death warrant for the murder of Cathy Scharf. Stano was then rescheduled for execution. On July 6, 1987, the Florida Supreme Court denied Stano’s motion for a five day extension of time to file a petition for writ of habeas corpus. Stano filed no further collateral motions for relief in the state courts.
On August 22, 1987, Stano filed a petition for writ of habeas corpus with the United States District Court for the Middle District of Florida. Of the numerous grounds claimed in the petition, the district court concluded that only the ineffective assistance of counsel claim merited evidentiary development. After a limited evidentiary hearing, the district court denied habeas relief. Stano appealed the district court’s ruling to this court alleging multiple violations of his constitutional rights. We now review each of these claims in turn.
II. ANALYSIS
A. BRADY CLAIM
Stano argues that the district court erred in refusing to hold an evidentiary hearing on his claim that the prosecution suppressed material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Stano asserts that the state violated his constitutional right to due process by suppressing evidence showing that: 1) A police detective, J.W. Gadberry, believed that Stano had falsely confessed to and was not responsible for a prior murder for which Stano had been convicted; 2) The state colluded with defense counsel in obtaining confessions from Stano; 3) A defense counsel psychologist instructed the detectives on psychological methods of extracting confessions from Stano; 4) The detectives coerced Stano into confessing by promising him escape from the electric chair, life imprisonment, and hospitalization; and 5) Other courts had rejected Stano’s various prior confessions as unreliable. The district court, agreeing with the Florida Supreme Court, found that the petitioner’s allegations were of nothing more than unfounded improprieties and, at most, inadmissible evidence. See Stano, 497 So.2d at 1186-87. The court held that no credible or reliable record evidence supported the allegations. Additionally, the court stated that the allegations did not constitute evidence so favorable to the defense that its suppression deprived the petitioner of a fair trial. We agree.
In certain circumstances, the district court is mandated to conduct an evidentiary hearing in a habeas proceeding. Where the facts are in dispute, a federal habeas court must grant an evidentiary hearing “if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2846, 101 L.Ed.2d 884 (1988). However, an evidentiary hearing is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief. Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57; Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Thus, assuming Stano’s allegations to be true, he must state a valid claim for relief under Brady.
Brady holds “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97. To establish a due process violation under Brady, the petitioner must show that: 1) The prosecution suppressed evidence; 2) The evidence suppressed was favorable to the defendant or exculpatory; and 3) The evidence suppressed was material to the issues at trial. United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988); United States v. Stewart, 820 F.2d 370, 374 (11th Cir.1987). The Supreme Court in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), defined the standard of materiality required to show a Brady violation. “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. at 682, 105 S.Ct. at 3384; Burroughs, 830 F.2d at 1578.
1. Alleged Governmental Suppression of Evidence
Stano alleges that the state improperly withheld evidence that a police detective believed Stano falsely confessed to a prior murder for which he was convicted; that a conspiracy existed to obtain Stano’s confessions; that Stano was a pathological liar; and that Stano’s prior confessions were coerced. To analyze whether the prosecution improperly suppressed evidence, factors such as the prosecutor’s duty to search out and disclose certain evidence, as well as the availability of the evidence to the defense, must be considered. “A prosecutor is not constitutionally obligated to obtain information dehors his files for the purpose of discovering information which defense counsel can use_” Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir.1984). Moreover, relief is not warranted whenever a combing of the prosecutor’s files after trial reveals evidence possibly useful to the defense but unlikely to have changed the verdict. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The Supreme Court has held that the prosecution is not constitutionally required to “make a complete and detailed accounting to the defense of all police investigatory work on a case.” United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (quoting Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972)). In addition, the state has no obligation “to communicate preliminary, challenged, or speculative information.” Agurs, 427 U.S. at 109 n. 16, 96 S.Ct. at 2400 n. 16 (quoting Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (1967) (Fortas, J. concurring)).
Detective Gadberry’s difference of opinion with other detectives, his superiors, and the state attorney regarding Stano’s responsibility for a prior murder, is not the type of evidence that a prosecuting attorney is constitutionally required to communicate to the defense. Such preliminary police investigatory work, which stands challenged by other members of the department and which is speculative at best, need not be revealed. This evidence was equally available to the defense, as well as to the prosecution, since Detective Gadberry made no secret of his opinion among his peers. See Appendix 16, p. 6. Thus, the prosecution did not suppress this evidence.
Stano’s other allegations of suppression fail to satisfy this prong of Brady for the same reason. Allegations of a conspiracy to obtain confessions and of coercion in other cases do not constitute the type of evidence the state must investigate and disclose, particularly where the prior confessions and pleas resulted in valid, final convictions. The state owes no duty to the defense to explore and undermine the validity of prior final convictions. The prosecutor may rely on the petitioner’s guilty pleas in other cases, which result in convictions subject to independent appellate review, as waiving most nonjurisdictional challenges to the convictions’ constitutionality. See McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir.1986). Although a challenge to the voluntary and knowing nature of a guilty plea may be raised on direct appeal or collateral attack of that conviction id., the validity of a guilty plea in one case may rarely be challenged in the collateral attack of another. Regarding the remaining allegations, the record reflects that the defense was in possession of evidence prior to trial that other jurisdictions considered Stano’s confessions unreliable and declined to prosecute based on them, and that Stano was a pathological liar. Consequently, since the defense was either not constitutionally entitled to the evidence or it had equal access to the material, Stano’s allegations fail to establish a Brady violation under the first step of inquiry; that the state suppressed evidence.
2. Evidence Favorable to the Petitioner
Assuming however, that the state did indeed suppress some evidence, the second prong of the Brady analysis requires that the evidence be favorable to the petitioner. From our consideration of the record, we agree with the district court that the alleged exculpatory evidence is not evidence favorable to the accused. To be favorable here, the evidence first must be admissible and subject to consideration by the trier of fact. In this case, Detective Gadberry allegedly would have testified regarding his reservations about Stano’s guilt in another case. Detective Gadberry’s proposed statement regarding a wholly separate murder for which Stano has been convicted, like Detective Kappel’s proffered testimony concerning other cases, would not be admissible at any stage of this homicide proceeding. See Argument B, infra. The detective’s differing opinion about a case not at issue here is irrelevant and speculative as to the determination of Stano’s guilt or sentence in the Scharf murder. The same reasoning applies to the evidence dealing with the actions of other jurisdictions. The refusals by other jurisdictions to prosecute Stano in no way creates an inference that this case was erroneously prosecuted or that Stano’s Scharf confession is unreliable. Thus, such inadmissible evidence can hardly be deemed exculpatory.
Similarly, Stano’s allegations that his pri- or confessions were coerced and the result of a conspiracy involving collusion of the state and defense counsel establish no basis for relief. If we accept Stano’s allegations as true, the fact that coercive techniques were used in previous cases to elicit confessions does not create an inference that the same coercion was applied in this case. The evidence would be inadmissible in considering Stano’s guilt or sentence for the Scharf murder. We cannot draw the conclusion that coercion exists here, especially when the record reflects that Stano’s confessions regarding Scharf were made voluntarily and knowingly. See Trial Transcript, Advanced Appendix Vol. 3, A, p. 867-68, 969-71, 979. Because this evidence would not establish such an inference, and indeed would not even be a proper consideration for the factfinder, it is not exculpatory. The requested evidence simply is not Brady material.
We stress that procedurally, the collateral attack in this case of Stano’s prior confessions and guilty pleas is improper. The proper forum for presenting the issues exists in the courts where those cases can be directly or collaterally challenged, not in a habeas proceeding for a separate case. A need for finality and certainty exists regarding the convictions and judgments of the courts. According to the United States Supreme Court, “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (footnote omitted). The petitioner seeks to place a burden on this court which would disrupt the finality of prior judgments. Were this allowed, the parties and the courts would be subject to the risk of inconsistent results and interminable litigation. We decline to permit such a result.
3. Materiality
The final prong under Brady requires a showing that a reasonable probability exists that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Were Stano able to satisfy the first two prongs of the analysis, his allegations would fail under this inquiry.
Our review of the record indicates that even if the evidence had been admissible, and the defense had used Detective Gadberry’s statement, the outcome of the case nevertheless would not have changed. Gadberry’s statement refers to his involvement with Stano not on the Scharf murder, but on a wholly separate case. He was not even present during segments of the Stano interrogation regarding the prior homicide. See Appendix, 16 p. 2. Contrary to Gadberry’s assertion that another detective’s psychological influence pressured Stano into confessing, Stano confessed numerous times to multiple homicides independent of this detective’s influence, including confessing at his own sentencing proceeding in this case. See Advanced Appendix Yol. 4, B, p. 1825-26. Moreover, the record discloses that Stano’s detailed confessions rebut Gadberry’s opinion that Stano was vague in describing the murder. Thus, the record clearly refutes Gadberry’s evaluation of Stano.
As for the remaining allegations of coercion and conspiracy, the record indicates that Stano’s confessions were freely and voluntarily given. The petitioner alleges no concrete instances of coercion in the obtaining of the Scharf confessions, but only a long history of a psychologically pressured relationship between Stano and various detectives and defense team members in unrelated cases. The speculative nature of these assertions does not meet the requisite level of materiality under Brady and Bagley, especially when the record contains several instances of reliable Scharf confessions, including C.Z.’s testimony that Stano confessed to him in prison. See Trial Transcript, Advanced Appendix Vol. 3, A, pp. 893-96.
Neither would the outcome of the case likely have changed had the defense utilized the alleged exculpatory evidence at sentencing. Had the defense attacked the conviction to which Detective Gadberry’s statement related, several other prior convictions remained, and Stano himself reconfessed to eight murders while on the stand at his sentencing hearing. See Advanced Appendix Vol. 4, B, p. 1829. Stano therefore, has failed to state allegations sufficient to set out a constitutional violation under Brady. The prosecution did not improperly suppress evidence favorable to the petitioner which would have materially altered the outcome of the case. No due process claim is cognizable under Brady which would entitle Stano to an evidentiary hearing. Thus, the district court properly denied the petitioner’s request for relief.
B. RESTRICTION OF EVIDENCE CLAIM
Stano claims that the trial court erred in restricting his presentation of evidence at both the guilt/innocence and sentencing phases of trial. He seeks reversal of his conviction, or at a minimum, reversal of his death sentence. Stano argues that the evidence that he falsely confessed to other murders which he did not commit, and the testimony of a psychiatrist that mentally ill people often confess to crimes which they do not commit and that Stano may be such a person, was exculpatory and should have been admitted by the trial court. Stano asserts that his sixth, eighth and fourteenth amendment rights to establish a defense and prove the unreliability of his own confessions were violated by the trial court’s exclusionary ruling, and thus, his conviction should be reversed. The district court denied habeas relief on this ground and found that the evidence was both irrelevant and speculative regarding the murder of Cathy Scharf. We agree.
As the district court noted, for this claim to be cognizable the trial court’s evidentiary ruling must have deprived the habeas petitioner of fundamental fairness. Osborne v. Wainwright, 720 F.2d 1237, 1238-39 (11th Cir.1983). Generally, “a federal court in a habeas corpus case will not review the trial court’s actions in the admission of evidence.” Nettles v. Wainwright, 677 F.2d 410, 414 (5th Cir. Unit B 1982) (citations omitted). However, when a constitutional question is presented, the federal court will inquire into the nature of the evidentiary ruling to determine whether the alleged error denied the petitioner a fundamentally fair criminal trial. Id. at 414-15; Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983).
The disputed evidence must be material, and rise to the level “of a crucial, critical, highly significant factor.” Smith v. Wainwright, 741 F.2d 1248, 1258 (11th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985) (quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2355, 80 L.Ed.2d 827 (1984)). Unless the evidence is critical or significant enough to have denied the petitioner a fair trial, he is not entitled to relief. For example, in Smith, the defendant was tried for first degree murder. During the course of the proceedings, the trial judge admitted testimony regarding the facts of a second murder for which the defendant was charged, but not on trial. The defendant objected to the admission of the narrative regarding the second murder and claimed that the evidence was inflammatory, prejudicial and inadmissible. On appeal from the denial of habeas relief, this court upheld the trial court’s evidentiary ruling admitting the testimony and found that the petitioner failed to establish a violation of fundamental fairness. Smith, 741 F.2d at 1258. Although we recognized that the admissibility of such evidence presented a close state law question, under the materiality test, evidence concerning the second murder did not violate the petitioner’s constitutional rights. Id. Likewise, Stano’s challenge to the trial court’s evidentiary ruling merits no habeas relief in this appeal. The defense asserts that its theory of the case was to establish Stano as a liar, not a murderer. Stano argues that the trial judge excluded evidence material to this defense at the guilt/innocence phase of the trial, and material to mitigation at sentencing. The analysis in this case concerning an exclusionary ruling as compared with that in the Smith case dealing with an admissibility ruling remains the same; whether the disputed evidence was material and deprived the petitioner of fundamental fairness.
The trial court here correctly ruled that the evidence was not probative, was irrelevant and was inadmissible at the guilt/innocence phase since it did not indicate that Stano’s confession in the Scharf case was false or tainted. Evidence that Stano falsely confessed to other murders he did not commit or for which he was not charged does not reflect that his confession regarding the murder of Cathy Scharf was also false. The petitioner’s reliance on the eases cited in his brief is misplaced. Those cases deal with a defendant’s right to compel presentation of relevant, material, reliable, and critical testimony; not irrelevant, speculative and conjectural testimony as here. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (eyewitness testimony); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (critical evidence bearing substantial assurances of trustworthiness regarding another individual’s confessions to the same crime for which the defendant is on trial); Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (evidence regarding the circumstances under which the confession at issue was secured).
Moreover, the proffered testimony of Dr. Stern, a psychiatrist, that people often confess to crimes which they did not commit constitutes mere speculation in connection with Gerald Stano. Since the evidence was neither relevant nor probative regarding Stano’s guilt or innocence for the murder of Cathy Scharf, it did not rise to the level of a “crucial, critical, highly significant factor” constitutionally necessitating its admission under a fundamental fairness inquiry. Consequently, its exclusion did not deny Stano a fair trial.
The defense also argues that Stano was prohibited from presenting the evidence in mitigation at the sentencing phase of his trial due to the trial court’s exclusionary ruling. We note that a defendant must be permitted to introduce any mitigating evidence at sentencing in a capital case if the evidence relates to the defendant’s character, record or the circumstances of his offense. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, a trial judge still retains the discretion to exclude irrelevant, nonprobative evidence. Lockett, Id. at 604 n. 12, 98 S.Ct. at 2965 n. 12; Fla.Stat. § 921.141(1) (1985). Conjectural evidence, such as that sought to be introduced by Stano, should not play any role in the capital jury’s sentencing determination. See California v. Brown, 479 U.S. 538, 542, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987). We conclude that the trial judge acted within his discretion in finding the evidence irrelevant and in precluding its introduction at sentencing. No adverse constitutional implications arose from the exclusion of the evidence. Therefore, we affirm the district court’s denial of habeas relief on this claim.
C. CALDWELL CLAIM
In this claim, Stano alleges that the prosecution misinformed the jury of its sentencing responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The defense asserts that the prosecution improperly elicited testimony by the petitioner on cross-examination at sentencing, that Stano planned to attack all his prior convictions and sentences on grounds of ineffectiveness of counsel. See Advanced Appendix Vol. 4, B, p. 1836-37. Additionally, the prosecutor argued during closing argument that the jury needed to return one appeal-proof death penalty since it was likely that the petitioner’s prior two death sentences would be reversed. Id. at 1279. Stano claims that he was deprived of a fundamentally fair sentencing proceeding as required by the eighth amendment, and therefore a new sentencing proceeding is necessary. The district court found this claim meritless and held that the prosecutor’s comments did not diminish the jury’s sense of responsibility. We affirm.
Caldwell states “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U.S. at 328-29, 105 S.Ct. at 2639. In Caldwell, the prosecutor told the jury that its decision was not final, but that it was reviewable. Id. at 325, 105 S.Ct. at 2637-38. The state told the jury that its decision was automatically subject to review in an effort to minimize its sense of the importance of its role. Id. The Supreme Court found that the comments deprived the defendant of a sentencing determination which rested on the jury’s awareness of its awesome responsibility. Id. at 341, 105 S.Ct. at 2646.
As the district court determined, Caldwell is inapplicable to the facts of this case. The state at sentencing attempted to show that Stano’s confessions were motivated by a strong desire to avoid the death penalty rather than a need to gain psychiatric help. The prosecution’s strategy was to rebut the defense’s claim that the death penalty would be meaningless and cumulative since Stano had already received two other death sentences. Moreover, the state wished to show that Stano continued to kill despite psychiatric treatment.
The United States Supreme Court set out the standard regarding improper prosecutorial comment in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Inquiry must be centered on “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Id. at 181, 106 S.Ct. at 2472 (citation omitted). This court reviewed Caldwell in light of Florida’s statutory sentencing scheme in Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified on reh'g on other grounds, 816 F.2d 1493 (11th Cir.1987), cert. granted, Dugger v. Adams, — U.S. —, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988). In Adams, we held that a trial judge’s repeated instruction that the court was not bound by the jury’s recommendation, that no responsibility for the defendant's death rested upon the jury’s shoulders, and that the jury was merely an advisory group whose recommendation the court could readily reject created an impermissible likelihood that the sentence imposed was unreliable. Id. at 1528-29.
Similarly, in Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (en banc) we held that the prosecutor and trial court misled the jury as to its critical role in sentencing, and minimized the jury’s sense of responsibility by allowing repeated comments stressing that the ultimate responsibility for the death sentence rested with the court, and that the jury’s role was merely advisory. Id. at 1457-58. However, in Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988) (en banc), we held that certain prosecutorial and judicial comments did not minimize the jury’s sense of its role in sentencing. In Harich, the trial judge informed the jury on several occasions that the final decision regarding sentencing is for the court to decide. Also, the prosecutor at voir dire stated that the jury's sentencing decision was a recommendation and that the court decides the actual punishment. Unlike in Mann however, we stated that “[njeither the prosecutor nor the trial judge implied that the jury’s recommendation was superfluous. The fact that the jury knew they were making a recommendation did not detract from the importance of their decision.” Id. at 1475. Moreover, this court explained that comments which accurately state the respective functions of the judge and jury are permitted so long as the importance of the jury’s role is sufficiently emphasized. Id. We stressed that review will be on a case by case basis.
We agree with the district court that the jury’s role in this matter was not diminished by the prosecutor’s comments. Our review of the record indicates that this trial judge made no statement which would diminish the jury’s perception of its important responsibility. The prosecutor’s comments actually made the jury more aware of its central role in recommending the death sentence. The prosecutor emphasized that it was the jury’s responsibility to hold the petitioner accountable for his crime and that they were the ones needed to return an appeal-proof sentence. See Advanced Appendix Vol. 4, B, p. 1279-80. We find that these comments did not operate to deprive Stano of a reliable, carefully determined sentence from a jury fully aware of its critical sentencing responsibility. Consequently, the district court properly denied Stano a new sentencing proceeding.
D. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Stano next contends that he received ineffective assistance of counsel in several respects in the presentation of his defense at both the guilt/innocence and sentencing phases of his trial. First, Stano claims that the district court erred in denying him a full and fair evidentiary hearing on this issue. Second, Stano alleges that his trial counsel was ineffective for failing to challenge all of the confessions introduced at guilt/innocence and for failing to attack all of Stano’s previous convictions and sentences introduced at sentencing. Finally, Stano argues that his counsel was ineffective for failing to cross-examine and impeach adequately a key state witness, to object to the testimony of two psychiatrists regarding Stano’s competency, and to ensure that Stano received competent mental health assistance at trial.
The district court, after an exhaustive analysis of this issue, concluded that Stano’s ineffective assistance of counsel claims were procedurally defaulted under Wainwright v. Sykes, 438 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (procedural default will bar federal habeas review unless the petitioner can show cause for the default and actual prejudice from the alleged constitutional violations). However, in an abundance of caution, the district court held an evidentiary hearing to develop a more complete factual record concerning the actions of Stano’s counsel. Since the district court ultimately considered the merits of this claim, we now examine Stano’s contentions as well.
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), delineated a two-pronged standard for evaluating ineffective assistance of counsel claims:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S.Ct. at 2064.
Strickland requires the petitioner to show that counsel’s alleged acts or omissions, upon consideration of all the circumstances, fell outside the wide range of professionally competent assistance. Id. at 690, 104 S.Ct. at 2066; Harich, 844 F.2d at 1469. There is a strong presumption that counsel provided effective assistance. 466 U.S. at 689, 104 S.Ct. at 2065-66. The court will not find counsel ineffective if their approach to a case was reasonable. 844 F.2d at 1469.
The test for prejudice involves considerations similar to those under Brady; whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. We note that effective counsel is not errorless counsel, and hindsight should play little role in measuring ineffectiveness. Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985); Proffitt v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.1983), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).
1. Evidentiary Hearing
Under the Strickland standard, our review of the record indicates that the district court afforded Stano a full and fair evidentiary hearing on the ineffectiveness claims. The court heard testimony on August 24 and 25, 1987 from two witnesses who could directly address the ineffectiveness issue; Stano’s trial counsel, Mr. Russo and Mr. Friedland. (R. 6, p. 104-313; R. 7, pp. 326-414). The witnesses testified regarding their trial tactics and strategy, and the reasonableness of their performance. The state proffered testimony concerning the proper standard of attorney conduct required under the circumstance of this case. Thus, the district court developed sufficient facts at the evidentiary hearing to afford Stano a fair hearing, to render judgment on the claim, and to provide an adequate record for review in this court.
2. Challenges to Confessions
Stano’s claim of ineffectiveness of counsel for failing to challenge both the prior confessions and convictions used in aggravation at sentencing, and the Scharf confessions used at guilt/innocence and sentencing, is without merit. Defense attorney Russo testified that procedurally, he did not know how he could have attacked the prior convictions and litigated them within the time frame of the trial, and that he had never heard of defense counsel collaterally attacking convictions used in aggravation. (R. 7, p. 403-06). Mr. Russo felt that his resources were better spent representing Stano at trial than collaterally attacking other convictions of which he had no indication were involuntary. Id. at 407. He further testified that his strategy would not have involved collaterally attacking the prior life convictions when the result of the challenges could mean death sentences. Id.
Trial counsel also testified at the evidentiary hearing regarding the Scharf confessions. Mr. Russo stated that it would not have been feasible to attack Stano’s confessions since he had confessed to so many people for the murder of Cathy Scharf in direct contravention of counsel’s advice. Id. at 360. Additionally, Mr. Russo and Mr. Friedland both testified that the defense’s strategy at guilt/innocence was to admit all the Scharf confessions to emphasize the inconsistencies among them and prove that Stano did not commit the murder, but rather, falsely confessed to it. Id. at 272-74, 355-56. Trial counsel stated that Stano’s confession at sentencing to a murder for which he was previously not convicted, but which was not Cathy Scharf, fit into the defense’s strategy that Stano was a false confessor. Id. at 391.
After careful consideration of the record, we conclude that counsel’s performance in their investigation of the facts, consideration of the law, securing of evidence and conduct at trial, was competent. The approach taken by the defense was one which falls well within the objective yardstick that we apply when considering the question of ineffectiveness of counsel. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir.1987) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Competent attorneys completely informed of the circumstances and law of this case could well have taken action identical to counsel here.
Even if we were to find that competent counsel would not have taken the approach defense counsel used in this case, the petitioner cannot establish the second prong of Strickland by showing any prejudice from counsel’s alleged errors. No reasonable probability exists that but for defense counsel’s alleged omissions, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Had the six prior convictions at sentencing been successfully challenged and suppressed as aggravating circumstances, three other aggravating factors remained to support a jury recommendation of death: 1) The murder was committed while Stano was engaged in the commission of a kidnapping; 2) The murder was especially heinous, atrocious or cruel; and 3) The murder was cold, calculated and premeditated without any pretense of moral or legal justification. When challenging the imposition of capital punishment, the petitioner must show that “there is a reasonable probability that, absent the errors, ... the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069. We cannot say that the sheer number of prior convictions influenced the jury to recommend a death sentence. Ample record evidence supports a jury recommendation of death based on the circumstances of the Scharf murder alone, especially absent mitigating circumstances. Stano alleges no error in the remaining aggravating circumstances found by the jury. Thus, even if the prior convictions were omitted from the sentencing hearing, the petitioner has shown no reasonable probability that the outcome of the case would have changed.
The same reasoning applies to the allegations concerning the Scharf confessions. If Stano had shown that trial counsel erred by failing to attack his first confession to Detective Crow in March, 1981, the subsequent confessions to Investigator Manis in August, 1982 would still be admissible. Likewise, if those confessions were also suppressed, the testimony of C.Z. in July, 1983 still remained. Finally, Stano voluntarily reconfessed in September, 1983, to a psychologist, Dr. Mussenden, who examined him pursuant to an order on defense motion. Assuming that an attorney rendered ineffective assistance in failing to present additional argument for suppression of the initial confession, the defendant was not prejudiced where the second confession occurred in entirely different surroundings and would have been admissible. See Elledge v. Dugger, 823 F.2d 1439, 1443-44 (11th Cir.1987). Consequently, this claim fails under Strickland.
3. Cross-examination of State Witness
Stano alleges that his counsel was ineffective for failing to cross-examine and impeach adequately C.Z., a jail inmate to whom Stano had confessed the Scharf murder. We find that under Strickland, this claim lacks merit. The jury and trial judge were aware that Z. was an untrustworthy witness. Trial counsel brought out that Z. met Stano while both were in jail, see Advanced Appendix Vol. 3, A, p. 898, and that Z. was a five-time convicted felon. Id. at 905. Z. testified that he traded his testimony for a reduced sentence, return of property, and a prison transfer. Id. at 906-07. Defense counsel elicited testimony that Z. did not come forward with his testimony until after Stano’s first mistrial, and that he knew the state’s case was weak. Id. at 910-11. Counsel also brought out that Z. watched the first trial on the news every night and that his account of the murder did not match Stano’s exactly. Id. at 912-13, 905. Finally, the jury and trial judge learned, through the testimony of other witnesses, that doubt existed whether Z. even had the opportunity to talk with Stano. Id. at 942. Accordingly, the trial counsel’s approach to handling this witness was reasonable and competent as measured by Strickland.
4. Psychiatric Testimony
Stano claims that his counsel was ineffective for failing to object to the testimony of two court-appointed psychiatrists that Stano was sane, competent and not entitled to the statutory mitigating circumstance of “extreme mental and emotional disturbance” and “substantially impaired.” See Fla.Stat. § 921.141(6)(b) and (f). We find that this testimony, presented at the sentencing phase of the trial, did not violate Stano’s constitutional rights under the fifth, sixth, eighth and fourteenth amendments.
The Supreme Court recently ruled that the admission of findings from a psychiatric examination of the defendant, proffered by the state during the guilt phase of a trial to rebut psychiatric evidence presented by the defendant, did not violate the defendant’s constitutional rights where the prosecution and defense had jointly requested the examination, and where the defendant had attempted to establish a “mental status” defense. Buchanan v. Kentucky, 483 U.S. 402, 423-24, 107 S.Ct. 2906, 2918, 97 L.Ed.2d 336 (1987). In Buchanan, the Supreme Court stated that the prosecution may rebut the defense’s presentation of psychiatric evidence with evidence from the reports of the examination requested by the defense. Id. In this case, Stano placed his mental status at issue in mitigation at sentencing, and relied on the psychological report of Dr. McMillan, the defense’s expert. The state, therefore, could properly offer the results of the psychological reports the defense itself requested. In light of this, defense counsel’s failure to object to this testimony was a correct decision. Thus, under Strickland, counsel rendered reasonably effective assistance.
5. Mental Health Assistance
Stano alleges that his trial counsel was ineffective for failing to ensure that he received competent mental health assistance at the guilt/innocence and sentencing phases of trial. Stano relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) as establishing his right of access to a psychiatrist when the state indicates that it will present evidence of the defendant’s future dangerousness as an aggravating factor at sentencing. Stano claims that Dr. McMillan was incompetent, failed to accurately utilize one of the psychological tests given to the petitioner, and erroneously compared Stano’s psychological profile with those of mass murderers.
Upon review of the record, we conclude that Stano has failed to make a colorable showing of ineffective assistance of counsel on this issue under Strickland. Defense counsel ensured that Stano was examined by several court-appointed psychiatric experts at various stages of the proceedings. One of the experts, Dr. McMillan, interviewed and evaluated the petitioner in depth, explored his life history, and psychologically tested Stano. See Advanced Appendix Vol. 7, G, p. 92. Dr. McMillan found that Stano had suffered gross emotional and physical neglect as a child, had abnormal and antisocial behavior, suffered from paranoid schizophrenia, committed acts which were the product of mental disease or defect, and exhibited characteristics of a neurologically impaired personality. Id. In addition, defense counsel procured a court order permitting Stano to undergo a CAT scan to test for neurological damage.
Trial counsel’s actions concerning Stano’s mental health assistance were reasonable and competent. The psychiatric experts involved in the case adequately assisted in the defense. An indigent defendant has no “constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Although Dr. McMillan was appointed by the court and was not Stano’s personal choice, the record reveals no evidence supporting Stano’s allegation of incompetence. Stano’s claim therefore, fails under Strickland.
E. REMAINING CLAIMS
Stano also asserts the following claims: 1) The trial court improperly admitted, at Stano’s second trial, the testimony of the victim’s parents given in the prior Stano mistrial; 2) The trial court erred in permitting the court clerk to testify, through the victim’s parents’ testimony, as to the authenticity of certain exhibits; 3) The trial court improperly allowed the state’s dental expert to testify beyond his expertise regarding identification of the victim; and 4) The trial court erred in permitting specific evidence regarding Stano’s prior convictions as aggravation at sentencing. We find that each of these rulings by the trial judge was proper, and did not deprive the petitioner of a fundamentally fair trial. Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983).
Further, Stano claims that the district court erred in denying an evidentiary hearing on whether the state’s witness, C.Z., was a state agent. We agree with the district court that this claim has no basis in the record, is highly speculative, and that no evidentiary hearing was required. Finally, Stano asserts the district court erred in finding procedural default on the ineffective assistance of counsel claims. Because we agree with the district court that the underlying substantive claims are without merit, we need not reach the procedural issue.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief.
[OPINION BY ANDERSON, Circuit Judge, type=concurring-in-part-and-dissenting-in-part]
ANDERSON, Circuit Judge,
concurring in part and dissenting in part:
I agree with the resolution of each claim discussed by the majority, except for the Brady claim and the Henry claim. With regard to those two claims, I respectfully dissent.
The procedural posture of this case is that Gerald Stano has had the benefit of an evidentiary hearing only on his ineffective assistance of counsel claim, not on his other claims, including the two based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). For the reasons that follow, I conclude that Stano is entitled to an evidentiary hearing on these two claims.
If there has been no evidentiary hearing in state court on an issue raised on habeas corpus, one is required if the petitioner alleges facts which, if true, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). See also Agan v. Dugger, 835 F.2d 1337, 1339 (11th Cir.1987) (evidentiary hearing warranted where record inconclusive on face but allegations raise relevant issue). The petitioner will not be entitled to an evidentiary hearing when his claims are merely “eonclusory allegations unsupported by specifics” or “contentions that in the face of the record are wholly incredible.” See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). With these standards in mind, I will proceed to analyze the two claims.
I. BRADY CLAIM
The majority holds that there was no error in denying Stano an evidentiary hearing on his Brady claim. A Brady violation occurs where: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issues at trial. See United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir.1987), cert. denied sub nom. Rogers v. United States, — U.S. —, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). Suppressed evidence is material when “there is a reasonable probability that ... the result of the proceeding would have been different” had the evidence been available to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
Specifically, Stano has alleged that the prosecution suppressed evidence that Paul Crow, the main police investigator, Donald Jacobson, one of Stano’s defense attorneys, and Dr. Ann McMillan, the defense psychologist, colluded. The collusion was with the goal of exploiting Stano’s mental vulnerabilities in order to coerce murder confessions, including confessions to the Scharf killing. Stano alleges that Dr. McMillan, at Jacobson’s suggestion, gave Crow psychological information that would make his coercion more likely to succeed. He alleges that Jacobson assisted Crow in coercing the confessions, and that Crow used the information and assistance in his ongoing eliciting of confessions.
Stano has proffered evidence which gives rise to the following reasonable inferences. Stano was arrested on his first murder charge in April, 1980. J.W. Gadberry, the officer who had first brought Stano in, participated in the early investigation, which was led by Sergeant Paul Crow. Soon after Stano’s arrest, Don Jacobson was appointed as Stano’s attorney, and he hired Dr. Ann McMillan as a defense psychologist. Both Crow and Jacobson were interested in producing books about their work with Stano, if he turned out to be a serial killer. There is evidence that Crow even hired a literary agent. Jacobson asked McMillan to find out if Stano was a serial killer and indicated that he was not interested in representing Stano unless he was. Jacobson instructed her to tell Crow how best to interrogate Stano in order to elicit confessions, by exploiting Stano’s mental vulnerabilities.
Crow used that psychological information in interrogating Stano, as described below. He maintained close contact with Stano day after day and deprived him of contact with others. There were frequent long interrogation sessions at which Crow would not allow anyone else to be present. Crow stated to a freelance writer that he could lead Stano to the correct result and that he would rehearse confessions with him. Gadberry, the police detective, was with Stano at the time of the first murder confession, in another case, and stated that Crow led Stano to the body, not the reverse.
Jacobson, an ex-FBI agent who also did some legal work for members of the police department, worked extensively with Crow and the state attorney. He often allowed members of the police investigatory team to interrogate Stano outside the presence of counsel. Jacobson helped formulate the questions Crow would address to Stano, and discussed with Crow telling Stano to confess to more killings in order to become eligible for an insanity defense. He also advised Stano’s parents to talk freely with Crow and Dr. McMillan.
The information given by McMillan to Crow included Stano’s psychological vulnerabilities. There is psychological evidence that Stano was susceptible to strong authority figures who relied on manipulation and that he could not appreciate the consequences of his confessions. McMillan now admits to advising Crow to play on Stano’s “grandiosity”; other evidence is that Stano would likely confess in order to gain attention. Gadberry, who was present at the early stage of the investigation, felt that Stano had an abnormal need for attention and affection due to mental illness, and that Crow exploited this. Another detective, who worked with Crow on another Stano murder investigation approximately eight months before the first Scharf confession, believed that in making confessions Stano “got carried away by delusions of grandeur.”
There is also evidence that the coercion led to Stano confessing to murders that other jurisdictions refused to prosecute. Confessions obtained by Crow to murders committed in New Jersey, Tampa Bay and Titusville, Florida were not prosecuted, due to Crow’s interrogation techniques, lack of physical evidence, or the discovery of the bona fide offender.
Stano’s first murder confessions to Crow came in April and May of 1980. In May and June, 1980, Crow and Detective Lehman interviewed Stano in the Van Haddocks murder. The transcript of the interviews, at which counsel is not present, includes instances of promises, threats, and coaching. In March, 1981, Crow, Jacobson, and Dr. McMillan met with Stano’s father, whom Jacobson had advised to cooperate with Crow. They asked Mr. Stano to convince Stano to confess to more killings. He was told that more confessions were necessary to save Stano’s life, because if a pattern of insanity were established Stano would not be executed. Crow then gave Mr. Stano specific information relevant to various murders to use in asking Stano to confess. When Mr. Stano met with his son, Mr. Stano cried and begged Stano to confess, explaining the insanity theory to him and encouraging him to talk to Crow about other murders. Stano asked his father to contact Crow; a few days later, Stano gave his first confession to the Scharf killing.
The evidence of collusion and coercion by Crow continues through the period of the second confession, which occurred on August 11 and 12, 1982. Crow had continued working with Stano on pending cases through late 1982. Detective Manis was contacted by Crow to the effect that one of Stano’s confessions matched Manis’ pending Scharf case. In January, 1982, Manis spoke to Stano, who denied committing the Scharf murder. Crow continued to visit Stano often at the prison during this period. In April, Crow initiated another meeting between Stano and Manis, but when Manis arrived, Crow had been inside and said that Stano would not talk. Also, Crow and Stano were still communicating personally: in June, Stano wrote to Crow and said he wanted to help by “telling you what you want to know about anything,” and asked for contact with Howard Pearl, a public defender. In July, Jacobson, no longer representing Stano, instructed him to make “a clean breast of everything” and that Crow was his best source; this letter had a covert copy to Crow. On August 10, Stano was transferred to Crow’s jail, and a memo was circulated restricting access to Stano to Crow only. On August, 11, Manis interviewed Stano for IV2 hours, with Crow present about half the time; on August 12, 1982, the second Scharf confession was taped.
As noted above, to establish a violation of Brady, the defendant must show the suppression of material, favorable evidence. The principal Brady evidence claimed by Stano relates to the alleged collusion between Crow, Jacobson and McMillan. This evidence includes of course Crow’s own knowledge of the collusion. Documentary evidence supporting the inference of collusion and coercion would include the covert copy of Jacobson’s letter and the tape of the prior confession revealing promises, threats and coaching. Portions of Gadberry’s recent affidavit suggests that a second detective in the prosecution team, i.e., Gadberry, had knowledge that Crow’s interrogation of Stano impermissibly exploited his mental vulnerabilities.
It is clear that the foregoing evidence was suppressed by the prosecution. All of the material was in the prosecution’s possession. Crow knew the information, and his knowledge is imputed to the prosecution. See United States v. Antone, 603 F.2d 566, 569-70 (5th Cir.1979) (knowledge imputed between two sovereigns pooling investigative energies to become part of an investigative team); Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir.1977) (state law enforcement officer is part of prosecution team and his knowledge is imputed to prosecution). Similarly, Gadberry’s knowledge is imputed to the prosecution. Also, the prosecution would have had possession of the covert letter (through Crow) and the transcripts of the Crow interrogation. This was material that the prosecution had the duty to disclose. Also, the defense did not have equal access to the material. See United States v. McMahon, 715 F.2d 498 (11th Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (1983). While the defense had some evidence that Stano was a pathological liar and that some jurisdictions had declined to prosecute him, the defense did not have access to crucial information. In particular, it is not reasonable to expect the defense to suspect the existence of collusion between Jacobson, Crow and McMillan and the coercion that allegedly took place.
The Brady material is also favorable to the defense, the second prong of the test. The evidence supports inferences tending to show that Stano’s confessions in the Scharf case were not voluntary. The evidence raises an inference that collusion by Jacobson, McMillan and Crow enabled Crow to coerce confessions. The claimed Brady material which is directly relevant to collusion and coercion would be favorable on this ground. Under Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), there must be state coercion to invalidate a statement on the ground of involuntariness — the lone fact of the defendant’s mental deficiencies will not establish coercion. Connelly, 107 S.Ct. at 520. However, the defendant’s mental vulnerability and whether the state is aware of the vulnerability and exploits it in the course of the coercion are relevant to establishing the validity of a confession. Id. at 520-21. Moreover, the claimed Brady evidence is favorable in that it is independently relevant as evidence to impeach the testimony of Crow and Manis, who testified about the circumstances of most of the confessions. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (Brady requirement applies to impeachment material).
The Brady evidence is also material, the final prong of the test. The standard for materiality of Brady evidence is whether “there is a reasonable probability that ... the result of the proceeding would have been different” had the evidence been available to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Stano was convicted on the basis of three confessions: the confession to Sergeant Crow, the confession to Detective Manis, and the Z. testimony.
The evidence described above supports Stano’s allegation that coercion and collusion occurred with respect to the first two confessions. During the period in which the first confession took place, there is evidence of Jacobson and McMillan’s collusion with Crow. There is also evidence that Stano was particularly vulnerable because of mental illness, that the purpose of the collusion was to take advantage of that, and that Crow in fact exploited it. There is other evidence that during this period that Crow used threats and promises in order to obtain confessions from Stano. During the period of the second confession, there is evidence that the collusion and coercion continued. Crow’s continued contact and correspondence with Stano raises an inference that he continued to be in a position to exploit Stano’s mental vulnerabilities. The circumstances of the Manis confession also support an inference that Crow “managed” the confession, only allowing it when he had sufficiently coached or coerced Stano. Finally, the letter from Jacobson to Stano, with its “covert” copy to Crow, raises an inference that the collusion was continuing. Thus, the evidence impeaches the validity of both confessions, due to the evidence of collusion and the evidence of Stano’s vulnerability to coercion resulting from that collusion. See Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986).
In terms of the essential factors in the trial’s outcome, this leaves the Z. confession. As I discuss below, the Z. confession is constitutionally suspect, and may be inadmissible as constituting a violation of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Even if the Z. confession is not constitutionally infirm, Z. was a convicted felon who had recently traded testimony for favorable treatment. His testimony was seriously weakened at trial by the defense’s cross-examination on these and related grounds. If the Brady material undermined the other two confessions and the prosecution was forced to rely primarily on Z.’s testimony, the presence of the Brady material would be “sufficient to undermine confidence in the outcome” of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
The majority also refers to the fact that Stano confessed to several murders at sentencing. However, all of the sentencing confessions relate to murders other than the Scharf killing. In fact, at sentencing Stano specifically denied that he had killed Scharf. Because the confessions at sentencing related to other murders, they cannot undermine the materiality of the Brady evidence.
I conclude that reasonable inferences from the proffered evidence satisfy all three prongs of Brady, and that Stano is entitled to an evidentiary hearing.
II. HENRY CLAIM
Stano is also entitled to an evidentiary hearing with respect to his Henry claim. Under Henry, incriminating testimony elicited by an undisclosed government informant is inadmissible as violative of the right to counsel. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The district court found no merit in Stano’s Henry claim, finding that it was speculative and unsupported in the record. The majority opinion agrees with the district court.
In Henry, the Supreme Court applied the principle articulated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), to the situation of an inmate-informant. The Court held that the inmate-informant’s deliberate elicitation of incriminating testimony violated Massiah’s prohibition of state elicitation of incriminating information from a defendant in the absence of counsel. To establish a Henry violation, each of the following two tests must be satisfied: (1) the informant’s actions must be attributable to the state; and (2) the informant must be more than just a passive listener — he must “deliberately el-ict” the incriminating information from the defendant. Henry, 447 U.S. at 269-72, 100 S.Ct. at 2186-88.
Stano’s Henry claim is not so speculative that it does not merit an evidentiary hearing. As noted above, in the posture of this case, Stano is entitled to an evidentiary hearing if he alleges facts which, if true, would entitle him to relief. The claim is not so devoid of factual content as to be impermissibly conclusory, nor does evidence in the record reveal Stano’s contentions to be wholly incredible. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). I will discuss in turn the evidence as it pertains to the state agency and the “deliberately elicit” prongs.
Stano alleges that C.Z. was placed in the same jail to elicit incriminating testimony from Stano. With respect to the state agency requirement, the following evidence in the record supports Stano’s claim. Moxley, the prosecutor at Stano’s trial, was also Z.’s prosecutor. The notes in the prosecutor’s file in the Z. case indicate that Z. was interviewed by Moxley’s office on April 15, 1983, and on April 26, 1983. At the time, Z. was in the state prison. At the April 15 meeting, Z. promised to help the prosecution any way he could in the future, and the prosecutor stated he would try reward Z. in return. The prosecution file gives rise to an inference that the prosecution and Z. agreed that Z. would be returned to the Brevard County Jail and receive leniency in exchange for telling the police what he heard from prisoners about other murders. One of the notes in the prosecution file deals with setting up a plea date for Z.. At the bottom of that page is the notation: “When G. Stano is moved, we can move C.Z. into his cell.” The proffered evidence also indicates that Z. was in fact transferred to the Brevard Jail and placed in proximity to Stano. The evidence also shows that in July Z. engaged in conversation with Stano > the jail exercise yard, resulting in Stano’s confession.
The foregoing evidence supports Stano’s allegation that Z. was an agent of the state at the time he engaged Stano in conversation. The proffered evidence permits an inference that the state moved Z., placed him in proximity to Stano, and agreed to reward Z. in exchange for his agreement to tell the police what he could learn from Stano. I conclude that Stano’s allegations are not merely conclusory nor wholly incredible in the face of the record, Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629, and therefore Stano is entitled to an evidentiary hearing on this agency issue.
Neither does the record conclusively rebut the required showing that the informant “deliberately elicited” the incriminating statement. The incriminating statements were made in the jail’s exercise yard, during a llh hour conversation. Stano and Z. were taken out together and were the only prisoners in the yard. It is unclear who initiated the conversation, which began with a discussion of cars, but it was Z. who steered it specifically to murder. Stano volunteered that the police had torn his car apart looking for blood, but did not find any. Z. then asked Stano why the police did not find blood and what made them think they were going to. In response to this question, Stano admitted having killed. Throughout the rest of the conversation, which focused on the Scharf murder, Z. actively asked questions of Stano, moving the conversation along. This degree of involvement is at least as extensive as that at issue in Henry itself, where the informant had not initiated the conversation and had taken no more steps to elicit the evidence than to engage in conversation with Henry. United States v. Henry, 447 U.S. at 270-74, 100 S.Ct. at 2187-88.
This evidence permits an inference that Z. purposefully directed the conversation to incriminatory matters, i.e., that he “deliberately elicited” the confession from Stano. Thus, given my conclusion with respect to the state agency prong, neither one of the required showings is wholly incredible in light of the evidence, and thus Stano is entitled to an evidentiary hearing on his Henry claim.
III. CONCLUSION
Stano has alleged facts which, if true, are sufficient to grant relief under Brady v. Maryland and United States v. Henry. These two claims are not mere conelusory allegations, and they are not wholly incredible in light of the record. Therefore, I conclude that Stano is entitled to an evidentiary hearing on these two claims.
[OPINION BY BY THE COURT: type=rehearing]
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC
Before TJOFLAT, Chief Judge, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.
BY THE COURT:
A member of this court in active service having requested a poll on the application for rehearing in banc and a majority of the judges of this court in active service having voted in favor of granting a rehearing in banc,
IT IS ORDERED that the above cause shall be reheard by this court in banc with oral argument during the week of February 5, 1990. The clerk will specify a briefing schedule for the filing of in banc briefs. The previous panel’s opinion is hereby VACATED.
On appeal to the Florida Supreme Court, Stano alleged numerous errors in the state court trial proceedings. Among them, Stano claimed that the trial court improperly: 1) limited the scope of his voir dire; 2) restricted his presentation of evidence at both the guilt/innocence and penalty phases of the trial; 3) declared the victim’s parents unavailable to testify and allowed their former testimony into evidence; 4) permitted the court deputy clerk to testify which violated the court's appearance of impartiality; 5) allowed the state's expert to testify to an ultimate fact beyond his expertise which denied Stano a fair trial; 6) denied Stano’s motion for judgment of acquittal for the state’s failure to establish the corpus delicti; 7) conducted portions of Stano’s trial outside his presence; 8) permitted the state’s cross-examination and argument regarding Stano’s decision to appeal his previous convictions; 9) allowed specific evidence about Stano’s prior murder convictions as aggravating factors in sentencing; and 10) failed to find numerous statutory and nonstatutory mitigating circumstances. The Florida Supreme Court denied relief on all grounds. Stano v. State, 473 So.2d at 1289.
In his Rule 3.850 motion, Stano raised the following six points: 1) The confessions which led to the prior guilty pleas, introduced as aggravating evidence at the trial which ultimately resulted in Stano’s death sentence, were coerced; 2) The state improperly withheld exculpatory evidence from Stano's trial counsel; 3) Trial counsel was ineffective for failing to adequately cross-examine a state witness; 4) Trial counsel was ineffective for failing to object to the state’s cross-examination of Stano in the sentencing proceeding; 5) The testimony of two psychiatrists for the state at sentencing regarding the statutory mitigating circumstances was improper; and 6) The defense's expert, who made a psychological study of Stano, was incompetent.
The prior murder occurred in February, 1980. Stano confessed to the homicide in April of that year. He later pled guilty and was convicted of first degree murder for the offense. Detective Gadberry disagreed with several of his peers regarding Stano’s involvement in the murder.
The defense sought to admit evidence on the issue of Stano's false confessions through the testimony of Detective James S. Kappel from the St. Petersburg Police Department. Detective Kappel’s proffered testimony, which the trial court found inadmissible as irrelevant and nonprobative, dealt with various cases in which Stano had confessed to murders which the jurisdiction declined to prosecute. See Advanced Appendix Vol. 13, 0, p. 1796-1818. Additionally, the defense possessed the report of a psychologist, Dr. Ann McMillan, in which she concluded that Stano exhibited serious pathological behavior, including lying. See Advanced Appendix Vol. 7, G, p. 92. Two psychiatrists corroborated this conclusion at Stano’s sentencing hearing. See Advanced Appendix Vol. 4, B, p. 1216, 1247, 1249.
In fact, when asked whether Gerald Stano is the kind of person that would confess to something he had not done, Dr. Stern replied that “[h]e could be, I don’t know if he is, but he could be." See Advanced Appendix Vol. 13, O, p. 1786. Additionally, Dr. Stern would not state an opinion as to whether Stano had the capacity to confess falsely in this case. He stated: “I could not testify on this case in particular, because I don’t know anything about this case.” Id. at 1793. Dr. Stern continued that he had no knowledge, ”[n]one whatsoever,” of the facts and circumstances of the Scharf case. Id. Thus, the psychiatrist could not testify specifically regarding Stano and the Scharf confession.
Even if we were to hold that the trial court improperly excluded the evidence at sentencing, such action would not violate Stano’s right to a fundamentally fair sentencing proceeding. Our review of the record indicates that such an error would not be of the “magnitude as to deny fundamental fairness to the criminal trial.” Nettles, 677 F.2d at 414-15 (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976), cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124). In any event, evidence that Stano possessed a propensity to lie was introduced at sentencing through the report of a psychologist, Dr. Ann McMillan. See Advanced Appendix Vol. 7, G, p. 92. Thus, this facet of the defense was ultimately presented to the jury for consideration in mitigation.
In response to the defense’s arguments to the jury regarding the gravity of calling for another’s death, the prosecution forcefully argued that the defense was in error in trying to force the jury to feel a sense of responsibility for its decision. Id. The prosecutor stressed: “Now they would have you believe that you’re going to kill this man and they know-they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it_ [T]hroughout their argument, they said this panel was going to kill this man.... [T]he decision you render is automatically reviewable by the Supreme Court.” Id.
Mr. Russo clarified: "If there was one confession in this case, one confession only, and I knew that that could be constitutionally attacked, yes, I would constitutionally attack it, but that was not the case in this situation.... Case [sic] in this situation went to trial, was that Mr. Stano confessed to Paul Crow, confessed twice to John Manís, he confessed to C.Z., he wrote several letters to the press, gave press interviews ... he confessed to the psychiatrist in the case...."
The Supreme Court has noted the importance of an opportunity for factual development of a habeas claim: "Because detention so obtained is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, must never be totally foreclosed ... It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues.” Townsend, 372 U.S. at 312, 83 S.Ct. at 756.
Not all of the following evidence is claimed by Stano to be Brady material. However, it is useful to view the Brady material in the context of all relevant proffered evidence which supports the need for an evidentiary hearing. As indicated in the text below, the principal Brady evidence claimed by Stano relates to the collusion between detective Crow and the defense attorney and psychologist.
Appendix 19, Appendix to Petition for Writ of Habeas Corpus (Affidavit of L.G. re E. conversation); Appendix 100, Appendix to Petition for Writ of Habeas Corpus (Affidavit of V.S. re Detective Lehman conversation).
Appendix 19, Appendix to Petition for Writ of Habeas Corpus (Affidavit of L.G. re E. conversation).
The above information is from a statement made by McMillan. Appendix 20, Appendix to Petition for Writ of Habeas Corpus (Affidavit of Scharlette Holdman re McMillan conversation).
Id.; Appendix 16, Appendix to Petition for Writ of Habeas Corpus (Gadberry Affidavit).
Appendix 16, Appendix to Petition for Writ of Habeas Corpus (Gadberry Affidavit); Appendix 19, Appendix to Petition for Writ of Habeas Corpus (Affidavit of L.G. re E. conversation). See also Pet. Exhibits 3-5 (interrogation with only Stano, Crow and Lehman present).
Appendix 19, Appendix to Petition for Writ of Habeas Corpus (Affidavit of L.G. re E. conversation).
Appendix 16, Appendix to Petition for Writ of Habeas Corpus (Gadberry Affidavit).
See, e.g., Pet. Exhibits 3-5 (interrogation with only Stano, Crow and Lehman present).
Appendix 19, Appendix to Petition for Writ of Habeas Corpus (Affidavit of L.G. re E. conversation); Pet. Exhibit 4 at 14 (Crow-Lehman interrogation); Appendix 29, Appendix to Petition for Writ of Habeas Corpus (Affidavit of Eugene Stano).
Appendix 29, Appendix to Petition for Writ of Habeas Corpus (Affidavit of Eugene Stano); Appendix 20, Appendix to Petition for Writ of Habeas Corpus (Affidavit of Scharlette Holdman re McMillan conversation).
Appendix 100, Appendix to Petition for Writ of Habeas Corpus (Affidavit of V.S. re Detective Lehman conversation).
Two examples follow: Crow: Gerald, the more you can come across with, we’re gonna be able to take you out of this thing and put you in an isolated situation. Get you to ... Stano: What do you mean by that? Crow: Out from the groups. Stano: No, I don’t want no damned single cell. Lehman: You’re gonna want, Gerald, believe me ... there’s a few people out here that are out to slit your ... throat. Lehman: And we don’t want to see you get in that chair. We’re keepin’, we’re trying to keep your ass out of it ... as hard as we can. Appendix 64, Appendix to Petition for Writ of Habeas Corpus.
The following are several examples from the interrogation: Crow: Now they can take you out of here, take you back up north.... Lehman: You ever see a Governor's warrant?. ... It comes through with goddamned ribbons and doilies on it and it's like a goddamned skull. And it says you’re gone whether you like it or not.... Crow: We gotta get some clout so we can keep you in the state. Crow: You got problems. Stano: Thanks. Crow: More problems than you think. Because two bodies is not going to make you eligible for insanity. Appendix 66, Appendix to Petition for Writ of Habeas Corpus. Lehman: [T]he angle that you struck them with it, why that blade didn't break. And part of the way we’re going to keep you down here is just like Sergeant Crow said — Pennsylvania and Jersey, man, they’re chompin' at the bit. Stano: They think I did ... Lehman: I don’t want to see you get the chair. There’s a guy coming up to get the chair next week up in Georgia ... I can’t help but think that somewhere along the line you got the answers for us. Appendix 67, Appendix to Petition for Writ of Habeas Corpus. .This is one of many examples: Lehman: Done a little research into this knife you’re talking about, a retractable blade. The bone to the skull on Haddocks and the breast plate on Maher don’t jive up with what you’re telling us what you used on them.... Crow: You had to use a stronger blade than that, Gerald. Appendix 67, Appendix to Petition for Writ of Habeas Corpus.
The affidavit of Stano’s father, Eugene Stano, provides the information regarding this episode. Appendix 29, Appendix to Petition for Writ of Habeas Corpus.
The draft of the letter reads, in relevant part: "Your best source is still Sergeant Paul Crowe [sic] (send Paul a covert copy of this letter— have Paul stop by and pick this up and read it and throw it in the wastebasket)." Pet. Exhibit 7.
The memo states that “under “NO" circumstances is this inmate to talk to ANY DETECTIVE-POLICE OFFICER-FEDERAL AGENT-STATE ATTORNEY OFFICE or ANY ATTORNEY. All appointments for this inmate to speak to ANY person will be arranged and handled by Sergeant Paul Crow, “ONLY." Sergeant Crow will handle all telephone calls, visitors, etc. He will have NO contact with anyone, except jail personnel, in the normal course of security checks.” Appendix 47, Appendix to Petition for Writ of Habeas Corpus. .These cases were decided prior to the close of business on September 30, 1981, and are binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
The majority states that the Gadberry information need not have been disclosed because it was “preliminary, challenged or speculative information.” See United States v. Agurs, 427 U.S. 97, 109 n. 16, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (quoting Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring)). While I agree that Gadberry’s difference of opinion with the other members of the police as to Stano’s responsibility for one of the other murders may be the kind of speculative preliminary police work that the prosecution would have no obligation to disclose, the Gadberry information is more extensive than that. The Gadberry information proffered by Stano is relevant to the allegations of collusion and to Stano’s mental state and its exploitation by Crow’s interrogation techniques.
I note that the majority assumes that the proffered evidence of collusion and coercion relates only to confessions to murders other than the Scharf murder. My discussion of the evidence demonstrates that the collusion continued and tainted the Scharf confessions also. See Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (evidence surrounding the making of a confession bears on its credibility and voluntariness and must be admitted, especially in a case with no physical evidence). On the basis of its erroneous factual assumption, the majority then suggests that certain evidentiary rules would render inadmissible any evidence challenging or explaining any of the previous convictions or the confessions on which such prior convictions were based. I doubt that the majority has correctly applied the evidentiary rules. Under Florida law, a court must admit evidence tending to explain the defendant’s previous convictions. Francois v. State, 407 So.2d 885, 890 (Fla. 1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); see also Elledge v. State, 346 So.2d 998, 1001 (Fla.1977) (no error in admission of circumstances leading to conviction to aid analysis of defendant’s character), cert. denied, 459 U.S. 981, 103 S.Ct. 316, 74 L.Ed.2d 293 (1982). The Florida supreme court stated in Francois that "a defendant must be allowed to present evidence pertaining to the degree of his or her involvement in and the circumstances of the events upon which the previous convictions are based.” The court held that there was no error in the case because the defendant had made no proffer, but specifically stated that “it would be a different case if the court had excluded evidence proffered by the defendant rebutting the state's evidence of aggravation or relative to any matter in mitigation.” Id.; see also Tafero v. State, 406 So.2d 89, 95 (Fla.Dist.Ct.App.1981) (dicta stating that evidence that a previous crime was not actually committed by the defendant would have been required to be admitted in his capital sentencing proceeding). But see Buford v. State, 403 So.2d 943, 953 (Fla.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982). Therefore, the evidence of the circumstances of Stano’s previous confessions would be admissible under Florida law. It bears underscoring that Stano does not seek to introduce evidence legally attacking his prior confessions and guilty pleas. The values of economy and finality are not implicated by the purposes for which Stano proffers his evidence: regardless of the extent to which Stano uses evidence which implicitly impeaches the previous confessions to explain the circumstances of the Scharf confessions, the previous confessions’ legal validity will stand unimpaired, unless they themselves are attacked in a direct or collateral proceeding. In contrast, the cases cited by the majority describe the legal consequences of a guilty plea with respect to a later direct or collateral legal attack on that conviction. See, e.g., McCoy v. Wainwright, 804 F.2d 1196 (11th Cir.1986). Also, I note that even were such evidence not admissible under Florida law, it would be admissible as a matter of Federal constitutional law. According to the line of cases following Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a capital defendant may not be precluded from offering as a mitigating factor any aspect of his character or record. See also Skipper v. South Carolina, 476 U.S. 1, 2-6, 106 S.Ct. 1669, 1670-71 (1986); Perry v. State, 395 So.2d 170, 174 (Fla.1980) (following Lockett). Evidence of the circumstances of Stano's previous convictions would speak directly to his record. Finally, it appears that two of the prior convictions relied upon at sentencing in this case have been challenged collaterally, and those challenges are now pending in this court. Stano v. Dugger, No. 88-3375. If one or both of those prior convictions are invalidated, the instant death sentence might have to be vacated. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).
Stano also made a confession regarding Scharf in 1983 to Doctor Mussenden, a psychologist. This confession, which was not relied upon at trial, should not prevent Stano from being entitled to an evidentiary hearing. It is impossible to tell from the record the circumstances of the statement; thus, it cannot conclusively rebut Stano’s other evidence. Also, a statement of this type made to an examining psychologist would be inadmissible to show guilt or innocence. See Fla.Stat.Ann. 90.503(4) (1979); McMunn v. State, 264 So.2d 868, 870 (Fla.Dist.Ct.App.1972) (applying predecessor statute). See also Alvord v. Wainwright, 725 F.2d 1282, 1294 (11th Cir.), cert, denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (discussing Florida patient-psychotherapist evidentiary privilege). It therefore would not have changed the outcome at trial. The majority also suggests that Stano’s sentencing confessions rebut the allegations of improper influence. However, the record contains several types of evidence showing that Stano is mentally ill in a manner that leads him to falsely confess to crimes. Given this propensity, any collusion that convinced Stano that he would obtain life if he confessed to many murders, and Crow's exploitation of Stano’s mental vulnerabilities, could very well have a continuing effect; under this reasoning, the circumstances of the sentencing confessions would not conclusively rebut the continuing taint of the demonstrated earlier improprieties.
At the meeting, Z. said, "if there's anyway I can help, law enforcement, I will help. And not just specifically relate to the cars ... I will cooperate, to the best of my knowledge, with anything else ya’ll want to know, that I may know anything about. Regardless of what it is." A moment later, the prosecutor responded, "Now Mr. Z., the other things that I’m sure you’ve got information on after this case gets further down the road, I’m gonna’ put a price tag on um’ and the more you do ..., the more I’m going to try and do for you.” Appendix 127, Appendix to Petition for Writ of Habeas Corpus (Statement of C.Z.).
This inference is supported by the fact that Z. had previously traded information for leniency, that the above-described language from the Z. interview includes Z.’s promise to reveal additional information and the prosecutor’s promise that he would try reward it, and the notes indicating that Z. would be put in proximity to Stano when brought back to the Brevard County Jail.
Z. testified that the conversation began in the following manner: We also talked — he had seen my truck and my Cadillac and was talking about them, too, that had been confiscated.... Then he told me that they tore the whole interior out of his Trans Am ... searching for blood in his Trans Am.... We talked about how fast Trans Ams were and stuff like that. Then I asked him, I said how come they did not find no blood in your car? What made them think they were going to? He said they think I am dumb enough to kill girls in my car and leave blood ... He said when I kill them, I don’t splatter blood all over my car ... I said yes, I read the paper. I said you killed thirty nine or forty of them. He said no, I have killed a hundred. Deposition of C.Z., 34-35 (emphasis added). .After having asked why Stano killed, Z.’s participation moved the conversation to the details of the Scharf murder: Then he says Cathy was a tramp, a pure tramp. I said who is Cathy?_ He told me, he says the girl that he is on trial is here in Brevard County for killing.... He said he took his time with her ... I said how is that? He said well, I stabbed her a few times, but he said I did not stab her very deep ... I said is that how you killed her? He said no.... I said don’t you feel anything about it? He said no. Deposition of C.Z., 35-38.
The majority addresses the merits of Stano’s Henry claim without addressing the state’s argument that the claim is procedurally barred. Accordingly, I also will not address the procedural issue. In any event, "cause.” would probably be established by the state’s suppression of the relevant Brady evidence, i.e., evidence from the prosecutor’s file of the arrangement between the state and Z. that Z. would receive leniency and Z. would be transferred close to Stano and would tell the police what he learned from Stano. The "prejudice” prong is obviously established.
Gerald Eugene STANO, Petitioner-Appellant, Cross-Appellee, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
No. 88-3375.
United States Court of Appeals, Eleventh Circuit.
Nov. 17, 1989.
As Amended Dec. 12, 1989.
Mark E. Olive, Georgia Resource Center, Inc., Atlanta, Ga., for petitioner-appellant, cross-appellee.
Margene A. Roper, Belle Turner, Asst. Attys. Gen., Daytona Beach, Fla., for respondent-appellee, cross-appellant.
Before TJOFLAT, Chief Judge, FAY and JOHNSON, Circuit Judges.
[OPINION BY TJOFLAT, Chief Judge: type=majority]
TJOFLAT, Chief Judge:
In this case, Gerald Eugene Stano appeals from the district court’s denial of his petition for a writ of habeas corpus. Because we conclude that the State of Florida violated Stano’s rights under the sixth and fourteenth amendments to the United States Constitution, we reverse the district court and direct that, on receipt of our mandate, the district court grant Stano’s petition.
I.
On August 15, 1982, Stano confessed to the murder of Susan Biekrest, whose body was discovered on December 19, 1975, floating in Spruce Creek in Volusia County, Florida. A forensic examination revealed that Biekrest had died the previous day from suffocation caused by strangulation and drowning. On October 8, 1982, two months after confessing to the Biekrest murder, Stano confessed to the murder of Mary Kathleen Muldoon, whose body was discovered in November 1977, lying face down in a drainage ditch in an isolated area of New Smyrna Beach, Florida. Forensic examination revealed that Muldoon died as the result of a gunshot wound to the head as well as drowning. On January 18, 1983, a Florida grand jury indicted Stano for the murders of Biekrest and Muldoon.
On March 11, 1983, the Volusia County Circuit Court held an arraignment, and Stano tendered a plea of guilty on each charge. Following an exchange between Stano’s attorney, the trial judge, and Stano, the judge accepted Stano’s guilty pleas. On June 13, 1983, the judge imposed the death penalty in both cases.
On appeal, the Supreme Court of Florida affirmed Stano’s convictions and his death sentence. See Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The Governor of Florida subsequently signed a warrant for Stano’s execution. Stano then petitioned the state courts for post-conviction relief, which the Supreme Court of Florida ultimately denied. See Stano v. State, 520 So.2d 278 (Fla.1988).
On April 27, 1988, the Governor of Florida again issued a warrant for Stano’s execution. Stano proceeded to mount another attack against his convictions in the state courts, and on May 16, 1988, the Supreme Court of Florida denied him relief. See Stano v. Dugger, 524 So.2d 1018 (Fla.1988). On May 17,1988, Stano petitioned the United States District Court for the Middle District of Florida for a writ of habeas corpus. After conducting an evidentiary hearing, the court on the same day denied Stano’s petition. On May 18, 1988, this court granted Stano’s petition for a certificate of probable cause and for a stay of execution. See Stano v. Dugger, 846 F.2d 1286 (11th Cir.1988). Stano now appeals from the district court’s denial of habeas relief. We address Stano’s claim that the trial court’s acceptance of his guilty pleas denied him his right to assistance of counsel under the sixth and fourteenth amendments to the United States Constitution.
II.
The sixth amendment to the United States Constitution provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI. The federal courts have long recognized this right to counsel as fundamental to our criminal justice system. As Justice Sutherland wrote in 1932 for the Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more is it true of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
Id. at 68-69, 53 S.Ct. at 64.
The importance of this right to counsel has led the courts to adopt special safeguards in order to prevent defendants from being deprived of its protection. For example, “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Thus, a petitioner can obtain relief from ineffective assistance of counsel if petitioner was prejudiced by serious deficiencies in counsel’s performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “In some cases,” moreover, the Supreme Court has held that “the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided.” United States v. Cronic, 466 U.S. 648, 654 & n. 11, 104 S.Ct. 2039, 2044 & n. 11, 80 L.Ed.2d 657 (1984) (quoting United States v. Decoster, 624 F.2d 196, 219 (en banc) (MacKinnon, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979)); see Penson v. Ohio, — U.S. -, -, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300 (1988). Whereas the ineffeetive-assistance-of-coun-sel analysis under Strickland focuses on counsel’s actual performance at trial, Strickland, 466 U.S. at 686-87, 104 S.Ct. at 2064, the analysis under Cronic looks to “the circumstances surrounding [counsel’s] representation,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046.
As an additional safeguard, although courts have recognized a defendant’s right to self-representation, before a trial court allows a defendant to invoke that right and relinquish the benefits of counsel, the court must ensure that the defendant does so “knowingly and intelligently,” fully “aware of the dangers and disadvantages of self-representation.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).
The present case implicates both of these safeguards and can therefore be analyzed under either the ineffective-assistance-of-eounsel rubric articulated in Cronic or under the waiver-of-counsel rubric articulated in Faretta. Under either analysis, however, the result is the same: in accepting Stano’s guilty plea, the trial judge clearly denied Stano his sixth amendment right to assistance of counsel. We apply both analyses in turn.
III.
Crucial to our consideration of Stano’s sixth amendment claim is the exchange that took place at the sentencing hearing between Stano’s court-appointed lawyer, Mr. Pearl, the trial judge, and Stano himself. This exchange began with a statement by Mr. Pearl in which he told the court that he had not yet received discovery from the State and thus, not knowing what sort of evidence the State had, could not advise Stano on how to plead:
MR. PEARL: Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue.
At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials has not yet been received by the State and [the prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that.
THE COURT: So, you’re not complaining, you’re just stating this for the record.
MR. PEARL: No, that is not a complaint. I'm just making my position clear in Mr. Stano’s presence about the entry of his plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.
I have spoken with [the prosecutor]. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delicti in both of these cases. And Mr. Stano tells me that that is so.
Further, I have asked him about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.
He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.
I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.
He tells me he does not want a trial.
THE COURT: Okay.
Mr. Stano, do you care to comment on what Mr. Pearl has just said?
THE DEFENDANT: No. I believe everything was quite sufficient that he said.
THE COURT: He stated things accurately?
THE DEFENDANT: Yes.
THE COURT: You’re in agreement with what he said?
THE DEFENDANT: Yes, sir.
(Emphasis added.)
This exchange supports two different characterizations of the status of Stano’s legal representation during the plea hearing: either (1) Stano in fact proceeded pro se or (2) Stano had a lawyer who, through no fault of his own, could provide no legal advice whatsoever. Under either characterization, the trial judge’s acceptance of Stano’s plea deprived Stano of his sixth amendment right to assistance of counsel. We discuss each possibility in turn.
A.
The first possibility suggested by this colloquy is that Stano in fact represented himself in pleading guilty at the hearing. We reach this conclusion by considering the effect of Mr. Pearl’s statement to the court. Mr. Pearl described, in an entirely forthcoming manner, his inability to advise Stano on how to plead. Mr. Pearl was uncomfortable with his inability to advise Stano; therefore, at the end of his statement when he declared, “I am not fully prepared at this time as his attorney to advise him,” Mr. Pearl might well have meant (and the court might well have understood him to mean) that he could not serve as Stano’s attorney. In other words, Mr. Pearl might have been saying that he could not advise, i.e., represent, Stano as his attorney.
Of course, Mr. Pearl had already noted that Stano wanted to plead guilty and had also agreed “that certainly he has the right to do so.” By this, Mr. Pearl might well have meant that Stano could plead as he wanted but would be proceeding on his own without an attorney’s assistance. The effect of Mr. Pearl’s statement, then, was to force Stano to represent himself at the plea hearing.
Stano, however, never actually requested to proceed pro se, nor does the record provide any indication that Stano understood he was proceeding in that capacity. The trial judge failed entirely to inform Stano that he was entitled to assistance of counsel or to ensure that Stano understood he was without counsel. The judge merely asked whether Stano cared to comment on Mr. Pearl’s statement or agreed with that statement. The judge never asked, let alone ensured, whether Stano understood the significance of that statement — i.e., that if Stano chose to plead, he would be proceeding pro se.
Under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the judge's acceptance of Stano’s plea under these circumstances denied Stano his sixth amendment right to counsel. In Faretta, the Court recognized a criminal defendant’s right to proceed pro se, but required trial courts to ensure that a defendant has waived his right to counsel “knowingly and intelligently.” Id. at 835, 95 S.Ct. at 2541. As the Faretta Court explained, the defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Id. In order to ensure that a defendant is aware of the risks of self-representation, trial courts must apply a number of safeguards, preferably including a waiver hearing. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986). Two requirements are crucial before a court will allow a defendant to relinquish his right to counsel: (1) a defendant must clearly and unequivocally assert his right to self-representation; and (2) a court must make sure that a defendant understands the risks and disadvantages of self-representation. Id. at 1064-65 (citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).
In this case, neither requirement was met before the court allowed Stano to relinquish the assistance of counsel. First, Stano never made any statement that even resembled an assertion of his right to self-representation, let alone an assertion that reached the level of clarity and unequivocalness required by Faretta. Second, the record provides no indication that Stano understood the risks and disadvantages of self-representation, and the court certainly took no steps to ensure that Stano had such an understanding. The record leaves no room for doubt that Stano failed to make the knowing and intelligent waiver required by Faretta, and by allowing him to relinquish the benefits of counsel under these circumstances, the trial court denied Stano his sixth amendment right to assistance of counsel.
B.
The second possibility suggested by the exchange at the plea hearing is that Stano neither invoked his right to self-representation nor waived his right to counsel and that Mr. Pearl continued as Stano’s attorney throughout the hearing. According to this interpretation, when Mr. Pearl stated that he was “not fully prepared at this time as [Stano’s] attorney to advise him,” Mr. Pearl was not stating that he could not represent Stano. On the contrary, he was emphasizing his role as Stano’s attorney and his responsibility as such to give his client advice. However, as a result of a delay, which was entirely beyond his control, Mr. Pearl had not received discovery from the State and therefore simply could not advise his client. Through no fault of Mr. Pearl’s, then, the circumstances surrounding the State’s release of discovery rendered him incapable of providing Stano with any meaningful legal assistance.
Under this characterization, the trial court’s acceptance of Stano’s plea remains just as erroneous, but under the ineffective-assistance-of-counsel doctrine articulated in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). As we recently explained in Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.1989), Cronic carves out an exception to the “general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by errors in his counsel’s performance.” See generally Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Whereas the Strickland test focuses on counsel’s actual performance during the course of the representation, id. at 687, 104 S.Ct. at 2064, Cronic looks to “the circumstances surrounding the representation,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. If under those circumstances, “the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair,” id. at 660-61, 104 S.Ct. at 2048, then ineffectiveness of counsel can be presumed “without inquiry into counsel’s actual performance at trial,” id. at 662, 104 S.Ct. at 2048.
In the present case, the circumstances surrounding Mr. Pearl’s representation of Stano — the State’s failure to release discovery materials — “prevented [him] from assisting the accused during a critical stage of the proceeding.” See Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25. Under those circumstances, as the Court stated in Cronic, “although counsel [was] available to assist the accused ..., the likelihood that any lawyer, even a fully competent one [as Mr. Pearl was here], could provide effective assistance [was] so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. at 2047.
Under Cronic, therefore, we must presume that Stano was prejudiced by Mr. Pearl’s inability to give advice and grant him relief on grounds of ineffective assistance of counsel.
IV.
Under either Faretta or Cronic, then, this court has no choice but to conclude that the trial judge committed error in accepting Stano’s guilty plea — either without a more complete inquiry into Stano’s understanding of his right to self-representation or in light of the circumstances that prevented Mr. Pearl from advising his client. We therefore reverse the district court and direct that, on receipt of our mandate, the district court grant Stano’s petition for writ of habeas corpus.
IT IS SO ORDERED.
[OPINION BY FAY, Circuit Judge, type=dissent]
FAY, Circuit Judge,
dissenting:
Bad cases can generate bad law. In this case, Stano’s multiple confessions are disturbing for many reasons. For example, his relationship with one of the investigators and the alleged cooperation between defense counsel (not Pearl) and that detective cause serious concerns. The majority ruling, however, omits these issues. Without addressing Stano’s other appellate claims, the majority has elected to base its opinion on two permutations of the usual capital habeas corpus appellate issue, Sixth Amendment assistance of counsel.
The majority grants relief on speculative, alternative grounds that have no support in the record and are contradictory: self-representation and ineffective assistance of counsel. The first basis for relief found by the majority is a Faretta violation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta holds that a defendant proceeding pro se must engage in the necessary colloquy with the court to show that his decision is made voluntarily and knowingly. That procedure has no application in this case.
Stano did not proceed pro se because Pearl was his court-appointed lawyer at his request. Pearl counseled his client concerning the plea proceeding and the consequences of a guilty plea. He stressed to Stano that he had been unable to investigate fully the alleged murders because the State had not produced all of its evidence to him. Therefore, Pearl advised Stano not to plead guilty.
Stano had pled guilty previously. In 1981, he had entered guilty pleas to three counts of first-degree murder before the same judge. The State had agreed to life sentences in those cases. After discussing all aspects of the subject plea with Pearl, Stano decided that he wanted to enter a plea of guilty. The majority now holds that a competent, knowledgeable defendant cannot choose to plead guilty.
The majority holding on the basis of Faretta is disconcerting in three respects: the manner in which the majority crafts its holding, its skewed interpretation and misapplication of Faretta, and the precedent established. Since Stano had court-appointed counsel and did not appear at the subject plea hearing pro se, the majority seems to find constructive notice and consequent loss of counsel in Pearl’s statement to the court that “I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.” Majority Opinion at 965 (emphasis by Majority). Referring to its Faretta analysis as the “first possibility” for its decision, the majority continues its speculative, hypothetical examination of the record as follows:
Mr. Pearl might well have meant (and the court might well have understood him to mean) that he could not serve as Stano’s attorney. In other words, Mr. Pearl might have been saying that he could not advise, i.e. represent, Stano as his attorney.
Of course, Mr. Pearl had already noted that Stano wanted to plead guilty and had also agreed “that certainly he has the right to do so.” By this, Mr. Pearl might well have meant that Stano could plead as he wanted but would be proceeding on his own without an attorney’s assistance. The effect of Mr. Pearl’s statement, then, was to force Stano to represent himself at the plea hearing.
Majority Opinion at page 966 (emphasis added). From this conjecture and postulated “effect,” the majority declares that Stano was “force[d]” to represent himself at the plea hearing and commences its Faretta analysis. The majority subsequently concludes that the plea proceedings were deficient because Stano did not clearly and unequivocally assert his right of self-representation and that the court did not make certain that Stano understood the ramifications of self-representation. This determination is a non sequitur.
The majority acknowledges that “Stano never made any statement that even resembled an assertion of his right to self-representation, let alone an assertion that reached the level of clarity and unequivocalness required by Faretta.” Majority Opinion at page 966. It is evident from the record that this was not his intention, which necessarily precedes action. In this case, subjective determination of intent is inappropriate; the requisite, objective action required in order to trigger Faretta would have been Stano’s assertion of his right to self-representation.
After Pearl had disclosed completely his concerns regarding Stano’s guilty plea before review of all the evidence from the State as well as his client’s desire to plead guilty, the court questioned Stano as follows:
THE COURT: Mr. Stano, do you care to comment on what Mr. Pearl has just said?
THE DEFENDANT: No. I believe everything was quite sufficient that he said.
THE COURT: He stated things accurately?
THE DEFENDANT: Yes.
THE COURT: You’re in agreement with what he said?
THE DEFENDANT: Yes, sir.
Stano clearly concurred in his counsel’s representation of his election to plead guilty despite the lack of all evidence from the State. There is not even a faint suggestion of an assertion of self-representation by Stano. Instead, Stano’s intention, evidenced by his action, was to plead guilty. Based upon its own surmised reasoning, the majority has decided for Stano at this late date that he could have intended to assert his right of self-representation, or that he actually was proceeding pro se. If the trial court had discerned from any indication whatsoever that Stano was proceeding pro se, then it seems obvious that the Faretta inquiry would have been conducted given the court’s concern with ascertaining the positions of Pearl and Stano regarding the plea. I do not believe that this court should formulate factual conclusions with legal implications based upon gross speculation.
Furthermore, the majority’s application of Faretta is erroneous. While a defendant in a state criminal trial has a right under the Sixth and Fourteenth Amendments to proceed without counsel, this right does not attach until the defendant “ ‘knowingly and intelligently’ ” elects voluntarily to waive his constitutional right to assistance of counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989). The right to counsel is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does “not attach unless and until it [i]s asserted.” Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (emphasis in original), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987); Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc).
The Eleventh Circuit has clarified the actions required of a defendant in order to assert to the trial court that he desires to proceed pro se, which necessitates the requisite inquiry by the court:
To invoke his Sixth Amendment right under Faretta a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, petitioner must do no more than state his request, either orally or in writing, unambig uously to the court so that no reasonable person can say that the request was not made. In this Circuit, the court must then conduct a hearing on the waiver of the right to counsel to determine whether the accused understands the risks of proceeding pro se.
Dorman, 798 F.2d at 1366 (citation omitted) (emphasis added); see Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966,105 S.Ct. 366, 83 L.Ed.2d 302 (1984). In Faretta, the defendant “clearly and unequivocally” declared to the trial judge weeks before trial that he wanted to represent himself without counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; see Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (11th Cir.1986); Raulerson, 732 F.2d at 808. In response to this request, the judge conducted a sua sponte hearing to ascertain Faretta’s ability to conduct his own defense. Faretta, 422 U.S. at 808, 95 S.Ct. at 2528. It is evident that the trial judge understood that Faretta desired to proceed pro se because of a specific request by Faretta made to him. See, e.g., Orazio, 876 F.2d at 1509, 1512 (Petitioner informed the trial judge that he wanted to represent himself at a hearing pursuant to his court-appointed counsel’s request for withdrawal from representation.); Fitzpatrick, 800 F.2d at 1060-61, 1064-65 (Petitioner signed a waiver of his right to counsel before the court and reiterated verbally to the court that he understood that he was waiving his right to an attorney.); Dorman, 798 F.2d at 1360-62, 1366-67 (Petitioner filed motions pro se, informed the trial judge by letters of his desire to proceed pro se, and appealed to the state appellate court not only the trial judge’s denial of his pro se motions, but also that judge’s refusal to discharge the public defender and cited Faretta.)) United States v. Edwards, 716 F.2d 822, 824 (11th Cir.1983) (per curiam) (Defendant filed a motion seeking pro se representation and withdrawal of his public defender; the public defender also filed a motion requesting that defendant be allowed to represent himself.); see also Raulerson, 732 F.2d at 809 (quoting Brown, 665 F.2d at 612) (“Although a defendant need not ‘continually renew his request to represent himself even after it is conclusively denied by the trial judge,’ he must pursue the matter diligently.”). The Faretta ease law does not provide for proceeding pro se without assertion of the right of self-representation.
In this case, Stano made no oral or written request asserting his desire to proceed pro se. Indeed, the majority concedes that Stano “never actually requested to proceed pro se, nor does the record provide any indication that Stano understood he was proceeding in that capacity.” Majority Opinion at page 966. Even if this had been Stano’s intention, the right of self-representation had to be articulated or manifested to the court by an oral or written request in order to be recognized. Neither the trial judge nor this court is called upon to be clairvoyant. The majority’s ability to divine Stano’s possible intention does not meet the standard of a reasonable person’s understanding that a request for self-representation had been made. No one will be more astounded than Stano upon learning that he really did not want Pearl to represent him or that Pearl was not in fact his attorney.
Because Stano did not assert his right to proceed pro se, there was no need for the trial judge to conduct an inquiry to ensure that Stano realized the disadvantages of proceeding without counsel. The majority’s analysis is defective because it should not have progressed to the second Faretta requirement, the court’s failure to examine Stano as to the consequences of proceeding pro se, before being satisfied that the first requirement, Stano’s assertion of his right of self-representation actually had occurred. The majority’s faulting the trial court for not so inquiring of Stano is unsupported by Faretta. In my opinion, it would have been error for the trial court to engage in such an inquiry.
The majority decision, as it turns on Faretta, has created a treacherous slippery slope. The majority has announced that the choice by an informed, counseled defendant to plead guilty is equivalent to proceeding pro se whenever his counsel disagrees with that decision. Thus, the Faretta doctrine has been expanded in application, and a trial court now must decipher when a defendant has been noticed constructively by his counsel that he is on his own or proceeding pro se. The majority has added yet another ground upon which to base an appeal and to mire further the already convoluted capital habeas corpus appellate process.
The “second possibility” relied upon by the majority for granting Stano relief is ineffective assistance of counsel pursuant to Cronic. United States v. Cronic, 466 U.S. 648, 665, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984). Under this alternative holding, Pearl remained as Stano’s attorney in the subject plea hearing, but he was unable to advise Stano because he had not received some discovery from the State. This is an incorrect statement of the recorded facts. Pearl did advise Stano; he counseled Stano not to plead guilty.
In Cronic, the defendant in a complex criminal case claimed that he was prejudiced by representation by a young, court-appointed real estate attorney, who had never tried a jury case and who was allowed twenty-five days for pretrial preparation versus four and one-half years that the government had to investigate the case. Rejecting Cronic’s contention that a presumption of prejudice resulted because of the lawyer’s youth and inexperience, the Supreme Court stated that “[ejvery experienced criminal defense attorney once tried his first criminal case.” Cronic, 466 U.S. at 665.104 S.Ct. at 2050. Since the Court determined that Cronic, a more egregious case factually than this case, was not a case “in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel,” I am baffled as to the majority’s basis for its decision on Cronic. 466 U.S. at 666, 104 S.Ct. at 2051. The majority apparently has adopted the reversed reasoning of the Tenth Circuit in Cronic. The suggested Cronic exceptions, based on prejudicial circumstances such as “complete denial of counsel,” are not present in this case. 466 U.S. at 658-59 & n. 24.104 S.Ct. at 2046-47 & n. 24.
Furthermore, the Eleventh Circuit has held that “ ‘Cronic represents a narrow exception which the Supreme Court has carved out of the general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by specific alleged errors in his counsel’s performance. Consequently, the burden of proof under Cronic is a very heavy one.’ ” Stone v. Dugger, 837 F.2d 1477, 1479 (11th Cir.1988) (per curiam) (emphasis in original) (quoting Smith v. Wainwright, 777 F.2d 609, 620 (11th Cir.1985), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986)), cert. denied, — U.S. -, 109 S.Ct. 1354, 103 L.Ed.2d 821 (1989); see also Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (“[Bjecause we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation.” (citing Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 163-64, 100 L.Ed. 83 (1955))). In this case, the majority recognizes that a fully competent and experienced criminal lawyer, a public defender, was appointed to represent Stano. Moreover, the record shows that Pearl acted in every respect as competent counsel under the circumstances. Stano was arrested and charged. Pearl conferred with his client and attempted to obtain all available information. He advised Stano not to plead guilty because the State had not produced all of its evidence to him. Nevertheless, the majority labels his actions as actual or constructive denial of the assistance of counsel and bases its alternative holding on Cronic.
Although the majority’s ineffective assistance of counsel analysis founded on Cronic is extremely strained, reliance on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is completely unavailing, and understandably was not addressed. The Supreme Court has held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.1989). That familiar test requires that a convicted defendant complaining of ineffective assistance of counsel must show: 1) “that counsel’s representation fell below an objective standard of reasonableness,” and 2) “that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2065, 2068.
Hill clarified the Strickland second or “prejudice” requirement in the context of guilty pleas: “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 870; see also Holmes, 876 F.2d at 1551; Slicker v. Wainwright, 809 F.2d 768, 770 (11th Cir.1987) (These cases were remanded to the district court to determine if accurate, rather than incorrect, information by the attorney as to the length of sentence would have changed the defendant’s plea.). The majority does not acknowledge this Supreme Court and Eleventh Circuit authority. Properly, Pearl advised Stano not to plead guilty without review of all of the State’s evidence against him. Not only did Pearl give Stano sound legal advice, but also Stano would have preserved his right to trial if he had followed Pearl’s counsel.
Hill reiterated that “[t]he longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’” Hill, 474 U.S. at 56, 106 S.Ct. at 369 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Pearl had counseled his client at every juncture, including this critical stage of pleading. His advice to Stano included not pleading guilty until all evidence from the State was available. There has been no issue in this case of Stano’s incompetence. After receiving optimal legal advice, Stano knowingly and deliberately decided to plead guilty. The majority concludes that the accused should not have made this decision. While this may have been so, the choice was Stano’s and not ours.
Stano was not acting without reasoned advice from experienced counsel; he simply refused to take it. While the majority emphasizes the inability of counsel to give Stano advice because Pearl did not have all of the State’s evidence, I focus on Stano’s decision and election to plead guilty. An attorney’s responsibility is to investigate and to evaluate his client’s options in the course of the subject legal proceedings and then to advise the client of the merit of each. Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986) (per curiam), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 782 (1987); Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). Pearl had informed Stano of all of the facts, including the absence of some State evidence, and he had advised his client not to plead guilty. There was nothing more that Pearl could have done. With this knowledge, Stano decided to plead guilty, despite his attorney’s advice to the contrary. When a defendant preempts his attorney’s strategy, he thereafter cannot claim ineffective assistance of counsel. Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987); Thompson, 787 F.2d at 1452; Foster v. Strickland, 707 F.2d 1339, 1343-44 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). Pursuant to Strickland and the law of this circuit, I cannot find that Stano was denied effective assistance of counsel.
From the outset, the factual allegations in this case have troubled me greatly. The majority opinion exacerbates this concern because my research reveals no existing precedent on these facts for such an extension of Faretta based upon pure speculation, absolutely contrary to the record presented. For the reasons herein, I dissent.
Stano raises various other challenges on appeal, but our disposition of his sixth amendment claim makes unnecessary any consideration of these other claims.
The sixth amendment applies to the states through incorporation into the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). For convenience, we refer to the right to counsel in state courts as a sixth amendment right.
The dissent argues that Stano never intended to invoke his right to self-representation and therefore that no such right ever attached in this case. In the dissent’s view, the trial court as a result had no reason "to conduct an inquiry to ensure that Stano realized the disadvantages of proceeding without counsel." The dissent’s focus on Stano’s intent, however, is misplaced. A court’s obligation under Faretta does not depend upon whether a defendant intends to proceed pro se, but rather upon whether the defendant is in fact proceeding pro se. If the defendant is in fact proceeding pro se, whether or not he has intended to invoke his right to self-representation, the court's obligation under Faretta applies. Indeed, a primary purpose of Faretta's "knowing and intelligent waiver” requirement is to ensure that a defendant both understands that he is proceeding pro se and intends to do so.
The dissent does not seem to grasp the distinction between Strickland and Cronic. In rejecting our application of Cronic to the present case, the dissent analyzes Mr. Pearl’s specific actions and concludes that his representation was competent under the circumstances. In so doing, the dissent conducts a Strickland analysis under the guise of Cronic. Rather than an analysis of particular aspects of Mr. Pearl’s performance, Cronic calls for an inquiry into "the circumstances surrounding the representation.” In Cronic, the defendant's attorney was appointed twenty-five days before defendant’s trial on mail fraud charges involving numerous documents. The Court of Appeals reversed defendant's conviction, concluding that circumstances had hampered the attorney’s preparation of the case and had thus deprived the defendant of effective assistance of counsel. The Supreme Court reversed the Court of Appeals, holding that the case was not one in which the surrounding circumstances made the effective assistance of counsel so unlikely as to warrant a presumption of prejudice. The Court cited Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as a case in which the surrounding circumstances did warrant such a presumption. In Powell, the defense attorney was given a day to prepare for trial, which, as the Court in Cronic declared, "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Id. 466 U.S. at 661, 104 S.Ct. at 2048.
Gerald Eugene STANO, Petitioner-Appellant, Cross-Appellee, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
No. 88-3375.
United States Court of Appeals, Eleventh Circuit.
March 16, 1990.
Mark E. Olive, Georgia Resource Center, Inc., Atlanta, Ga., for petitioner-appellant, cross-appellee.
Margene A. Roper, Belle Turner, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee, cross-appellant.
[OPINION BY BY THE COURT: type=majority]
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC
Before TJOFLAT, Chief Judge, FAY, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.
BY THE COURT:
A member of this court in active service having requested a poll on the application for rehearing in banc and a majority of the judges of this court in active service having voted in favor of granting a rehearing in banc,
IT IS ORDERED that the above cause shall be reheard by this court in banc with oral argument during the week of June 11, 1990. The clerk will specify a briefing schedule for the filing of in banc briefs. The previous panel’s opinion is hereby VACATED.
Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.
No. 87-3588.
United States Court of Appeals, Eleventh Circuit.
May 1, 1990.
Mark Evan Olive, Georgia Resource Center, Inc., Atlanta, Ga., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.
Before TJOFLAT, Chief Judge, and FAY, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.
[OPINION BY ANDERSON, Circuit Judge: type=majority]
ANDERSON, Circuit Judge:
We review this case in banc primarily to give further consideration to two of Stano’s claims: his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and his claim under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).
Stano’s first trial ended in a mistrial after the jury failed to reach a unanimous verdict. The major evidence against Stano at this first trial consisted of the confessions that Stano made on March 6, 1981, and August 11 and 12, 1981, to detectives Crow and Manis. In the second trial, Stano was found guilty of first degree murder of Cathy Scharf, and sentenced to death. The evidence against Stano in this retrial was substantially the same, with the addition of a jailhouse confession to inmate C.Z. The principal theory of the defense was that Stano tended to confess falsely. As set out more fully in part I of Judge Fay’s opinion for the panel in this case, 883 F.2d 900, 903-04 (11th Cir.1989), Stano pursued his direct appeal and his post-conviction remedies under Rule 3.850 of the Florida Rules of Criminal Procedure, and then filed the instant Petition for Writ of Habeas Corpus in federal district court. The district court denied relief, and Stano appealed to this court.
The procedural posture of this case is that Gerald Stano has had the benefit of a limited evidentiary hearing only on his ineffective assistance of counsel claim, not on his other claims. There has been no evidentiary hearing, either in state court or in federal court, on Stano’s Brady claim or his Henry claim.
If there has been no evidentiary hearing in state court on an issue raised on habeas corpus, one is required if the petitioner alleges facts which, if true, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). The petitioner will not be entitled to an evidentiary hearing when his claims are merely “conclusory allegations unsupported by specifics” or “contentions that in the face of the record are Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).
I. BRADY CLAIM
A Brady violation occurs where: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issues at trial. See United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). Suppressed evidence is material when “there is a reasonable probability that ... the result of the proceeding would have been different” had the evidence been available to the defense. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)) (plurality opinion of Blackmun, J.).
Specifically, Stano has alleged that the prosecution suppressed evidence that there was collusion between Crow, the police investigator; Donald Jacobson, Stano’s defense attorney during the investigative stage; and Dr. Ann McMillan, the defense psychologist during the investigative stage. The alleged purpose of this collusion was to exploit Stano’s mental vulnerabilities in order to coerce murder confessions, including confessions to the Scharf killing. Stano alleges that Dr. McMillan, at Jacobson’s suggestion, gave Crow psychological information that would make this coercion more likely to succeed. He alleges that Jacobson assisted Crow in coercing the confessions, and that Crow used this information and assistance in his ongoing elicitation of confessions. Stano alleges that Crow, obviously, knew of this collusion and the effect on Stano’s confessions, and that such knowledge is imputed to the state.
Stano’s petition and supporting appendices allege the following. Stano was arrested on his first murder charge in April 1980. J.W. Gadberry, the officer who had first brought Stano in, participated in the early investigation, which was led by Sergeant Paul Crow. Soon after Stano’s arrest, Don Jacobson was appointed as Stano’s attorney, and he hired Dr. Ann McMillan as a defense psychologist. Both Crow and Jacobson were interested in writing books about their work with Stano if he turned out to be a serial killer. There is evidence that Crow even hired a literary agent.
Jacobson asked Dr. McMillan to find out if Stano was a serial killer and indicated that he was not interested in representing Stano unless he was. Jacobson instructed Dr. McMillan to tell Crow how best to interrogate Stano in order to elicit confessions, by exploiting Stano’s mental vulnerabilities. Crow used that psychological information in interrogating Stano, as described below. He maintained close contact with Stano day after day and deprived him of contact with others. There were frequent long interrogation sessions at which Crow would not allow anyone else to be present. Crow stated to a freelance writer that he could lead Stano to the correct result and that he would rehearse confessions with him. Gadberry, the police detective, was with Stano at the time of an early murder confession in another case arid stated that Crow led Stano to the body, not the reverse.
Jacobson, an ex-FBI agent who also did some legal work for members of the police department, worked extensively with Crow and the state attorney. He often allowed members of the police investigatory team to interrogate Stano outside the presence of counsel. Jacobson helped formulate the questions Crow would address to Stano. They urged Stano to confess to more killings in order to become eligible for an insanity defense. Jacobson also advised Stano’s parents to talk freely with Crow and Dr. McMillan.
The information given by Dr. McMillan to Crow included Stano’s psychological vulnerabilities. There is psychological evidence that Stano was susceptible to strong authority figures who relied on manipulation and that he could not appreciate the consequences of his confessions. Dr. McMillan now admits that she advised Crow to play on Stano’s “grandiosity.” Other evidence suggests that Stano was likely to confess in order to gain attention. Gadberry, who was present at the early stage of the investigation, felt that Stano had an abnormal need for attention and affection due to mental illness, and that Crow exploited this. Another detective, who worked with Crow on another Stano murder investigation approximately eight months before the first Scharf confession, believed that in making confessions Stano “got carried away by delusions of grandeur.”
Stano’s first murder confessions to Crow (relating to other killings) occurred in April and May of 1980. In May and June of 1980, Crow and Detective Lehman interviewed Stano in the Van Haddocks murder. The transcript of these interviews, at which counsel is not present, includes instances of promises, threats, and coaching.
Stano has alleged that the collusion between Jacobson, Dr. McMillan, and Crow continued and tainted the confessions to the Scharf killing on which the instant conviction was based. In March 1981, Crow, Jacobson, and Dr. McMillan met with Stano’s father, whom Jacobson had advised to cooperate with Crow. They asked Mr. Stano to convince Stano to confess to more killings. He was told that more confessions were necessary to save Stano’s life, because if a pattern of insanity were established Stano would not be executed. Crow then gave Mr. Stano specific information relevant to various murders to use in asking Stano to confess. When Mr. Stano met with his son, Mr. Stano cried and begged Stano to confess, explaining the insanity theory to him and encouraging him to talk to Crow about other murders. Stano asked his father to contact Crow; a few days later, on March 6,1981, Stano gave his first confession to the Scharf killing.
The evidence of collusion and coercion by Crow continued through the period of the second confession, which occurred on August 11 and 12, 1982. Crow had continued working with Stano on pending cases through late 1982. Detective Manis was contacted by Crow to the effect that one of Stano’s confessions matched Manis’s pending Scharf case. In January 1982, Manis, at Crow’s suggestion, spoke to Stano, who denied committing the Scharf murder. Crow continued to visit Stano often at the prison during this period. In April, Crow initiated another meeting between Stano and Manis, but when Manis arrived, Crow had been inside and said that Stano would not talk. During this entire time period, Crow and Stano were communicating: in June, Stano wrote to Crow and said he wanted to help by “telling you what you want to know about anything,” and asked for contact with Howard Pearl, a public defender. In July, Jacobson instructed him to make “a clean breast of everything” and that Crow was his best source; this letter had a covert copy to Crow. On August 10, Stano was transferred to Crow’s jail, and a memo was circulated restricting access to Stano to Crow only. On August 11, Manis interviewed Stano for IV2 hours, with Crow present part of the time; on August 12, 1982, the second Scharf confession was taped.
Thus Stano has alleged that defense attorney Jacobson and defense psychologist McMillan colluded with the investigating detective, Crow, to take advantage of Stano’s psychological weaknesses and to induce Stano to confess to the Scharf killing without regard to the truth thereof, but in order to promote the ulterior motives of Jacobson and Crow for fame and fortune. Stano alleges that the March 6, 1981, and the August 11 and 12, 1982, confessions were thus coerced and tainted.
As noted above, to establish a violation of Brady, Stano must show that the omitted evidence — here, the alleged fact of the collusion among Crow, Jacobson, and McMillan — was favorable to the defense, was suppressed by the prosecution, and was material in that there is a reasonable probability that it would have changed the result of the trial had it been available to the defense. Undoubtedly, the alleged collusion among Crow, Jacobson, and McMillan, and the resulting effect on Stano’s confessions, if true, would have been information favorable to the defense. The defense strategy at trial was to discredit Stano’s confessions by showing that Stano had psychological weaknesses that led him to confess falsely. The suppressed evidence of collusion and coercion, including inter alia Crow’s knowledge of his own misconduct and that of Jacobson, the covert copy of Jacobson’s letter to Stano, and the tape of the prior confession revealing promises, threats, and coaching, all could have been used effectively at trial to further this defense strategy. The alleged facts of collusion and coercion constitute significant impeachment of Stano’s confessions and would have substantially enhanced the defense strategy. Thus, we conclude that the first requirement — that the alleged facts be favorable to the defense — is clearly met.
With respect to whether or not the evidence of collusion was suppressed by the prosecution, we conclude that there are disputed facts which require an evidentiary hearing. Stano alleges that Crow was in charge of the investigation which produced the crucial confessions, and that Crow’s knowledge of the collusion was police knowledge that should have been disclosed pursuant to Brady. If Crow was part of the prosecution team in the Scharf case, then the state is responsible for his knowledge. United States v. Antone, 603 F.2d 566 (5th Cir.1979). In this regard, there are disputed issues of fact which require evidentiary development. On the one hand, Crow was a detective in a county other than the one in which the Scharf murder was prosecuted. On the other hand, there is evidence that Stano was committed to Crow’s custody at the time of the three confessions, that access to Stano was limited to Crow at the time of two of the confessions, and that Crow was involved in and perhaps in charge of the Scharf investigation.
Turning to the materiality prong of the Brady analysis, we conclude that if all of Stano’s allegations are true, there is a reasonable probability that the result of the guilt phase would have been different. We noted above that the suppressed evidence would have substantially strengthened the defense strategy at trial. If the March 6, 1981, and the August 11 and 12, 1982, confessions were coerced and subject to suppression as alleged, the linchpin of the prosecutor’s case would have been removed. Even with these confessions, a previous jury had been unable to find Stano guilty, and thus a mistrial resulted. See United States v. Agurs, 427 U.S. 97, 112—13, 96 S.Ct. 2392, 2401-2402, 49 L.Ed.2d 342 (1976); Carter v. Rafferty, 826 F.2d 1299, 1308-09 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988) (assessment of the materiality of the suppressed evidence depends in part on the strength or fragility of the state’s case as a whole). There was very little other evidence linking Stano to the crime. His jailhouse confession to Z. was subject to forceful impeachment at trial; and the Z. confession may in any event have been in violation of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (see infra). The alleged misconduct reflected in the suppressed evidence would have been enthusiastically exploited by defense counsel, would have fit the defense strategy like a glove, and would have provided forceful impeachment of the major evidence against Stano — i.e., the confessions to Crow and Manis. We conclude that the materiality prong has been satisfied.
The state argues that the result would not have been different because Stano testified at sentencing and confessed to the killing. Even if we assume that Stano’s later testimony at sentencing is properly considered in determining whether there is a reasonable probability that the result of the preceding guilt phase would have been different, Stano’s sentencing testimony was unequivocal that he did not kill Cathy Scharf.
For the foregoing reasons, we conclude that Stano is entitled to an evidentiary hearing on his Brady claim.
II. HENRY CLAIM
Stano alleges that the testimony of Z. relating the jailhouse confession by Stano violates United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). He alleges that Moxley, who prosecuted both Stano and Z., promised leniency to Z. in exchange for testimony about other murders. He also alleges that the prosecutor directed that Z. and Stano be placed in proximity to each other in the jail. Stano argues that Z. was thus an agent of the state who elicited statements from him in violation of Henry. The state asserts a procedural bar because of Stano’s failure to assert the Henry claim during the 1986 proceedings in state court pursuant to Florida Rule of Criminal Procedure 3.850. Because an evidentiary hearing must take place on remand in any event, the interests of judicial economy indicate that the facts relevant to this claim, and any cause and prejudice to excuse the procedural default, be developed at the hearing, and that the claim as thus developed be addressed in the first instance by the district court.
III. OTHER CLAIMS
1. Johnson v. Mississippi Claim
After the proceedings in the district court in this case, two of the prior convictions which were relied upon by the state in the sentencing phase were found to be invalid by a panel of this court. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989). For this reason, Stano argues that his sentence in this case must be vacated, citing Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).
On remand the district court shall address this argument in the first instance.
2. Ineffective Assistance of Counsel
a. Stano claims that his trial counsel, Russo and Friedland, were ineffective for failing to seek suppression of the several confessions to the Scharf killing and the confessions which formed the basis of the prior convictions introduced at sentencing. Russo and Friedland testified at the limited evidentiary hearing in district court that they did not know of the potential grounds for challenging the confessions that have now emerged — i.e., the alleged collusion between Jacobson, Dr. McMillan, and Crow which is the basis of the Brady claim; and the alleged agreement (i.e., agency) between Z. and the prosecutor which forms the basis of the Henry claim.
Upon careful consideration of the particularized and voluminous facts alleged in support of the Brady and Henry claims, together with the testimony of Russo and Friedland, we are satisfied that it was not reasonably possible for Russo and Friedland to have suspected the misconduct on the part of the state and previous defense counsel which forms the basis of the Brady and Henry claims. Accordingly, we affirm the judgment of the district court denying relief on the claim of ineffective assistance of counsel for failure to challenge the confessions.
b. Stano’s other claims of ineffective assistance of counsel are without merit for the reasons set forth by Judge Fay in the panel opinion. We affirm the judgment of the district court denying relief with respect to these claims of ineffective assistance of counsel.
3. Evidentiary Claims
We agree with the panel and the district court that Stano’s several evidentiary claims do not warrant relief. We affirm the judgment of the district court denying relief with respect to these evidentiary claims.
4. Remaining Claims
The remaining claims urged by Stano have no merit for the reasons set forth by Judge Fay in the panel opinion. We affirm the judgment of the district court denying relief with respect to these claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[OPINION BY EDMONDSON, Circuit Judge, type=concurrence]
EDMONDSON, Circuit Judge,
concurring:
I concur in the judgment of the court, although I believe the case could have been easily decided otherwise. I write separately because I think this case will be back before us; and suggestions on our part might help the district judge and the parties to develop a complete record on the main issues.
This court remands for an evidentiary hearing on Stano’s claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In particular, the district court needs to determine whether Detective Paul Crow was “part of the prosecution team in the Scharf case,” and whether he can be said to have acted under the authority of Brevard County Prosecutor Dean Moxley. The police department for which Crow works is not in the same judicial circuit as the circuit in which Moxley is a prosecutor. There is no obvious reason in fact or law to suggest that Crow was under the authority of or otherwise answerable to Moxley.
In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), the prosecutor failed to turn over a prior police statement of a government witness who testified at trial. The Supreme Court said “[w]e know of no constitutional requirement that the prosecution make a complete and detailed accounting of all police and investigatory work on a case.” Moore, 408 U.S. at 795, 92 S.Ct. at 2568. In United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.1989), we held that Brady applies only to information possessed by the prosecutor or by someone over whom he has authority. We also wrote in United States v. Burroughs, 830 F.2d 1574, 1579 n. 6 (11th Cir.1987), that the prosecution is not responsible for information known to a prosecution witness, but not in fact known to the prosecutor.
Accordingly, the district court needs to answer the following questions: (1) did the prosecutor (Moxley) who prosecuted Stano know of the collusion between Crow, Jacobson and McMillan; (2) did Crow in fact work for Moxley; (3) was Crow under the control or authority of Moxley; (4) did Crow have any significant role in developing the Scharf murder case for trial once he informed Manis of Stano’s confession.
I doubt that every peace officer in Florida is a member of every Florida prosecutor’s prosecution team. And I doubt that a police officer who testifies as a prosecution witness or simply cooperates with a prosecutor automatically becomes part of the prosecution team. If information actually unknown to a prosecutor is to be imputed to the prosecutor, I suspect that some element of control or supervision on behalf of the prosecution must exist so that the police officer is truly an agent of the prosecutor. To hold otherwise is not to follow Brady, but to extend it substantially. I need not work all of this out today; but at the evidentiary hearing in this case, I hope that the district court will establish a particularized factual predicate to allow the applicable law to be developed in the light of concrete facts instead of in a vacuum.
The language in United States v. Antone, 603 F.2d 566, 569-70 (5th Cir.1979), suggesting that a state police officer’s knowledge may be imputable to a federal prosecutor, is dicta: relief was actually denied because the information supposedly withheld from the defendant was insufficiently important. Citation of Antone in today’s court opinion does not change that. Even Antone stressed concepts involving intimate cooperation, jurisdictional overlap and pooling of investigative energies. 603 F.2d at 569-70. Thus, in addition to applying the term in this case, we must define the scope of the term “prosecution team” as a matter of law.
We also remand for further consideration on Stano’s claim under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). On remand, I hope the attention of the lawyers and district court will focus on some specific points for factual development. In Henry, Henry was an inmate who told his incriminating story to Nichols, another inmate. The Supreme Court described the case as one where Henry was “in the company of a fellow inmate who [was] acting by prearrangement as a government agent.” Henry, 447 U.S. at 273, 100 S.Ct. at 2188. The main points are “prearrangement” and “government agent”.
In Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987), we said: “we should keep in mind the duty that is imposed upon all citizens to report criminal activity to the appropriate authorities.” The Supreme Court has said “[t]his deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself, ... the criminal defendant no less than any other citizen is obliged to assist the authorities.” Roberts v. United States, 445 U.S. 552, 558, 100 S.Ct. 1358, 1363, 63 L.Ed.2d 622 (1980).
The essence of the Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Henry line of cases is to discourage secret interrogations that are in fact the “equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); Lightbourne, 829 F.2d at 1020-21. In Henry, the Supreme Court stressed that the FBI singled out Henry as someone in whom they had an interest.
There is no allegation in this petition that Z. received instructions from the police or from prosecutors to do anything about Stano — even to listen passively. The strongest allegation in the petition is that there is a note in the prosecutor’s file indicating that Z., the informant, was to be placed in the same cell with Stano; but this apparently never occurred. Such allegation, even if true, does not, as I understand it, support a finding of a Henry violation. The Supreme Court has said in Kuhlmann, “a defendant does not make out a violation of [the sixth amendment] right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police.” 477 U.S. at 459, 106 S.Ct. at 2630.
A proper application of Henry must reflect the general obligation of all citizens, including incarcerated citizens, to assist the police. Henry and Massiah show how very narrow is the exception to the general rule that all information brought to the police is usable. Time and time again, in eases such as Lightboume (inmate’s motives alone cannot make him police agent) and Harker v. State of Maryland, 800 F.2d 437 (4th Cir.1986) (prison informant was not government agent where he was not paid or acting under instruction or solicitation of government if he responds to general request for information), courts have stressed the difference between being a government agent and a government informant. See, e.g., Alexander v. Connecticut, 876 F.2d 277 (2d Cir.1989); Brooks v. Kincheloe, 848 F.2d 940 (9th Cir.1988); United States v. Taylor, 800 F.2d 1012 (10th Cir.1986); United States v. Calder, 641 F.2d 76 (2d Cir.1981).
The use of inmate informants is generally constitutionally permissible even if they actively elicit information and even if they do so in the belief that they will be rewarded by the government for collecting information. I think the sole exception may be where there has been a presolicitation of an informant by the government, focusing on another particular inmate as the target and with compensation agreed to in advance, so that the informing inmate is acting just as if he were a police officer interrogating the inmate.
Henry seems narrow and can and ought to be confined to its facts. So, I hope the parties will develop in detail the facts, including (1) what, if anything, Z. was told by state officers to do about Stano in particular and when and by whom he was told to do it; (2) what was the subject and scope of the agreement Z. and Moxley reached in April 1983 about Z.’s assistance when Z. definitely agreed to assist in regard to the prosecution of the killers of Mr. Hunt; and (3) did Z. “deliberately elicit” incriminating statements from Stano.
[OPINION BY FAY, Circuit Judge, type=dissent]
FAY, Circuit Judge,
dissenting:
Gerald Stano has confessed to murdering a large number of young ladies. This case involves the murder of Cathy Scharf. Unlike Stano’s other cases, he went to trial in this one. He was convicted and sentenced to death. That judgment was affirmed by the state appellate courts and the United States Supreme Court denied certiorari. In this habeas action, Stano raised a large number of issues. The district court entered a lengthy detailed order denying relief. A panel of this court reviewed the multiple issues presented on appeal and affirmed the denial. Judge Anderson filed a partial dissent. The case was taken for en banc review.
A majority of the en banc court feels there should be an evidentiary hearing on the Brady and Henry claims. Nothing presented throughout the lengthy consideration of this matter has convinced me that such is warranted by either the alleged facts or existing precedent. Most respectfully, I dissent for the reasons set forth in the majority opinion found at 883 F.2d 900.
Not all of the following evidence is Brady material. However, it is useful to view the Brady material in the context of the relevant allegations which support the need for an evidentiary hearing. As indicated in the text, the principal Brady evidence claimed by Stano relates to the collusion between detective Crow and the defense attorney and psychologist.
Petition for Writ of Habeas Corpus at 129, 134; Appendix 19 (Affidavit of L.G. re E. conversation); Appendix 16 (Gadberry Affidavit); Appendix 100 (Affidavit of V.S. re Detective Lehman conversation). Hereafter, the Petition for Writ of Habeas Corpus filed in the district court is referred to as "Petition." The appendices referred to here and elsewhere in this opinion are those attached to the Petition.
Appendix 19 (Affidavit of L.G. re E. conversation).
The above information is from a statement made by McMillan. Petition at 133-34; Appendix 20 (Affidavit of Scharlette Holdman re McMillan conversation).
Petition at 127-28, 135; Appendix 16 (Gadberry Affidavit).
Petition at 144, et seq.; Appendix 16 (Gadberry Affidavit); Appendix 19 (Affidavit of L.G. re E. conversation). See also Petitioner's Exhibits 3-5 (interrogation with only Stano, Crow, and Lehman present).
Appendix 19 (Affidavit of L.G. re E. conversation).
Petition at 126, 171; Appendix 16 (Gadberry Affidavit).
Petition at 133; see also Petitioner’s Exhibits 3-5 introduced at federal hearing (interrogation with only Stano, Crow, and Lehman present).
Petition at 133; Appendix 19 (Affidavit of L.G. re E. conversation); Petitioner’s Exhibit 4 at 14 (Crow-Lehman interrogation); Appendix 29 (Affidavit of Eugene Stano).
Petition at 142; Appendix 29 (Affidavit of Eugene Stano); Appendix 20 (Affidavit of Scharlette Holdman re McMillan conversation).
Appendix 20 (Affidavit of Scharlette Holdman re McMillan conversation); see also Petition at 133.
Appendix 100 (Affidavit of V.S. re Detective Lehman conversation); see abo Petition at 127.
Two examples follow: Crow: Gerald, the more you can come across with, we’re gonna be able to take you out of this thing and put you in an isolated situation. Get you to ... Stano: What do you mean by that? Crow: Out from the groups. Stano: No, I don’t want no damned single cell. Lehman: You’re gonna want, Gerald, believe me ... there’s a few people out here that are out to slit your ... throat. Lehman: And we don’t want to see you get in that chair. We’re keepin’, we’re trying to keep your ass out of it ... as hard as we can. Appendix 64.
The following are several examples from the interrogation: Crow: Now they can take you out of here, take you back up north.... Lehman: You ever see a Governor’s warrant?.... It comes through with goddamned ribbons and doilies on it and it's like a goddamned skull. And it says you’re gone whether you like it or not.... Crow: We gotta get some clout so we can keep you in the state. Crow: You got problems. Stano: Thanks. Crow: More problems than you think. Because two bodies is not going to make you eligible for insanity. Appendix 66. Lehman: [T]he angle that you struck them with it, why that blade didn’t break. And part of the way we’re going to keep you down here is just like Sergeant Crow said — Pennsylvania and Jersey, man, they’re chompin’ at the bit. Stano: They think I did ... Lehman: I don’t want to see you get the chair. There’s a guy coming up to get the chair next week in Georgia ... I can’t help but think that somewhere along the line you got the answers for us. Appendix 67.
This is one of many examples: Lehman: Done a little research into this knife you're talking about, a retractable blade. The bone to the skull on Haddocks and the breast plate on Maher don’t jive up with what you're telling us what you used on them.... Crow: You had to use a stronger blade than that, Gerald. Appendix 67.
Petition at 142-43; Appendix 29 (Affidavit of Eugene Stano); Appendix 60 (Letter from Stano to Jacobson).
Petition at 158; Appendix 39 (Manis report).
Petition at 158; Appendix 39 (Manis report).
Petition at 158; Appendix 76 (Stano letter to Crow).
The draft of the letter reads, in relevant part: “Your best source is still Sergeant Paul Crowe [sic] (send Paul a covert copy of this letter— have Paul stop by and pick this up and read it and throw it in the wastebasket)." Petition at 159; Appendix 15 (draft letter from Jacobson to Stano).
Petition at 159; Appendix 42 (Crow’s notes).
The memo states that “under “NO” circumstances is this inmate to talk to ANY DETECTIVE — POLICE OFFICER — FEDERAL AGENT — STATE ATTORNEY OFFICE or ANY ATTORNEY. All appointments for this inmate to speak to ANY person will be arranged and handled by Sergeant Paul Crow “ONLY.” Sergeant Crow will handle all telephone calls, visitors, etc. He will have NO contact with anyone, except jail personnel, in the normal course of security checks.” Petition at 159; Appendix 47 (Copy of memo).
Petition at 160; Appendix 39 (Manis report); Advanced App. Vol. Ill, at. 972 (Manis's trial testimony).
The state argues that the collusion between Jacobson, McMillan, and Crow was merely good trial strategy seeking to save Stano from the electric chair. However, this is but one perception of the facts. This interpretation of the facts is disputed by Stano, and Stano’s version of the facts is alleged with considerable particularity. Stano alleges that it was not iust good defense strategy, but rather that Jacobson and Crow were motivated by ulterior motives of fame and fortune, that they exploited Stano’s psychological weaknesses and fed Stano facts in order to obtain confessions without regard to their truth. Thus, Stano alleges that he was convicted on the basis of confessions to the Scharf killing, the truth of which was thus tainted and that the state had knowledge of this, but failed to disclose this Brady material. While the state’s version of the facts may well be borne out by the facts developed at the evidentiary hearing on remand, in the present posture of this case, we can only conclude that an evidentiary hearing is required.
This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
In its closing argument, the state noted that Z. was a five-time felon and had received concessions from the government for his testimony. The state invited the jury to consider Z.'s testimony "in conjunction with other established facts. And if it matches up reasonably well, I believe you’re allowed to infer that that person is being truthful.” Advanced App. Vol. Ill, at 1073.
See Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986) ("The withheld evidence also raises serious questions about the manner, quality, and thoroughness of the investigation. ... A common trial tactic of defense lawyers is to discredit the caliber of the investigation ... and we may consider such use in assessing the Brady violation.”). In this case the materiality of the suppressed evidence far exceeds impeachment of investigative techniques and exceeds even mere misconduct. The alleged misconduct in this case undermines the reliability of the major evidence against Stano.
The state also argues that Stano’s confession to Dr. Mussenden, a psychologist secured by Stano’s trial attorney to assist in the defense, is relevant to the materiality prong. However, this evidence was not introduced either at the guilt phase or the sentencing phase of Stano’s trial. The state could not have called Dr. Mussenden as its own witness at trial because any communications between Stano and Dr. Mussenden are protected by the attorney-client privilege. Pouncy v. State, 353 So.2d 640, 642 (Fla.App.1977). Moreover, under Florida's psychiatrist-patient privilege, any statement of this type is not admissible on the ultimate issue of guilt or innocence. Fla.Stat. § 90.503 (1979); Parkin v. State, 238 So.2d 817, 823 (Fla.1970); McMunn v. State, 264 So.2d 868, 870 (Fla.App.1972).
We decline to address at this stage the novel issue of whether or not it is appropriate to consider Stano’s later sentencing testimony in deciding whether there is a reasonable probability that the result of the preceding guilt phase would have been different. Resolution of this issue may not be necessary in this case. See infra, note 31. If on remand it does become necessary to address this novel issue, the following sub-issues become relevant. First, if on remand Stano’s March 6, 1981, and August 11 and 12, 1982, confessions are found to have been coerced and suppressible, then the district court should consider whether Stano’s sentencing testimony was induced by the former confessions and thus was fruit of the poisonous tree. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Smith v. Estelle, 527 F.2d 430 (5th Cir.1976). This sub-issue itself would require evidentiary development of the nexus between the early confessions and the sentencing testimony — i.e., whether the sentencing testimony was “induced” by the erroneous admission of the coerced confessions is itself a factual issue. Second, if the district court determines on remand that Harrison, supra, is no bar to consideration of Stano’s sentencing testimony, then an issue of first impression in this circuit becomes relevant, i.e., whether the district court in analyzing the Brady materiality prong should weigh the significance of the suppressed evidence in light of the existing trial record, or whether it is appropriate for the district court to consider new evidence that the state might have, but did not, adduce. See Miller v. Angliker, 848 F.2d 1312, 1323 (2d Cir.), cert. denied, - U.S. -, 109 S.Ct. 224, 102 L.Ed.2d 214 (1988) ("We believe the state is not entitled to seek to minimize the materiality of the withheld information by arguing that it could have produced additional evidence at a fuller trial. Having avoided the need to make a full presentation by means of a plea agreement that immunized its presentation from attack, and having achieved the plea agreement only after withholding information that would have put teeth in the attack, the state could not be allowed to becloud the court’s already hypothetical analysis of the likely effect of the withheld information by adverting other evidence it might have adduced had it not procured the plea agreement.”); McDowell v. Dixon, 858 F.2d 945, 950 (4th Cir. 1988), cert. denied, - U.S. -, 109 S.Ct. 1172, 103 L.Ed.2d 230 (1989) (refusing to consider post-trial recantations of information found in suppressed material when making materiality determination); Lindsey v. King, 769 F.2d 1034, 1040, 1042 (5th Cir.1985) (giving no weight to prosecutor's claim that suppressed matter was not material because it was flawed by a typographical error). Although the above cases suggest that, in analyzing Brady's materiality prong, it is not appropriate to consider new evidence that the state might have, but did not, adduce, there is somewhat inconsistent authority in the different context of ineffective assistance of counsel. In analyzing the analogous prejudice prong of ineffective assistance of counsel, both the Supreme Court and this court have considered related evidence that the government would likely have asserted to rebut evidence that a defense attorney was allegedly ineffective for failing to adduce. Strickland v. Washington, 466 U.S. 668, 701, 104 S.Ct. 2052, 2071, 80 L.Ed.2d 674 (1984); Bertolotti v. Dugger, 883 F.2d 1503, 1516-19 (11th Cir.1989). However, neither the Supreme Court nor this court has addressed the issue in the Brady context. Third, assuming arguendo that it is appropriate to consider related evidence which the government was likely to assert in rebuttal — i.e., assuming arguendo that the approach of the ineffective assistance of counsel cases is applied in the Brady context — the state nevertheless faces a significant hurdle. The evidence at issue in this case does not fit neatly into the pattern developed in the ineffective assistance of counsel cases. Had the suppressed Brady evidence in this case been disclosed and introduced at the guilt phase, it is not likely that the state would have rebutted that evidence with Stano’s sentencing testimony. Stano did not testify at the guilt phase and, obviously, the state had no way to require him to testify. On remand, the state will be free to suggest any other theory under which it would be appropriate to consider Stano’s sentencing testimony in analyzing Brady’s materiality prong.
At sentencing, Stano repeatedly and unequivocally testified that he did not kill Cathy Scharf. However, he did admit that he had killed several specific young women and that he had pled guilty to those murders. Those convictions were introduced at sentencing. Stano also admitted that he had told Crow and Manis about murdering someone in the general manner they related, but he was unequivocal in his testimony that this individual was not Cathy Scharf, the victim of the crime for which he was on trial. The context of that statement was that Stano had heard all of the evidence at trial- — e.g., he had seen the picture introduced at trial of Cathy Scharf with her long blonde hair; he had seen the rings that were recovered from Cathy Scharf s body, including the metal ring with the Indian head design. With such precise knowledge, Stano may well have been able to conclude with certainty that the young woman whom he had murdered was not Cathy Scharf. In fact, this sentencing testimony is consistent with Stano’s taped confession in which he described the girl he confessed to killing as having darker hair, and in which he described her jewelry as being turquoise, both of which are at variance with Cathy Scharf’s blonde hair and the Indian head ring found on her body. While the state argues that Stano’s sentencing testimony was merely self-serving, in the present posture of this case in which no evidentiary hearing has been held, the most that can be said for the state’s position is that there is a dispute of fact as to whether Stano’s sentencing testimony could have any effect on Brady's materiality analysis.
Petition at 275-76; Appendix 127 (April 15, 1983, statement of Z.).
Petition at 276; Appendix 127 (Note in prosecution file re moving Z. into Stano’s cell).
In the state proceedings pursuant to Florida Rule of Criminal Procedure 3.850, Stano was offered a limited evidentiary hearing on ineffective assistance of counsel, but the offer was limited to the testimony of the two trial attorneys, Russo and Friedland. In the district court, such a limited evidentiary hearing was actually held; however, again, only Russo and Friedland were permitted to testify. Such a limited evidentiary hearing was clearly inadequate for the development of the facts relating to the collusion between Jacobson, McMillan, and Crow or for the development of facts relating to the agency of Z.. However, the record as a whole (as indicated in the text) conclusively establishes that Russo and Friedland could not in the exercise of reasonable diligence have discovered the misconduct which forms the basis for the potential challenges to the confessions.
Gerald Eugene STANO, Petitioner-Appellant, Cross-Appellee, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
No. 88-3375.
United States Court of Appeals, Eleventh Circuit.
Jan. 2, 1991.
Mark E. Olive, Atlanta, Ga., for petitioner-appellant, cross-appellee.
Margene A. Roper, Belle Turner, Asst. Attys. Gen., Daytona Beach, Fla., for respondent-appellee, cross-appellant.
Before TJOFLAT, Chief Judge, FAY, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON, COX, BIRCH, and DUBINA, Circuit Judges.
DUBINA, Circuit Judge, became a member of the court after this appeal had been orally argued, but has participated in this decision after listening to a recording of oral argument. See 11th Cir.R. 34-4(g).
[OPINION BY FAY, Circuit Judge: type=majority]
FAY, Circuit Judge:
Gerald Eugene Stano appealed from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although Stano raised numerous claims on appeal, this court granted relief, subsequently vacated, under the Sixth and Fourteenth Amendments to the United States Constitution. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989), vacated, 897 F.2d 1067 (11th Cir.1990) (per curiam). After rehearing en banc and thoroughly reviewing the two issues presented of self-representation and ineffective assistance of counsel, the en banc court concludes that Stano’s Sixth Amendment claims are without merit on the facts of this case. We refer this case to the original panel for resolution of all other appellate issues.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns Stano’s appeal of his death sentences pursuant to his confessing and pleading guilty to the murders of two young women in Volusia County, Florida. On August 15, 1982, Stano confessed to Sergeant Paul B. Crow of the Daytona Beach Police Department the murder of Susan Lynn Bickrest, who died from suffocation caused by strangulation and drowning. On October 8, 1982, Stano confessed to Sergeant Crow the murder of Mary Kathleen Muldoon, who died from a gunshot head wound and drowning. Stano was indicted by a Volusia County grand jury for the murders of Bickrest and Muldoon on January 18, 1983.
The Honorable S. James Foxman, circuit judge for Volusia County, arraigned Stano on February 8, 1983. With Stano’s agreement, Judge Foxman appointed public defender Howard B. Pearl to represent Stano. Pearl previously had represented Stano for three guilty pleas to first-degree murders before Judge Foxman. On behalf of Stano, Pearl entered a not guilty plea to each of the two indictments. The court accepted these pleas.
Before Judge Foxman on March 11, 1983, Stano changed his pleas to guilty to the Bickrest and Muldoon murder indictments. Preliminary to the plea taking commenced, Pearl informed the court that, although all discovery from the state had not been produced, Stano wanted to plead guilty to the two murders. Lawrence Nixon, the state prosecutor, told the court that he had sufficient evidence to prove Stano’s commission of the homicides. He explained that the missing discovery to which Pearl referred was similar fact evidence relating the Bickrest and Muldoon murders to other Florida homicides committed by Stano. This evidence was relevant to the sentencing phase and not to the proof of the murder charges at trial.
With Pearl’s concerns regarding the lack of full discovery on the record, Stano was placed under oath and the taking of the pleas proceeded. Stano testified that he was thirty-one years old, that he had a twelfth-grade education and computer training, and that he had worked as a cook, computer operator, and desk clerk in a gas station. The court determined that Stano had not had any psychiatric problems and that he had been evaluated competent to stand trial.
Judge Foxman explained to Stano in detail the results of his pleading guilty, particularly the removal of the jury from the proceedings, and he ascertained that Stano had discussed these consequences with Pearl. Judge Foxman further discussed with Stano that pleading guilty waived his defenses and rights to a jury trial with representation by counsel; he elicited from Stano that his pleas were voluntary and emphasized that pleading guilty did not commit the judge to a particular sentence. Judge Foxman specifically determined that Stano was satisfied with the services of Pearl.
Following the evidence produced by the state of each homicide, Stano pled guilty to the Biekrest and Muldoon murders. Judge Foxman concluded that Stano’s pleas were knowing, intelligent and voluntary, and that Stano had the advice of competent counsel with whom he was satisfied. Judge Foxman accepted Stano’s pleas and adjudicated him guilty.
Sentencing proceedings, including an evidentiary hearing, were conducted before Judge Foxman on June 8, 9 and 10, 1983; Stano was represented by Pearl. On June 13, 1983, Judge Foxman sentenced Stano to death in both the Biekrest and Muldoon cases. Judge Foxman commented at sentencing that he had been impressed by the number of Stano's murder convictions, his lack of motive and absence of remorse. He entered written factual findings supporting the death sentence in each case.
On direct appeal from the imposition of the death penalty in the Biekrest and Muldoon cases, the Supreme Court of Florida affirmed the adjudications of guilt and sentences of death by the trial court. Stano v. State, 460 So.2d 890 (Fla. 1984) (per curiam), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The Florida Supreme Court noted that “[pjrior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years.” Id. at 892. Subsequently, the governor of Florida signed a warrant for Stano’s execution.
Pursuant to Florida Rule of Criminal Procedure 3.850, Stano requested post-conviction relief from the state trial court. Judge Foxman held a hearing on December 1,1986. Judge Foxman expressed his frustration that Stano, claiming innocence of the Biekrest and Muldoon murders, was attacking his guilty pleas made under oath. Stano’s present appellate counsel tenuously proposed that Stano was representing himself by entering a plea against his attorney’s advice, and that the trial court should have engaged in the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Significantly, the state observed that Pearl did not move to set aside the pleas when he did receive full discovery during the time between Stano’s entering the pleas and his sentencing. Judge Foxman granted a continuance of the hearing until January 27, 1987.
Judge Foxman’s order, denying Stano post-conviction relief, was issued on April 13. 1987. With respect to the ineffective assistance of counsel claim resulting from Pearl’s not having received all of the state’s discovery, Judge Foxman concluded that, because Stano acknowledged the missing evidence and directed his attorney to proceed with the plea on the record, he waived his rights under Florida law to complain about these issues at a later date. In the interest of finality, Judge Foxman concluded that a court would not go behind a guilty plea given under oath after being assured that the plea was voluntary.
Finding the record conclusive, negating the necessity for an evidentiary hearing, the Florida Supreme Court affirmed the trial court’s denial of post-conviction relief to Stano on February 25, 1988. Stano v. State, 520 So.2d 278 (Fla.1988) (per curiam). The Florida Supreme Court agreed with the trial court that Stano’s guilty pleas were freely and voluntarily given without duress after discussions with his attorney, and that Stano had no questions to ask his counsel before pleading guilty. Id. at 280. The court specifically noted that Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), held that the two-part test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas, and that Stano’s claims did not demonstrate that his counsel’s performance fell below an objective standard of reasonableness or that, but for his counsel’s unprofessional errors, the result would have been different. Stano, 520 So.2d at 280 & n. 2.
When the Florida governor signed another death warrant, Stano petitioned for a writ of habeas corpus and stay of execution. In denying the requested relief on May 16, 1988, the Florida Supreme Court concluded that Stano’s claims of alleged constitutional violations essentially were complaints regarding the voluntariness of his guilty pleas and his counsel’s effectiveness concerning the pleas. Stano v. Dugger, 524 So.2d 1018 (Fla.1988) (per curiam). Having addressed these complaints in Stano’s direct appeal and in his petition for post-conviction relief, the court declined to revisit those issues, and found them to be raised improperly. Id. at 1019. The Florida Supreme Court specifically found that Stano’s allegations of ineffective assistance of counsel were meritless because he had not established prejudice, the second part of the Strickland test for ineffectiveness. Id.
Following Stano’s petition for habeas corpus relief to the United States District Court for the Middle District of Florida, the Honorable Patricia C. Fawsett conducted an evidentiary hearing on May 17, 1988. The testimony of Howard Pearl, Stano’s court-appointed attorney, is significant to the Sixth Amendment issues in this case. In addition to his prior representation of Stano before his change of pleas in 1983, Pearl had represented approximately 300 death penalty inmates, approximately 75 of whom were defendants in capital trials. When Stano told Pearl that he wanted to change his pleas, Pearl advised Stano that he had not had an opportunity to investigate the cases completely because he had not received all of the state’s evidence. Pearl also explained to Stano that he had not had the opportunity to negotiate with the state, that Stano’s pleas were premature, and that death penalties was likely. Nevertheless, Stano insisted on pleading guilty immediately.
Pearl testified that he had a two-part strategy for defending Stano at the sentencing proceedings in an attempt to avoid the death penalty. First, he wanted to obtain testimony from mental health professionals that Stano was acting under a mental disability when he committed the Bickrest and Muldoon murders. Second, he sought the opportunity to persuade Judge Foxman that there should be proportionality, or the same sentences for Stano, since Judge Foxman had sentenced Stano to three life terms for three guilty pleas to similar first-degree murders in Volusia County. Judge Fawsett questioned Pearl in detail about the sentencing information and advice that he gave to Stano prior to his entering guilty pleas to the Bickrest and Muldoon murders.
Furthermore, Pearl explained to Stano that he was at risk for the death penalty before he pled because the six prior murders to which Stano had pled guilty constituted statutory aggravating circumstances; the Bickrest and Muldoon cases could be aggravators for each other; and Florida law presumes death to be the proper penalty for one aggravating circumstance. Pearl also informed Stano of his belief that the death penalty probably would be imposed because Judge Foxman had taken three prior guilty pleas from Stano for murders in Volusia County in which Stano had benefitted from an agreement for life sentences with the state attorney. The agreement was not applicable to the Bickrest and Muldoon pleas, and Pearl, based on his experience, told Stano that guilty pleas to these additional murders made it “absolutely a dead probability beyond dispute he would get the death penalty.” R3-237. Stano, however, was confident that Judge Foxman would give him additional life sentences. Although Pearl informed Stano of the rights that he would relinquish by pleading guilty, Stano, who never denied to Pearl that he committed the Bickrest and Muldoon murders and believed that the state could prove that he committed the two homicides, elected to proceed with pleading guilty.
After Stano pled guilty and before he was sentenced, the state abandoned the legal theory of similar fact evidence that was supported by the unproduced discovery at the time of Stano’s pleas. Therefore, Pearl had received from the state and reviewed all evidence regarding the Bickrest and Muldoon murders before the plea proceedings. Prior to Stano’s sentencing, Pearl continued his investigation, including his pursuit of an insanity defense.
Preceding his sentencing, Stano was examined by five mental health experts, four of whom testified at his sentencing proceedings. In response to Judge Fawsett’s questions regarding Stano’s competency, Pearl explained that he did not question Stano’s ability to understand the issues involved in the case, but that he diligently, although unsuccessfully, pursued an insanity defense for Stano as the only explanation for his murders. Pearl’s complete investigation of the Bickrest and Muldoon homicides revealed no basis to attack Stano’s confessions or to withdraw his pleas.
Following closing remarks by the parties on May 18, 1988, Judge Fawsett entered factual findings on the record. The district court found that Stano’s highly experienced counsel advised him not to plead guilty because of Stano’s three previous guilty pleas to first-degree murders before Judge Foxman, the probable death sen-fences, and Pearl’s intent to investigate the murders further. Stano rejected this advice and pled guilty, waiving a sentencing jury. Judge Fawsett concluded that Stano’s claims of ineffective assistance of counsel were not valid after he chose to plead guilty following proper plea proceedings, resulting in the imposition of death sentences.
On May 18, 1988, Judge Fawsett also entered a written order denying Stano’s petition for a writ of habeas corpus, his motion for a stay of execution, and a certificate of probable cause. With respect to Stano’s claim that he effectively was acting pro se when he entered his guilty pleas to the murders of Bickrest and Muldoon because Pearl did so little to defend him, the district court recognized that the two-part Strickland test applies to guilty pleas in determining ineffective assistance of counsel. The district court recited the preliminary plea colloquy wherein Pearl disclosed to the court that full discovery had not been received and explained that Stano wanted to proceed with the pleas. Stano had agreed with Pearl’s representations.
Furthermore, Judge Fawsett noted that Stano stated that he was satisfied with his counsel’s performance, that he had no questions to ask Pearl before pleading guilty, and that the trial judge had explained in detail the rights that Stano would waive by pleading guilty. The district court determined that Stano could not establish the prejudice aspect under Hill and Strickland. Even if Pearl had been able to obtain complete discovery, Judge Fawsett concluded that Stano did not show that, but for errors in Pearl’s representation, he would not have pled guilty and would have insisted on going to trial.
Additionally, the district court found that Stano himself limited the effectiveness of his counsel by entering the guilty pleas against Pearl’s advice:
It is clear from the record in this ease that Mr. Stano, against advice from counsel, insisted upon entering pleas of guilty. Stano demanded that counsel permit him to plead guilty and waive a sentencing jury and persisted on going forward with this desire as soon as possible. The record shows, therefore, that Mr. Stano, himself, limited counsel’s effectiveness by insisting upon a course of conduct that was contrary to counsel’s warning that he was not prepared to advise Mr. Stano concerning his cases and contrary to counsel’s warning that Stano could receive the death penalty.
Stano v. Dugger, No. 88-425-Civ-Orl-19 at 26-27 (M.D.Fla. May 18, 1988) (order denying Stano’s petition for a writ of habeas corpus, stay of execution, and certificate of probable cause).
On May 18, 1988, this court granted a certificate of probable cause and stay of execution. Stano v. Dugger, 846 F.2d 1286 (11th Cir.1988) (per curiam). The court heard oral argument on February 27, 1989. A majority panel reversed the district court and directed it to grant Stano’s petition for habeas corpus based on alternative Sixth Amendment theories: self-representation under Faretta and ineffective assistance of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), with respect to the repetitively reviewed preliminary plea colloquy. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989) (Fay, J., dissenting).
A member of this court in active service requested a poll on the application for rehearing en banc. After a majority of the judges of the court in active service voted in favor of granting a rehearing en banc, the previous panel’s decision was vacated. Stano v. Dugger, 897 F.2d 1067 (11th Cir.1990) (per curiam). On June 12, 1990, oral argument was heard by the en banc court solely on the Sixth Amendment claims of self-representation and ineffective assistance of counsel. We now explain these issues as decided by the en banc court.
II. ANALYSIS
A. The Requirements for Accepting a Guilty Plea Contrasted with the prerequisites for Allowing a Defendant to Proceed Pro Se at Trial
Our analysis of Stano’s Sixth Amendment self-representation claim requires us to examine constitutionally and to compare substantively the different inquiries that must be conducted by the trial court when a defendant elects to plead guilty or chooses to proceed pro se at trial. With life or liberty at stake, the accused’s Sixth Amendment right to counsel must be protected by the trial court. See Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Supreme Court has determined that the Sixth Amendment guarantees the accused “that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) (footnote omitted); see Massiah v. United States, 377 U.S. 201, 204-05, 84 S.Ct. 1199, 1202, 12 L.Ed.2d 246 (1964) (The Court has stressed that a defendant’s right to counsel is just as important at the pretrial stage as at trial). The Court has safeguarded a state criminal defendant’s Sixth Amendment right to counsel during critical stages of pretrial proceedings. See, e.g., Wade, 388 U.S. 218, 87 S.Ct. 1926 (post-indictment lineup); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (pretrial custodial interrogation); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment); see also Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (The Court has instructed that courts must indulge every reasonable presumption against waiver of the right to counsel; “[tjhis strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.”).
Specifically addressing guilty pleas, the Court has stated:
Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.
Argersinger v. Hamlin, 407 U.S. 25, 34, 92 S.Ct. 2006, 2011, 32 L.Ed.2d 530 (1972). Since the criminal defendant forgoes trial and his right to defend himself by pleading guilty, his right to counsel is especially important so that he will understand the basic rights that he waives by choosing to plead guilty. See Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.1986) (“[A] plea of guilty represents, in essence, an admission as to each and every element of the offense.” (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969)). By pleading guilty, a defendant waives several constitutional rights, including the Fifth Amendment privilege against compulsory self-incrimination and the Sixth Amendment rights to a jury trial and to confrontation of one’s accusers. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984) (per curiam) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)).
Nevertheless, it is not the attorney, but the defendant who enters a guilty plea and who is questioned by the court to determine whether the plea is made voluntarily, knowingly and intelligently. See Haring v. Prosise, 462 U.S. 306, 319, 103 S.Ct. 2368, 2376, 76 L.Ed.2d 595 (1983) (Since “a guilty plea is not simply ‘an admission of past conduct,’ but a waiver of constitutional trial rights such as the right to call witnesses, to confront and cross-examine one’s accusers, and to trial by jury,” the plea “ ‘not only must be voluntary but must be [a] knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances and likely consequences.’ ” (quoting Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)); United States v. French, 719 F.2d 387, 390 (11th Cir.1983) (per curiam), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). Although counsel is physically present with the defendant during plea proceedings, the actual plea is between the court and the defendant.
A factual basis is necessary for accepting of a guilty plea by a trial court when a defendant proclaims his innocence and yet pleads guilty. North Carolina v. Alford, 400 U.S. 25, 38 & n. 10, 91 S.Ct. 160, 167-68 & n. 10, 27 L.Ed.2d 162 (1970); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983). In Alford, the Supreme Court upheld a guilty plea from the accused who claimed to be innocent of the first-degree murder charge, when he intelligently believed that he would receive imprisonment if he pled and the death penalty if he underwent a trial because of the abundant damaging evidence against him:
Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.
400 U.S. at 37-38, 91 S.Ct. at 167-68 (citation and footnotes omitted).
The plea colloquy, provided in Rule 11 of the Federal Rules of Criminal Procedure, constitutes the constitutional minimum requirements for a knowing and voluntary plea for federal courts, but that rule is not binding on state courts. Gaddy, 780 F.2d at 943 n. 8; Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.1980) (en banc), modified on other grounds, 646 F.2d 902 (5th Cir.) (per curiam), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); see also Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.) (per curiam) (“Although federal law requires the judge personally to tell the defendant of the mandatory minimum sentence, Fed.R.Crim.P. 11(c)(1), Florida law does not.”), cert. denied, 464 U.S. 834, 104 S.Ct. 117, 78 L.Ed.2d 116 (1983). A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process: “If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea ... will be upheld on federal review.” Frank, 646 F.2d at 882; see Boykin, 395 U.S. at 243-44, 89 S.Ct. at 1712 (Ignorance of the consequences of a guilty plea may require its rejection.).
Because a guilty plea is equivalent to a conviction, the trial court’s determination of voluntariness must consider that “[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality.” Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), after pleading guilty to second-degree murder, a defendant of unusually low mental capacity testified at a habeas corpus evidentiary hearing in federal district court that he would not have pled guilty if his attorneys had informed him that intent was an element of the offense. The Court determined that “clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he [the defendant] committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” 426 U.S. at 645, 96 S.Ct. at 2257-58 (quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941)). Unavoidable influence or pressure from sources such as codefendants, friends or family does not make a plea involuntary; “[i]t is only where the plea is coerced by conduct fairly attributable to the state that the due process clause of the Fourteenth Amendment is offended.” LoConte v. Dugger, 847 F.2d 745, 753 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988).
The inquiry into whether the plea is made intelligently does not mean that the court must determine whether the defendant is making a “smart” decision by pleading guilty. Instead, “[i]n order for a guilty plea to be entered knowingly and intelligently, the defendant must have not only the mental competence to understand and appreciate the nature and consequences of his plea but he also must be reasonably informed of the nature of the charges against him, the factual basis underlying those charges, and the legal options and alternatives that are available.” Id. at 751. The defendant does not necessarily need to be told the nature of the offense and elements of the crime at the actual plea proceedings; a knowing and intelligent guilty plea may be entered on the basis of the receipt of this information, generally from defense counsel, before the plea proceedings. Id.; Gaddy, 780 F.2d at 944; see Moore v. Balkcom, 716 F.2d 1511, 1525 (11th Cir.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).
The record of the plea proceedings in this case reveals that Judge Foxman conducted a full and searching inquiry of Stano in complete compliance with Florida law, by the Florida courts, and with constitutional due process. The voluntariness of Stano’s pleas is beyond question. Not only was he fully apprised of the charges against him by Pearl and the trial court, but also he had confessed to the Bickrest and Muldoon murders. Furthermore, Stano, not the state, initiated the immediate entry of his pleas. The record also satisfies the voluntariness requirements of Boykin because the detailed plea proceeding in this case refutes any claim that Stano swore falsely when entering his guilty pleas. See Miller v. Turner, 658 F.2d 348, 351 (5th Cir. Unit B Oct. 1981).
With respect to Stano’s knowing and intelligent entry of his guilty pleas, we note that he was thirty-one years old, that he had completed the twelfth grade and computer training, and that he was gainfully employed. Stano’s competency to enter his guilty pleas has not been an issue in this case. Pearl pursued an insanity defense through five experts, but he was unsuccessful in convincing them to expand their diagnoses to include extreme mental or emotional disturbance. When Judge Fawsett inquired at the district court evidentiary hearing into Stano’s competence to plead or to participate in the proceedings in the Bickrest and Muldoon cases, Pearl responded that he did not question Stano’s competency or his ability to work with Pearl and to understand the issues involved in these cases.
Furthermore, Stano was not a stranger to plea proceedings before Judge Foxman. Represented by Pearl, he had pled guilty to three previous first-degree murder indictments and received life sentences from Judge Foxman. Pearl had counseled Stano in detail regarding the Bickrest and Muldoon indictments, the evidence produced by the state, the consequences of guilty pleas, the likelihood of death sentences, and his strategy for defending Stano. With full knowledge of the charges against him and the rights that he was waiving, Stano pled guilty to the Bickrest and Muldoon murders because he believed, against his counsel’s advice, that Judge Foxman again would give him life sentences. On the particular facts of this case, we conclude that Stano’s guilty pleas were voluntary, knowing and intelligent.
In addition to the constitutional right to counsel in a criminal trial, the Supreme Court has confirmed the right to self-representation accorded a defendant in a state criminal trial under the Sixth and Fourteenth Amendments. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to counsel, however, is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does “not attach unless and until it [i]s asserted." Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (emphasis in original), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987); Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc); see Strozier v. Newsome, 871 F.2d 995, 997 (11th Cir.1989). Only after the voluntary waiver of the constitutional right to counsel by assertion of the right to self-representation does it become incumbent upon the trial court to ascertain that the defendant “knowingly and intelligently” has relinquished the benefits of counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (citing Johnson, 304 U.S. at 464-65, 58 S.Ct. at 1023); Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989).
Under Faretta, the assertion of the right to self-representation by the defendant is essential. Faulting the trial judge for forcing a state-appointed public defender upon Faretta, who plainly had informed the court weeks before trial of his desire to proceed pro se, the Supreme Court described Faretta’s assertion of his right to self-representation: “Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (emphasis added). In response to this request, the judge conducted a hearing to ascertain Faretta’s ability to conduct his own defense. Faretta, 422 U.S. at 808, 95 S.Ct. at 2528.
Our circuit has explained the minimum actions required of a defendant in order to assert the right to self-representation to the trial court, which then must conduct the requisite inquiry into the waiver of the right to counsel:
To invoke his Sixth Amendment right under Faretta a defendant does not need to recite some talismanie formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, 'petitioner must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. In this Circuit, the court must then conduct a hearing on the waiver of the right to counsel to determine whether the accused understands the risks of proceeding pro se.
Dorman, 798 F.2d at 1366 (citation omitted) (emphasis added); see Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984). Therefore, trial courts are not required to divine when a criminal defendant is proceeding pro se. Under the reasonable person standard, the right to self-representation must be manifested to the trial court by an oral or written request in order to be recognized and to trigger the requisite examination by the court. See Jackson v. James, 839 F.2d 1513, 1516 (11th Cir.1988).
Consistent with the clear and unequivocal declaration of the choice to proceed pro se required by the Supreme Court in Faretta, Eleventh Circuit cases illustrate the specific written or oral request that the defendant must make to the trial court in order to assert the right to self-representation. See, e.g., Orazio, 876 F.2d at 1509, 1512 (Defendant-petitioner informed the trial judge that he wanted to represent himself at a hearing pursuant to his court-appointed counsel’s request for withdrawal from representation.); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1060-61, 1064-65 (11th Cir.1986) (Defendant-petitioner signed a waiver of his right to counsel before the court, stated verbally to the court that he understood that he was waiving his right to an attorney, and reiterated his desire to proceed pro se at a pretrial hearing.); Dorman, 798 F.2d at 1360-61, 1366-67 (Defendant-petitioner, citing Faretta, filed motions pro se, informed the trial judge by letters and a motion of his desire to have the public defender dismissed and to proceed pro se. He appealed to the state appellate court not only the trial judge’s denial of his pro se motions, but also that judge’s refusal to discharge the public defender and cited Faretta.)', United States v. Edwards, 716 F.2d 822, 824 (11th Cir.1983) (per curiam) (Defendant-petitioner filed a motion seeking pro se representation and withdrawal of his public defender; the public defender also filed a motion requesting that the defendant be allowed to represent himself.); see also Raulerson, 732 F.2d at 809 (“Although a defendant need not ‘continually renew his request to represent himself even after it is conclusively denied by the trial judge,’ he must pursue the matter diligently.” (quoting Brown, 665 F.2d at 612)). The Faretta ease law does not provide for proceeding pro se without assertion of the right to self-representation. There simply is no precedent in this circuit for proceeding pro se by constructive notice without an obvious assertion of the right to self-representation. See Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.) (“In recognition of the thin line that a district court must traverse in evaluating demands to proceed pro se, and the knowledge that shrewd litigants can exploit this difficult constitutional area by making ambiguous self-representation claims to inject error into the record, this Court has required an individual to clearly and unequivocally assert the desire to represent himself." (footnote omitted) (emphasis added), cert. denied, — U.S. —, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990).
Once the right of self-representation has been asserted clearly and unequivocally, understandable to the trial court by the reasonable person standard, then and only then is that court, under Supreme Court and Eleventh Circuit case law, required to conduct the requisite inquiry to determine whether the criminal defendant’s decision to represent himself is knowing, intelligent and voluntary. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Fitzpatrick, 800 F.2d at 1064-68; Dorman, 798 F.2d at 1366. In contrast to the plea inquiry, the trial court conducts a different inquiry of a criminal defendant who has informed the court that he desires to represent himself. See Johnson, 304 U.S. at 464, 58 S.Ct. at 1023 (Since a waiver ordinarily requires abandoning a known right or privilege, “[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”). The Faretta holding has been described as the recognition that “a defendant may elect to act as his or her own advocate,” thereby signifying the defense of one’s own case. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983).
While the Court has not defined the particulars of a Faretta inquiry, this circuit has established the following factors that the trial court should consider in determining whether a criminal defendant is aware of the dangers of proceeding pro se:
“(1) the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; (2) the extent to which the defendant had contact with lawyers prior to the trial; (3) the defendant’s knowledge of the nature of the charges, the possible defenses, and the possible penalty; (4) the defendant’s understanding of the rules of procedure, evidence and courtroom decorum; (5) the defendant’s experience in criminal trials; (6) whether standby counsel was appointed, and the extent to which he aided the defendant; (7) whether the waiver of counsel was the result of mistreatment or coercion; or (8) whether the defendant was trying to manipulate the events of the trial.”
United States v. Fant, 890 F.2d 408, 409-10 (11th Cir.1989) (per curiam) (quoting Strozier, 871 F.2d at 998), cert. denied, — U.S. —, 110 S.Ct. 1498, 108 L.Ed.2d 633 (1990); see Fitzpatrick, 800 F.2d at 1065-67. These considerations, designed to elicit whether the defendant is capable of conducting his own trial, guide the trial court in its decision concerning the defendant’s self-representation. The absence of certain factors, such as previous involvement in criminal trials and appointment of standby counsel, may be overcome if the trial court is convinced that the defendant sufficiently understands the disadvantages of proceeding pro se to satisfy the Faretta standard. See Fitzpatrick, 800 F.2d at 1067. “The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.” Id. at 1065; see Greene v. United States, 880 F.2d 1299, 1303-04 (11th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). The inquiries required of the trial court obviously differ for determining if a defendant is competent to enter a plea as opposed to representing himself at trial.
The actual facts of this case are most significant and completely negate the applicability of Faretta. Stano did not proceed pro se because his desired, court-appointed attorney had represented and counseled him since his arraignment. While it should be sufficiently determinative that Stano did not assert or even faintly suggest his right to self-representation, the actions that he did take show that Faretta is plainly inapplicable. At his arraignment, Stano agreed to the appointment of Pearl and pled not guilty to the Bickrest and Muldoon murders before Judge Foxman, the same judge before whom he had pled guilty to first-degree murders three times previously. Subsequently, Stano initiated the conference with Pearl and told Pearl that he wanted to plead guilty to the Bickrest and Muldoon murders immediately. Pearl informed Stano that he did not have all discovery from the state, that he had not had time to investigate the cases fully, and that death was the likely sentence.
Nevertheless, Stano speculated that he would receive additional life sentences from Judge Foxman and elected to proceed with the pleas. Pearl explained his advice and Stano’s decision to plead to Judge Foxman at the March 11, 1983 plea proceedings, preliminary to the actual plea taking. In response to Judge Foxman’s questioning, Stano agreed with Pearl’s representations. There was no need for the trial court to conduct a Faretta inquiry. Based upon Stano’s history of pleading guilty and his actions in this case, it was and is patently apparent that he never envisioned representing himself and proceeding to trial.
Faretta explains that an attorney, “however expert, is still an assistant.” 422 U.S. at 820, 95 S.Ct. at 2533; see Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Even a defendant who hires trial counsel for the purpose of making strategic decisions does not relinquish to his attorney final authority to make fundamental decisions, such as the plea that he will enter. See Jones, 463 U.S. at 751, 103 S.Ct. at 3312 (“[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” (citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 2510 n. 1, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring); ABA Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980)); Faretta, 422 U.S. at 834, 95 S.Ct. at 2541 (“The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in this particular case counsel is to his advantage.”); United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.) (“Among those rights that a defendant must personally waive are the right to go to trial or plead guilty_” (citing Boykin, 395 U.S. at 242, 89 S.Ct. at 1711)), cert. denied, — U.S. —, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990); Poole v. United States, 832 F.2d 561, 563-64 (11th Cir.1987) (Because the trial judge must be assured that a guilty plea is made intelligently and voluntarily, “a guilty plea cannot be entered against a defendant ‘solely on the consent of the defendant’s agent — his lawyer.’ ” (quoting Henderson, 426 U.S. at 650, 96 S.Ct. at 2260) (White, J., concurring)), cert. denied, 488 U.S. 817, 109 S.Ct. 54, 102 L.Ed.2d 33 (1988); cf. Brookhart v. Janis, 384 U.S. 1, 7, 86 S.Ct. 1245,1248, 16 L.Ed.2d 314 (1966) (“Our question therefore narrows down to whether counsel has power to enter a plea which is inconsistent with his client’s expressed desire and thereby waive his client’s constitutional right to plead not guilty and have a trial in which he can confront and cross-examine the witnesses against him. We hold that the constitutional rights of a defendant cannot be waived by his counsel under such circumstances.”). The defendant remains the master of his case, particularly with respect to the entry of a guilty plea.
Stano made deliberate choices in this case. He chose to have counsel, and never waived his right to counsel in any way whatsoever. He had advice from an experienced and conscientious attorney, who had represented him previously for first-degree murder pleas. Against the advice of counsel, he elected to change his pleas to guilty before Judge Foxman, who had accepted from Stano three previous guilty pleas to first-degree murders. Far from desiring additional counsel, Stano testified, when examined by Judge Foxman, that he was satisfied with Pearl’s representation, and that he had no questions for him.
The former Fifth Circuit clarified that the analyses for a guilty plea and waiver of counsel are distinct. Lewellyn v. Wainwright, 593 F.2d 15 (5th Cir.1979) (per curiam). In Lewellyn, the habeas corpus petitioner signed a waiver of counsel form before he was arraigned in a state trial court in the Middle District of Florida. He then entered a plea of guilty to a felony charge. The parties agreed that the petitioner was not informed by the trial judge or the prosecutor of the maximum sentence that could be imposed. Sentenced to imprisonment for six months to twenty years, the petitioner took no direct appeal. He filed a motion to vacate the judgment and sentence, and alleged that his guilty plea was invalid because he had not been advised of the consequences.
Following an evidentiary hearing on the federal habeas corpus petition, the magistrate concluded that petitioner’s waiver of counsel was valid, but that his guilty plea was not made knowingly and intelligently. The magistrate reasoned that, because the petitioner was ignorant of the potential sentence at the time he pled, the plea could not have been entered knowingly and intelligently. Determining that the failure of the state trial judge to ascertain whether the petitioner knew the maximum sentence that he could incur rendered his guilty plea unintelligent and was a denial of due process, the district court adopted the magistrate’s report and recommendation and granted the writ. The judgment and sentence subsequently were vacated.
On appeal, the State of Florida contended that the district court erred in finding a due process violation because the petitioner’s valid waiver of his right to counsel also waived any claim that the entry of his guilty plea was deficient. The state argued that the Boykin requirement that guilty pleas be knowing and voluntary was modified by Faretta, which stated that a defendant electing to defend himself cannot complain on appeal that the quality of his defense amounted to a denial of effective assistance of counsel. Id. at 16; see Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. Acknowledging that Faretta mandates that a waiver of counsel not only must be made knowingly and intelligently by the defendant, but also that the trial court must caution the defendant regarding the dangers and disadvantages of self-representation so that an intelligent choice can be made, the court distinguished the self-representation and plea inquiries by the trial court: “The state’s reliance on Faretta is unfounded. Faretta addressed the constitutional origins of the right of self-representation; it does not address, much less hint at, the requirement for a valid guilty plea.” Lewellyn, 593 F.2d at 16 (emphasis added).
Against his attorney’s advice, Stano speculated that he would receive life sentences from Judge Foxman if he pled guilty to the Bickrest and Muldoon murders, because that judge had not sentenced him to death for three previous guilty pleas to first-degree murders. See LoConte, 847 F.2d at 752-53 (“[F]or his own reasons — to save himself from a possible death sentence and to secure the release of his wife,” the defendant pled guilty.); Johnson v. United States, 838 F.2d 201, 204 (7th Cir.1988) (Viewing his opportunities of seeking a reduction of sentence in the district court as “superior” to pursuing an appeal, the defendant’s “choice was impelled by the attractiveness of an opportunity and not the terror of the alternative.”). Stano gambled and lost; he cannot challenge his election to plead guilty retrospectively because the sentences were not as he had expected. The decision to plead guilty was his to make, and we do not review the prudence of his decision. We review Stano’s guilty pleas only to determine if they met the constitutional due process requirements of being knowing, intelligent and voluntary. We have concluded that his pleas satisfy these constitutional requisites.
In contrast, the inquiry by the trial court when a defendant has asserted his Sixth Amendment right to self-representation serves a distinctly different purpose. Because the right to counsel is so precious to our jurisprudence, the waiver of this right must be asserted. The trial court’s inquiry into a knowing, intelligent and voluntary decision to proceed pro se under Faretta is tailored to elicit whether the defendant is capable of conducting his own defense. In this circuit, the defendant is questioned specifically regarding his knowledge of the rules of procedure, evidence and courtroom decorum.
By definition, a defendant who pleads guilty relinquishes his defense. He, therefore, does not need to be examined as to his understanding of courtroom procedure. While the due process knowing, intelligent and voluntary plea taking questions are subsumed in a Faretta examination, a more extensive colloquy must transpire in order for the trial court to satisfy itself that the defendant is aware of the dangers of conducting his own defense. Under Supreme Court and binding circuit precedent, the Faretta inquiry is reserved for advising a defendant of the disadvantages of proceeding pro se at trial; the plea inquiry is employed for determining whether a defendant’s plea is knowing, intelligent and voluntary sufficient to meet constitutional due process.
B. Determining Ineffective Assistance of Counsel in Guilty Plea Proceedings
Stano’s claim of ineffective assistance of counsel requires our constitutional scrutiny of Pearl’s representation and advice concerning the plea proceedings. The Sixth Amendment right to counsel implicitly includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 & n. 14, 90 S.Ct. 1441, 1449 & n. 14, 25 L.Ed.2d 763 (1970); Chatom v. White, 858 F.2d 1479, 1484 (11th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1316, 103 L.Ed.2d 585 (1989); see Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). A defendant is entitled to this constitutional guarantee of effective assistance of counsel whether he is represented by a retained or court-appointed attorney. Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir.1983). In our review of Stano’s allegation of ineffective assistance of counsel, we are not bound by the determination of the Florida courts or the federal district court. Gates v. Zant, 863 F.2d 1492, 1496 (11th Cir.) (per curiam), cert. denied, — U.S. —, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989).
“A guilty plea is open to attack on the ground that counsel did not provide the defendant with ‘reasonably competent advice.’ ” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980) (quoting McMann, 397 U.S. at 770, 90 S.Ct. at 1448). The Supreme Court has held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Slicker v. Dugger, 878 F.2d 1380, 1381 n. 1 (11th Cir.1989) (per curiam); Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.1989); McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir.1986) (per curiam). In order to obtain relief under the familiar Strickland test, a usual basis of appeal in habeas corpus petitions, a convicted defendant complaining of ineffective assistance of counsel must show: 1) “that counsel’s representation fell below an objective standard of reasonableness,” and 2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Heath v. Jones, 863 F.2d 815, 821 (11th Cir.1989) (per curiam); see Futch v. Dugger, 874 F.2d 1483, 1486 (11th Cir.1989); Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir.1986) (per curiam), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 782 (1987). Without both showings, a defendant’s conviction or death sentence cannot be attributed to “a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Under the first part of the Strickland test, “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” 466 U.S. at 688, 104 S.Ct. at 2065. As a corollary, the appropriate standard for evaluating counsel’s pretrial investigation is “reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691, 104 S.Ct. at 2066; Foster v. Dugger, 823 F.2d 402, 405 (11th Cir.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); see Greene v. United States, 880 F.2d 1299, 1306 (11th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990); Futch, 874 F.2d at 1486; see also Chatom, 858 F.2d at 1485 (11th Cir.1988) (“Counsel’s representation must be shown to fall below an objective standard of reasonableness.”). The Court also noted that an attorney had an obligation “to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Court, however, recognized that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and that courts should make certain “that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U.S. at 689, 104 S.Ct. at 2065; Foster, 823 F.2d at 405. In order to succeed on an ineffective assistance of counsel claim, a defendant must surmount “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Chatom, 858 F.2d at 1485.
Overcoming the first part of the Strickland test does not guarantee relief. Regarding the second part of the test, the Court has recognized that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Moreover, Hill clarified the Strickland second or “prejudice” requirement in the context of guilty pleas: “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 106 S.Ct. at 370; Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir.1988) (per curiam); see Long v. United States, 883 F.2d 966, 968 n. 4 (11th Cir.1989) (per curiam); Agan v. Dugger, 835 F.2d 1337, 1340 n. 6 (11th Cir.1987), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 884 (1988); see also Holmes, 876 F.2d at 1553, Slicker v. Wainwright, 809 F.2d 768, 770 (11th Cir.1987) (These cases were remanded to the district court to determine if accurate, rather than incorrect, information by the defense counsel as to the length of sentence would have changed the defendant’s plea.); cf. Betancourt v. Willis, 814 F.2d 1546, 1549 (11th Cir.1987) (This court affirmed the district court’s granting a habeas corpus petition based upon its conclusion that petitioner’s plea was not voluntary and that his counsel provided ineffective assistance because the evidence was “uncontroverted that petitioner was completely unaware of the ultimate consequences of his plea because his counsel misrepresented the existence of a sentence reduction agreement.”). The Hill court explained the prejudice requirement with specific regard to a defense counsel’s alleged failure to investigate potentially exculpatory evidence:
In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.
474 U.S. at 59, 106 S.Ct. at 370; McCoy, 804 F.2d at 1198-99.
The Supreme Court has given finality to guilty pleas by precluding claims of constitutional deprivations occurring pri- or to entry of the plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); see Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.) (per curiam) (“[A] guilty plea waives all nonjurisdictional defects occurring prior to the time of the plea, including violations of the defendant’s rights to a speedy trial and due process.”), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984). The Court allows only challenges to the voluntary and intelligent entry of the plea if a convicted defendant can prove “serious derelictions” in his counsel’s advice regarding the plea. McMann, 397 U.S. at 774, 90 S.Ct. at 1450; Tollett, 411 U.S. at 267, 93 S.Ct. at 1608; see Hill, 474 U.S. at 56, 106 S.Ct. at 369 (“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Without “reasonably effective assistance of counsel in connection with the decision to plead guilty,” a defendant cannot enter a knowing and voluntary plea because the plea does not represent an informed choice. McCoy, 804 F.2d at 1198; Scott, 698 F.2d at 429. Based upon his familiarity with the facts and law, defense counsel must advise the defendant. Scott, 698 F.2d at 429. “Counsel’s advice need not be errorless, and need not involve every conceivable defense, no matter how peripheral to the normal focus of counsel’s inquiry, but it must be within the realm of competence demanded of attorneys representing criminal defendants.” Id. (emphasis added); see McMann, 397 U.S. at 771, 90 S.Ct. at 1449; Long, 883 F.2d at 969.
The Supreme Court has recognized that the decision to plead guilty may occur without all of the state’s evidence and necessarily takes place without knowledge of all facts revealed by witnesses at trial. McMann, 397 U.S. at 769-70, 90 S.Ct. at 1448. “[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984) (per curiam); Downs-Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir.1985). An attorney’s responsibility is to investigate and to evaluate his client’s options in the course of the subject legal proceedings and then to advise the client as to the merits of each. Tafero, 796 F.2d at 1320; Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). When a defendant preempts his attorney’s defense strategy, he thereafter cannot claim ineffective assistance of counsel. Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987); see Thompson, 787 F.2d at 1452; Foster v. Strickland, 707 F.2d 1339, 1343-44 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see also Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (An attorney ethically is bound to follow a competent client’s decision regarding the defense of his case.). A defendant may partially waive his right to counsel by insisting on a course of conduct contrary to advice by his counsel. See Tafero, 796 F.2d at 1320; Mitchell, 762 F.2d at 889-90; Foster, 707 F.2d at 1343-44.
Applying these legal principles to this case, we note that, following his appointment at Stano’s arraignment through the critical stages of pleading and sentencing, Pearl counseled Stano regarding the state’s case against him. When Stano told Pearl that he wanted to plead guilty to the Bickrest and Muldoon murders, Pearl gave Stano most appropriate advice: Stano should refrain from pleading guilty because all discovery had not been received from the state and the death penalty would be the probable result. He stressed to Stano that he had been unable to investigate the cases completely without all of the state’s evidence. Pearl informed Stano of the defense theories of proportionality and insanity that he wanted to pursue. Pearl’s investigation subsequent to the pleas, including Stano’s examination by mental health experts, revealed no grounds on which to attack Stano’s confessions or to withdraw his pleas.
Stano’s allegation of ineffective assistance of counsel as to Pearl’s representation at the plea proceedings is based upon his failure to have reviewed all of the state’s evidence. Not only did Pearl advise Stano not to plead guilty because he had not had the opportunity to review this evidence, but also the unreceived similar fact discovery about which he complains was received prior to sentencing. If this discovery had constituted a basis for attacking the pleas, then Pearl could have made a motion to set aside the pleas prior to sentencing.
Ironically, the state abandoned the theory that this discovery was to support. The absent evidence, therefore, is meaningless. Consequently, this discovery, unreviewed by Pearl at the entry of the pleas, could not have resulted in Stano’s decision to go to trial instead of pleading guilty and would not have affected his sentence. See Zamora v. Dugger, 834 F.2d 956 (11th Cir.1987) (This court affirmed the district court’s denial of habeas corpus relief because none of petitioner’s allegations of ineffective assistance of counsel would have caused the jury verdict to be unreliable.).
Stano was not acting without reasoned advice from a highly experienced criminal defense attorney; he simply refused to take that counsel advise. Under the circumstances, Pearl gave Stano proper advice well within the competence of a criminal defense attorney. There was nothing more that he could have done. The decision whether to plead guilty, however, belonged to Stano. He apparently believed, against Pearl’s advice, that he would receive life sentences if he pled guilty.
The record of the plea proceedings also contradicts any subsequent claim by Stano that Pearl’s representation was deficient. When questioned by Judge Foxman, Stano agreed with Pearl’s preliminary statement regarding his desire to plead guilty despite the lack of receipt of all evidence from the state. Stano also admitted during the plea proceedings that his plea was voluntary, that he was satisfied with the services of Pearl, that he had no complaints regarding Pearl’s representation, and that he had no questions for Pearl. Stano’s competence is not at issue. His guilty pleas were entered voluntarily, knowingly and intelligently. Pearl’s advice was to the contrary. Proceeding against counsel’s advice is not proceeding without counsel’s advice. Under our deferential review and considering all the facts in this case, we cannot find that Pearl’s representation of Stano with respect to the plea proceedings was below an objective standard of reasonableness for a criminal defense attorney.
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court created an exception to the Strickland standard for ineffective assistance of counsel and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed. 466 U.S. at 658, 104 S.Ct. at 2046. This companion case to Strickland explains its applicability by the examples of complete denial of counsel, absence of counsel at a critical stage, and defense counsel’s total failure to test significantly the prosecution’s case. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047; see Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.1989); Heath, 863 F.2d at 821; Warner v. Ford, 752 F.2d 622, 624 (11th Cir.1985); see also Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984) (Failure of counsel “to investigate and pursue all avenues of defense” more appropriately is analyzed under Strickland “rather than as a fundamental breakdown of the adversarial process such that prejudice is presumed under Cronic.”) The crux of Cronic is that the right to effective assistance of counsel is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” 466 U.S. at 656, 104 S.Ct. at 2045. Citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as an example of a situation causing a presumption of prejudice despite the presence of competent counsel, the Court admonishes that “[ajpart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Cronic, 466 U.S. at 659 n. 26, 104 S.Ct. at 2047 n. 26; see Chadwick, 740 F.2d at 900 (Powell presents the “rare case” where prejudice is presumed.).
Furthermore, this circuit has held that “ ‘Cronic represents a narrow exception which the Supreme Court has carved out of the general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by specific alleged errors in his counsel’s performance. Consequently, the burden of proof under Cronic is a very heavy one.’ ” Stone v. Dugger, 837 F.2d 1477, 1479 (11th Cir.1988) (per curiam) (quoting Smith v. Wainwright, 777 F.2d 609, 620 (11th Cir.1985) (emphasis in original), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986)), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 821 (1989); Harding, 878 F.2d at 1345; Chadwick, 740 F.2d at 900. Comparing Cronic and. Strickland, this court has .concluded that “it becomes evident that Cronic’s presumption of prejudice applies to only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.” Chadwick, 740 F.2d at 901.
The juxtaposition of the facts of the Court’s example, Powell, and Cronic makes evident the factual circumstances required for the application of the Cronic exception. In Powell, an out-of-state attorney initially appeared on behalf of multiple defendants on the day of'trial. Although the case was a highly publicized capital crime, the court decided to proceed with trial immediately and provided the out-of-state attorney with the assistance of the local bar. Under such circumstances, the Court found that the likelihood that counsel could have performed effectively was so remote as to make the trial inherently unfair.
In Cronic, the defendant in a complex check kiting case claimed that he was prejudiced by representation by a young, court-appointed, real estate attorney, who had never tried a jury case and was allowed only twenty-five days for pretrial preparation, as opposed to four and one-half years that the government had to investigate and prepare the case. Rejecting the contention that a presumption of prejudice resulted because of the lawyer’s youth and inexperience, the Supreme Court stated that “[e]very experienced criminal defense attorney once tried his first criminal case,” and found that the case was “not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel.” Cronic, 466 U.S. at 665-66, 104 S.Ct. at 2050-51. In rejecting the claim of denial of the Sixth Amendment right to counsel, the Cronic reference to Powell, with its unique and blatant facts creating a presumption of ineffective assistance of counsel, makes evident that exceptions to the Strickland standard are appropriate only when the circumstances would offend basic concepts of due process. When such prejudicial circumstances exist, the concern is with procedural fair trial requirements, and not with whether the defendant would have been found guilty.
Comparing the facts of this case to Powell and Cronic obviously shows that Stano’s plea proceedings do not approach the Cronic exception to the Strickland standard for ineffective assistance of counsel. If the inexperience and youth of the Cronic attorney were found to be effective assistance of counsel, then certainly Pearl, an experienced public defender who had represented 300 death penalty defendants in approximately 75 trials, was exceptionally qualified to provide Stano effective assistance of counsel. As we have found, Pearl gave Stano appropriate advice regarding the guilty pleas that Stano elected to enter. Stano was not forced into his decision by circumstances that are so inherently unfair as to transgress due process.
Cronic recognizes that “because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation.” 466 U.S. at 658, 104 S.Ct. at 2046 (citing Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 163-64, 100 L.Ed. 83 (1955)). Stano plainly has not met the prejudice requirement of Hill /Strickland by demonstrating that, but for Pearl’s assistance, he would not have entered guilty pleas in the Bickrest and Muldoon cases and would have insisted on going to trial. Stano’s ineffective assistance of counsel claim has been reviewed in the state courts and thoroughly examined in an evidentiary hearing in federal district court to no avail. The Florida Supreme Court, relying on Hill/Strickland, aptly describes the inadequacy of Stano’s allegation of ineffective assistance of counsel:
By insisting on pleading guilty and by telling counsel that he had confessed freely and voluntarily, Stano rendered any further investigation pointless. Stano had been found competent to stand trial and, therefore, competent to assist in his defense. We cannot see how acceding to the wishes of a competent client could or should be construed as ineffectiveness years after the fact and only when execution of sentence is imminent. The record conclusively demonstrates no substandard performance by Stano’s counsel regarding his investigation.
Stano v. State, 520 So.2d 278, 280-81 (Fla.1988) (per curiam). We also find no merit to Stano’s Sixth Amendment claim of ineffective assistance of counsel. We conclude that a competent, knowledgeable defendant can make an informed, voluntary choice to plead guilty and that he subsequently cannot fault his attorney for ineffective assistance of counsel after receiving an unexpected sentence.
III. CONCLUSION
After rehearing Stano’s Sixth Amendment claims en banc, we conclude that he has not raised a constitutionally cognizable issue on this record under either self-representation or ineffective assistance of counsel analysis. We refer all other appellate issues presented by Stano to the original panel for resolution. The decision of the district court to deny Stano habeas corpus relief with respect to his Sixth Amendment claims is AFFIRMED.
[OPINION BY ANDERSON, Circuit Judge, type=concurrence]
ANDERSON, Circuit Judge,
concurring, in which KRAVITCH, Circuit Judge, joins:
I join Part II.B. of Judge Fay’s opinion holding that Stano’s claim of ineffective assistance of counsel has no merit. I also join in that portion of Part II.A. of Judge Fay’s opinion holding that the circumstances of this case did not trigger the procedures outlined in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In other words, I join all of the opinion, except I do not join any dicta suggesting that the Faretta right is inapplicable to the guilty plea stage.
[OPINION BY TJOFLAT, Chief Judge, type=dissent]
TJOFLAT, Chief Judge,
dissenting, in which JOHNSON, Circuit Judge, joins:
I respectfully dissent from the court’s decision today. That decision emphasizes that a defendant has a right to plead guilty, and to do so even against a lawyer’s advice. I agree. The majority, however, misses the point of this case: the petitioner pled guilty without the advice of counsel. The petitioner’s nominal lawyer failed to undertake even the most minimal inquiry necessary to constitute assistance of counsel. Of course, a defendant who has invoked his right to counsel still has the right to plead guilty without counsel, but before the court can accept his plea, the court must ensure that the defendant unequivocally asserts his right to proceed pro se and knowingly and intelligently waives his right to counsel. Absent such a waiver, the court has an obligation not to accept the plea until the defendant has assistance of counsel. In my view, the court in this case failed to discharge that obligation: it accepted the pleas of an uncounseled defendant without ensuring that the defendant clearly and unequivocally asserted his right to proceed pro se and knowingly and intelligently waived his right to counsel. Accordingly, the petitioner’s convictions must be set aside.
I.
In 1982, Gerald Eugene Stano confessed to the murders of Susan Bickrest and Mary Kathleen Muldoon. In early 1983, a Florida grand jury indicted him for both murders. On March 11, 1983, Stano, accompanied by his court-appointed attorney, Howard B. Pearl, pled guilty to both charges. After a brief exchange with Pearl and Stano, the trial judge accepted the guilty pleas. Three months later, the judge sentenced Stano to death in both cases.
The Supreme Court of Florida affirmed the convictions and sentences on direct appeal, and the state courts denied Stano post-conviction relief. The district court also denied Stano’s petition for a writ of habeas corpus. On appeal, a panel of this court granted Stano relief. A majority of this court, however, voted to hear the ease en banc and the panel’s decision was vacated. The court today affirms the district court’s denial of relief.
The plea hearing now at issue commenced with an exchange between Mr. Pearl and the court that is crucial to the case before this court. In the course of this exchange, Mr. Pearl told the court that he had not yet received discovery from the State and therefore he could not give Stano any informed advice on how to plead. The exchange was as follows:
MR. PEARL: Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue.
At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials have not yet been received by the State and [the prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that.
THE COURT: So, you’re not complaining, you’re just stating this for the record.
MR. PEARL: No, that is not a complaint. I’m just making my position clear in Mr. Stano’s presence about the entry of his plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.
I have spoken with [the prosecutor], I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delicti in both of these cases. And Mr. Stano tells me that is so.
Further, I have asked [Stano] about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.
He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.
I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared, at this time as his attorney to advise him with respect to the advisability of a trial or not.
He tells me he does not want a trial.
THE COURT: Okay.
Mr. Stano, do you care to comment on what Mr. Pearl has just said?
THE DEFENDANT: No. I believe everything was quite sufficient that he said.
THE COURT: He stated things accurately?
THE DEFENDANT: Yes.
THE COURT: You’re in agreement with what he said?
THE DEFENDANT: Yes, sir.
(Emphasis added.)
In my view, this colloquy put the court on notice that Pearl could not provide his client with meaningful legal representation. As a result, the colloquy triggered a duty on the court’s part to intervene, either by determining that Stano wanted to waive his right to counsel and proceed pro se or by postponing the proceeding until Stano had meaningful representation. The court, however, did not intervene but instead accepted Stano’s pleas. In so doing, the court denied Stano the process he was due and thus violated his fundamental right to a fair proceeding. Accordingly, Stano’s convictions should be set aside.
II.
The sixth amendment to the United States Constitution provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI. The courts have long recognized that this right to counsel is fundamental to due process of law and is thus an essential component of a fair criminal prosecution. As Justice Sutherland wrote in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction, because he does not know how to establish his innocence. If that be true of men of intelligence, how much more is it true of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
Id. at 68-69, 53 S.Ct. at 64 (emphasis added). Following these principles, the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), held that the sixth amendment requires the government to provide counsel for a defendant in federal court unless he competently and intelligently waives his right to counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held that the sixth amendment right to counsel is a fundamental right, essential to a fair trial and to due process of law, and that it therefore applies to the states through incorporation into the fourteenth amendment. The right to assistance of counsel, moreover, attaches at all critical stages of the criminal justice system, and a plea hearing is such a stage. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
Thus, as the Court pronounced in Johnson — a pronouncement made applicable in Gideon to the state courts — “[t]he Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” 304 U.S. at 463, 58 S.Ct. at 1022-23 (footnote omitted). The Court explained the duties that this rule imposed on trial courts:
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This :protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.
Id. at 465, 58 S.Ct. at 1023 (emphasis added). If a court allows a defendant to proceed at a critical stage without the assistance of counsel and without a competent waiver of the right to counsel, the court fails to discharge its “protecting duty” and allows a violation of the defendant’s sixth amendment right to assistance of counsel. See Gideon, 372 U.S. at 344-45, 83 S.Ct. at 796-97 (no counsel at trial); Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972) (no counsel at trial for misdemeanor); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963) (no counsel at arraignment); Hamilton v. Alabama, 368 U.S. 52, 54-55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961) (same).
The Supreme Court has explained that, in such circumstances, the reviewing court must reverse the conviction without “stop[ping] to determine whether prejudice resulted.” White, 373 U.S. at 60, 83 S.Ct. at 1051. As the Supreme Court observed in United States v. Cronic, “[t]he Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984) (citing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Brooks v. Tennessee, 406 U.S. 605, 612-13, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); Williams v. Kaiser, 323 U.S. 471, 475-76, 65 S.Ct. 363, 366, 89 L.Ed. 398 (1945)); see also Perry v. Leeke, 488 U.S. 272, 278, 109 S.Ct. 594, 599, 102 L.Ed.2d 624 (1989); Penson v. Ohio, 488 U.S. 75, 86-89, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300 (1988); Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978); cf. Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988). I discuss this presumption of prejudice in detail below.
The right to assistance of counsel, moreover, is “the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); see Kimmelman v. Morrison, 477 U.S. 365, 377-78, 106 S.Ct. 2574, 2584, 91 L.Ed.2d 305 (1986). Assistance of counsel thus requires more than just the mere presence of an attorney. As the Court stated in Holloway, “[t]he mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.” 435 U.S. at 490, 98 S.Ct. at 1181. In Cronic, the Court explained that “[i]f no actual ‘Assistance’ ‘for’ the accused’s ‘de-fence’ is provided, then the constitutional guarantee has been violated.” 466 U.S. at 654, 104 S.Ct. at 2044. At any critical stage, therefore, where it is apparent to the court that assistance of counsel is being actually or constructively denied, the court has a duty under the sixth amendment not to allow the defendant to proceed absent a valid waiver of his right to assistance of counsel. If the court does allow a defendant to proceed under such circumstances, without first obtaining a valid waiver, then prejudice must be presumed and the defendant’s conviction must be set aside.
Before turning to the case at hand, I pause to consider the notion that a trial court has a duty to intervene in some circumstances to protect a defendant’s constitutional rights. I then address the related notion that, if a trial court fails to discharge this duty, a reviewing court must presume that the defendant was prejudiced and set aside his conviction. After demonstrating that these notions are deeply rooted in a wide body of established precedent, and supported by the practical realities and limitations of collateral proceedings, I turn to a discussion of their application to the present case. I first explore the notion of trial judge error.
A. A Court’s Duty to Intervene.
When a trial judge receives notice of a circumstance or event implicating the fairness of a proceeding before the court, he assumes a responsibility to intervene in order to preserve the proceeding's fairness. If the trial judge fails to discharge this duty, then he becomes causally responsible for the error and its effects.
As a panel of this court explained in Willis v. Kemp, 838 F.2d 1510, 1519-20 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989), three categories of error exist: error caused by the trial court, error caused by an effective attorney’s reasonable tactical choices, and error caused by an attorney’s incompetence. In discussing a prosecutorial misconduct claim, the court stated:
When a habeas petitioner contends that a state prosecutor’s misconduct before the jury rendered his trial fundamentally unfair, he means that one of three scenarios took place. In the first scenario, petitioner’s attorney afforded the petitioner effective assistance of counsel, as required by the sixth and fourteenth amendments to the Constitution. When the prejudicial misconduct occurred, the attorney made a timely objection, asked the court for relief — either a curative instruction or a mistrial — and the court denied his request. In this scenario, the trial court, rather than the prosecutor, caused the unfair trial, although the prejudice would not have occurred but for the prosecutor’s misconduct. The petitioner’s claim is, then, that the court ^denied him due process of law....
In the second scenario, petitioner’s attorney provided effective assistance of counsel, but did not object to the prosecutor’s misconduct, reasonably concluding that he could eliminate the prejudice as the trial progressed and that it was to his client’s advantage not to object. Defense counsel’s strategy failed, however, and the prejudice remained. In this scenario, the petitioner’s attorney, rather than the prosecutor or the court, caused the unfair trial. The petitioner has no constitutional claim in this situation: he received effective assistance of counsel and the court did not deny him a fair trial.
In the third scenario, the petitioner’s attorney provided ineffective assistance of counsel and took no steps to eliminate the prejudice caused by the prosecutor’s misconduct. In this scenario, petitioner’s counsel, through his incompetence, caused the unfairness. The petitioner’s claim is not that he was denied due process, but that he was denied effective assistance of counsel in violation of the sixth and fourteenth amendments.
Id. (citations omitted; footnotes omitted).
The Willis court thus explained the kinds of errors that violate federal constitutional rights. Under the third scenario, if an attorney’s representation falls below acceptable levels of competence, that error implicates the defendant’s sixth amendment right to the effective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the court, on collateral review, will grant relief if counsel’s performance was deficient and if the deficiency prejudiced the defendant.
Under the first Willis scenario, an occurrence during the course of a proceeding puts the trial court on notice of an error and triggers its duty to intervene. This duty to intervene is triggered in two general ways: either an attorney’s objection puts the court on notice of a potential for error; or circumstances themselves put the court on notice, thus triggering a duty on its part to intervene sua sponte. I consider these two possibilities in turn.
In a case involving prosecutorial misconduct, an objection by the defendant’s attorney puts the trial court on notice of the misconduct and triggers its duty to intervene. If prosecutorial misconduct has occurred, causing prejudice to the defendant, and the trial judge fails to intervene by issuing a curative instruction or by granting a mistrial, then the court assumes responsibility for the error and a violation of the defendant’s right to a fair trial under the due process clause occurs.
As courts have recognized, an attorney’s objection triggers a similar duty to intervene on the trial court’s part in a variety of situations. In Fludd v. Dykes, 863 F.2d 822 (11th Cir.), cert. denied, — U.S. —, 110 S.Ct. 201, 107 L.Ed.2d 154 (1989), for example, a panel of this court held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied to civil as well as criminal cases, recognizing the trial court’s responsibility in preventing the use of peremptory challenges for discriminatory purposes. The court analyzed the role of the trial court when a party objects to a venire’s racial composition and concluded that “[i]n overruling the objection, which informed the court that the peremptory challenger may be excluding blacks from the venire on account of their race, the judge becomes guilty of the sort of discriminatory conduct that the equal protection clause proscribes.” Id. at 828. The attorney’s objection thus puts the court on notice that the other side may be improperly exercising its peremptory challenges and triggers a duty on the court’s part to intervene. Assuming the objecting party establishes a prima facie case of purposeful discrimination under Batson, see id. at 829, the court must intervene and require the opponent to come forward with a neutral justification for the challenges. If the objecting party makes out a prima facie case but the trial court refuses to require the opposing party to come forward with a justification, or accepts an inadequate justification, for the challenges, then the trial court assumes responsibility for the constitutional error as the discriminatory actor under the equal protection clause.
The trial court assumes a similar responsibility, in a sentencing proceeding of a capital case, when a defendant’s attorney raises an objection that a prosecutor’s comment to a jury violates the eighth amendment under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). As this court, sitting en banc, explained at length in Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (en banc), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989), a court conducts a two-part analysis of a Caldwell claim. First, the court determines whether the prosecutor’s comments would “ ‘minimize the jury’s sense of responsibility for determining the appropriateness of death.’ ” Id. at 1456 (quoting Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646). Second, the court determines “ ‘whether the trial judge in this case sufficiently corrected the impression left by the prosecutor.’ ” Id. (quoting McCorquodale v. Kemp, 829 F.2d 1035, 1037 (11th Cir.), cert. denied, 483 U.S. 1055, 108 S.Ct. 32, 97 L.Ed.2d 819 (1987)). The en banc court then explained the rationale behind this test:
When a trial court does not correct misleading comments as to the jury’s sentencing role, the state has violated the defendant’s eighth amendment rights because the court has given the state’s imprimatur to those comments; the effect is the same as if the trial court had actually instructed the jury that the prosecutor’s comments represented a correct statement of the law.... [Ojur focus is ultimately on the trial court’s actions....
Id. at 1457 (citation omitted); see Harick v. Dugger, 844 F.2d 1464, 1478 (11th Cir.1988) (en banc) (Tjoflat, J., specially concurring, joined by Kravitch, Hatchett, Anderson, & Clark, JJ.) (“Caldwell error occurs if the trial court implicitly puts its imprimatur on the prosecutor’s statements.”), cert. denied, 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 822 (1989). The defendant's objection thus puts the court on notice of the potential Caldwell violation and triggers a duty on the court’s part to correct the prosecutor’s comment if it is misleading. The prosecutor’s comment, like the prosecutor’s misconduct in Willis, initially causes the error. The trial court, however, following an objection by the defendant’s attorney, has a duty to intervene and correct the error. If the trial court fails to discharge that duty, then it bears causal responsibility for the constitutional error.
Likewise, the trial court has a duty to intervene when counsel representing multiple defendants informs the court of a conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The Court in Cuyler v. Sullivan emphasized that an attorney has an “ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). Once the attorney fulfills that obligation, though, the court has a duty to intervene. As the Court explained in Holloway, “ ‘[ujpon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.’ ” 435 U.S. at 484, 98 S.Ct. at 1179 (quoting Glasser, 315 U.S. at 71, 62 S.Ct. at 465). In the Court’s view, the attorney’s statement that he had a conflict of interest — a statement made pursuant to the attorney’s obligations as an officer of the court — triggered the judge’s duty to intervene. Under those circumstances, the judge’s failure “either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel ... deprived petitioners of the guarantee of ‘assistance of counsel.’ ” Id., 98 S.Ct. at 1178-79. The court’s duty of inquiry in such a case must, however, be triggered by a timely objection: the trial court has no duty itself “to initiate inquiries into the propriety of multiple representation in every case.” Cuyler, 446 U.S. at 346, 100 S.Ct. at 1717.
The circumstances surrounding a proceeding may, however, trigger a duty on the trial court’s part to intervene sua sponte, independently of an attorney’s objection. For example, it is well established that, “[w]hen a court has a ‘bona fide doubt’ as to the defendant’s competence, it must sua sponte conduct a hearing on his competence to stand trial.” Hance v. Zant, 696 F.2d 940, 948 (11th Cir.) (citing Pate v. Robinson, 383 U.S. 375, 385, 387, 86 S.Ct. 836, 842, 843, 15 L.Ed.2d 815 (1966)), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), overruled on other grounds, Brooks v. Kemp, 762 F.2d 1383 (11th Cir.) (en banc), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987); see also Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir.1990). The Pate case thus imposes an obligation on the trial court “to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.” Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir.1987). The trial court’s failure to discharge this responsibility “deprives [the defendant] of his due process right to a fair trial.” Id. This duty on the court’s part, as a panel of this court explained in Demos v. Johnson, 835 F.2d 840 (11th Cir.), cert. denied, 486 U.S. 1023, 108 S.Ct.1998, 100 L.Ed.2d 229 (1988), is triggered
whenever the court learns of facts or events which raise a reasonable ground to doubt defendant’s competency.... Such information “need not be presented in a formal motion nor argued by defense counsel nor be presented to the judge in form of admissible evidence.” Lokos v. Capps, 625 F.2d 1258, 1260 (5th Cir.1980). The issue is whether, in light of what was known to the trial court, “the failure to make further inquiry into petitioner’s competence to stand trial, denied him a, fair trial.” Drope [v. Missouri], 420 U.S. [162,] 174-75, 95 S.Ct. [896,] 905 [, 43 L.Ed.2d 103 (1975)].
Id. at 843 (citation omitted; footnote omitted); see Bowden v. Francis, 733 F.2d 740, 747 (11th Cir.1984) (“in determining whether a trial court has denied a defendant due process by refusing to obtain a psychiatric evaluation, we must ‘focus on what the trial court did in light of what it then knew’ ”), vacated, 470 U.S. 1079, 105 S.Ct. 1834, 85 L.Ed.2d 135 (remanded for reconsideration in light of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)), aff'd on remand, 767 F.2d 761 (1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986).
Trial courts have a similar duty in the guilty plea context to ensure that a defendant’s plea is made knowingly, intelligently, and voluntarily. As the Supreme Court held in Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), the due process clause of the fourteenth amendment allows a state court to accept a guilty plea only if it is entered knowingly, voluntarily, and intelligently. Thus, independent of the requirements for effective representation by a lawyer, the judge has a duty to ensure that the defendant’s plea satisfies the mandate of due process and to intervene sua sponte by not accepting the plea if it does not satisfy that mandate. The court’s duty, under the due process clause, is triggered the moment the defendant stands to tender his plea. In order to ensure that due process has been accorded, the court must establish on the record “the prerequisites of a valid waiver.” Id., 89 S.Ct. at 1712. If the record fails to demonstrate those prerequisites, then the reviewing court must presume prejudice and set aside the conviction.
As I discuss above, the right to assistance of counsel imposes a duty on the trial court to intervene in certain circumstances. The court has a “protecting duty,” to use the Johnson Court’s term, with respect to the “constitutional right of an accused to be represented by counsel.” 304 U.S. at 465, 58 S.Ct. at 1023. Pursuant to this duty, if the accused appears at a critical stage of the criminal process without an attorney, the court has “the serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused.” Id., 58 S.Ct. at 1023. If the defendant does not waive his right to counsel, then the court can discharge its “protecting duty” only by postponing the proceeding until the defendant has assistance of counsel. Thus, when the court is put on notice that the defendant lacks assistance of counsel, the court assumes a responsibility to intervene by either continuing the proceeding or ensuring that the defendant has intelligently and competently waived his right to counsel.
As cases like Cronic and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), demonstrate, moreover, the court's “protecting duty” extends beyond the situation where a defendant appears without counsel. Less obvious deprivations of the defendant’s right to counsel also trigger the court’s duty to intervene. As I discuss above, the right to assistance of counsel guarantees the defendant more than the “mere physical presence of an attorney,” Holloway, 435 U.S. at 490, 98 S.Ct. at 1181; it guarantees the defendant “effective assistance of counsel,” McMann, 397 U.S. at 771 n. 14, 90 S.Ct. at 1449 n. 14. Accordingly, just as the court has a duty to intervene when the defendant appears without counsel, the court also has a duty to intervene when it becomes apparent to the court from the circumstances that the defendant is without counsel who can actually assist him. “If no actual ‘Assistance’ ‘for’ the accused’s ‘defence’ is provided, then the constitutional guarantee has been violated.” Cronic, 466 U.S. at 654, 104 S.Ct. at 2044.
Of course, when a defendant who has invoked his right to counsel appears in court without a lawyer, the court is automatically put on notice that the defendant lacks meaningful representation. In contrast, when the defendant appears in court along with a lawyer, but a lawyer who is unable to provide even the most basic assistance, the surrounding circumstances may put the court on notice that the defendant in effect lacks assistance of counsel. Several kinds of events can provide such notice to the court. For example, as in the Holloway case, the lawyer himself can inform the court of his inability to represent his client. Or, as in Powell (which I address in detail below), the circumstances surrounding the proceeding can themselves be so extreme as to give the judge notice that any lawyer, even a fully competent one, would be unable to provide “the aid of counsel in any real sense.” See Powell, 287 U.S. at 57, 53 S.Ct. at 60; Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047. The present case, as I discuss below, falls into the Holloway category: the petitioner’s lawyer himself expressly informed the court of his inability to provide meaningful representation, thus triggering the court’s “protecting duty” to intervene.
Once the court’s “protecting duty” is triggered, the court must satisfy its responsibility in one of two ways: either it must postpone the proceeding until the defendant receives meaningful representation, or it must ensure that the defendant wants to proceed pro se and intelligently and knowingly waives his right to assistance of counsel. As the Court held in Faretta v. California, “a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); see id. at 835, 95 S.Ct. at 2541 (citing Johnson). The court, however, must still discharge its “protecting duty” by ensuring that the defendant “voluntarily and intelligently elects to do so.” In addressing this responsibility on the court’s part, the Faretta Court held:
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. at 835, 95 S.Ct. at 2541.
The lower courts have further developed the Faretta Court’s holding on this point. This court has established a two-part requirement for ensuring that the defendant has “knowingly and intelligently” waived his right to assistance of counsel and has chosen self-representation. As this court has stated, “[b]efore a court permits a defendant to represent himself ..., the defendant must clearly and unequivocally assert the right of self-representation.” Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (11th Cir.1986) (citing Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984)); see Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (discussing actions required for assertion of right to self-representation), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987). The court must elicit this unequivocal assertion in order to safeguard the defendant’s right to counsel.
In addition to this “clear and unequivocal assertion of the right of self-representation,” this court has held that “other safeguards are required”: “a trial judge should normally conduct a waiver hearing to insure that the defendant understands the disadvantages of self-representation, including, inter alia, the defendant’s understanding of the risks and complexities of his particular case.” Fitzpatrick, 800 F.2d at 1065; see Dorman, 798 F.2d at 1366. In some rare eases, “depending] on the particular facts and circumstances ..., including the background, experience, and conduct of the accused,” a valid waiver can be shown absent such a hearing. Fitzpatrick, 800 F.2d at 1065, 1068.
Under this body of caselaw, therefore, if the defendant proceeds at a critical stage without the assistance of counsel — either in fact or constructively — and the trial court, being aware of this fact, has not, pursuant to Faretta, determined on the record that the defendant has knowingly and intelligently waived his right to counsel and asserted his right to self-representation, then the defendant’s conviction cannot stand. In such a case, moreover, the reviewing court must presume prejudice as a matter of law, and set aside the conviction once the defendant establishes a prima facie case. I discuss this prejudice requirement next.
B. The Presumption of Prejudice.
Before addressing the conclusive presumption of prejudice in cases where the trial judge has failed to discharge his “protecting duty” under Johnson and Gideon, I discuss more generally how a court conducts a collateral review of a claim of trial court error at a critical stage of a criminal prosecution.
The general principle behind these judge error cases is that due process requires a judge to ensure the fairness of the proceeding before him. Judge error thus occurs when the trial judge receives notice of a circumstance or event that threatens the proceeding’s fairness but fails to take corrective action, allowing (or forcing) the proceeding to continue despite the threat. As I discuss above, the judge’s duty to intervene can be triggered in different ways: in some cases, the circumstances themselves trigger the judge’s duty to intervene sua sponte; in other cases, an attorney’s announcement to the court, often an objection, triggers the duty. By not intervening under such circumstances, the judge fails to ensure that the defendant is accorded a procedure that he is due and thereby creates the possibility of undue prejudice to the defendant.
A common procedural model characterizes all of these trial judge error claims. Under this model, a defendant establishes a prima facie case of constitutional error by pointing to the transcript of the trial court proceeding. Because trial court error derives from the judge’s failure to intervene given the circumstances of the proceeding before him, the error necessarily appears on the trial court transcript. Accordingly, the reviewing court decides whether or not the trial judge committed error (and thus whether or not the defendant makes out a prima facie case) by looking “not to evidence disclosed and developed in later state or federal collateral proceedings — evidence for which the trial judge cannot conceivably be held accountable — but to the record that was before the trial judge at the time of the challenged action.” Smith v. Zant, 887 F.2d 1407, 1414 (11th Cir.1989) (en banc) (Tjoflat, J., specially concurring). The reviewing court, in effect, looks over the shoulder of the trial judge and evaluates the judge’s actions in light of the circumstances before him at the time. See, e.g., Smith v. Kelso, 863 F.2d 1564, 1574 (11th Cir.) (Tjoflat, J., specially concurring) (reviewing court evaluates whether trial judge committed constitutional error in denying motion for severance based on circumstances before judge at time, and not from perspective of “Monday morning quarterback”), cert. denied, 490 U.S. 1072, 109 S.Ct. 2079, 104 L.Ed.2d 644 (1989); Moore v. Kemp, 809 F.2d 702, 710 (11th Cir.1987) (en banc) (assessing reasonableness of trial judge’s action in denying defendant’s request for expert witness as of “the time [the trial judge] took it”); Stephens v. Kemp, 846 F.2d 642, 646-47 (11th Cir.) (following Moore), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Bowden, 733 F.2d at 747 (“in determining whether a trial court has denied a defendant due process by refusing to obtain a psychiatric evaluation, we must ‘focus on what the trial court did in light of what it then knew ’ ” (emphasis added) (quoting Hance, 696 F.2d at 948)).
The defendant thus makes out a prima facie case by showing, based on the trial court transcript, that the trial judge failed to discharge his protecting duty given the circumstances before him. That showing raises a presumption of prejudice. That is, the trial court transcript itself yields a presumption of prejudice. Depending upon the nature of the error at issue, the prosecution may or may not be able to rebut the presumption of prejudice.
Three categories of trial judge error exist. In the first category, the nature of the error is such that the prosecution, in a collateral proceeding, may be able to present extrinsic evidence — which was not presented to the trial judge — in order to rebut the presumption of prejudice raised by the defendant’s prima facie case. In the second category, the nature of the error is such that the prosecution is precluded by existing caselaw from rebutting the presumption of prejudice with extrinsic evidence, but it may be able to show, based solely on the record of the criminal proceeding, that the error was harmless. In the third category of error, a per se rule of prejudice applies, and the prosecution is entirely precluded from rebutting the defendant’s prima facie case: policy concerns and the practical limitations of determining prejudice in these cases justify a per se rule without regard to whether the error actually prejudiced the defendant. I consider these three categories of error in turn.
1.
I discuss the first category of trial judge error, where the prosecution may rebut the prejudice inherent in the error with extrinsic evidence in a collateral proceeding, by examining how a defendant brings a claim of constitutional error under Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). In Boykin, the Supreme Court held that the due process clause of the fourteenth amendment allows a state court to accept a guilty plea only if it is entered knowingly, voluntarily, and intelligently. Generally, when a defendant’s conviction is based on a plea of guilty, he cannot attack his conviction on direct appeal: he has admitted his guilt, waived several constitutional rights, and been sentenced accordingly. Most Boy- kin claims, therefore, come to federal court in the context of a habeas proceeding.
According to the lower courts’ interpretation of Boykin in the habeas context, see, e.g., Roddy v. Black, 516 F.2d 1380 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); McChesney v. Henderson, 482 F.2d 1101 (5th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974), the defendant establishes a prima facie case under Boykin if the record of the plea hearing fails to demonstrate a valid waiver of the defendant’s constitutional rights. Once the defendant establishes a prima facie case, a presumption of prejudice arises under Boykin. The state may be able to rebut this presumption by showing that the plea was in fact knowingly and intelligently entered. Assuming the defendant establishes his prima facie case under Boykin, the state must then show that, despite the record’s failure to demonstrate a valid waiver of constitutional rights, the defendant suffered no prejudice — i.e., he in fact possessed the knowledge and understanding necessary for a valid waiver. The state may be able to satisfy this burden by pointing to some other evidence — aside from the record of the plea hearing itself — that the defendant understood what he was doing when he pled. The state could satisfy this requirement by proving, for example, that the defendant had a law degree, had practiced criminal law for a number of years, was familiar with the facts of his own case, and had extensively researched the applicable law.
The state could similarly rebut a defendant’s claim that the trial court violated the rule in Faretta by allowing the defendant to proceed pro se without holding a waiver hearing. Faretta, like Boykin, concerns whether the defendant possesses the understanding necessary for a valid waiver of constitutional rights. As a matter of law, the court satisfies the mandate of Faretta by holding a waiver hearing. If the court fails to hold such a hearing, however, the state could still show that the defendant possessed the necessary understanding for a valid waiver. For example, as this court explained in Fitzpatrick, 800 F.2d at 1065, the state could point to “the background, experience, and conduct of the accused” in order to demonstrate that the defendant understood the disadvantages of self-representation. If the evidence showed that the defendant did in fact possess such an understanding, then the defendant’s Faretta claim would fail.
2.
In the second category, the nature of the error is such that the prosecution is precluded under the caselaw from presenting extrinsic evidence in a collateral proceeding to rebut the presumption of prejudice. Rather, the prosecution must persuade the reviewing court that, based on the record of the trial court proceeding, the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). That is, absent the error, the outcome of the proceeding would not have changed.
Assume, for example, that a defendant claims under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), that the trial court gave a jury instruction that impermissibly shifted the burden of proof to the defendant on a fact necessary to establish an element of the charged offense. The defendant establishes a prima facie ease of constitutional error by relying on the language of the instruction. If, as the Court explained in Sandstrom, a reasonable juror could have interpreted the instruction as shifting the burden of proof to the defendant, then the reviewing court cannot discount the possibility that one of the jurors actually did interpret it to do so and must presume that the instruction prejudiced the defendant. See 442 U.S. at 519, 99 S.Ct. at 2456-57. The only way the prosecution could rebut this presumption of prejudice with extrinsic evidence would be to have the court convene a post-conviction evidentiary hearing in which the prosecution could examine each of the jurors, under oath, regarding his or her interpretation of the instruction at issue. It requires little discussion to demonstrate the unreliability, if not the utter futility, of such a procedure. The passage of time since the trial would cloud the jurors’ memories, and testimony in the context of a collateral evidentiary hearing would hardly be an accurate indication of the role the instruction may actually have played in the course of the jury’s deliberations. The procedure, moreover, would inevitably require the collateral court and counsel to ride roughshod through the jury’s entire deliberation process. If, for example, the jurors indicated that they had not interpreted the instruction as shifting the burden of proof to the defendant or that the proof of guilt was such that the instruction had no effect on their deliberations, then the court would have to allow the petitioner's attorney to conduct a thorough cross-examination of every juror in an attempt to demonstrate that the instruction had influenced the deliberation process as a whole. Not only would the testimony be inherently unreliable, but our system of justice clearly could not tolerate such an invasion of the sanctity of the deliberation process. In the Sandstrom situation, therefore, if the prosecution is to rebut the presumption of prejudice arising from an improper burden-shifting instruction, it must do so by showing that, based on the record of the trial proceeding alone, the defendant was not unduly prejudiced by the instruction.
As this court explained in Collins v. Zant, 892 F.2d 1502, 1507 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990), a jury instruction that violates Sandstrom can prove to be harmless either (1) because the defendant conceded the ultimate fact at issue, or (2) because the evidence regarding that fact was so overwhelming that the jury did not have to rely on the erroneous instruction in convicting the defendant. In Collins, the defendant was charged with murdering a woman with a tire jack. In his charge to the jury, the trial judge gave an erroneous instruction on the issue of the defendant’s intent to cause the victim’s death. The defendant, who was at the scene of the murder but who contended that another person did the killing, never disputed that whoever struck the victim intended her death; rather, he claimed that he was not the one who had struck the fatal blow. The reviewing court thus determined, based on the trial court record, that the error was harmless: the defendant had conceded the ultimate fact at issue. Although the trial court transcript showed that the error had in fact occurred, thus yielding a presumption of prejudice, the record also demonstrated that the error was in effect harmless.
3.
In the third category, the nature of the trial judge error is such that a per se rule of prejudice applies: the prosecution is entirely precluded by law from rebutting the defendant’s prima facie case of constitutional error either by presenting extrinsic evidence in a collateral proceeding or by contending that the trial court transcript, considered as a whole, demonstrates that the error was harmless. As the Court emphasized in Chapman, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. at 23, 87 S.Ct. at 827-28. In his concurring opinion in Chapman, Justice Stewart elaborated on this idea by cataloguing the “long line of cases, involving a variety of constitutional claims in both state and federal prosecutions, [in which] this Court has steadfastly rejected any notion that constitutional violations might be disregarded on the ground that they were ‘harmless.’ ” Id. at 42, 87 S.Ct. at 837. This list included cases in which the Court reversed convictions after involuntary confessions had been introduced at trial, e.g., Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 922, 9 L.Ed.2d 922 (1963); cases in which a defendant was denied counsel at trial, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); cases in which the judge had a financial interest in the result, e.g., Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927); cases in which the defendant was tried in a community exposed to highly adverse publicity about his case, e.g., Sheppard v. Maxwell, 384 U.S. 333, 351-52, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); cases in which the jury instruction contained an unconstitutional presumption, e.g., Bollenbach v. United States, 326 U.S. 607, 613-15, 66 S.Ct. 402, 405-06, 90 L.Ed. 350 (1946); cases in which the conviction rested on a constitutionally impermissible ground, e.g., Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); and, finally, cases involving discrimination in the jury selection process, e.g., Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). As Justice Stewart emphasized, none of the reversals in these cases “turnfed] on any showing of prejudice to the defendant.” Chapman, 386 U.S. at 44, 87 S.Ct. at 838. Although Justice Stewart’s list dates back nearly twenty years, his observation still applies today to a substantial body of caselaw.
As the Supreme Court just last term clarified in Perry v. Leeke, 488 U.S. 272, 278, 109 S.Ct. 594, 599, 102 L.Ed.2d 624 (1989), “a showing of prejudice is not an essential component of a violation of the rule announced in Geders.” In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), a federal district court issued an order in a criminal trial preventing a defendant from consulting with counsel during a seventeen-hour overnight recess occurring between direct and cross-examination of the defendant. The Court held that the order impinged on the defendant’s right to counsel. As the Court in Perry observed, the Geders Court “simply reversed the defendant’s convictions without pausing to consider the extent of the actual prejudice, if any, that resulted from the defendant’s denial of access to his lawyer during the overnight recess.” 488 U.S. at 279, 109 S.Ct. at 599. A plurality of our court, sitting en banc, had already adopted a per se rule of prejudice under Geders in a case involving a collateral attack on a state conviction. See Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir.1986) (en banc). As Judge Hatchett, writing for the plurality, stated in Crutchfield: “any deprivation of assistance of counsel constitutes reversible error.” Id. at 1108.
Gideon, of course, stands as a classic example of constitutional error requiring a per se rule of prejudice. In Gideon, a Florida state court denied an indigent defendant’s request for appointed counsel. The defendant proceeded pro se and was convicted. The Supreme Court held that the sixth amendment right to assistance of counsel is “fundamental and essential to a fair trial” and thus applies to the states through incorporation into the fourteenth amendment; without considering the issue of prejudice, the Court reversed the conviction. See 372 U.S. at 342, 345, 83 S.Ct. at 795, 797.
The rule in Gideon also applies to all critical stages. The Court thus reversed a conviction in Hamilton v. Alabama, where a defendant pled guilty at his arraignment without counsel. As the Court stated, “[wjhen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961).
Drawing upon the principles recognized in Gideon, the Court in Cronic articulated the rule that, “[i]f no actual ‘Assistance’ ‘for’ the accused’s ‘defence’ is provided, then the constitutional guarantee has been violated.” 466 U.S. at 654, 104 S.Ct. at 2044. In those circumstances, the Court explained, “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. at 2047.
The Court has also applied a conclusive presumption of prejudice in the Glasser-Holloway line of cases, which I discuss above. The Court has held that, if a court fails to intervene when an attorney representing multiple defendants informs the court of a conflict of interest, that constitutes reversible error “even in the absence of a showing of specific prejudice.” Holloway, 435 U.S. at 487-89, 98 S.Ct. at 1180-81. The Court further emphasized in Holloway that, when an attorney has a conflict of interest, the “mere physical presence of [that] attorney does not fulfill the Sixth Amendment guarantee.” Id. at 490, 98 S.Ct. at 1181. As the Court explained, “tjjoint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” Id. at 489, 98 S.Ct. at 1181.
Similarly, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Court held that a trial court’s protective order limiting a defendant’s cross-examination of a key eyewitness violated the defendant’s right to confront his accusers. In the Court’s view, because cross-examination is an essential component of the truth-seeking process, and thus vital to due process, the error required reversal without “speeulatpon] as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning [designed to impeach the witness on cross-examination] had counsel been permitted to fully present it.” Id. at 317, 94 S.Ct. at 1111.
A common rationale supports the Court’s adoption of a per se rule of prejudice in all of these cases. In each case, the Court begins with the well-established premise that the right to counsel is a fundamental component of the criminal justice system. A defendant needs a lawyer in order to ensure that his rights are protected at every critical stage of his case. But the lawyer has an even larger importance as a component of the criminal justice system. That is, the very integrity of our system— its fairness, its accuracy as a truth-seeking process, and thus its ability to accord justice — depends upon effective assistance of counsel. As the Court stressed in Cronic, “ ‘[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ ” 466 U.S. at 655, 104 S.Ct. at 2045 (quoting Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975)). In the absence of meaningful representation, therefore, “ ‘a serious risk of injustice infects the trial itself.' ” Id. at 656, 104 S.Ct. at 2045 (quoting Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980)). Such an absence undermines not only the defendant’s individual rights, but also the accuracy of the truth-seeking process and thus the integrity of the criminal justice system itself.
The per se rule of prejudice in cases implicating the right to assistance of counsel follows directly from this premise. The importance of the right to assistance of counsel — in and of itself — requires a conclusive presumption of prejudice when that right is not protected. As the Court reiterated in Holloway, “[t]o determine the precise degree of prejudice sustained by [the defendant] ... is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 435 U.S. at 488, 98 S.Ct. at 1181 (quoting Glasser, 315 U.S. at 75-76, 62 S.Ct. at 467). “The assistance of counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Id. at 489, 98 S.Ct. at 1181 (quoting Chapman v. California, 386 U.S. at 23, 87 S.Ct. at 827); see also Satterwhite v. Texas, 486 U.S. 249, 255, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988).
An obvious rationale supports this per se rule: given the actual or constructive denial of counsel at a critical stage, it is practically impossible to conduct a prejudice inquiry in a collateral proceeding. The pro-section would have to prove a lack of prejudice either by presenting extrinsic evidence or by demonstrating, based on the trial court transcript itself, that the denial of representation was harmless. The prosecution could do neither.
As I discuss above with respect to a Sandstrom situation, the prosecution would be unable to present any reliable extrinsic evidence in a post-conviction evidentiary hearing in order to rebut the presumption of prejudice raised by the defendant’s prima facie case. Assume, for example, that the state, in a case like Gideon where the defendant was actually denied counsel, attempted to prove at a collateral evidentiary hearing that the petitioner was not in fact prejudiced by the denial of counsel. Obviously, the state would need the testimony of a lawyer in order to prove the absence of prejudice. The lawyer would have to testify that, even if he had been fully prepared to defend the petitioner at trial, he would not have done anything more than the petitioner actually did himself. Even with that testimony, the state would still have to satisfy the collateral court — by pure argument, I suppose, because the lawyer’s testimony would not be probative — that the jury at trial (and not a hypothetical “reasonable” jury) would nevertheless have convicted the petitioner. In other words, from the cold record of the trial, the collateral court would have to be able to say, with great confidence, that the mere presence of an attorney at the trial could not have influenced even one juror to vote not guilty. Of course, before the collateral court decided this question, the petitioner could put his own expert lawyer on the stand. That lawyer would presumably testify that he would have conducted a defense that was radically different from the defense actually conducted by the- petitioner. That testimony would reduce even more the reviewing court’s ability confidently to decide that the outcome of the trial would have been the same even if the petitioner had an attorney. Clearly, such a procedure would be inherently unreliable.
Nor could the prosecution demonstrate, based on the trial court transcript itself, that the denial of legal representation was harmless. In conducting a harmless-error analysis of trial judge error, as I show above, the court must isolate the error at issue and evaluate its effect on the proceeding as a whole. Unless the court, based on this analysis, can “declare a belief that [the error] was harmless beyond a reasonable doubt,” Chapman, 386 U.S. at 24, 87 S.Ct. at 828, then it must grant the petitioner relief. In the Gideon-type case, the reviewing court simply cannot declare, with any degree of certainty, that the outcome of the trial would have been the same even if the defendant had a lawyer.
The court’s ability to conduct a harmless-error review depends upon certain conditions. As the Court explained in Holloway, “[i]n the normal ease where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury.” 435 U.S. at 490, 98 S.Ct. at 1182. The reviewing court must be able to identify, based on the record of the trial court proceeding, the scope of the error. In addition, the reviewing court must be able to reconstruct, again based on the record, how the proceeding would have occurred without the error. To the extent that the reviewing court finds that the absence of the error would have materially altered the case, the court’s reconstruction necessarily becomes fuzzy as well. The record before the reviewing court no longer approximates what would have occurred, and the court can only predict what turns the proceeding might have taken. If the court’s analysis reaches that point — the point where reconstruction turns into prediction — then the error at issue cannot be considered harmless.
The per se rule of prejudice in cases where the defendant is actually or constructively denied assistance of counsel reflects the limits of harmless-error review. In the Gideon-type case, the denial of counsel “pervadefs] the entire proceeding.” Satterwhite v. Texas, 486 U.S. at 256, 108 S.Ct. at 1797. If, as I demonstrate above, the reviewing court would be unable to conduct a prejudice inquiry even with the benefit of a lawyer’s expert testimony in a post-conviction evidentiary hearing, then it would undeniably be unable to conduct such an inquiry based only on the cold record of the trial proceeding without any extrinsic evidence. That record alone would provide the reviewing court no framework in which to reconstruct the trial: the court could not isolate a given error and determine how the proceeding would have gone without the error. As Justice O’Connor explained in Satterwhite, “[sjince the scope of a violation such as a deprivation of the right to conflict-free representation cannot be discerned from the record, any inquiry into its effect on the outcome of the case would be purely speculative.” Id. at 256, 108 S.Ct. at 1797; see Holloway, 435 U.S. at 490-91, 98 S.Ct. at 1182. The denial of an attorney “by [its] very nature cast[s] so much doubt on the fairness of the trial process that, as a matter of law, [it] can never be considered harmless.” Id. 486 U.S. at 256, 108 S.Ct. at 1797. To conduct a harmless-error review in such circumstances would force the reviewing court well beyond the narrow limits envisioned by the Chapman Court: the reviewing court’s conclusion could be nothing more than “purely speculative,” Satterwhite, 486 U.S. at 256, 108 S.Ct. at 1797.
In the long run, moreover, a per se rule of prejudice in these kinds of cases may be the most efficient mechanism for preventing miscarriages of justice. Relitigating an entire case in a collateral proceeding, and then sending the case back to the trial judge for further proceedings if necessary, is clearly not an efficient procedure. In addition, a per se rule of prejudice requiring the collateral court to set aside the petitioner’s conviction creates a strong incentive for the courts at the state and federal trial level to ensure that a defendant is accorded meaningful representation. A per se rule of prejudice will thus sharpen the trial court’s sense of responsibility in discharging its duties at the first stage. In the end, such a result is far more desirable than the “spin-off of collateral proceedings that seek to probe murky memories.” Boykin, 395 U.S. at 244, 89 S.Ct. at 1713.
With this analytical framework in mind, I now turn to a consideration of the present case.
III.
Following this framework, the question in the present case becomes whether the circumstances of Stano’s plea hearing triggered a duty on the court’s part not to accept Stano’s guilty pleas at that time. Assuming that the court did have such a duty, the question then arises whether the court’s failure to discharge that duty constituted reversible error: that is, does a per se rule of prejudice apply to this kind of violation or, if not, was the error harmless. I address these questions in turn.
A. The Court’s Duty to Intervene.
This court today emphasizes that a defendant has a right to plead guilty, and that in exercising this right, the defendant can reject his attorney’s advice to the contrary and tender his plea. In the court’s view, that is all this case involves: Stano rejected his lawyer’s advice not to plead guilty at the time and tendered his pleas. Given those facts, says this court, the trial judge correctly allowed Stano to plead, and any holding to the contrary would mean that, in any case where the court allowed the defendant to plead guilty against his attorney’s advice, the court would be depriving him of his right to due process. Given those facts, I would agree wholeheartedly with the court’s conclusion. Those facts, however, are not the facts of this case.
My disagreement with the court centers on the idea of “advice,” and, more specifically, on the kind of advice that an attorney must give in order to provide “the aid of counsel in any real sense,” Powell, 287 U.S. at 57, 53 S.Ct. at 60. The court finds that Stano’s attorney, Mr. Pearl, “advised” Stano not to plead guilty at the time but to wait until Pearl could conduct a more thorough investigation of the case. The court also finds that Stano listened to this “advice,” decided not to follow it, and pled guilty. In my view, Mr. Pearl’s suggestion that Stano not plead at the time did not constitute “advice”; it did not even approximate the requirements for assistance of counsel in the context of a plea hearing. I demonstrate this point by surveying the established law concerning the minimum standards for assistance of counsel in the plea context. Based on this law, I cannot understand how the court can maintain that Pearl satisfied even the most basic requirements for assistance of counsel.
From the conclusion that Pearl failed to provide assistance of counsel in any real sense, the rest of my analysis logically follows. Under an extensive body of caselaw, which I discuss above, the court has a “protecting duty” to ensure that, at every critical stage of the criminal prosecution, a defendant either receives or waives assistance of counsel. If the defendant lacks assistance of counsel at a critical stage, and the court has notice of this lack, then the court must either (1) determine that the defendant clearly wants to proceed pro se and knowingly and intelligently waives his right to counsel, or (2) if the defendant does not waive his right to counsel, the court must postpone the proceeding until the defendant has counsel. If the court fails to determine that the defendant waives his right to counsel and nevertheless allows the proceeding to continue, then the court fails to discharge its protecting duty, the defendant is denied his right to assistance of counsel, and the conviction must be reversed. In such a circumstance, moreover, a per se rule of prejudice applies.
In the present ease, as I show, Stano lacked genuine assistance of counsel. As I also show, the court had notice that this was the case. The court thus had a “protecting duty” either to determine that Stano wanted to proceed pro se and knowingly and intelligently waived his right to counsel or to postpone the proceeding until Stano had assistance of counsel. Under Faretta and its progeny in this circuit, which establish the requirements for a valid waiver of the right to assistance of counsel, Stano clearly did not waive his right to counsel. The court nevertheless accepted Stano’s pleas. In my view, the conclusion is inescapable that the court failed to discharge its protecting duty and Stano was denied his right to counsel. Accordingly, prejudice must be presumed and Stano’s convictions must be set aside. I develop these points in turn.
I first demonstrate that Pearl failed to provide meaningful assistance of counsel. I do so by analyzing Pearl’s conduct in light of the legal standards for assistance of counsel in the plea context.
At the commencement of the plea hearing, Mr. Pearl represented to the court as follows: “I have not yet received full discovery from the state ... and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings.” He explained the reason behind the State’s delay in forwarding the discovery and then declared: “I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not.” Pearl indicated that he had spoken with the prosecutor, and the prosecutor had assured him “that the State can independently establish the corpus delicti in both of these cases.” Pearl also indicated that “Mr. Stano tells me that that is so,” i.e., that the State can independently establish the corpus delicti. In addition, Pearl stated that Stano thought his confessions “were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.” That is, Stano thought his confessions were legally valid. Finally, Pearl informed the court that Stano “wants to go forward and enter this plea" but that “I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.”
Pearl also testified at the post-conviction evidentiary hearing before the district court. According to his testimony, he had actually received discovery from the State but not discovery relating to collateral crimes evidence that the State was thinking of presenting at trial. He had not, however, thoroughly reviewed that discovery or conducted any independent investigation into the facts. As he explained, after receiving the discovery, he went to talk with Stano. Stano said that he wanted to plead guilty: Stano felt that the State’s cases were good and that his confessions were made voluntarily. Pearl testified that “I told him it would be premature, I had no opportunity to make a full investigation, or take depositions, or to verify any of the allegations of the two indictments....” Following the meeting, Pearl conducted no additional investigation. Pearl also testified that the plea hearing transcript was accurate.
This testimony is entirely consistent with Pearl’s representations to the court at the plea hearing. The testimony clarifies that Pearl had in fact received some discovery but that he had undertaken no investigation whatsoever into the facts of the cases, the strength of the State’s cases against Stano, or the legal validity of Stano’s confessions. As the testimony and the plea transcript both establish, Pearl acted as nothing more than a conduit to the court for his client. Stano thought the State had strong cases against him; Stano thought his confessions were valid; Stano thought the State could independently establish the corpus delicti of the crimes; and Stano thought all of this without the benefit of any investigation into the facts, any research into the law, or any legal analysis of the cases by his attorney, Mr. Pearl. And Pearl, in his statement to the court at the plea hearing, confirmed that this was in fact the situation. Based on Pearl’s statement, therefore, the court knew that Stano had reached his decision to plead guilty independently of any factual investigation or legal analysis by Pearl. Of course, the court also knew that Pearl had suggested that Stano not plead under those circumstances and that Stano had rejected that advice.
The court today agrees in the main with this statement of the facts. In its view, however, Pearl’s statement to Stano suggesting that Stano not yet plead guilty constituted assistance of counsel, and Stano was entitled to decide to plead despite Pearl’s statement. In my view, which I elaborate below, Pearl’s statement did not constitute assistance of counsel in any real sense. Once it is established that Stano lacked assistance of counsel in reaching his decision to plead, it follows that the court could accept Stano's pleas only if it first determined that Stano unequivocally wanted to proceed pro se and knowingly and intelligently waived his right to counsel. A defendant, of course, has a right to plead guilty, but if he wants to do so without assistance of counsel, a court cannot accept his plea unless the defendant first waives his right to counsel. The question here thus becomes whether Stano’s decision to plead guilty constituted a knowing and intelligent waiver of his right to counsel. Before considering that question — the answer to which is already painfully obvious — I tackle the issue whether Pearl’s conduct constituted assistance of counsel.
Courts have explicitly considered what assistance of counsel requires in the context of a plea hearing. In Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948), the Supreme Court stated: “Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” As the Court explained, “[d]etermining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent.” Id., 68 S.Ct. at 322. The Court further explained in McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969), that “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” As our predecessor court stated, “[providing this ‘understanding of the law in relation to the facts’ is the function of the accused’s appointed counsel.” Walker v. Caldwell, 476 F.2d 213, 218 (5th Cir.1973); see Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984); Harris v. Oliver, 645 F.2d 327, 329 (5th Cir. Unit B May 1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981). Although counsel’s duty to one who pleads guilty may be “lesser” than the duty to a client who decides to go to trial, the attorney still must “provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial.” Wofford, 748 F.2d at 1508.
These standards focus on three elements: (1) the law, (2) the facts, and (3) the relation between them. Assistance of counsel thus requires that the lawyer have a grasp of the law and the facts so that he can provide the defendant with an understanding of how the law applies to the facts of the case at hand. That is, based on his research of the law and the facts, along with his analysis of the relation between them, the lawyer gives the defendant an “informed opinion” about what plea the defendant should enter. On the basis of that informed opinion, the defendant then decides how to plead. Obviously, if the lawyer does not have a grasp of either the law or the facts, he will be unable to give the defendant an informed opinion. In such a case, therefore, the lawyer will be unable to accomplish his “function.” He will not be providing assistance of counsel, and the defendant — without an understanding of the law in relation to the facts — will by definition be unable to make a decision informed by his lawyer’s advice.
Applying these standards here, I conclude that Mr. Pearl’s conduct clearly fell short of the most basic requirements for meaningful representation. As Pearl stated to the court, he told Stano that he had not evaluated the eases. For exactly that reason — that is, because he had undertaken no independent investigation or analysis— Pearl urged Stano not to plead. The applicable legal standards define “advice” as providing the client with an understanding of the law in relation to the facts of his case. Pearl’s statement urging Stano not to plead does not constitute such advice.
Nor does Pearl’s conduct at the plea hearing itself alter this conclusion. As Pearl himself informed the court, he acted as nothing more than a mouthpiece for Stano, a conduit for Stano's “legal” conclusions regarding the cases. Pearl told the court that Stano thought his confessions were “legally” valid and that Stano thought the prosecutor could independently establish the corpus delicti in both cases. Pearl, of course, also told the court that the State had told him that the State could independently establish the corpus delicti. Nothing in the transcript of the plea hearing suggests that Pearl did anything more than he indicated he could do: he served merely as a mouthpiece for Stano. Serving as a mouthpiece, however, does not constitute representation.
Pearl thus failed to provide any real assistance of counsel. The nature of Pearl’s failure to provide representation also distinguishes this case from the normal ineffective-assistance-of-counsel case, which courts analyze under StricklandL First, as Pearl himself admitted, he undertook no factual investigation or legal analysis whatsoever: his lack of assistance was total. In the normal Strickland case, the attorney either fails to prepare for the trial court proceeding or he performs inadequately, but he does so in the course of representing the defendant. Although ineffective, that representation is still more than nominal. See, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Here, Pearl’s total failure at such an early, but seminal, stage to undertake any of the preparation required under Von Moltke makes this a different kind of case. The lack of assistance entirely pervades the case. As a result, the reviewing court has no context in which to conduct a Strickland prejudice analysis. Because Pearl in effect provided no representation, the court cannot isolate his specific errors or omissions and evaluate their effect on the representation as a whole. The court here has no “representation as a whole” against which to evaluate Pearl’s errors.
The-second difference between this case and the typical Strickland case is that the trial court had notice that Stano lacked assistance of counsel. As I detail above, Pearl expressly communicated that fact to the court. The court, moreover, had no basis for questioning Pearl’s credibility or the truth of his representations. Consequently, the court had notice that under the circumstances of the case, Stano lacked assistance of counsel. The court knew that Stano, if he were to proceed with his guilty pleas, would be proceeding without assistance of counsel. The court knew that Stano had not been provided with an understanding of the law in relation to the facts of his cases and that Pearl was nothing more than a mouthpiece for his client. In my view, these circumstances triggered the court’s “protecting duty” under Johnson, Gideon, and Cronic.
As I outline above, in some cases, the circumstances surrounding a proceeding may be so extreme as to trigger a duty on the court’s part to intervene sua sponte. A primary example of this duty is grounded in the right to assistance of counsel, a fundamental due process right. Under Johnson and Gideon, the court’s protecting duty is triggered if an accused appears at a critical stage without an attorney. This protecting duty, however, extends beyond the situation where an accused lacks an attorney’s physical presence. In Holloway, the Court reaffirmed the application of this duty when an attorney represents to the court that he has a conflict of interest, and in Cronic the Court recognized that the court’s protecting duty can be triggered “on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small.... ” 466 U.S. at 659, 104 S.Ct. at 2047. As an example of such a case, the Court pointed to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). See Cronic, 466 U.S. at 660, 104 S.Ct. at 2047.
In Powell, the defendants were charged in Scottsboro, Alabama with a capital offense. At their arraignment, a state trial judge appointed “all the members of the bar,” collectively, to represent the defendants at their arraignment, anticipating that “the members of the bar would continue to help the defendants if no counsel appeared.” 287 U.S. at 49, 53 S.Ct. at 57. Six days later, the judge called the case for trial and asked if the parties were ready. The state responded that it was; no one responded for the defendants. A lawyer from Tennessee then addressed the court, indicating that he had come to Scottsboro on behalf of some people who were interested in the case. The judge allowed the Tennessee lawyer, with the assistance of the members of the bar, to help with the defendants’ cases, which proceeded directly to trial. The defendants were all found guilty and sentenced to death.
The Supreme Court reversed their convictions, holding that the proceedings denied the defendants the assistance of counsel demanded by the due process clause of the fourteenth amendment. As the Court concluded, “during perhaps the most critical period of the proceedings against these defendants, ... when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense.” Id. at 57, 53 S.Ct. at 59-60 (emphasis added). The Court stressed that no one “could say what a prompt and thorough-going investigation might disclose as to the facts”; but “[n]o attempt was made to investigate. No opportunity to do so was given.” Id. at 58, 53 S.Ct. at 60. The Court then ascribed to the trial judge the responsibility for ensuring that the defendants received meaningful representation, i.e., the process they were due. Having found that the trial judge had such a duty, the Court concluded: “that duty is not discharged by an assignment [of counsel] at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Id. at 71, 53 S.Ct. at 65.
Powell and Cronic thus begin with the proposition that a criminal defendant has a due process right to assistance of counsel. From that proposition, the cases reason that, even though a figure resembling a lawyer might appear at a crucial proceeding on the defendant’s behalf, the circumstances surrounding the case might prevent the lawyer from providing “the aid of counsel in any real sense.” Powell, 287 U.S. at 57, 53 S.Ct. at 60. Because counsel is so essential to the defendant’s case, as well as to ensure the accuracy of the truth-seeking process, the absence of counsel “in any real sense” causes a “breakdown in the adversarial process.” Cronic, 466 U.S. at 662, 104 S.Ct. at 2049. That breakdown in the process, according to Powell and Cronic, triggers a duty on the trial judge’s part to protect the defendant’s right to assistance of counsel. Inaction on the judge’s part under such circumstances violates the court’s protecting duty — a duty that the due process clause requires the court to discharge. Under Powell and Cronic, a judge cannot simply sit back and let a proceeding continue if the circumstances are such that no lawyer, even a fully competent one, could provide effective assistance of counsel. The judge can discharge his duty, as I discuss, either by ensuring that the defendant waives his right to counsel or by postponing the proceeding until the defendant has counsel.
The circumstances of the present case, in my view, triggered the trial judge’s duty to intervene. As I discuss, this case is practically indistinguishable from a case where a defendant’s lawyer fails to appear altogether. Obviously, Pearl appeared at the proceeding, but that appearance was entirely insignificant from a legal perspective. True, Pearl was present in court with Stano, but Pearl had failed to fulfill the minimal requirements for assistance of counsel, and he so informed the trial court. To bring this case sharply into focus, I suggest that one consider Pearl as a cardboard cut-out figure or a Macy’s department store mannequin.
Given Pearl’s total failure to provide representation in any real sense, that is, given that Pearl was a mannequin, the Court’s conclusions in Powell apply here as well: “during perhaps the most critical period of the proceedings against th[is] defendant^]” i.e., the period during which Stano was deciding whether to plead guilty, “when consultation, thorough-going investigation and preparation were vitally important, the defendant ] did not have the aid of counsel in any real sense.” Powell, 287 U.S. at 57, 53 S.Ct. at 59-60. As in Powell and Holloway, moreover, the judge had notice of the petitioner’s situation. Indeed, the present case is indistinguishable from Holloway: just as in that case, the lawyer here explicitly informed the court of his inability to provide assistance of counsel. In my view, the conclusion is inescapable that the circumstances here triggered the trial court’s protecting duty.
Once that duty was triggered, as I discuss, the court could discharge its responsibilities in one of two ways: either by determining on the record that the petitioner knowingly and intelligently waived his right to assistance of counsel or, absent such a waiver, by postponing the proceeding until the petitioner had counsel. Obviously, the trial court in this case did not postpone the proceeding. The court listened to Pearl’s statement, briefly questioned Stano, and then accepted his guilty pleas. If the court discharged its protecting duty, then, it could only have done so by determining on the record that Stano knowingly and intelligently waived his right to assistance of counsel.
Stano undeniably desired to go forward with his pleas. When a defendant lacks assistance of counsel, however, his mere desire to proceed does not relieve the court of its protecting duty. Rather, the court, in order to fulfill its responsibilities, must determine that the defendant’s desire to proceed constitutes a knowing and intelligent waiver of his right to counsel. The court makes this determination pursuant to the requirements of Faretta.
As I discussed above, Faretta and its progeny impose two requirements on the court in determining whether the defendant knowingly and intelligently waives his right to counsel: the court must ensure (1) that the defendant clearly and unequivocally asserts his right to proceed pro se; and (2) that the defendant understands the risks and disadvantages of self-representation. See Fitzpatrick, 800 F.2d at 1064-65 (citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541). In the present case, the court clearly failed to satisfy either of these requirements. Under the first requirement, the defendant “must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made.” Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987). Stano obviously did not "state his request” in accordance with this standard. He submitted no written request to the court, and his oral statements at the plea hearing never even addressed the issue of self-representation. Following Pearl’s statement, the court asked Stano whether he cared “to comment on what Mr. Pearl has just said.” Stano responded: “No. I believe everything was quite sufficient that he said.” Stano then stated that he was “in agreement with what [Pearl] said.” One can hardly contend that these statements constituted a request to proceed pro se under Dorman. Even if one could so contend, a reasonable person could understandably say that no request was made. See Dorman, 798 F.2d at 1366. The first prong of the Faretta inquiry thus remained unsatisfied.
In addition, the court failed to discharge its responsibility under the second prong of the Faretta inquiry. Again, under Dorman, “[i]n this Circuit, the court must ... conduct a hearing on the waiver of the right to counsel to determine whether the accused understands the risks of proceeding pro se.” Id. The court held no such hearing in the present case. And, although in some rare circumstances, this court has found a valid waiver under Faretta in the absence of such a hearing, see Fitzpatrick, 800 F.2d at 1068, the present case does not involve such circumstances.
Under the standards of Faretta and its progeny, therefore, the trial court failed to ensure that the petitioner knowingly and intelligently waived his right to counsel. Accordingly, the court failed to discharge its protecting responsibility under Johnson, Gideon, and Cronic. Absent a valid waiver of Stano’s right to counsel, the court could not accept his uncounseled pleas.
Under these circumstances, moreover, a per se rule of prejudice applies, thus requiring reversal of Stano’s convictions. I now discuss the applicability of this per se rule here.
B. Prejudice Per Se.
When the court is on notice at a critical stage of a criminal prosecution that the defendant is appearing without assistance of counsel — actually or, as here, constructively — the court must exercise its protecting duty either by determining, under Faretta, that the defendant clearly asserts his right to proceed pro se and knowingly and intelligently waives his right to counsel or by postponing the proceeding until the defendant has assistance of counsel. In the present case, the court did not postpone the proceeding nor did it determine, on the record, that the petitioner knowingly and intelligently waived his right to counsel. Accordingly, the case presents the elements under Cronic of a prima facie case for reversal of the petitioner’s convictions. The question then becomes whether a per se rule of prejudice applies — as in Gideon, for example — or whether the State should have an opportunity to rebut the petitioner’s ease.
In effect, this question has two parts: first, could the State prove that the petitioner properly waived his right to counsel even though the record fails to disclose the requirements of a valid waiver? And second, assuming the State cannot prove that point, can the State demonstrate that the petitioner was not prejudiced by the absence of assistance of counsel? I consider them in turn.
To reiterate, the court’s duty under Faretta is two-fold: the court must ensure, first, that the defendant clearly and unequivocally asserts his right to self-representation and, second, that the defendant understands the disadvantages of proceeding pro se. As this court has explained, the court must hold a waiver hearing in order to satisfy this second requirement. See Dorman, 798 F.2d at 1366. In some rare circumstances, however, the state has proved that the defendant understood the disadvantages of self-representation even in the absence of a waiver hearing. See Fitzpatrick, 800 F.2d at 1068. In order to make such a showing, the state presents new evidence, at a collateral proceeding— concerning, for example, the defendant’s “background, experience, and conduct,” id. at 1065 — sufficient to demonstrate that the defendant possessed the necessary understanding.
I think the State would have difficulty making such a showing in the present case, but even if it could, it would be precluded by established caselaw from presenting evidence in a collateral proceeding to rebut the presumption of prejudice arising from the absence in the record of a clear assertion of the right to self-representation. This first element under Faretta establishes a prophylactic rule: it creates a formal notice requirement that cannot be satisfied by a showing after the fact. The first requirement, like the second requirement, is designed to ensure that the defendant has the state of mind necessary for a valid waiver of a constitutional right: the second requirement concerns the defendant’s understanding of the consequences of his waiver; and the first concerns his intention to proceed pro se. Although the second requirement can, in rare cases, be satisfied without a waiver hearing, by evidence pointing to an independent basis for the defendant’s understanding, the first requirement cannot be satisfied in that way. Even if the state could point to evidence suggesting that the defendant intended to proceed pro se — for example, evidence that the defendant had prepared his own case, perhaps even an authenticated note in his preparation materials declaring his intent to represent himself — the defendant could still have changed his mind before he appeared at the critical stage. In contrast, once the defendant has developed an understanding of the disadvantages of self-representation, absent some special circumstances, that understanding does not change. In addition, the first requirement also serves a notice function that has no relation to the defendant’s intention. That is, by asserting his right of self-representation, the defendant puts the court on notice of his desire to proceed pro se and triggers the court’s responsibility under the second prong of Faretta. Even if the state could prove that the defendant in fact intended to proceed pro se despite his failure to invoke that right, the state could not satisfy the concerns behind this notice requirement.
Given the nature of the Faretta requirements, and the status of the record in this case, the State could present no evidence to prove that, despite the record’s inadequacies, Stano in fact invoked his right to proceed pro se and waived his right to counsel. The record clearly indicates that Stano did not waive his right to counsel, and no evidence could be presented at an evidentiary hearing to alter that conclusion. I now turn to the issue of prejudice under Johnson, Gideon, and Cronic.
As I discuss above, a per se rule of prejudice applies under these cases, and also under a variety of other cases that implicate a defendant’s right to counsel. The characteristic feature of these cases is that the defendant was denied assistance of counsel “in any real sense,” Powell, 287 U.S. at 57, 53 S.Ct. at 60. The rationale behind this rule is two-fold: first, the right to counsel is so important — to ensure that the defendant receives the process he is due — that the absence of counsel simply cannot be tolerated; second, conducting a prejudice inquiry in such a case is impractical and inefficient. The prosecution would be unable to present reliable proof in a collateral proceeding to show that, despite the transcript of the plea hearing, Stano was not unduly prejudiced. Nor could the prosecution demonstrate, based on that transcript, that the error was harmless.
In order to rebut the presumption of prejudice by presenting extrinsic evidence at a post-conviction evidentiary hearing, the prosecution would have to call to the witness stand an expert — a lawyer who had, in effect, done everything that Pearl failed to do. Prior to the hearing, the expert would have to investigate the facts of the cases (which would require full discovery of all of the circumstances relating to the confessions on which the State based its cases against Stano, see supra note 18), would have to research the applicable law, and would have to analyze the law in relation to the facts as required by Von Moltke. The expert would then have to testify that he would have told Stano that the State had a high probability of convicting him for both murders and that Stano should therefore plead guilty and subject himself to the death penalty at the hands of the trial judge. After the expert finished testifying, the prosecution would still have to show that Stano would have followed that advice. Even if the prosecution’s expert, after doing everything that Pearl failed to do, were to conclude that a high probability of conviction existed, which I doubt, how in the world could the prosecution show that Stano would have followed that advice? The prosecution could offer nothing but pure speculation. Based on such speculation alone, the reviewing court would clearly be unable to say that Stano was not prejudiced by the denial of counsel.
Nor could the prosecution demonstrate, based on the record, that the error was harmless. Harmless-error review is tied to the trial court record: the reviewing court isolates a given error and then determines, in effect, whether the recorded proceeding would have come out differently absent that error. If the answer is yes, then the error is not harmless. As I discuss above, when the error concerns the defense attorney’s total performance (i.e., his nonperformance), harmless-error analysis becomes practically impossible. The error is pervasive; it cannot be isolated; and its effects cannot be evaluated. If the reviewing court would be unable to conduct a prejudice inquiry even with the benefit of a lawyer’s expert testimony in a post-conviction evidentiary hearing, then it undeniably could not conduct such an inquiry based only on the cold record of the plea hearing without any extrinsic evidence. That record alone would provide the reviewing court no framework in which to reconstruct the plea hearing: the court could not isolate a given error and determine whether Stano would still have pled guilty even absent that error. As Justice O’Connor explained in Satterwhite, “[sjince the scope of [such] a violation ... cannot be discerned from the record, any inquiry into its effect on the outcome of the case would be purely speculative.” Id. at 256, 108 S.Ct. at 1797; see Holloway, 435 U.S. at 490-91, 98 S.Ct. at 1182. To conduct a harmless-error review in such circumstances would force the reviewing court well beyond the narrow limits envisioned by the Chapman Court.
The present case attests to the wisdom behind this rule. The district court in fact held a post-conviction evidentiary hearing to consider Pearl’s representation. The court, however, treated Stano’s claim as an ineffective assistance claim under Strickland, putting the burden on Stano to prove prejudice. As a result, the State did not put an expert on the stand to prove that Stano would still have pled guilty even with the benefit of meaningful representation. At the hearing, Stano merely demonstrated the prejudice that was already apparent on the face of the plea hearing transcript. Stano’s habeas attorney presented expert testimony regarding the minimum requirements for assistance of counsel in the plea context, and Pearl testified himself about what he actually did know and did do while representing Stano — testimony that confirmed that his representation clearly failed to approximate the minimum standards for meaningful assistance. The State made no rebuttal. Indeed, it could not have done so without presenting expert testimony as I discuss. Consequently, the entire evidentiary hearing was irrelevant to the issue of prejudice: the prejudice question is whether Stano would have pled differently if he had the benefit of counsel in any real sense, and the evidence and argument at the post-conviction hearing did not help to answer that question. Even if the State had presented extrinsic evidence in the form of an expert’s testimony, it would still have to prove that Stano would have pled guilty with the benefit of meaningful assistance. Such a showing would be impossible. The reviewing court, quite simply, could never read Stano’s mind. And even if the court could read minds, its mind-reading would not address the fairness concerns underlying the per se rule of prejudice. As the Court declared in Glasser, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 315 U.S. at 75-76, 62 S.Ct. at 467.
In my view, the court today is bound by law and practical logic to presume prejudice in this case and set aside Stano’s convictions.
IV.
For the foregoing reasons, I respectfully dissent from the court’s decision to uphold the petitioner’s convictions in this case. In my view, the circumstances of this case triggered the trial court’s “protecting duty” under Johnson, Gideon, and Cronic. This protecting duty requires the court either to refuse to accept an uneounseled guilty plea or to ensure that the defendant wants to proceed pro se and knowingly and intelligently waives his right to counsel. By accepting Stano’s guilty pleas without meeting its protecting duty, the trial court erred. That error requires, as a matter of law, that the petitioner’s convictions be set aside.
In rejecting this analysis, the court today relies on the basic premise that a defendant can plead guilty at any time, even if his lawyer is entirely unprepared. In other words, prepared counsel is not a necessary condition for a guilty plea. As I show, this premise is faulty. The Supreme Court, as well as this court, has explicitly stated that, in the context of a plea hearing, the lawyer must provide the defendant with an understanding of the law in relation to the facts of his case. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969); Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984); Harris v. Oliver, 645 F.2d 327, 329 (5th Cir. Unit B May 1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981); Walker v. Caldwell, 476 F.2d 213, 218 (5th Cir.1973). Clearly, Stano’s attorney failed to fulfill the minimal requirements of these standards, thus leaving Stano to proceed, in effect, without counsel. I am satisfied that, were it not for the majority’s blind adherence to its major premise, the court today would agree.
Our discussion of the background in this case will emphasize the procedural history and judicial rulings relevant to the two Sixth Amendment issues of self-representation and ineffective assistance of counsel considered by the en banc court.
On August 15, 1982, Stano gave an oral, tape-recorded confession, which was transcribed, to the murder of Susan Bickrest to Sergeant Crow. Stano stated that he followed Bickrest to her apartment, and engaged her in casual conversation in the early morning hours of December 19, 1975. He described her attire as “blue jeans,” a "brown leather type jacket" with “some type” of “sandals ... with ... a[n] inclined heel on them.” App. 11-521. Stano persuaded Bickrest to accompany him in his car. When Bickrest began to complain during the drive, Stano struck her in the face. His blow sufficiently stunned her so that she remained silent for "a long period of time.” Id. at 523. When Stano stopped for a rest stop, Bickrest attempted to exit the car. Stano prevented her escape by pushing her back into the car and locking the doors. The drive continued until Stano stopped the car at a "sandy area, a beach area” that "looked like a pond.” Id. at 521, 523. There, Stano strangled Bickrest until she was either dead or unconscious, carried her to the edge of the water, and left the scene. On December 20, 1975, two fishermen discovered Bickrest's body floating in Spruce Creek, approximately one-half mile west of Moody Bridge, which is located on a narrow dirt road in a wooded, remote area of Volusia County, Florida. Investigation of the area revealed a wooden platform shoe at the edge of the water near Moody Bridge. The shoe matched the single shoe found on Bickrest’s body. The soil along the edge of the creek was sandy, and water markings on the bridge indicated tidal activity. The state medical examiner determined that the cause of Bickrest’s prolonged death was suffocation through a combination of strangulation and drowning. He also concluded that she sustained facial injuries prior to her death. .On October 8, 1982, Stano wrote a full confession to the murder of Mary Kathleen Muldoon in the presence of Sergeant Crow. Stano explained that, in November, 1977, he met “a young lady wearing a jacket and pants combination” and invited her to ride in his car on the pretext of going to a beach party. App. 11-558. At the beach, Stano suggested that they engage in sexual intercourse; Muldoon was not interested. They began to argue, and Stano hit Muldoon on the head and “knocked her half out because she didn’t say anything after that.” Id. Stano stopped the car by the side of the road in New Smyrna Beach and told Muldoon to open the door and to get out of the car. Sliding across the front seat, Stano also exited the car from the passenger’s side with his .22 automatic. Another argument ensued; Stano struck Muldoon hard on the head and caused her to fall to the ground. He then "shot her in the right side of the head with the 22 Automatic.” Id. at 559. Stano returned to his car and drove to Daytona Beach, where he lived. In addition to his confession to Muldoon’s murder, Stano directed the sheriffs investigators to the exact location where the body was found. Muldoon's body was located face down in a drainage ditch in an isolated, wooded area of New Smyrna Beach, Florida. Investigation of the area revealed tidal action in the drainage ditch that emptied into Turnbull Bay. Pieces of shell and dirt were embedded around the knees of the pants worn by Muldoon. Based upon the autopsy performed on Muldoon’s body, the cause of death was determined to be the gunshot head wound and drowning. The state medical examiner concluded that Muldoon was shot at very close range while she was in a kneeling position. Although the bullet entered Muldoon’s brain, the medical examiner determined that death was not instantaneous. He also noted that Muldoon sustained facial lacerations prior to her death.
In pertinent part, the arraignment proceedings were as follows: THE COURT: State of Florida versus Gerald Eugene Stano, 83-188, Case 83-189. Let the record reflect that Mr. Stano is here in person. I remember him from prior dealings. He is represented by Howard Pearl of our Public Defender’s Office. Howard, apparently, he’s charged with two additional murders. MR. PEARL: Yes, Your Honor. In each of the two cases Mr. Stano has executed affidavits of insolvency and motions to be declared insolvent. I think the Court can take judicial notice that he remains insolvent from his last appearances before this Court. THE COURT: ... Right now I’m going to appoint the Public Defender to represent you. Is that what you want me to do, sir? THE DEFENDANT: Yes. THE COURT: For now I am going to appoint the Public Defender. Agreed? THE DEFENDANT: Yes. THE COURT: The Public Defender is appointed. App. 10-285-86 (transcript of Stano’s arraignment before Judge Foxman, Feb. 8, 1983).
The following discussion occurred before Stano entered his guilty pleas: MR. PEARL: May it please the Court, the defendant moves for leave to withdraw his previously entered pleas of not guilty to the single counts of the two indictments and announces he is ready for arraignment and that he intends to enter a plea of guilty as charged to each of the charges of murder in the first degree. Further, he intends to move the Court that the sentencing jury be waived and that the Court determine sentence in this cause. Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue. At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials has [sic] not yet been received by the State and Mr. Nixon [state prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that. THE COURT: So, you're not complaining, you’re just stating this for the record. MR. PEARL: No, that is not a complaint. I’m just making my position clear in Mr. Stano’s presence about the entry of this plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do. I have spoken with Mr. Nixon. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delecti in both of these cases. And Mr: Stano tells me that that is so. Further, I have asked him about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing. He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time. I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not. He tells me he does not want a trial. THE COURT: Okay. Mr. Stano, do you care to comment on what Mr. Pearl has just said? THE DEFENDANT: No. I believe everything was quite sufficient that he said. THE COURT: He stated things accurately? THE DEFENDANT: Yes. THE COURT: You’re in agreement with what he said? THE DEFENDANT: Yes, sir. App. 10-289-91 (transcript of plea proceedings before Judge Foxman, Mar. 11, 1983) (emphasis added).
The state prosecutor related to the court the following information regarding the sufficiency of the state’s case and the missing similar fact evidence: MR. NIXON: Your Honor, I would also add, for the benefit of the Court this morning, that I’m in fact prepared and have prepared documents that, during the entry of this plea, that both defense counsel as well as the Court will be able to examine, that the facts support very clearly, not only the prima facie case, but evidence arising to proof beyond reasonable doubt as to Mr. Stano’s committing each of these homicides. So, as far as the factual basis for taking of the plea, I’m prepared to present each of those documents and have the Court examine those so the Court is assured that, in fact, the plea is being entered in good faith and on a solid factual basis. The materials Mr. Pearl referred to primarily of [sic] having to organize is [sic] not so much of substantive facts of each of these two cases. As the Court will see, the facts surrounding these [cases] are quite simple in terms of the two homicides. What was involved was the fact that, because of the number of other homicides around the state and because there was the possibility of similar-fact evidence being used, that this is where the complexity of the analysis came in; not so much the facts of the particular cases he’s about to plead to, but the fact that the case would have been complex simply because of the State intending to present similar-fact evidence of other homicides occurring in different parts of the state of Florida. So, I wanted to at least make sure that we understand that the complexity dealt more in my opinion with the sentencing phase of the case more so than the proof of the underlying homicide charges. Id. at 291-93.
The following questions concerning Stano’s psychiatric condition and competency to stand trial were asked by the court and answered by Stano during the plea proceedings: Q. [THE COURT] Have you ever suffered from any mental or emotional disability or any psychiatric problem? A. [THE DEFENDANT] No. Q. Okay. MR. PEARL: Your honor, may I point out at this time, for the record, that Mr. Stano has been extensively examined by a group of psychiatrists who, some of whom, believe that he does suffer from some impairment. But we are not making a claim that he is either incompetent now or that he was insane as the laws of the State of Florida require at the time of the commission of the crime. But I do not wish to be foreclosed from presenting evidence of impairment at the [sentencing] hearing. THE COURT: Fair enough. BY THE COURT: Q. You understand that? A. Yes, sir. MR. NIXON: Likewise, Your Honor, at this stage of the plea dialogue, I would ask the Court, if I can, to take judicial notice that you have previously entered orders, more particularly, in Case No. 81-046-CC, in which the issue of Mr. Stano’s competency after examination of a number of psychiatric reports from Dr. George W. Barnard, Dr. Frank Carrera, Dr. Fernando Stern, Dr. Robert Davis, and Dr. Ann McMillan, the Court had in fact found Mr. Stano was competent, as the defendant, for entry of the plea. BY THE COURT: Q. That's true, Mr. Stano, you know we have had a number of other cases together. A. Right. Q. And we have had extensive psychiatric evaluations. And as best I can tell, you're competent to stand trial under the laws of the State of Florida and probably were not insane at the time of the offense? Would you agree with that? A. Yes. Id. at 294-95 (emphasis added). .The following explanation, regarding the consequences of pleading guilty, was given to Stano by Judge Foxman: BY THE COURT: Q. Mr. Stano, do you understand what you’re doing here today? A. [THE DEFENDANT] Yes. Q. Okay. Mr. Stano, I want to talk to you a little bit about it. Now, we have a single count in each case of first-degree murder. The only possible sentences in Florida — sentences in Florida— are life with a twenty-five year mandatory minimum, or death. And those are the only two possible sentences. Normally, the way these cases proceed is that there’s a jury trial. Of course, if there's acquital [sic], it goes no further. If there’s a conviction of first-degree murder, the jury, the twelve-man jury that heard the case, meets in a second phase of the trial, what we call bifurcated proceedings. And they listen to evidence in mitigation and aggravation under Florida Statute 921.141. They come back with a recommendation as to life, or death, to the Judge. And the decision is the sole decision of the Judge. But under Florida law, the way it’s evolved, the Judge is pretty well bound by the jury recommendation. And so, what you're doing in essence, is you're taking the jury out of the sentencing proceedings and it will proceed in front of me, and I will act as the Judge and jury under Florida Statute 921.141. The attorneys will present evidence in mitigation and aggravation, and I’ll make the sole decision. So, in essence, what you’re doing is you’re taking the jury out of the proceedings. A. (Nods head.) Q. Okay. Sir, do you understand that? A. Yes, sir. Q. Okay. You have been through this with Mr. Pearl; have you not? A. Yes, sir. Q. Okay. Do you have any questions of me or Mr. Pearl at this time? A. None. Id. at 295-97 (emphasis added).
As the plea colloquy proceeded, Judge Foxman discussed with Stano the consequences of his pleading guilty, including sentencing: BY THE COURT: Q. Mr. Stano, "Guilty” means that you admit the truth of the charges against you. A. [THE DEFENDANT] Yes, sir. Q. You don’t have to plead guilty if you don’t want to. By pleading guilty, you 're waiving your right to a jury trial as to guilt or innocence; at that trial, to be represented by a counsel; the right to confront witnesses against you; your right to compel the attendance of those who will testify on your behalf. Once you plead guilty, you waive any defenses you might have. You severely restrict and limit your ability to appeal. Is anybody forcing you to do this or twisting your arm? A. No, sir. Q. This is completely voluntary? A. Yes. Q. You understand that there's no deal with me on sentence. You get a fair sentence hearing, and that's all I can promise you. A. Yes, sir. Q. Do you feel that there’s any type of deal or anything else like that? A. No, sir, not at all. Id. at 299-300 (emphasis added).
Judge Foxman ascertained the voluntariness of the change of plea from Pearl and Stano as well as Stano’s satisfaction with Pearl’s services as follows: THE COURT: The plea is in no way conditional; is it? MR. PEARL: No, sir, it is not. THE COURT: It is an unconditional plea. MR. PEARL: It’s an unconditional plea of guilty. All we have is the sentencing hearing to face. THE COURT: Fair enough. BY THE COURT: Q. The plea is voluntary? A. [THE DEFENDANT] Yes, sir. Q. Are you satisfied with the services of Mr. Pearl? A. Yes, I am. Q. Do you have any complaints at all about his services to you as your attorney? A. No. Q. Okay. Do you have any questions of Mr. Pearl, or myself at this time? A. No, I don’t. Id. at 302-03 (emphasis added). .Following the presentation of the state’s evidence in the Muldoon case, Judge Foxman accepted Stano’s plea: BY THE COURT: Q. Mr. Stano, to the facts outlined by the State Attorney, the documents that he’s just admitted into evidence for the purposes of this plea, do you plead guilty? A. [THE DEFENDANT] Yes, sir. Q. All right. Do you have any questions of Mr. Pearl or myself? A. No, sir. THE COURT: All right. The Court accepts the plea. The Court finds it's made knowingly, intelligently, and voluntarily, that you have had the advice of counsel, of [a] competent attorney, with whom you say you are satisfied. Id. at 312. Similarly, following the presentation of the state’s evidence in the Biekrest case, Judge Foxman accepted Stano’s plea: BY THE COURT: Q. Mr. Stano, as to the facts outlined by the State Attorney as to Susan Biekrest, how do you plead? A. [THE DEFENDANT] Guilty. Q. All right. Do you have any questions of me or Counsel? A. No, sir. THE COURT: Okay. The plea is accepted. The Court specifically finds that it is made knowingly, intelligently, and voluntarily, that you have had the advice of competent counsel with whom you say you’re satisfied. Id. at 318-19.
Prior to sentencing Stano to death in the Biekrest and Muldoon cases, Judge Foxman made the following observations: THE COURT: All right. I have a couple of observations to make, Mr. Stano. This case is different than the other homicides I’ve seen because of the sheer number of convictions before Florida circuit courts. This is number seven and number eight. As best I can tell, there are no connections between these murders; they don’t involve connected defendants and we have — this is the eighth conviction in a Florida circuit court of you for first degree murder. The sheer magnitude of that number is hard to comprehend. I can see no motive for the killings, Mr. Stano. They seem to be completely senseless to me. Normally we see lust, passion, greed, a need to eliminate a witness, but, I don't see that here. These murders are completely senseless. Finally, I detect no remorse whatsoever, no remorse for the two murders in front of me. App. 10-329-30 (transcript of sentencing proceedings before Judge Foxman, June 13, 1983).
The Florida Supreme Court also noted that Stano previously had confessed to nine murders, but was charged with and sentenced for only six homicides. Stano, 460 So.2d at 894 n. 2.
The following dialogue, regarding Stano’s guilty pleas, occurred at the post-conviction hearing between Judge Foxman and Mark Olive, Stano’s new attorney, succeeding Pearl: THE COURT: What if he was acting under the advice of his counsel not to [plead]? What if he told his counsel, I'm guilty, I want to plead guilty and get it over with? What is Pearl to do then? MR. OLIVE: Judge, you know, for purposes of your question — and I don’t know — I don’t want to concede anything else, but for purposes of your question, that may have been exactly what happened, you know. THE COURT: ... But what if the defendant directs counsel to enter the guilty plea, to allow it? MR. OLIVE: ... So, first of all, if the client says, plea me, plea me, that’s all there is to it, and the defense attorney has some problem that, he should tell the Court. And if the defendant is proceeding against the advice of counsel, I think that the Court should, under Foretta (phonetic) say, well, you’re representing yourself, Buddy. And if you're representing yourself the Court has to be satisfied that he has waived counsel. That may be stretching the law some. I don’t think it is. I think that is the Foretta [sic] law. App. 6-1267-69 (transcript of the post-conviction hearing before Judge Foxman, Dec. 1, 1986).
Lewis Stark, the assistant state attorney, explained that Pearl did not move to set aside Stano’s guilty pleas after receipt of full discovery from the state prior to sentencing: MR. STARK: ... There was a period of time from March the 11th, the day the plea was entered, until June the 8th, 9th, and 10th and, finally, June the 13th with[in] which at any time during that period Howard [Pearl], after receiving full discovery from the state, could have moved for a motion to set aside that plea. None was ever done. I think that needs to be considered a little bit by the Court. Id. at 1302. .Regarding Stano's ineffective assistance of counsel claim relating to his guilty pleas when some of the state’s discovery had not been produced, Judge Foxman's order denying post-conviction relief states: Trial counsel specifically stated he had not yet received full discovery; did not know the substantive facts concerning the two killings, couldn’t advise the Defendant whether there was sufficient evidence to convict him or not; and, was assured by the Defendant that the confessions were valid. The Defendant acknowledged all this on the record. In essence the Defendant waived his rights to later complain about those matters. Further, he isnt-ructed [sic] his attorney to proceed with the plea. Attorney Pearl did as he was told by this client. Since Pearl was acting at the express direction of his client the first criteria of Knight vs. St., 394 So.2d 997, (Fla.1981), cannot be said to have been met. Any "overt act" or "specific omission” was at the direction of Stano himself. State v. Stano, Nos. 83-188-CC, 83-189-CC (Fla. Cir. Ct. Apr. 13, 1987) (order denying Stano Fla. R. Crim. P. 3.850 relief).
The Florida Supreme Court recognized that Judge Foxman had accepted three previous guilty pleas to first-degree murders from Stano. Stano, 520 So.2d at 279.
The Florida Supreme Court characterized Stano’s complaints regarding the circumstances under which he pled guilty as follows: Stano first claims that the circumstances surrounding his guilty pleas violated his constitutional rights and that the trial court did not provide a record that conclusively shows that Stano knowingly, intelligently, and voluntarily waived his right to trial. In reality these issues boil down to a complaint about the voluntariness of Stano’s guilty pleas and trial counsel's effectiveness regarding these pleas. Stano v. Dugger, 524 So.2d 1018, 1018-19 (Fla.1988) (Per Curiam).
From 1972 through 1977, Pearl represented 300 felony, noncapital defendants per year. Since 1977, he handled only death penalty cases. From 1977 through 1983, with at least 25 capital cases a year, Pearl represented approximately 300 death penalty defendants and had approximately 75 capital trials. R3-123-24, 223 (transcript of the evidentiary hearing on Stano’s federal habeas corpus petition before Judge Fawsett, May 17, 1988). .Judge Fawsett specifically questioned Pearl as to whether Stano's pleading guilty was against his advice: THE COURT: Mr. Pearl, are you testifying that Mr. Stano directed you to enter or to go through with a proceeding in which he entered a plea of guilty in the Bickrest and Muldoon cases against your advice? THE WITNESS [Pearl]: Yes, ma’am. THE COURT: When did you give him that advice? THE WITNESS: Very shortly before we entered the plea. I had — shall I continue? THE COURT: Yes. THE WITNESS: I had received some discovery from the state, and went to talk to Mr. Stano about it. As a matter of fact I think if I am not mistaken he sent for me because he wanted to talk to me and I wanted to talk to him and he announced to me that he wanted to enter a plea of guilty to the first degree murder charges and do so without delay to both of them. Wanted to waive a sentence jury and allow Judge Foxman alone to determine what his sentence would be. I advised him against it. I told him it would be premature, I had no opportunity to make a full investigation, or take depositions, or to verify any of the allegations of the two indictments, and that I could not predict for him what would happen if he were to enter a plea at that time. That a death sentence was a possibility, if not a likelihood. I told him that I just didn't know enough about those two cases at that time to be able to advise him with respect to whether he should ask for, whether he should demand a trial or enter a plea. And more over, I had no opportunity whatever except a very brief one to try to negotiate with the state on disposition of these cases ... the only approach I had made to Mr. Nixon, as assistant state attorney concerning — that was met with a refusal and he intended to go forward and seek the death penalty. Nevertheless, in spite of my advice and against my advice, Mr. Stano insisted that he wanted to immediately enter a plea of guilty and to waive the sentencing jury and that was what was done. There is a plea dialogue in which I think I made clear what my position was when he entered his plea before Judge Foxman on a later date. To wit, March 11, 1983. Id. at 196-97 (emphasis added).
Stano had received a total of six life sentences for six murder convictions at the time of his pleas in this case. Id. at 201.
Judge Fawsett questioned Pearl as follows concerning the advice that he gave Stano regarding Pearl’s strategy for the sentencing proceedings prior to Stano’s pleas: THE COURT: Did you discuss the strategy with Mr. Stano on more than one occasion? THE WITNESS [PEARL]: Your honor, I am unable to answer that. I think so. But I am not absolutely sure. THE COURT: Did Mr. Stano register any objection or concurrence or any reaction? THE WITNESS: He said that he understood. His reaction seemed to be that he felt more confidence than I did that Judge Foxman would in fact sentence him to two more life terms. He just — I think he was confident that Judge Foxman would do that. More confident then [sic] I was. THE COURT: Did you discuss with Mr. Stano your view of the likelihood of Judge Foxman sentencing him to a life in prison term as opposed to execution. THE WITNESS: Yes. I told him it was certainly possible, but at the same time he faced the very strong possibility of two death penalties instead, and that the state attorney had been saying to me that he would vigorously seek the death penalty because of the fact that these two additional murders had come out after the original arrangement had been closed down and as Mr. Nixon put it to me, there’s is no deal any more, and I have to seek the death penalty, or the public will become enraged. They will think that we have — we in the state attorneys]’ office] have no regard for human life. I explained that to Mr. Stano. I told him he was at risk. THE COURT: When did you explain this to him? THE WITNESS: First before March 11th. 1 explained to him that he was at risk for the death penalty. THE COURT: Before entry of the plea of guilty? THE WITNESS: Yes, ma’am. There aren’t any deals, I had spoken to Mr. Nixon and Mr. Nixon said the deal was not any longer in operation and he was going the [sic] seek the death penalty, and Mr. Stano understood that. But nevertheless persisted and insisted on entering a plea. And — but I can’t tell you with what frequency I discussed with Mr. Stano the strategy or approach to the sentencing hearing after the entry of the plea, once I know. How many more times then [sic] that I am unable to say. Id. at 202-03 (emphasis added).
Judge Fawsett and Mark Olive, Stano's attorney for his federal habeas corpus appeal, questioned Pearl as follows regarding his advice to Stano concerning the probability of his receiving the death penalty from Judge Foxman for pleading guilty to the Bickrest and Muldoon murders: Q. [THE COURT] Did you give any reason to him [Stano] or reasons to him for your opinion that death would be more probable then [sic] life? A. [THE WITNESS (Pearl) ] Yes, your Hon- or, but in these terms. I did not discuss with him the aggravating and mitigating statutory circumstance set forth in the sentence statute. I did say to him, in substance, that because there had been three prior convictions in Volusia County, of which Judge Foxman was aware and had in fact been involved, that he might very well take the position already taken by the state that two more could no longer be excused or passed off or otherwise treated lightly, as by life sentence, and that Judge Foxman might be convinced that he ought to give Mr. Stano a death sentence simply because of what you would call the reoccur-rence, Mr. Stano coming back into court, after having been before Judge Foxman before and having received the benefit of an agreement. Q. What was Mr. Stano’s response, if any, to that advice? A. He did not — his reaction was that he did not seem to think that Judge Foxman would sentence him to death and I think he expressed confidence that Judge Foxman would not, and I told him that Judge Foxman might very well do it in spite of that. BY MR. OLIVE (redirect examination): Q. You felt pretty darn certain a death sentence would come out of this, didn't you, sir? Any rational human being would think a death sentence would come out of this. A. I handled enough of them by then, and this one had the ear marks, Mr. Olive. Q. Very clear ear marks? A. I couldn't be positive, you know, there wasn’t any way to be positive and I did express it to Mr. Stano in terms that it would absolutely, it was absolutely a dead probability beyond dispute he would get the death penalty. I did tell him that I thought it was likely, and the only thing I could tell you now that back then all I felt was that it was likely. Q. He was, well, he was greatly at risk, wouldn't you say? A. Certainly, sir. Q. For the death penalty? A. Yes. Q. Greatly at risk? A. Yes, sir. Q. And yet you're telling us that in your conversations with him he was confident? Those are words you have used two or three times that he would get life? A. Optimistic, confident, feeling that he transmitted to me was that he felt that Judge Foxman wouldn't do that to him. Of course I guess he felt that Paul Crow wouldn’t either, but that was, I mean these are feelings that he had, emotions that he had, and I am trying to express them but of course I don’t know precisely what was in his mind. Q. We have a PSI that talks about thirty[-]eight confessions, six convictions and you have got a judge who told him the last time he was there that he thought it was worth the death penalty, correct? A. Yes. Q. In light of all those circumstances it was your opinion at that time, not that it was likely, but that it was extremely probable that the death penalty would result in the case? THE WITNESS: On a scale of ten, eight point two. BY MR. OLIVE: Q. Ten is you are going to get the death penalty? A. Beyond doubt. Id. at 236-39.
Regarding Pearl’s counsel concerning the rights that Stano would waive by pleading guilty, state attorney Belle Turner questioned Pearl as follows at the evidentiary hearing before Judge Fawsett: Q. [MS. TURNER (cross examination) ] Now you had discussions with your client before the pleas were entered in this case.... A. [THE WITNESS (PEARL) ] Well, in our interview I certainly asked him ... whether he had been advised of his rights, under Miranda [the] right to remain silent, right to demand counsel be present and so forth. He understood those rights when he made confessions and confessions were made voluntarily. Q. Did he ever give you any indication that he was not guilty of these crimes? A. He never denied to me that he had in fact committed the crimes. On the other hand it is not my practice in dealing with a client to ask that sort of question directly. Q. But he gave you no indication of that otherwise; is that correct? A. No. He did not. Q. Now when you were discussing the, before the plea was entered, did you discuss with your client’s [sic] the rights that he would be giving up? A. Yes. Q. And what did you tell him? A. Well, ... pretty much the same as a trial judge would go through a dialogue upon the taking of a plea. I [Stano] was giving up certain rights such as the right to remain silent, the right to confront the witnesses against him, the right to a trial by jury, and so forth, that, you know, that bunch of rights which anyone gives up on the entry of a plea of guilty, plus of course giving up the right really to appeal any error which might have taken place in the proceedings up to the time of judgment. Q. That’s because the pleas ratified prior confessions, is that true? A. Yes, ratifies all of that. You can no longer attack evidences [sic] as being not reliable or not genuine. Q. Plea is in fact an in-court confession, would you agree with that statement? A. Has been said, probably that is true. Q. Did you advise him of the state's burden of proof that if he did choose to go to a trial that the state would have to prove the case against him? A. Didn't think I put it to him directly that way. I think in the course of our discussions 1 asked him whether he thought the state ... could prove that he had committed these two killings and he told me that he felt that he was sure that they could. Id. at 226-29 (emphasis added).
Judge Fawsett specifically questioned Pearl regarding the discovery which had not been produced to him at the time of Stano’s pleas: THE COURT: Did you have discovery materials when you had the conference with Mr. Stano prior to the March 11, 1983 proceeding? THE WITNESS [PEARL]: I had possession of them. I had not brought them with me. THE COURT: Had you reviewed them? THE WITNESS: I had. Such as had been furnished. Now discovery was not complete. There were additional materials that [the] state attorney was gathering up, and we had entered into an agreement that he would gather them all up and furnish them to me in one body, rather then [sic] trickling them out one page or two at a time. THE COURT: Did you have these discovery documents prior to the sentencing proceeding? THE WITNESS: Well, the additional discovery materials to which I alluded had to do with the proposed state plan to introduce similar fact evidence.... After the entry of the plea, the state apparently lost interest in gathering further materials or in presenting that proof. Since it would not have been an aggrevation [sic] or mitigation of the statute nine twenty one point-— nine twenty one point one four one. So apparently the state abandoned that plan to present the similar fact evidence. So I had essentially everything else, everything as far as I knew, that had to do with the offense and ... involving the Muldoon [and] Bickrest killings. Id. at 199-200 (emphasis added).
Judge Fawsett questioned Pearl regarding Stano’s competency to enter a plea or to participate in the proceedings as follows: BY THE COURT: Q. Before you sit down, Mr. Pearl, in the course of your representing Mr. Stano in the Bickrest and Muldoon cases, was there anything that made you question whether he was either competent to enter a plea or participate in the proceedings, that actually occurred in the Muldoon and Bickrest cases or question his competency at the time [the] crimes were committed in those two cases? A. [THE WITNESS (PEARL) ] No, your Hon- or, not competency. I didn’t question his competency, his ability to understand, to appreciate and deal with me and to deal with the issues involved. I am only a layman, but I thought that a person who would have done the sorts of things that Mr. Stano had done, had, in my opinion, had to have something wrong with his personality or his ability to understand and deal with reality. I couldn’t detect insanity, but at the same time I felt that the acts are so anti social that insanity must be lurking there. I was trying as hard as I could to find something that even if it was not a Me Naughton [sic] defense of not guilty by reason of insanity, that I felt that the mental health professionals should have found that he was operating under extreme mental or emotional disturbance. Q. Did you pursue mental health evaluations with that goal in mind? A. Yes, and strong persistent cross examination of the mental health professionals during the hearing, trying to coax them or persuade them to expand their diagnosis in such a way as to include extreme mental or emotional disturbance. But I was unsuccessful in doing so. They would not go that far. Id. at 243-44 (emphasis added).
Pearl responded as follows to state attorney Turner’s questioning regarding his investigation of the Bickrest and Muldoon murders concerning a basis to attack Stano's confessions or to request withdrawal of his guilty pleas: Q. [MS. TURNER (cross examination) ] I am talking about during your representation of Mr. Stano and these two cases. Nothing in your investigation revealed to you, I am not talking about collateral attacks, I am talking about your representation and these two cases, nothing in your investigation revealed any basis to move to attack his confessions or to withdraw his pleas; is that correct? A. [THE WITNESS (PEARL) ] That's correct. Nothing was brought to my attention. Id. at 231 (emphasis added).
Judge Fawsett entered the following factual findings pursuant to the evidentiary hearing: THE COURT: The court finds that Mr. Stano was represented by a highly experienced attorney who advised him not to enter a plea of guilty to the charges of murder against him in the Susan Bickrest and Mary Kathleen Muldoon cases; who advised that he wished to further investigate the case on behalf of Mr. Stano; and who further advised Mr. Stano that the probable outcome of a plea of guilty would be a sentence of death in view of Mr. Stano’s three prior convictions for murder entered before the same judge in Volusia County. Mr. Stano rejected this advice, directed his counsel to proceed with the entry of guilty pleas and waiver of sentencing by jury. Counsel followed the instructions of his client, but nevertheless continued his investigation of the case and sought to establish, among other things, the mental status of Mr. Stano as impaired, if not under a Me Naughton [sic] type test, then at least in a manner sufficient to meet the statutory mitigating factor that the murders of Miss Muldoon and Miss Bickrest were committed while defendant was under the influence of extreme emotional disturbance. Mr. Stano was examined by five mental health experts who either testified or were presented to the court by way of report. Neither the Me Naughton [sic] test or statutory aggravating factor were found by the trial court. Further Mr. Stano’s attorney did not have any notice of alleged invalidity of prior conviction for murder which had been reduced to judgment against Mr. Stano. In fact, Mr. Stano reaffirmed his guilt in the Muldoon and Bickrest murders as well as others on more than one occasion subsequent to the entry of his pleas of guilty in those two cases. Mr. Stano now contends that his attorney was ineffective for failing to investigate and have suppressed or set aside these convictions or confessions. Mr. Stano chose a course of action which after valid legal proceedings in the Bickrest and Muldoon cases were held, resulted in the imposition of a sentence of death upon him for his crimes. This court finds no error in those proceedings sufficient for a stay of execution to be entered. R4-40-41 (emphasis added).
Stano v. Dugger, No. 88-425-Civ-Orl-19 (M.D.Fla. May 18, 1988) (order denying Stano's petition for a writ of habeas corpus, stay of execution, and certificate of probable cause).
The Supreme Court has clarified the consequences of a guilty plea by a defendant: "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12.
The right to self-representation, established by Faretta, is guaranteed by statute in the federal courts and "generally must be timely and unequivocally asserted and accompanied by a valid waiver of counsel.” United States v. Davis, 604 F.2d 474, 482 n. 8 (7th Cir.1979); 28 U.S.C. § 1654; see Chapman v. United States, 553 F.2d 886, 890 (5th Cir.1977).
Faretta clarifies the counsel’s role as assistant to the accused: The counsel provision supplements this design [of self-representation implied in the Sixth Amendment], It speaks of the "assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel "represents” the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense. Faretta, 422 U.S. at 820-21, 95 S.Ct. at 2533-34 (citations and footnote omitted) (emphasis in original).
The American Bar Association (ABA) Model Code of Professional Responsibility explains that decisions affecting the merits of the case or substantially prejudicing the rights of a client, including entry of a plea, belong to the client: EC 7-7 In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer.... A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken. ABA Model Code of Professional Responsibility, Canon 7, Ethical Consideration 7-7 (1980) (emphasis added). Although the ABA replaced the Model Code of Professional Responsibility with the ABA Model Rules of Professional Conduct in August, 1983, the Model Code of Professional Responsibility, as adopted by the Florida Supreme Court, was in effect in Florida when Stano entered his guilty pleas on March 11, 1983. Cf. ABA Model Rules of Professional Responsibility, Rule 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued.”). As adopted by the Florida Supreme Court on January 1, 1987, the ABA Model Rules of Professional Responsibility presently are effective in Florida. Florida Bar Re Rules Regulating the Florida Bar, 494 So.2d 977 (Fla.) (per curiam), modified on other grounds, 507 So.2d 1366 (Fla.1986). The role of counsel in a Faretta situation has been analogized to the tort doctrine of informed consent: patients/clients must be informed of the material risks prior to electing particular medical treatment/legal action, but the patient/client can refuse treatment/action once informed of those risks. Chused, Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics, 65 Calif.L.Rev. 636, 669-70 (1977). "The general rule is that control of trial decisions rests with counsel in all areas except the guilty plea and perhaps some other 'fundamental' decisions.” Id. at 655 (emphasis added). The legal and political processes also have been compared because the client’s claim (or fundamental decisions regarding his case) are considered to be his just as a citizen’s vote is his. Speigel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U.Pa.L.Rev. 41, 74 (1979). The case belongs to the client and "this claim of ownership gives the client a presumptive right of control.” Id. at 73. While an attorney's education and experience give him superior knowledge of generalized technical information, "[t]he client possesses superior knowledge of another sort — knowledge of the facts and circumstances of his case.” Id. at 100.
The Seventh Circuit has described the decision to plead guilty as being the sole prerogative of the defendant: It is undisputed that a defendant has a constitutional right to participate in the making of certain decisions which are fundamental to his defense. Included among these fundamental choices are the decisions to forgo the assistance of counsel and to waive trial by jury. Similarly, the decision to plead guilty is one that must be made by the defendant, and is not one in which an attorney may speak for his client without consultation. Johnson v. Duckworth, 793 F.2d 898, 900 (7th Cir.) (citations omitted) (emphasis added), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); see Faretta, 422 U.S. at 820-21, 95 S.Ct. at 2534 (The allocation of decisionmaking power must be with the defendant’s consent.). .This court has spoken clearly regarding the less than prudent, but nevertheless voluntary guilty plea of a defendant: In the final analysis, the appellant chose voluntarily to enter a guilty plea for his own personal reasons. Not only was he seeking his own wife’s release in Louisiana, he believed that the “biker's code” required him to help Ignazio [codefendant] and Ignazio’s wife. Furthermore, appellant benefited himself with the plea by avoiding a possible death sentence. Appellant was convinced by Ignazio’s ill-conceived notion that the guilty pleas could be subsequently attacked and set aside on the basis of coercion and, therefore, knowingly and voluntarily entered into this "plan” by Ignazio to gain the immediate release of their wives while reserving a later attack upon their own guilty pleas. The fact that the plan was foolish and. stupid does not mean that the guilty pleas entered pursuant to it were involuntary in a constitutional sense. Whether the appellant chose to enter this plea out of a desire to help his friends, his wife, and himself, or out of a mistaken notion that he could escape its consequences at a later time, we agree with the district court's conclusion that appellant chose to do so out of his own free and voluntary will. LoConte, 847 F.2d at 753 (emphasis added).
This court has stressed the necessity of asserting the right to self-representation: This case presents another example of the tension between the right to counsel and the right to self-representation. Because the assertion of one necessitates the waiver of the other, it is essential that trial courts carefully create a record that ensures that the decision to proceed pro se is being made knowingly, intelligently, and voluntarily. Fant, 890 F.2d at 410.
Faretta explains that the Sixth Amendment right to self-representation is the defendant's right to proceed pro se in conducting his trial: "And although he may conduct his own defense ultimately to his own detriment, this choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” 422 U.S. at 834, 95 S.Ct. at 2541 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J„ concurring)) (emphasis added).
The Supreme Court has explained the finality of a guilty plea with the exception of the voluntary and intelligent character of the plea as follows: [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608.
Compare Chatom, 858 F.2d at 1484-87 (Stressing that it is the exceptional situation when a single error by counsel will rise to the level of ineffective assistance of counsel under Cronic, this court determined that counsel’s failure to object to the results of an atomic absorption test, used by the state to show that petitioner's accomplice did not fire the gun which killed two sheriff’s deputies, fell below reasonable standards of performance and prejudiced Sixth Amendment adversarial testing. Because the state’s case against petitioner consisted of circumstantial evidence, the test evidence could have supported damaging inferences by the jury. Additionally, the issue of improper admission of the test was foreclosed on appeal. In granting habeas corpus relief, this court concluded that admission of the test results manifestly influenced the verdict, which reasonably may have been different absent this evidence.) ■with Kelly v. United States, 820 F.2d 1173 (11th Cir.) (per curiam) (Petitioner, convicted for drug offenses, moved to vacate his sentence based on ineffective assistance of counsel. Petitioner alleged conflict of interest between himself and his trial attorney, who subsequently pled guilty to drug charges in another federal case and testified against petitioner; inadequate time for trial preparation because petitioner retained his trial counsel two days before the trial began (petitioner’s original counsel, who also represented one of his codefendants, was the target of a continuing criminal investigation which resulted in petitioner’s indictment); substandard representation because his trial counsel was a drug addict; and unreasonable trial strategy by his attorney. Affirming the district court's denial of petitioner’s motion, this court concluded that petitioner did not show that his attorney’s performance undermined the trial result under the Strickland test and was convinced that the facts did not create a presumption of prejudice sufficient for the narrow Cronic exception.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987).
The majority implies that Stano's failure to move the court for leave to withdraw his guilty pleas prior to the imposition of sentence rendered the court’s failure to intervene harmless. As my discussion makes clear, what transpired after Stano's plea hearing has no bearing on whether the court failed to discharge its duty to intervene at the plea hearing.
I refer throughout this opinion to the right to assistance of counsel as guaranteed explicitly in the sixth amendment and by implication in the fourteenth amendment.
Indeed, the majority explicitly recognizes the importance of the right to counsel in the context of a guilty plea. The majority states that counsel is "especially important” to a defendant who pleads guilty, and quotes the Supreme Court's statement that, for a guilty plea, " '[cjounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.’" Ante at 1140 (quoting Argersinger v. Hamlin, 407 U.S. 25, 34, 92 S.Ct. 2006, 2011, 32 L.Ed.2d 530 (1972)).
In fact, the judge may have a duty to intervene slid sponte in such a case even if the defense attorney fails to raise an objection. Accordingly, the judge’s failure to intervene would constitute Caldwell error. Under the contemporaneous objection rules in some jurisdictions, however, the absence of an objection might create a procedural default that could prevent a federal habeas court from entertaining the defendant’s Caldwell claim. See Cooper v. Wainwright, 807 F.2d 881, 886-87 (11th Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987).
Note, however, that Rule 44(c) of the Federal Rules of Criminal Procedure mandates that the trial court, when faced with multiple defendants who are either jointly charged or tried and are represented by the same counsel, "shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel ... the court shall take such measures as may be appropriate to protect each defendant’s right to counsel." Thus, the trial court’s “protecting duty" is codified in some conflict of interest situations.
The Standards for Criminal Justice provide: (a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands: (i) the nature and elements of the offense to which the plea is offered; (ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration; (iii) that, if the defendant has been previously convicted of an offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment; (iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant’s behalf, and to have compulsory process in securing their attendance; and (v) that by pleading guilty the defendant waives the right to object to the sufficiency of the charging papers to state an offense and to evidence allegedly obtained in violation of constitutional rights, except to the extent that motions concerning such matters may already have been made and ruled upon, or unless the right of appeal on such issues is reserved. (b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences. (c) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel. Standards for Criminal Justice § 14-1.4 (1982) (emphasis added). The federal courts have a similar obligation not to accept involuntary pleas pursuant to Fed. R.Crim.P. 11, which provides in pertinent part: (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; and (2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will by appointed to represent the defendant; and (3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and (4) that if a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and (5) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant’s answers may later by used against the defendant in a prosecution for perjury or false statement. (d)Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant’s attorney.
According to the majority, the trial court is not obliged to make such a determination where the defendant, having obtained a lawyer, tenders a plea of guilty without his attorney's presence — either in fact or constructively. In other words, Faretta and its progeny do not apply in the guilty plea context. The majority reaches this conclusion by observing that "the Faretta inquiry is reserved for advising a defendant of the disadvantages of proceeding pro se at trial.” Ante at 1149. According to the majority, the Faretta inquiry "is tailored to elicit whether the defendant is capable of conducting his own defense.... By definition, a defendant who pleads guilty relinquishes his defense.” Ante at 1149. Alternatively, assuming Faretta's applicability in the guilty plea context, the trial court’s duty to determine whether the defendant intends to waive counsel and proceed pro se is not triggered unless the defendant " 'clearly and unequivocally assert[s] the desire to represent himself.' " Ante at 1144 (quoting Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990)). In this case, the majority finds no such clear and unequivocal assertion by the petitioner; therefore, the trial court had no duty to intervene. To me, the majority’s position is absurd. Suppose Stano’s lawyer, Mr. Pearl, had failed to show up for the plea hearing. In that event, Stano would quite literally not have had a lawyer. Would the majority hold that the trial judge had no duty to inquire whether Stano wished to waive his right to counsel and proceed pro se? I think not.
I refer throughout the opinion to both the trial court record and the trial court transcript. The trial court record, of course, includes the transcript, if any, of the proceeding. When referring to the trial court transcript, I include, in addition to the transcript of the proceeding, any exhibits that may have been introduced into evidence at the proceeding.
The defendant faces a different burden of proof in an attorney error case, where, for example, the defendant claims that his attorney failed to develop an alibi defense or that his attorney, in a death penalty case, failed to develop mitigating evidence. In that kind of case, the defendant must show, under Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, that the attorney’s representation was deficient and also that the deficiency prejudiced the defendant. In the Strickland type of case, unlike in a trial judge error case, the trial transcript is invariably silent concerning the deficiency of the attorney’s performance. The transcript itself, therefore, rarely yields a presumption of prejudice. Rather, the defendant bears the burden of presenting the error, which occurred off the record, in a petition for collateral review. In a judge error case, such as the one before us, the attorney’s inability to provide representation in any real sense is apparent from the record of the trial court proceeding. The court, under those circumstances, has notice of the attorney's inability, and the court’s protecting duty is thus triggered. Accordingly, if the court fails to discharge its protecting duty, the constitutional error, which is apparent on the face of the trial court transcript, is ascribable to the court. In that situation, the trial court record itself yields a presumption of prejudice.
Boykin itself, however, involved a direct appeal from the defendant's conviction. The defendant pled guilty to a murder charge before a state trial judge, and the judge sentenced him to death. An Alabama statute provided for an automatic direct appeal of a capital case to the state supreme court and required the supreme court to search the record for plain error. On direct appeal, the state supreme court upheld the sentence, but several justices dissented on the ground that the record of the plea hearing failed to show that the defendant had intelligently and knowingly pleaded guilty. In their view, the trial judge committed constitutional error in accepting the guilty plea without an affirmative showing, on the record, that the plea was voluntarily and knowingly entered. The United States Supreme Court granted certiorari to address that issue and, agreeing with the dissenting Alabama justices, reversed the state supreme court's decision. The Court concluded that a defendant’s plea of guilty cannot stand if "the record does not disclose that the defendant voluntarily and understanding^ entered his pleaf ] of guilty.” Boykin, 395 U.S. at 244, 89 S.Ct. at 1713 (quoting state supreme court dissent). In his dissent in Boykin, Justice Harlan characterized the Court's decision as follows: "The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure." Id. at 245, 89 S.Ct. at 1713. Justice Harlan characterized the rule applied in Boykin as a prophylactic: under that rule, once the Court concluded that the record failed to disclose that the plea was voluntary, it conclusively presumed prejudice and vacated the conviction; the Court gave the state no opportunity to rebut the defendant's case by showing that the plea was in fact made knowingly, intelligently, and voluntarily. As Justice Harlan observed, "[t]he Court’s reversal is therefore predicated entirely upon the failure of the arraigning state judge to make an ‘adequate’ record." Id. at 247, 89 S.Ct. at 1714. Most Boykin claims now come to federal court in the context of a habeas proceeding. In that context, the federal courts are not limited to the record of the plea hearing. The district court can augment that record by conducting an evidentiary hearing. The lower federal courts have therefore interpreted the Boykin holding differently than Justice Harlan interpreted it. As the Sixth Circuit explained in Roddy v. Black, 516 F.2d 1380, 1383-84 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975): Boykin requires that no guilty plea be accepted “without an affirmative showing that it was intelligent and voluntary.” Boykin mandates that a conviction based on a guilty plea be reversed unless "the prosecution spread[s] on the record the prerequisites of a valid waiver” of the constitutional rights which a defendant surrenders by pleading guilty. It is good procedure, therefore, for a state judge to conduct a careful inquiry into the defendant’s understanding of the nature and consequences of his plea. A comprehensive on-the-record inquiry into this matter "forestalls the spin-off of collateral proceedings that seek to probe murky memories.” If the discussion between defendant and trial judge at the time of a plea’s acceptance leaves doubt as to whether a plea was in fact voluntary and intelligent, however, a defendant is not automatically entitled to a reversal of his conviction. Rather, in that circumstance if a defendant argues in a post-conviction proceeding that his plea was entered without his consent or without an understanding of the plea’s nature and consequences, Boykin places a burden on the State to prove the contrary. A habeas court may not "presume a waiver of [a defendant’s] federal rights from a silent record.” The State must prove that the defendant’s guilty plea was voluntary and intelligent, and to do so it may introduce evidence extrinsic to the transcript of the plea’s acceptance. In the face of an inadequate transcript at the time of a guilty plea’s acceptance, the State must make a clear and convincing showing that the plea was in fact knowingly and understandingly entered. (Quoting Boykin; footnotes and citations omitted.) If the state makes this showing, it "obviate[s] the necessity of vacating the plea.” Id. at 1384 n. 5 (quoting Todd v. Lockhart, 490 F.2d 626, 628 (8th Cir.1974)). Our own circuit has similarly interpreted the requirements under Boykin in post-conviction proceedings. See McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
This analysis, however, applies only to the second requirement under this court’s interpretation of Faretta — that of a waiver hearing. The state may not rebut a claim that the trial court allowed the defendant to represent himself although the defendant never clearly and unequivocally invoked his right to proceed pro se under the first Faretta requirement. I discuss this issue in more detail below. See infra at pp. 1182-1183.
Judge Hatchett explained that, in using the term "deprivation,” he meant "a claim of denial of counsel," as opposed to "a claim of ineffective assistance of counsel,” which would require a showing of prejudice pursuant to the standard in Strickland. See Crutchfield, 803 F.2d at 1108.
Florida Rule of Criminal Procedure 3.220(d)(1) provides, in pertinent part: "At any time after the filing of the indictment or information the defendant may take the deposition upon oral examination of any person who may have information relevant to the offense charged." As I note, the State’s cases against Stano rested almost exclusively on Stano’s confessions. In my view, Pearl, in order to provide Stano meaningful representation, had to depose the police officers who took Stano’s confessions and anyone else having knowledge of the circumstances under which the confessions were taken. Pearl also had to depose every other witness whose testimony was necessary to establish the corpus delicti of the case.
The majority also suggests that Pearl rendered effective assistance of counsel by “fully appris[ing Stano] of the charges against him" and by informing Stano that he might be sentenced to death. Ante at 1142. This is tantamount to an attorney, on the eve of trial, informing his client that he has done no work to prepare his client's defense and that it is likely that the defendant will be convicted and sentenced for twenty years. Clearly, as shown below, this is not effective assistance of counsel.
Of course, this urging was assistance, but only in part. Pearl, knowing that he could provide Stano no representation at the plea hearing and that he was thus providing Stano no real assistance of counsel, should have told the court — pursuant to his fundamental duty as an officer of the court — not to accept Stano's pleas unless the court (1) informed Stano that he was in fact proceeding pro se; or (2) asked Stano whether he wanted to waive his right to counsel and proceed pro se; and (3) if Stano said yes, ensured on the record that Stano made a valid waiver; or (4) if Stano said no, postponed the hearing.
As I discuss infra note 20, the prosecution failed to present any evidence at the plea hearing that corroborated Stano’s confessions.
The majority characterizes this case as one in which the defendant has preempted his attorney’s strategy. This is not that case. Here Pearl had no strategy to preempt, as he candidly admitted, because he had made no independent analysis of the key issues in the cases. Relying on this mischaracterization, the majority cites Mitchell v. Kemp, 762 F.2d 886 (11th Cir.1985), for the proposition that a defendant cannot claim ineffective assistance of counsel after he preempts his counsel’s strategy. The Mitchell court stated, however, that [w]hen a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made. Nonetheless, "[ijnformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Id. at 889 (citations omitted). In Mitchell, the court held that an attorney who had conducted "an independent evaluation of the usefulness of character witnesses” with the defendant and his father was not acting ineffectively when he did not investigate the case further. The court held that ‘"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.' ” Id. (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066). In this case, Pearl’s failure independently to investigate the admissability of Stano's confessions and the strength of the State’s evidence was not a reasonably supported limitation on investigation; indeed, Pearl admitted that he was unprepared to aid Stano at the plea hearing. Thus, Mitchell is of no help to the majority; instead, Mitchell clarifies Pearl’s investigative duty and highlights his failure to discharge this duty. The other cases the majority cites in support of its contention — that a defendant who preempts his attorney’s strategy cannot later claim ineffective assistance — also relied upon the attorney's independent investigation of key operative facts as a basis for denying the defendant’s claim. See, e.g., Foster v. Strickland, 707 F.2d 1339, 1343-44 (11th Cir.1983) ("[The attorney] did not fail to discover information that was necessary for the competent defense of [the defendant].”); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986) ("A lawyer ... must first evaluate the potential avenues of investigation and then advise the client of their merit. A strategy of silence may be adopted only after a reasonable investigation for mitigating evidence or a reasonable decision that an investigation would be fruitless.” (Citations omitted.) .As I discuss above, see supra at p. 1159, that kind of case involves an attorney error that is not evident on the face of the trial court transcript, rather than an error that does appear on the transcript’s face and thus implicates a protecting duty on the court’s part. In attorney error cases, therefore, the defendant has the burden of proof on the prejudice issue.
Indeed, the record of the plea hearing supports the truth of Pearl’s statement to the court. Pearl told the court that he had not received discovery from the State and had undertaken no independent investigation into the facts. The only information that Pearl had was that Stano thought the State could prove its cases. Pearl knew, moreover, that the State’s cases rested on Stano’s confessions. Again, Pearl had conducted no independent investigation into the confessions. He had not explored whether they could be suppressed; he did not know whether the State had any evidence corroborating the confessions. (Under Florida law, moreover, an uncorroborated "confession alone may not be relied upon to establish the corpus delicti.” Atkins v. Florida, 452 So.2d 529, 532 (Fla.1984); see Mitchell v. State, 45 Fla. 76, 33 So. 1009 (1903)). All Pearl knew was, as he told the court, that Stano thought the confessions were good: "[Stano] assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.” Stano's opinion, without more, obviously did not satisfy Pearl's duty to undertake an independent investigation of the cases and render informed advice. And Pearl knew this; thus, he made his statement to the court. The remainder of the plea hearing supported the accuracy of Pearl's statement and also, given Pearl’s statement, should have alarmed the court. A careful examination of the plea hearing reveals that the prosecutor presented no evidence whatsoever that corroborated Stano's confessions. With respect to the murder of Mary Kathleen Muldoon, the prosecutor submitted the following evidence: (1)a complaint affidavit filed by Lt. Donald Goods of the New Smyrna Beach Police Department, which states the factual circumstances of the murder; (2) a death certificate and medical examiner's report; (3) a police lab report on the bullet removed from Muldoon’s head; (4) a series of photographs, including photos of the crime scene and autopsy photographs showing the bullet and the head wound caused by the bullet; (5) a police offense report describing a witness’ identification of Muldoon’s body at the morgue; and (6) Stano’s confession. The first five items of evidence presented the physical details of the murder. The evidence showed where the murder was committed, demonstrated how it was done, and established that Muldoon was the victim and was indeed murdered. None of this evidence, however, tied Stano to the crime. Only the sixth piece of evidence — Stano’s confession — did that. Without the confession, the prosecutor had no evidence linking Stano to the murder. In short, the prosecutor relied on the confession, standing alone without any corroborating evidence, to establish the corpus delicti. The same is true with respect to the prosecution’s case against Stano for the Bickrest murder. The prosecutor presented the following evidence for that charge: (1) Sgt. Paul Crow’s summary affidavit; (2) a Volusia County Sheriff Department’s report, outlining the facts of the murder; (3) a medical examiner's autopsy report; (4) a series of photographs, including an autopsy photograph of the victim, pictures of the crime scene, and photographs of vegetation and a shoe; and (5) Stano’s confession. Again, the first four items of evidence merely established the- physical details of the crime. None of the items, however, linked Stano to the murder. The last item was Stano’s confession, which provided the sole basis for the corpus delicti in the State’s case against Stano for the Bickrest murder as well.
As I note above, the court does not assume this duty in every case where a defendant rejects the advice of his attorney. If that advice is given competently, and it constitutes effective assistance of counsel, then the defendant has been "informed" as due process requires, and his decision to reject his lawyer's advice triggers no responsibility on the court's part. That case involves no waiver of the defendant's right to assistance of counsel. He has received such assistance, and his decision to proceed with a guilty plea despite his lawyer’s advice does not constitute a waiver of that right. Nor does the court automatically assume this duty in every case where an attorney is ineffective. The circumstances of the case must be such as to give the court notice of the attorney’s ineffectiveness in order to trigger the court’s responsibility to intervene. If the circumstances of the case provide no indication of the attorney's ineffectiveness, then the court's duty to intervene remains untriggered.
As a practical matter, judges rarely allow proceedings to continue once they have notice that an attorney cannot provide effective assistance of counsel. For this reason, Cronic claims, although often raised, hardly ever succeed. Frequently, an attorney informs the court at the commencement of a trial that he is unprepared to proceed and moves for a continuance. The court determines that the attorney’s statement is not credible and denies the continuance. Indeed, in the context of a criminal case, the defense attorney has obvious reason to stall, and an experienced trial judge might well be skeptical of last-minute requests to continue a trial. In the majority of cases, moreover, the trial record supports the judge’s decision: the lawyer provides competent representation at trial. Of course, if subsequent events at trial support the credibility of the lawyer’s initial statement of unpreparedness, the situation may become entirely different. Those events put the judge on notice that the lawyer in fact cannot provide effective assistance, and notice of that fact triggers the judge’s obligation to intervene. If the judge fails to intervene, then the attorney’s ineffectiveness becomes judge error, and the presumption of prejudice attaches. See Cronic, 466 U.S. at 648, 104 S.Ct. at 2039; Powell, 287 U.S. at 45, 53 S.Ct. at 55; Willis, 838 F.2d at 1521-22.
The lawyer, of course, would also tell Stano that he would be subjecting himself to the death penalty at the hands of a judge who had already indicated he would give Stano the death penalty if he were convicted.
The prosecution, moreover, could not prove this element under an objective, reasonable man standard. The decision to plead guilty is a personal one that can be assessed only under a subjective standard. The prosecution would therefore have to call Stano to the witness stand and have him testify that, based on the fully informed lawyer’s advice, he would still have pled guilty. Given that Stano has brought this collateral attack for the express purpose of attacking his guilty pleas, it is very unlikely that he would provide such testimony.
Gerald Eugene STANO, Petitioner-Appellant, Cross-Appellee, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
No. 88-3375.
United States Court of Appeals, Eleventh Circuit.
Jan. 22, 1992.
Mark E. Olive, Atlanta, Ga., for petitioner-appellant, cross-appellee.
Margene A. Roper, Belle Turner, Asst. Attys. Gen., Daytona Beach, Fla., for respondent-appellee, cross-appellant.
Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and JOHNSON, Senior Circuit Judge.
ORDER:
Appellant/cross-appellee moves this court (1) to remand his appeal to the United States District Court for the Middle District of Florida, or (2) to hold proceedings in abeyance pending determination of state remedies. Appellant/cross-appellee asserts that his trial counsel, Howard Pearl, experienced a conflict of interest not known to appellant/cross-appellee until after the district court’s disposition of his petition for writ of habeas corpus. After we reviewed some, but not all, claims appellant/cross-appellee raises on appeal from the denial of his petition for habeas corpus relief, Stano v. Dugger, 921 F.2d 1125 (11th Cir.1991) (en banc), the Florida Supreme Court ruled that defendants who were represented by Howard Pearl are entitled to an evidentiary hearing on this conflict of interest issue in state court, Herring v. State, 580 So.2d 135, 139 (Fla.1991).
We grant appellant/cross-appellee's motion for remand and vacate the judgment of the district court, except as to the portion of the judgment affirmed in Stano v. Dugger, 921 F.2d 1125 (11th Cir.1991) (en banc). We further remand this case to the district court for the Middle District of Florida with the following instructions:
(a) Appellant/cross-appellee shall be offered the opportunity to amend his petition for writ of habeas corpus with the admission of the claim based upon alleged conflict of interest of defense counsel at trial.
(b) If exhaustion of state remedies with respect to this claim is required, the district judge may set a time following exhaustion within which the proposed amendment must be tendered. If exhaustion is not required, the district judge may fix a time after remand within which the proposed amendment shall be tendered.
This court does not pass upon or adjudicate any defenses which the State may wish to assert under Rule 9, Rules Governing Section 2254 Cases, against the claims contemplated by the proposed amendment.
IT IS SO ORDERED.
Although appellant/cross-appellee, in the heading of his motion, asks us to hold proceedings in abeyance pending determination of state remedies, he subsequently, on page 12 of his motion, seeks treatment "similar" to that accorded the petitioner in Quince v. Dugger, No. 86-685-CIV-ORL-19, where we remanded the case to the district court.
Pursuant to a similar order in Quince v. Dugger, No. 86-685-CIV-ORL-19, the United States District Court for the Middle District of Florida, on October 26, 1990, administratively closed the case pending determination of state remedies.
Gerald Eugene STANO, Petitioner-Appellant, v. Robert A. BUTTERWORTH, Harry K. Singletary, Respondents-Appellees.
Nos. 92-2812, 92-3052 and 93-3269.
United States Court of Appeals, Eleventh Circuit.
April 20, 1995.
Mark Evan Olive, Tallahassee, FL, for appellant.
Margene A. Roper, Asst. Atty. Gen., Office of the Atty. Gen., Dept, of Legal Affairs, Daytona Beach, FL, for appellees.
Before ANDERSON, EDMONDSON and CARNES, Circuit Judges.
[OPINION BY CARNES, Circuit Judge: type=majority]
CARNES, Circuit Judge:
Gerald Eugene Stano was convicted and sentenced to death in 1983 for the 1974 murder of Cathy Scharf. The lengthy factual and procedural history of this case is set out in our previous en banc and panel opinions. See Stano v. Dugger, 901 F.2d 898 (11th Cir.1990) (en banc); Stano v. Dugger, 883 F.2d 900 (11th Cir.1989). In that en banc opinion, we remanded the case to the district court for an evidentiary hearing on specified issues. The district court conducted a hearing that lasted ten days. We are indebted to that court for the thoroughness with which it explored the relevant factual issues and for its meticulous findings of fact. A copy of the district court’s order, containing its factfindings, is reproduced as Appendix A hereto.
After the district court had issued its order on remand but before the case had been briefed to this Court, Stano filed a Fed. R.Civ.P. 60(b) motion raising additional but related issues. The district court’s order denying that motion is reproduced as Appendix B hereto.
Stano appeals from the district court’s adverse rulings on the issues we remanded to it, and he also appeals from the court’s denial of his Rule 60(b) motion. We consolidated the two appeals, and for the reasons that follow we affirm the denial of relief in each.
I. STANDARD OF REVIEW
Initially, we address Stano’s assertion that the clearly erroneous standard of review does not apply to the district court’s findings of fact. In support of his contention, Stano cites a portion of our opinion in Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980), cert. denied, 450 U.S. 1001 & 1014, 101 S.Ct. 1709 & 1724, 68 L.Ed.2d 203 & 214 (1981), in which we state, “In passing on the ultimate issue of voluntariness, we may substitute our own judgment even in the absence of a conclusion that the district court’s ruling was clearly erroneous.” Id. at 932. Stano misreads our precedent and misapprehends the limited nature of our review of factfindings. It is clear from the statement itself and certainly from the context of the discussion in Jurek that the statement Stano relies upon was referring to the “ultimate” determination of the voluntariness of a confession, a mixed question of law and fact that is subject to de novo review. See id. Indeed, just before the sentence quoted by Stano, we stated that “We will not disregard or overturn findings of fact made by the district court unless they are clearly erroneous.” Id.
The Supreme Court subsequently clarified the meaning of the clearly erroneous standard of review of a district court’s findings of fact in Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), where it held:
If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
Id. at 573-74, 105 S.Ct. at 1511; see also Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995).
Stano also cites the Jurek opinion for the proposition that we will not defer to the district court’s factfindings based on documentary evidence where those findings do not rest upon credibility evaluations of live witnesses. That is what we held in Jurek, 623 F.2d at 932, but it is no longer good law. Five years after Jurek, the Supreme Court in Anderson squarely held that the clearly erroneous standard of review applies “even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” 470 U.S. at 574, 105 S.Ct. at 1511-12; see also Spaziano, 36 F.3d at 1032.
Accordingly, we apply the clearly erroneous standard of review to the district court’s factfindings — whether those findings are based on witness testimony or on documentary evidence. Moreover, as mandated by the Supreme Court, we will give even “greater deference” to factfindings of the district court that are based on determinations of the credibility of witnesses, as is largely the case here. Anderson, 470 U.S. at 575, 105 S.Ct. at 1512.
As to the denial of Stano’s Rule 60(b) motion, this Court “will overturn a district court’s denial of a motion to set aside a judgment pursuant to Fed.R.Civ.P. 60(b) only if the district court has abused its discretion.” Delaney v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536, 1545 n. 21 (11th Cir.1991).
II. DISCUSSION
We will first address Stano’s appeal from the district court’s denial of habeas relief following its evidentiary hearing on the issues remanded by this Court’s en bane opinion. Then we will discuss his appeal from the district court’s denial of his Rule 60(b) motion.
A. THE REMAND ISSUES
The en banc opinion of this Court remanded four issues to the district court, each of which we will address in turn.
1. The Brady Claim
As stated in the en banc opinion, “Stano has alleged that the prosecution suppressed evidence that there was collusion between [Sergeant Paul] Crow, the police investigator; Donald Jacobson, Stano’s defense attorney during the investigative stage; and Dr. Ann McMillan, the defense psychologist during the investigative stage. The alleged purpose of this collusion was to exploit Stano’s mental vulnerabilities in order to coerce murder confessions, including confessions to the Seharf killing.” 901 F.2d at 899.
The district court made the following findings of fact based on the evidence adduced at the evidentiary hearing: Attorney Jacobson did not tell Crow what Stano had confessed to him until Stano entered his plea agreement with the State’s Attorney’s Office in the Seventh Judicial Circuit of Florida (consisting of Volusia, Flagler, Putnam, and St. Johns Counties). Crow did not ask Jacobson or Warren Walker, an investigator for the defense, for details about any murders or request that they ask Stano for any details. Stano and his parents encouraged Jacobson to obtain a plea agreement for Stano that would avoid a sentence of death. Because Jacobson knew that Stano had committed multiple murders, he arranged a plea agreement with the Seventh Judicial Circuit prosecutor that would prevent Stano from receiving the death penalty for any murders to which he confessed before a plea of guilty was entered and in which the victim’s body was found within the jurisdiction of the Seventh Judicial Circuit. Jacobson permitted Crow to talk to Stano about murders within the scope of the plea agreement in order to comply with the agreement. Jacobson told Stano that he should confess to all the murders in which he left the bodies of the victims within the Seventh Judicial Circuit, because any murders revealed after the plea of guilty was entered would not be covered by the plea agreement and could result in a death sentence. Moreover, Jacobson explained to Stano that because the plea agreement was limited to the Seventh Judicial Circuit, Stano was not to talk about any murders in which a body was left outside that jurisdiction— which would include the murder of Cathy Seharf in Brevard County.
The district court also found that Dr. McMillan did not instruct Crow about how to question Stano, or even talk with Crow about his methods of interrogation, and that there was no evidence that any statements made by Dr. McMillan influenced Crow’s method of interrogating Stano. Crow did not receive a “covert” copy of a July 12, 1992, letter from Jacobson to Stano. Jacobson did not reveal information he had learned from Stano concerning homicides committed outside the Seventh Judicial Circuit beyond the six murders within the scope of the plea agreement and the September 2, 1981, plea of guilty. Crow did not deprive others of contact with Stano. Crow had no intention of writing a book while his investigation of Stano was ongoing, and Crow did not “feed” information to Stano in order to cause Stano to confess to homicides that he did not commit.
Based upon our review of the record, we hold that the district court’s factfindings, which we have summarized in the preceding two paragraphs, are not clearly erroneous. Those findings fully support, indeed compel, the district court’s conclusion that “there was no collusion between Crow, Jacobson and McMillan.” That alone is a sufficient basis upon which to affirm the district court’s rejection of Stano’s Brady claim, because there cannot have been suppression of nonexistent evidence.
The district court went further and held, as an alternative basis for rejecting the Brady claim, that Sergeant Crow, who was a member of the Daytona Beach Police Department in Volusia County, was not part of the Brevard County prosecution team that prosecuted Stano for the Scharf murder. That holding was based upon factfindings that: Crow did not do any investigation for Dean Moxley, the Brevard County prosecutor in the Scharf case; Crow was not under Moxley’s authority or control; Crow did not participate in developing Moxley’s ease for trial; there was no jurisdictional overlap between Brevard County and either Volusia County or the Daytona Beach Police Department regarding the control or direction of the Scharf murder investigation; Crow was used by Moxley merely as a fact witness and source of information for the Scharf investigation; and the Scharf case “was always a Brevard County Sheriffs case and never a joint investigation with any other agency.”
Our review of the record convinces us that the district court’s factfindings about Crow’s relationship to the Scharf murder prosecution team are not clearly erroneous, and thus the factual premise of its alternative holding is sound. The legal premise of the alternative holding is that information known to a police officer who testifies at trial is not imputed to the prosecutor in a different jurisdiction unless that officer is a member of the prosecution team. That may be so, see Stano, 901 F.2d at 906-07 (Edmondson, J., concurring), but we need not decide, because it is enough for present purposes that there was no collusion and thus no suppressed evidence. We affirm on that basis without addressing whether, if there had been collusion, Crow’s knowledge of it would have been imputed to the prosecution.
2. The Henry Claim
Stano has alleged that the trial testimony of C.Z., a jailhouse informant, was in violation of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The district court found no evidentiary support for Stano’s Henry claim and made the following factfindings:
In the present case, there was no evidence that Z. received instructions from the police, from the prosecutors, or from anyone else to do anything whatsoever concerning Stano. There was nothing in the evidence presented to the Court indicating that there was any prearrangement for Z. to obtain anything from Stano. The Court was presented with no evidence indicating that Z. was paid or otherwise rewarded to develop any type of relationship with Stano or to otherwise secure incriminating information. The prosecution did not use Z. to carry out any deliberate and surreptitious interrogation of Stano. Z. was not promised any rewards for any information that he might provide regarding Stano. The prosecution did not request Z. to elicit any information from Stano, and there was no presolicitation of Z. by the prosecution to do anything of any nature concerning Stano. There simply was no evidence that Z. was a .government agent or that Z. in any manner deliberately elicited incriminating statements from Stano.
Based on our review of the record, the district court’s findings are not clearly erroneous. Accordingly, we affirm the denial of habeas relief based on the Henry claim.
3. The Johnson v. Mississippi Claim
In our en banc opinion, we also asked the district court to address Stano’s argument that his sentence should be vacated under Johnson v. Mississippi 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), because two of the convictions relied upon in his sentencing had been invalidated by a panel of this Court. Stano, 901 F.2d at 905. However, the opinion invalidating those two convictions, Stano v. Dugger, 889 F.2d 962 (11th Cir.1989), was subsequently vacated, Stano v. Dugger, 897 F.2d 1067 (11th Cir.1990), and the case heard by this Court en banc. As the district court correctly observed, the en banc Court determined that Stano’s Sixth Amendment attacks on the two convictions were without merit and affirmed the district court’s denial of habeas corpus relief as to those convictions. Stano v. Dugger, 921 F.2d 1125, 1154 (11th Cir.), cert. denied, 502 U.S. 835, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). Because the panel opinion invalidating the two convictions has subsequently been overturned by this Court en banc, we hold that Stano’s Johnson v. Mississippi claim was properly rejected.
4. Voluntariness of Stano’s Confessions
Although there is some question as to whether our en bane opinion specifically directed the district court to determine whether Stano’s confessions to the Scharf murder were voluntary, the evidentiary hearing did include this issue and the district court made findings of fact and entered a holding concerning it. Regarding the March 1981 confession, the district court found that Stano waived his rights after being advised of them and that neither Crow nor the other questioner coached Stano or edited the tape recording of the interview. As for the August 1982 confessions, the court found that Stano waived his rights and that there was no evidence that the waiver of rights form was filled out before it was given to Stano. The court also dismissed the testimony of Martin Markowitz, who suggested that tapes of Stano’s interviews indicated his responses were coerced or involuntary, as “speculative, unreliable and beyond the competency of this witness....” The district court determined that “there was no coercion imposed by Crow, Jacobson, or McMillan, together or individually, on Stano with regard to the confessions” and rejected Stano’s claim to the contrary. After reviewing the record, we agree with the district court.
B. STANO’S RULE 60(B) MOTION
The district court conducted its evidentiary hearing in January and March of 1992 and issued its order denying relief on June 10, 1992. In June of 1993, a book entitled Blind Fury was published. Blind Fury was writ ten by the mother of an Assistant Florida Attorney General who had participated in the litigation of this case, and includes a forward written by Sergeant Crow. It is a paperback, tabloid-type book which purports to chronicle the investigation of Stano and his murder convictions. As the State aptly observed in its brief, Blind Fury is “obviously without a scholarly bent” and “has the intellectual appeal of a mosquito bite.” The book does contain numerous references to Crow, and Stano contends that it “was written with Paul Crow’s substantial assistance and active participation.”
Stano moved for relief from judgment under Fed.R.Civ.P. 60(b) based on the publication of Blind Fury. In his motion to the district court, Stano argued that the publication of the book undermined the credibility of Sergeant Crow, that it provided substantive support for Stano’s constitutional claims, and that the attorney general’s office improperly failed to disclose the fact that the book was being written. The district court denied Stano’s Rule 60(b) motion, finding that Stano’s allegations did not justify relief from its earlier. order denying habeas relief. Stano contends that the district court should have held an evidentiary hearing regarding the impact of Blind Fury on the district court’s assessment of Crow’s credibility. For the reasons that follow, we reject Stano’s contention and affirm the order of the district court denying his Rule 60(b) motion.
Stano argues that Crow’s participation in the publication of Blind Fury undermines the credibility of his testimony at the evidentiary hearing where he stated that he was not involved in writing a book about Stano and that he was only interested in authoring an educational treatise for use by law enforcement. The district court rejected Stano’s assertion that the subsequent publication of Blind Fury should change its evaluation of Crow’s credibility and the substance of his testimony. The district court noted that Crow testified at the hearing that he did not want to write a book until the Stano investigation was over, and that the investigation had been concluded. Moreover, Crow did not author the book; he only wrote the forward and assisted the author. The court determined that there was no “reason why Mr. Crow would now be foreclosed from authoring a book of his own.”
We agree with the district court that the issue of whether Crow’s investigation and testimony was tainted by his desire to write a book was “thoroughly explored” at the evidentiary hearing held before Blind Fury was published, and that Stano’s allegations “demonstrate no facts which would undermine the previous findings of the Court.” The publication of Blind Fury in 1993 does not demonstrate that Crow was motivated in 1981 and 1982 by ulterior motives to coerce Stano to make confessions to crimes that he did not commit. In addition, the fact that the book was published (a year and a half after he testified) does not undermine Crow’s credibility at the hearing; the same district court judge whose job it was to evaluate the credibility of witnesses at the evidentiary hearing has explicitly determined that publication of the book does not affect his credibility assessments. We therefore hold that the district court was not required to hold an evidentiary hearing regarding the book Blind Fury and that the court did not abuse its discretion in denying Stano’s Rule 60(b) motion.
In addition to arguing that the publication of Blind Fury affected Crow’s credibility, Stano asserted two other grounds in support of his Rule 60(b) motion to the district court: that the book provided substantive support for his habeas claims and that the attorney general’s office acted improperly in failing to disclose to the district court that the book was being written. Stano apparently has abandoned these two arguments in his appeal to this Court. In any event, the district court’s order implicitly rejected these two arguments when it found that Stano’s “arguments are without merit” and that his allegations “demonstrate no facts which would undermine the previous findings of the Court.” We see no error in those conclusions.
III. CONCLUSION
We AFFIRM the district court’s denial of habeas corpus relief and AFFIRM its denial of Stano’s Rule 60(b) motion.
APPENDIX A
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION Gerald Eugene Stano, Petitioner, v. Thomas L. Barton, Superintendent, Florida State Prison; Harry K. Singletary, Secretary, Florida Department of Corrections, Respondents.
Case No. 87-753-CIV-ORL-19
ORDER
An evidentiary hearing was held in this case from January 22, 1992 through January 31, 1992 and from March 5, 1992 through March 9, 1992, pursuant to the remand from the Eleventh Circuit Court of Appeals in Stano v. Dugger, 901 F.2d 898 (11th Cir.1990). Upon consideration of the evidence and the law, the Court enters its findings of fact and conclusions of law as follows:
I. BRADY CLAIM
A FINDINGS OF FACT ON CLAIM OF COLLUSION AND COERCION
(1) STANO’S CONFESSION TO THE MURDER OF MARY CAROL MAHER ON APRIL 1, 1980
James William Gadberry, Jr., now a patrolman with the Daytona Beach Police Department, testified that on April 1, 1980, he “broke” the Maher ease by developing the lead that solved it. Gadberry had just arrested Gerald Eugene Stano (“Stano”) on that date for the aggravated battery of D.H. in Daytona Beach, Florida. Stano had been brought to the Daytona Beach Police Department for questioning by Gadberry, who was then a detective, and Detective Richard Zachary. During the course of this questioning, Gadberry determined that the wounds inflicted on D.H. were similar to the wounds on the body of a homicide victim under investigation by his department, Mary Carol Maher. Gadberry left Stano in the interview room and went into the office of Captain Marvin Eugene Powers where he announced with enthusiasm that he had solved the murder of Mary Carol Maher. Gadberry stated “We’ve got the guy responsible for the Maher murder,” or words to like effect and also announced that the murderer was then in their interview room. This questioning of Stano by Gadberry occurred before any interview of Stano by Sgt. Paul B. Crow of the Daytona Beach Police Department.
Since Sgt. Crow was in charge of the Maher murder investigation, Captain Powers directed Crow to join Gadberry in the interview room to further question the suspect. Gadberry excitedly advised Crow that the wounds in the H. case and the Maher case were similar, particularly in the thigh areas, and that he, Gadberry, had solved the Maher ease. Crow joined Gadberry in the interview room where Stano was questioned by both police officers.
During the course of this interview, Crow showed Stano a color studio photograph of two Maher sisters who were similar in.appearance, and Stano immediately pointed to Mary Carol Maher as his victim. When Stano was asked to describe Mary Carol Maher, he stood up to give her height and weight by gesture and described her as being tall and athletic. Stano’s description of the victim was accurate. On further questioning, Stano gave a correct description of the clothes Mary Carol Maher had been wearing. When Crow said Maher was wearing slacks and a shirt, Stano corrected him and identified her as wearing a white shirt with animal designs and jeans. Stano also described how he murdered Maher, including stabbing her in the chest, thigh and back. His description of the wounds matched the autopsy report except that stab wounds in the back had not been included in the medical report on Ms. Maher. Stano stated that he had stabbed the victim in the chest as hard as he could. The autopsy reflected that her sternum had been broken. Stano further described the road which he traveled with her body, how he wrapped her in a foam padding or ticking, and how he left the body in an area near the airport, placing palm branches over it.
During this interview, Crow did not suggest to Stano what clothes the victim was wearing or her wounds or how the body appeared when it was located. Neither officer showed Stano police reports, the autopsy report, or any photographs except the one of the two sisters referenced earlier. (See transcript and recording of confession, Petitioner’s 4 and 149.)
During this questioning of Stano, Gadberry walked in and out of the interview room. Captain Powers testified that Gadberry came out of the interview room several times and advised him that Stano was guilty of the Maher murder. The interview of Stano on this date lasted approximately one and one-half hours. Captain Powers then directed Crow and Gadberry to have Stano take them to the scene where Stano claimed to have left the body to see if Stano could corroborate his confession. The three men traveled in a marked police car with Officers Willie Azma and Grady Jackson following in a separate vehicle.
While the testimony is in conflict as to what occurred on the trip to the scene, the Court finds that Sgt. Crow did not show Stano the way to the place where Mary Carol Maher’s body had been found. Stano directed Crow, who was driving the vehicle, to make the appropriate turns, and after he had directed Crow to a place where three roads diverged in an area which was approximately fifty percent a dump site, Stano picked the least traveled of the three roads to follow. The men got out of the two vehicles in which they were travelling, and Stano directed them on foot some distance from the cars to the exact location where the body had been found. Stano cried as he pointed to the place where he had left Mary Carol Maher’s body and described how he had placed branches over her body before leaving.
On their return from the trip to the site where Maher’s body had been found, Gadberry advised Sgt. Marvin J. White of the Daytona Beach Police Department that he had solved the Maher case, and the officers who had gone to the scene also reported to Captain Powers that Stano had led them right to the place where the body had been found • and had cried. Gadberry did not state any concern about the confession or the trip to the scene of the crime at the time of these events.
In the days following Stano’s initial' statement on April 1, 1980, Sgt. Crow undertook further investigation. He had a second autopsy of Mary Carol Maher performed. He and the medical coroner went to the funeral home where the coroner examined the body and found for the first time the two stab wounds in the back of Mary Carol Maher which Stano had described and which the medical examiner had missed in his first autopsy and medical report.
Crow asked Detective Lewis to check with jurisdictions south of Daytona Beach to see if the body of a woman had been located along 1-4 or 1-95. Lewis investigated and reported to Crow that no evidence on this alleged murder victim had been obtained.
As the result of the confession of Stano on April 1, 1980, Crow did a complete records check of the Daytona Beach boardwalk area for missing persons, homicides, and any crimes involving the name Stano. Crow came up with several incident reports, and from these reports prepared a chart compiling this information. From this information Crow learned that several women had accused Stano of assault and battery after picking them up at the boardwalk area. Crow compiled reports of crimes or missing persons concerning the following women: Ramona Neal, Debra Jackson, D.H., Mary Carol Maher, Hazel Allen and Patricia Courtney.
Crow then contacted Dave Hudson of the Volusia County Sheriffs Department for the names of other possible crime victims. From Hudson he obtained information concerning homicide victims, including Ms. Nancy Heard, whose body had been found three miles north of the Holiday Inn boardwalk, and Ms. Linda Hamilton, who had been reported missing from the boardwalk area and found on the beach in New Smyrna.
In addition, on April 1, 1980, Crow called Stano’s mother and father who went to the Daytona Beach Police Department. Grow advised them that Stano had confessed to murder and asked for their input on his background and personality, which they provided.
Crow further researched Stano’s background and found that in other jurisdictions of Florida as well as in Pennsylvania and New Jersey there were homicides involving a similar modus operandi to that of the homicide of Mary Carol Maher with such things as branches covering the female victims when their bodies were found. Crow also sent Stano’s car to the crime lab for examination and visited Stano’s room, but found no viable evidence.
(2) THE RELATIONSHIP BETWEEN CROW, JACOBSON AND McMILLAN
Meanwhile on April I, 1980, Stano called Don Jacobson from the jail and made a confession to him. Jacobson, an experienced criminal defense attorney who has handled several capital cases and who had previously represented Stano, called Stano’s parents to advise them that he would like to represent Stano. Mr. and Mrs. Stano initially retained Jacobson. Then a few days later, they terminated this relationship and instead hired Michael Lambert to represent their son. When they were unable to pay Lambert’s fee, they begged Jacobson to take the defense of Petitioner Stano again.
Jacobson entered an initial notice of appearance on April 9, 1980 to defend Stano against the charge of the murder of Mary Carol Maher. Because Michael Lambert was the attorney of record, Jacobson entered a second appearance on behalf of Stano on May 9,1980. He was officially appointed as one of Stano’s attorneys on May 15, 1980.
Jacobson interviewed Stano several times, during which Stano confessed to the six murders in Volusia County which eventually became the basis for entry of a plea of guflty on September 2, 1981 described below. Stano confessed to Jacobson that he had committed other murders as well. Jacobson obtained court orders to hire a private investigator, Warren Walker, to go to the cities or areas where Stano said he had murdered people or left bodies in order to determine if Stano’s confessions were “real”; in other words, Jacobson wanted to determine if Stano had truly committed these murders or was falsely confessing. (Petitioner’s 117, 118, 121 and 122). Jacobson also obtained authorization to hire Ann McMillan, a psychologist, to obtain background information and to perform psychological tests on Stano. (See Petitioner’s 116, 119). From the information he gathered through his own investigation, Jacobson determined to his satisfaction that Stano had in fact committed the murders which he confessed to committing to his attorney. Jacobson testified that before he allowed Stano to enter a plea of guilty incident to the six Volusia County murders, he had ruled out the factual innocence of Stano through Jacobson’s own, independent investigation.
Until Don Jacobson as Stano’s attorney and Larry Nixon as the prosecuting attorney in the Circuit Court for the Seventh Judicial Circuit entered an agreement which would allow Stano to plead guilty and receive a sentence of.life imprisonment for any murder he committed of a victim whose body was located in the Seventh Judicial Circuit, Jacobson described his relationship with Paul Crow as one of adversaries. Although Crow and Jacobson had known each other professionally since 1966, they were not personal friends and had associated with each other only in the context of their work within their respective professions. Jacobson testified that he and Crow not only did not work together, but also that they were “enemies” until Jacobson and Nixon entered a deal to spare the life of Jacobson’s client, Stano, as to the murder victims located within the Seventh Judicial Circuit. Until then, Jacobson did not tell Crow what Stano had confessed to Jacobson. Instead Jacobson would talk to Crow or have Warren Walker, his investigator, talk to Crow to try to find out how much Crow had learned concerning the various murders that Stano already had confessed to committing to Jacobson.
Crow testified that he told Don Jacobson and Warren Walker from time to time in response to their inquiries the information that Crow was learning about Stano but that he never asked Jacobson or Walker for details and never requested that they ask Stano for details. During the course of his investigation of Stano, Crow told Jacobson that he did not think Stano had killed just one or two persons. Jacobson would respond to Crow, “Prove it.” or “Show me.” Jacobson did not indicate agreement with Crow or acquiescence in what Crow said. Jacobson did not give Crow any indication that Jacobson viewed Stano as a multiple or serial killer.
In April or May of 1980, Jacobson began making contact with Larry Nixon, the prosecuting attorney, in an effort to obtain a plea agreement which would spare his client’s life. Sometime around May of 1980, he approached Nixon and advised Nixon that he had “interesting information” but that he would want something in exchange for it. In Jacobson’s professional opinion, Nixon had a strong case against Stano in the Maher and Vann Haddocks murders, and he felt that the death penalty for Stano was likely. Jacobson testified that in Stano’s confessions to him, Stano knew facts only the killer of these women would know.
Stano from the very outset had urged Jacobson to obtain for him a plea agreement that would spare his life because he feared the death penalty. Stano as well as his parents had expressed their desire on several occasions for Jacobson to try to negotiate a plea agreement on behalf of Stano. Because Jacobson knew that Stano was involved in more than one murder, he continued to pursue the concept of a plea agreement with Larry Nixon, and a deal was struck in May of 1980 in which Nixon agreed to give use immunity to Stano as to any murders to which Stano confessed prior to entry of a plea of guilty and if the bodies of the victims were found in the Seventh Judicial Circuit. Jacobson and Nixon both testified that this agreement meant Stano would not receive the death penalty for any murder of victims whose bodies were found in the Seventh Judicial Circuit to which he confessed prior to entry of his guilty plea before Judge Foxman.
The agreement between Nixon and Jacobson pertaining to this plea of guilty and sentence was limited to the Seventh Judicial Circuit, Nixon’s jurisdiction. Jacobson made clear to Stano on several occasions, and he testified that Stano understood, that if a body-had not been left within the Seventh Judicial Circuit, Stano was not to talk about it to the authorities. Jacobson instructed Stano not to talk to anyone about the bodies of Stano’s victims which were located outside the Seventh Judicial Circuit, and particularly since Stano had confessed by this time to Jacobson to the Scharf murder in Brevard County as well as to other murders outside the Seventh Judicial Circuit, Jacobson advised Stano that these other murders were outside the agreement that he had made on behalf of Stano with Mr. Nixon and were therefore “taboo”, not to be mentioned or discussed by Stano with anyone. Jacobson explained use immunity to Stano in May of 1980 and reiterated to him in several subsequent conversations that he should not discuss any murder in which the body of the victim was found outside the jurisdiction of the Seventh Judicial Circuit, including but not limited to the murder of Cathy Lee Scharf, because it was not covered by the plea agreement with Nixon. In addition, Jacobson explained to Stano that he should confess to all murders he had committed in the Seventh Judicial Circuit and left the bodies of the victims there because if Stano was found guilty of a murder after the plea of guilty was entered and he was sentenced by Judge Foxman, Stano would probably “get the electric chair” for that crime.
Jacobson also determined at this time that because of the circumstances of the case, because he knew that bodies would be located within several jurisdictions located within the Seventh Judicial Circuit and because he knew that there would be arguments among these jurisdictions over their respective authorities, that he would like Crow to be the clearing house for all of the cases to which Stano confessed pursuant to the plea agreement Jacobson had negotiated with Nixon. In this manner Jacobson could work through Crow without having to deal with other police officers and agencies in the Seventh Judicial Circuit.
(a) Meetings between Crow, McMillan and Jacobson
It was approximately seventeen months from the date this plea agreement was struck until the entry of Stano’s plea of guilty before the state trial court on September 2, 1981. Against this background, there were a series of three meetings involving Crow, McMillan and Jacobson, as well as others, which were the subject of evidence before this Court.
First, around May 7,1980, Warren Walker requested a meeting with Crow to look at Stano’s car at Jacobson’s office. On this date, Crow had obtained Stano’s statement about the murder of Mary Carol Maher and his statement about leaving another body on an interstate highway median. Crow went to Jacobson’s office where he saw Walker and Jacobson and first met the psychologist, Dr. Ann McMillan, whom Jacobson had earlier hired to get background information and to conduct psychological testing on Stano. At this meeting, Crow learned that McMillan would examine Stano the next day. Crow talked to the people present for about thirty minutes, then searched Stano’s car and left. While on the premises, Crow told Warren Walker that he thought Stano was involved in more than the murder of Mary Carol Maher and that he had reason to believe that Stano had been involved in the Ramona Neal case and the Toni Vann Haddocks ease.
Next, Crow saw Jacobson in Deland at the jail annex probably around May 8, 1980. This was an unplanned encounter. Jacobson invited Crow to join him and Dr. McMillan at the Holiday House restaurant for lunch which lasted about one hour. Again, this meeting with Crow was not prearranged. During lunch, Crow was advised for the first time by Jacobson and McMillan that there was a problem with a test that McMillan had administered to Stano. Jacobson and McMillan suggested that Crow also ask Stano to take the test again to the best of his knowledge. Crow testified that no diagnosis of Stano was given to him by McMillan, and although McMillan and Jacobson discussed theories, Crow did not agree with what they were saying. Crow chose to remain silent rather than become involved in the conversation.
The third meeting occurred approximately one week after this meeting in Deland at the Holiday House, sometime after May 9th but before June 3rd, 1980. Within a week following the meeting at the Deland Holiday House, Larry Nixon told Crow that there was an agreement between Nixon and Jacobson and that Crow should cooperate with Jacobson and tell Jacobson exactly what Crow knew about any murders he thought that Stano may have committed to see if Stano would give information. Jacobson called Crow shortly thereafter to meet with him. This meeting was at Ann McMillan’s office, and on Crow’s arrival McMillan, Jacobson, and Stano’s mother and father were present.
At this meeting, Crow identified to Jacobson and the others present the possible victims whom he suspected were linked to Stano and a general description of where the bodies were found: the girl in the blue and white bikini whose body had been found in Tomoka State Park, the girl whose body had been found by the power lines in Tomoka State Park, the girl who had been found on the beach at New Smyrna Beach, and the girl whose body Stano said he had left on an Interstate highway. Crow did not tell Jacobson or any of the other persons present the details of these four homicides. He told them just enough information so that they could identify the murder victim to Stano and get information from Stano in order to fulfill the agreement Jacobson and Stano had struck with Nixon. As a result of this third meeting, Jacobson was to talk to Stano and was then to provide information on the murders in the Seventh Judicial Circuit in which Stano was involved.
At no time did Crow ask Mr. or Mrs. Stano or any of the other persons present to obtain information for his investigation from Stano. Jacobson, however, asked Stano’s parents to talk to their son to urge him to be truthful. At this time, in an effort to comply with the provisions of the plea agreement he had negotiated for his client with Larry Nixon, Jacobson consented to Stano talking to Paul Crow about murders for which Stano was responsible in the Seventh Judicial Circuit.
(b) McMillan’s Lack of Influence on Crow’s Interrogation Techniques
From the evidence presented, the Court finds that at no time did Dr. McMillan give instruction to Sgt. Crow on how to interrogate Stano nor did Crow ever discuss with McMillan how to question Stano. When Crow first met McMillan, he had already obtained at least one confession from Stano to a murder Stano had committed. Further, Crow was a seasoned investigator who had attended the F.B.I. Academy and had extensive instruction in courses such as psychological profiles, personality dysfunctions and serial killers.
The source of Petitioner’s contention that McMillan instructed Crow as to how he should interrogate Stano appears to have come from McMillan herself and McMillan’s subsequent statements to news reporters. McMillan testified that on one of the three times noted above when she met Crow, she understood that Jacobson told her to discuss with Crow how to question Stano. She testified that at the time she felt it was ludicrous for her to tell a trained police officer how to conduct an investigation and felt uncomfortable with Jacobson’s alleged suggestion. Since she had read something about Ted Bundy, McMillan stated that she said in response to Jacobson’s direction, “Feed on his ego”, and also that Stano would “lay down false trails”. She testified that she was very general and not specific in her statement to Crow and that she knew at the time that Crow already had a confession from Stano. Further, she testified that she had no knowledge of any interrogation methods used by Crow. She knew at the time that Crow was a well trained and highly regarded police officer and stated that she had no idea why anyone would ask her to tell Crow how to interrogate Stano.
If this conversation occurred at all, and both Jacobson and Crow deny that it did, this simplistic statement by Dr. McMillan did not rise to the level of McMillan instructing Crow on how to interrogate Stano. “Feeding” on the ego of a suspect is a well known method of interrogation by law enforcement which was neither invented by McMillan nor revealed by her to Crow for the first time. Further, there was no evidence that this interrogation method was employed by Crow.
Finally, the record reflects that Crow knew long before he met McMillan that Stano did not immediately confess to crimes he committed and “laid down false trails”, ie. in Stano’s claim that he did not associate with black individuals when asked about Toni Vann Haddocks. At best, McMillan appears to have misperceived a comment by Don Jacobson during the course of one of the three encounters she had with Crow. In any event, her statement that Stano would “lay down false trials”,- and that Crow should “feed on his ego,” if made, was either not heard by Jacobson and Crow or, if heard, was viewed as so utterly insignificant as to be unworthy of note.
McMillan’s role was limited and strictly defined. She had been hired by Jacobson for the purposes of administering a psychological test to Stano and gathering background information as noted above. She was not trained in police interrogation methods. There was no evidence that any statement she made had any effect on how Crow interrogated Stano. Crow testified that he did not discuss with McMillan ways to interrogate Stano, the manner in which to pose questions, the areas to cover or how to interrogate a suspect in multiple murders. By the time McMillan met Crow, Crow was far ahead of McMillan in his investigation of Stano and in his training on how to interview criminal suspects. Crow did not need, or receive, any assistance from Dr. McMillan in conducting interrogation incident to his investigation of Stano.
(c) No “Covert” Copy of Jacobson’s Letter Delivered to Crow
Finally, the evidence is undisputed that Crow never received a “covert” copy of a letter from Jacobson to Stano dated July 12, 1982 (Petitioner’s 36 and 132). Crow did not see and did not discuss this letter or its contents with anyone until this issue was raised by Stano in his post trial habeas petitions.
Further, Crow never told anyone that “he was Stano’s best source.” Jacobson testified that he meant in this letter by the statement “your best source is still Sergeant Paul Crow” that Crow was the best source for Stano to find out if there was use immunity for any murder he committed in addition to the six Volusia County murders to which he confessed before he entered his plea of guilty on September 2, 1981. Jacobson testified that he had intended to send, but did not send, a copy of this letter to Crow to underscore that there was no promise of life imprisonment as to any other murders Stano confessed to committing and to make Crow understand that Stano should be asking for immunity. The Court finds that Paul Crow had no knowledge of this letter at any time prior to being questioned about it incident to Petitioner’s allegations in this case.
(3) CONFESSION TO MURDER OF TONI VANN HADDOCKS
Meanwhile, Toni Vann Haddocks had been listed as a missing person from Daytona Beach, Florida. Around April 6, 1980, her body had been found in Volusia County in an area where Stano used to live and which was near the residence of Stano’s brother. Stano did not have a good relationship with his brother at the time. On April 20, 1980, at the request of Detective Lehman of the Volusia County Sheriffs Department, Crow went to the scene in Volusia County where the portions of the body had been found. Crow felt from the scene where the body was found that there were similarities between the murder of Toni Vann Haddocks and the murder of Mary Carol Maher, particularly the fact that branches of small trees had been used to cover the bodies of both victims. Further, Crow was advised that the University of Florida Anthropology Department had determined that a possible weapon used in the Vann Haddocks murder was a can opener, a weapon which had been used by Stano in the D.H. case. (Respondent’s 7).
Stano had denied knowledge of Toni Vann Haddocks in his initial interview with Gadberry and Crow on April 1,1980, stating that he did not associate with blacks. However, when Crow sent Detective Lewis, a man who is similar in physical appearance to Stano, to an area known as “Ridgewood” which is frequented by black prostitutes, in order to obtain information, the black prostitutes at first thought Lewis was Stano. Several of these prostitutes stated they knew Stano from previous associations with him. When Lewis reported this information to Crow, Crow realized that this information contradicted what Stano had stated earlier" on April 1st.
Between April 1, 1980 and May 9, 1980, Crow stated that he saw Stano five or less times. On these occasions he tried to get background information on Stano and to maintain rapport. Crow and Detective Lehman of the Volusia County Sheriffs office, which had jurisdiction over the Vann Haddocks investigation, decided that Crow should talk to Stano about the Vann Haddocks’ murder as an experiment to see if Stano would talk to Crow based in part on this rapport.
On May 9, 1980, Crow talked to Stano about the Vann Haddocks crime after Stano was given his rights and signed a waiver form (Appendix 73 to Petition for Writ of Habeas Corpus). Stano confessed to this crime (See also Petitioner’s 158). The body of this victim had been scattered by animals. Stano knew details concerning the victim which the police did not know. For instance, when Crow asked Stano if he knew something about the victim which the police would not know, Stano stated that Vann Haddocks had a cast on her arm. When Crow asked Stano if it was a sling cast, Stano stated that it was an arm cast not a sling cast.
On May 19, 1980, and June 3, 1980, Crow and Lehman interviewed Stano, telling Stano, inter alia, that other jurisdictions wanted him for murders which it was suspected he had committed in such other jurisdictions, and that it was not likely that these jurisdictions would be interested in Stano if Stano was doing a term of life in prison in Florida. They also advised Stano that they did not have enough information to keep Stano in Florida. Crow testified, particularly with reference to the plea agreement that had been entered by Stano through Don Jacobson with Larry Nixon, that they as police officers were not misstating the case when they said that they were working with Stano in order to obtain a confession in the Vann Haddocks case. Crow testified that in this interview, Lehman- acted as the lead interrogator and that Crow disagreed with Lehman’s theory that Stano had multiple personalities. (See Petitioner’s 149).
(4) CONFESSIONS IN MARCH OF 1981 TO MURDERS OF HEARD, HAMILTON, NEAL, AND JANE DOE
Between May 19, 1980 and March of 1981, Crow continued to talk to Stano and to see him from time to time in jail although their conversations were not about cases. Although Stano called Crow on the telephone, and wrote and called others including Ann McMillan, Crow had only Stano’s confessions to the Maher and Vann Haddocks murders during this period of time in spite of the fact that he had previously told Jacobson of his suspicions concerning four additional murder victims in Volusia County.
Around March 6, 1981, Stano indicated that he wanted to talk about other murders in Volusia County. Crow contacted Jacobson and Nixon, and a court order was issued, with the knowledge of Don Jacobson, to allow Detective Hudson of .the Volusia County Sheriffs Department and Sgt. Crow of the Daytona Beach Police Department to bring Stano from the Volusia County jail to the Daytona Beach Police Department for questioning. This transportation occurred on March 12,1981. (Petitioner’s 21, 22, 87 and 128).
On March 12, 1981 Crow advised Stano of his Miranda rights, and Stano executed a waiver form. Crow and Hudson then questioned Stano concerning the four cases for which he had been transported to Daytona Beach as part of the plea agreement to discuss and which were referenced in Stano’s March 6,1981 letter: the Nancy Heard, Jane Doe, Ramona Neal, and Linda Hamilton murders. Stano gave additional details of each murder beyond what Crow had related to Jacobson and Stano’s father in their last meeting. Crow was not familiar with many of the details of the cases. The investigators took four confessions from Stano, one after another, concerning Hamilton, Neal, Jane Doe and Heard in that order. These confessions were transcribed and later signed by Stano after review on March 17,1981. (Petitioner’s 168(a)-(d)).
Although Stano was. asked questions concerning the four murders and bodies found in Volusia County pursuant to the plea agreement between him and his attorney, Don Jacobson, on the one hand and Larry Nixon on the other, and although he had been admonished by his attorney not to reveal the murders he had committed outside the Seventh Judicial Circuit, in the course of trying to relate facts and reconstruct the route he took with reference to the Jane Doe murder, Stano became confused over whether he had left the body in a median on Interstate 95 or Interstate 4. In the course of discussing the Jane Doe murder and trying to retrace his route and the events of the murder, Stano “went off on a tangent” and volunteered information about Titusville and taking the girl to a skating rink, stabbing her and putting her in a dried ditch, then throydng her purse out of his car. Crow noted to himself that these facts did not fit the facts of the case about which Stano was being questioned although no name for this victim was given. Stano did not mention the name of Scharf, and Crow did not feel at this time that Stano was making a confession to a murder. Crow made a notation of these facts given by Stano on his notes concerning the murder of Susan Bickrest, a victim whose name was supplied to Crow by Dave Hudson.
During these confessions on March 12, 1981, Stano gave additional details about the four murders. Neither Hudson nor Crow gave Stano details or case report files. Neither man coached Stano or edited sections of the tape recording of his confessions. Detec-five Hudson had the files on each of the four cases which he did not give to Sgt. Crow.
On March 12, Stano was returned to the Volusia County jail, and the investigators made plans to have Stano take them the next day, March 13, 1981, to the sites where two bodies had been found.
On March 13, 1981, Hudson, Crow and Stano drove to Tomoka State Park, an area comprising thousands of acres of everglades-like vegetation. Here Stano first directed the officers to the location where he had left the body of Ramona Neal. Crow did not know where this body had been found. Stano pointed out the site after directing the officers to make the proper turns. Hudson confirmed to Crow that' the place Stano identified was in fact the place where the Neal body had been found.
Next, Stano directed the officers to drive approximately two miles away in the area of power lines where Stano identified the place where he had left the second body, that of Nancy Heard. Stano referred to this area as Cobb’s Corner. Crow did not know the area or where the body had been found and could not see the power lines until Stano directed the officers to the exact location where he had left the body. Hudson again confirmed to Crow that Stano had identified the place where this body had been found.
On September 2, 1981, S.tano entered a plea of guilty to the Volusia County murders of Maher, Vann Haddocks and Heard, and in exchange was sentenced to life in prison after a hearing to determine his competency. The Hamilton, Neal and Jane Doe cases were not prosecuted. Respondent’s 17(a). At no time did Jacobson reveal to the authorities information he had learned from his client regarding the homicides Stano had committed outside the Seventh Judicial Circuit beyond these six murders encompassed in this September 2, 1981 plea of guilty.
(5) CONTACT OF STANO BY OTHERS THROUGH PAUL CROW
There is no evidence that Stano was deprived from contact with others by Sgt. Crow.
Stano was housed at a variety of prisons in addition to the Daytona Beach jail. For instance he was housed at the Volusia County jail at Deland, the Seminole County jail and at Florida State Prison. He was also subject to visits and interrogations by persons who had no relationship to Paul Crow. In particular, Stano’s father, Eugene Stano, testified that he saw Stano whenever he wished, whether Stano was in Starke or Daytona Beach, and that he saw his son several times in Crow’s office. He was at no time prohibited from seeing his son.
Even when Stano was brought back to the Daytona Beach jail pursuant to court order in August of 1982, Stano was not deprived of contact with other persons. The state court had directed in its order that the Sheriff of Volusia County and the Chief of the Daytona Beach Police Department must keep Stano “safely held in close custody.” (Petitioner’s 37). While safety precautions were implemented as noted later in this opinion to route visits to Stano through Crow while Stano was at the Daytona Beach jail in order to prevent threats on Stano’s life, for Stano’s security, comfort and safety, and to channel, not prevent, visits to Stano, the Court finds that there is no evidence that Sgt. Crow prevented anyone from seeing Stano.
(6) THE BOOK(S)
It is not surprising in view of the nature of the crimes which were being investigated with reference to Stano that several people contemplated writing books about the events which were rocking the small Florida east coast beach community, and farther that rumors concerning future books and potential wealth to be derived therefrom abounded in this community.
Several people contemplated writing books. Stano himself wanted to write a book and wrote several people, including his attorney Donald Jacobson, concerning this possible venture. There was evidence that Stano’s parents initially wanted to write a book until they were inundated by news articles. Kathy Kelly, a staff writer of some 29 years with the Daytona Beach News Journal, went so far as to submit several chapters of her proposed book to a literary agent, but she testified that she has not pursued this venture further. Terrell Walter E., a free lance writer and journalist for over 25 years, also began work on a book in which he hoped to focus on Crow’s investigation and other investigations of Stano. E. had a literary agent, the Foley Agency in New York City, but his work remained unfinished after he suffered a brain aneurysm in April of 1982. The subsequent brain surgery ended his hope of writing a book.
In contrast, Donald Jacobson testified that he at no time had an interest in writing a book and never took any action toward authorship of one. However, both Donald Jacobson and Kathy Kelly testified that there were many rumors that Crow was going to write a book and that both of them mentioned the rumors to Crow on occasion. Both Kelly and Jacobson stated that Crow never indicated to them that he was writing a book, although they knew he had been approached by many people to do so. Kelly testified that when she told Crow about her book, Crow did not suggest that they author a book jointly. Jacobson stated that the rumors about Crow writing a book became a form of a joke. When people would see Crow, they would greet him with “Well, how is the book going?” as a humorous form of greeting.
After hearing the testimony of the witnesses on this issue, it appears to this Court that the purported knowledge of some witnesses as to an alleged book Crow intended to write is based upon rumor and not fact. For instance, Kenneth James Morrison testified that he was in a room while Crow and Stano were talking about a book but that he did not know if they were serious or joking. He has no clear memory of the time of this conversation or what was said but testified that it was “a well known fact” among the investigators working on the case that a book was going to be written. He further testified that it was “almost a joke”.
The Court finds that testimony given by Paul Crow on the subject of his potential authorship of a book is the most credible evidence provided by any of the witnesses in the case on this subject. Sgt. Crow testified that the concept of a book has at all times been and remains only a possibility in his mind. In any event, he felt that any book in which he made any contribution while his investigation was ongoing would harm his investigation, and he did not intend to pursue the concept of writing a book until his investigation had been completely ended. He testified that rumors abounded in his office that he should write a book and that he could get rich from it. ■ Further, many people contacted him about the possibility of writing a book. He took no steps to make this a reality and rebuffed all inquiries except for one from Terrell E..
In 1981 or 1982, Terrell E. was one of the persons who contacted Crow about writing a book. Crow thought E.’s idea was interesting and talked with E. about a possible collaboration in the future. However, when Crow further read some of E.’s work, Crow decided that he did not like E.’s style, which he felt was sensational with sexual overtones and of a tabloid approach. Crow’s concept of any book that he might participate in writing in the future would be limited to an informational and educational book for law enforcement academies to use in training officers how to investigate a multi-jurisdictional case. Crow felt that there was no treatise at the time to explain to law enforcement agencies how to deal with conflicts among jurisdictions investigating cases which, from his own experience with the Stano ease, had led to confusion and frustration.
The initial contact of Crow by E. concerning the possibility of jointly writing a book in the future was only that, an initial overture to discuss the possibility of a future joint effort. Crow did not talk to E.’s agent, had no literary agent himself, and did not authorize E. to discuss the possibility of a book with E.’s agent. Crow did not enter any agreement with E., and the idea of a joint book was not further pursued by Crow past this initial overture. Eeker’s inquiry had no effect on the way Crow investigated Stano’s crimes. The initial solicitation of Crow by E. was rejected after Crow determined that E.’s work was inaccurate, sensational and glamorized.
While Terrell E. did not appear to know about Crow’s evaluation of E.’s work, his testimony basically echoes that given by Crow. E. stated that he discussed writing a book with Crow after Stano had entered a guilty plea to the six Volusia County murders and he thought the cases involving Stano were over. E. testified that neither he nor Crow would be comfortable writing a book about an ongoing case. E. further testified that it was his intent to write a book with or without Crow, and that he had solicited Crow’s input because he felt Crow would add “color” to Eeker’s book. E. did not testify to any additional contact with Crow after E.’s initial overture to Crow, although E. did confer with his literary agent about a possible book. E. did not pursue the book concept further for himself or anyone else after his brain aneurysm.
This contact by Mr. E. concerning the possibilities of writing a book in the future was the only one Crow did not immediately reject.
When he testified before the Court in 1992, Paul Crow stated that he still thought from time to time about writing a book, although he has not taken any steps to make this idea come to fruition and has not prepared for publishing, or published, anything, either directly or indirectly, alone or with anyone else, concerning Stano.
While Crow testified that there was a great deal of office talk about the potential of writing a book and that many people told him “You should write a book — you’ll get rich!”, he took no steps to author a book from the time he first met Stano to the present date. His brief conversation with Mr. E. about the potential of writing a book together was quickly dispelled by Crow’s own decision concerning the inappropriateness of E.’s style, and in any event was a contemplation which was not to be pursued until Crow’s work investigating the crimes of Mr. Stano had been concluded. This brief discussion was not pursued further. Crow’s consideration of the idea of writing a book sometime in the future has remained the contemplation of a person who finds himself, because of unique historical events, in a position to make a scholarly contribution to law enforcement at some appropriate time in the future. That time has not yet arrived. There is no evidence that this thought had any impact whatsoever on Crow’s investigation of Stano.
From the evidence presented, the Court finds that Crow did not discuss jointly writing a book with Stano or intend that he and Stano would share in the proceeds of a book. The Court finds that Paul Crow did not state to anyone that “the more confessions Stano made, the better Crow’s book would be” or words to like effect. Petitioner’s assertions to the contrary are without merit.
(7) INVESTIGATION AND PROSECUTION OF STANO FOR THE MURDER OF CATHY LEE SCHARF
During Stano’s confessions on March 12, 1981 as part of his plea agreement with the State Attorney in the Seventh Judicial Circuit, and as noted earlier while Stano was trying to piece together his route in the Jane Doe murder where the victim was left in the median of an interstate highway, Stano mentioned facts concerning his route which appeared to be inconsistent with the information Crow had ascertained as to the six homicides under investigation in Volusia County. Shortly after March 12, 1981, Crow called Captain DeWitt of the Brevard County Sheriffs Department to ask if he had any information concerning a homicide from the sparse facts that Stano had related. Crow did not have a name of a victim. Captain DeWitt stated he recalled nothing about any homicide victim in Brevard County which might be consistent with such facts.
Sometime later, Crow asked Kathy Kelly, a reporter with the local newspaper in Daytona Beach, if she had heard of any case that might fit the information. Kelly researched the matter and sent Crow a copy of an October 6, 1977 news article. Crow then wrote the State Attorney for Brevard County, Douglas Cheshire, Jr., in the hope that his office would commence an investigation, since Crow felt there had been a lack of response from the Sheriffs office.
Approximately two months later, in April or May of 1981, an Assistant State Attorney from Brevard County called and told Crow that they would be in touch with him in the future. Thereafter, Lt. James B. of the Brevard County Sheriffs Department called Crow to advise that Detective Johnny L. Manis of his office would be investigating the case. Some time elapsed, and when Crow was not contacted, Crow then wrote Manis a letter dated November 20, 1981, some seven to eight months after Crow had originally called Captain DeWitt. (Petitioner’s 34).
Manis stated that he talked to Crow by telephone after receiving Crow’s letter. However, up to December of 1981, Manis testified he did not do much work on the Scharf case except to talk to Crow by telephone. While Manis testified that during a telephone conversation with Crow in November or December of 1981, Crow advised that he had been given some information by Stano, Crow did not state he had a confession from Stano as to this murder.
On January 20, 1982, Manis went to the Florida State Prison with Mr. B. to talk to Stano. Manis introduced himself and talked to Stano for approximately two hours after first advising Stano of his rights. Manis testified that he and Stano talked about many things, ranging from putting in a sprinkler system to the Scharf case. Manis was attempting to build his own rapport with Stano and intended to see Stano again. Since Manis was the homicide investigator in the jurisdiction charged with prosecuting the case, Manis did not invite Crow to join him.
In the course of this interview, Stano told Manis that he did not recall any crimes in Brevard County and did not recall telling Crow about any. Manis testified that Stano did not deny the crime. According to Manis’ testimony, Stano basically stated that he did not remember the incident, and the bottom line was that Stano did not admit to committing the murder.
When Manis returned to Brevard County, he contacted Sgt. Crow and told him that Stano had not admitted to the murder of a victim found in Brevard County. Crow responded that Stano would only talk to persons if he liked them and stated that he, Crow, would try to get back over to talk to Stano at sometime in the future at the Florida State Prison.
Between January 20, 1982 and April 23, 1982, Manis talked to Crow by telephone approximately two to three times. Manis noted that Crow was extremely busy. During one of these telephone calls to Crow, Manis told Crow that he wanted to go to Florida State Prison again to interview Stano with reference to two murder victims, Sandra Dubose and Cathy Lee Scharf. Manis testified that he requested that Crow ask Stano if Stano would talk to Manis because Manis felt Crow had rapport with Stano.
Thereafter, Crow drove to the prison, and Manis flew there with his supervisor, Mr. B.. Because Manis was late in arriving at the Florida State Prison, he met Crow as Crow was leaving the prison. Crow advised Manis that Stano insisted on being transported back to Volusia County before Stano would talk further to anyone about any crime. Crow advised Manis that he was going to try to obtain authority to have Stano transported back to Daytona Beach and that he would let Manis know if that could be accomplished.
Pursuant to an order of the state court, Stano was returned from the Florida State’ Prison in Starke to the Daytona Beach jail during the week of August 10,1982 (Petitioner’s 38). Since the Daytona Beach jail is not a maximum security facility and since many jurisdictions were seeking to have their representatives question Stano, a procedure to route all requests for interviews of Stano through Crow was devised for security as well as for the protection of Stano. After conferring with Crow by telephone, Manis advised Crow that he would be coming to the Daytona Beach jail on August 11, 1982.
Manis testified that he had been keeping Dean Moxley, the assistant prosecuting attorney in Brevard County within the Eighteenth Judicial Circuit, advised of his actions and that Moxley had suggested that Manis try to talk to Stano again. Therefore Manis drove to the Daytona Beach Police Department where he spent four to five minutes with Crow in Crow’s office. Manis stated that he originally went there to see when he could talk to Stano, and when he arrived Crow stated that Manis could talk to Stano “right now”. Manis testified he was caught by surprise' because he did not have a tape recorder, his file on the case, or even a brief case and was not prepared to talk to Stano. Nevertheless, he followed Crow to an interview room where Stano was waiting, and Crow introduced Manis to Stano. Crow gave Stano his Miranda rights, and Stano filled out the waiver form in the presence of Manis.
Crow then asked Stano if he remembered Manis,' and Stano responded “Yes”. Crow left to get coffee for Manis and Stano and came back in two to three minutes. Crow asked Manis and Stano if they wanted anything else. Stano answered that he would like to go for a jog, and everyone laughed. Manis then began his interview, and Crow stood there for a few minutes before he left Manis and’Stano alone for the interview. Manis alone asked Stano questions. Stano discussed both the Scharf and the Dubose murders with Manis. After the interview, Manis returned to Brevard County.
Manis returned from Brevard County to Crow’s office at the Daytona Beach Police Department the next day on August 12,1982 and told Crow that he wanted to record Stano’s testimony. Crow advised Manis that several other agents were waiting, to interview Stano and that Stano was fairly booked for the day. Nevertheless, Crow eventually took Manis to the interview room where Stano was waiting. At this interview, Manis had his Scharf file, his tape recorder, his Dubose file, and a waiver of rights form. Manis read the Miranda rights to Stano. Stano waived his rights. This is also reflected in the recording of this interview. Petitioner’s 149. Manis' conducted the interview, and Crow came in and out of the room during the interview from time to time. Crow was not •there for all of the interview, nor did he ask Stano any questions duriifg the interview.
Manis identified as a true and correct transcript of Stano’s confession on August 12, 1982, an exhibit marked Respondent’s 30. This Court noted, without satisfactory explanation from counsel, that in the transcript of this interview which was provided to the appellate court in Petitioner’s appendix and which was admitted into the record before this Court as Respondent’s 31, that the name of Manis as the questioner in the original transcript has been eliminated and the name of Paul Crow has been inserted as the questioner in the place of Mr. Manis. Thus, it appears that someone has tampered with this document presented to both this court and the appellate court.
The evidence is undisputed that Paul Crow did not participate by asking questions in either interview of Stano on August 11, 1982 or August 12,1982, and that during the taped confession and interview of Stano on August 12, 1982, Manis is the only person who asked Stano questions. (Respondent’s 149). While Crow was present very briefly during the interviews on both dates, Manis was the person conducting the questioning.
During the interview on August 12, 1982, Manis took a statement from Stano concerning the Scharf murder first and then a statement concerning the Dubose murder next. (Petitioner’s 189). The information provided by Stano concerning these confessions was given by Manis to John Dean Moxley, Jr., the Assistant State Attorney in charge of prosecuting the first degree murder cases of Scharf in Brevard County and of Dubose in Seminole County for the Eighteenth Judicial Circuit.
From a second point of view, Dean Moxley testified that he was involved in two prosecutions of Gerald Stano involving jury trials, the Scharf case prosecution in September of 1983 which resulted in a mistrial and the Scharf case prosecution in December of 1988 which is the subject of the instant case.
Sometime in 1982, Manis talked to Moxley about the letter from Crow implicating Stano in a murder in Brevard County. In April of 1982, Moxley had Crow’s letter, the information from Manis and B. concerning their visit to the Florida State Prison when Stano stated he did not recall the Seharf incident, and certain crime scene facts that appeared to fit facts that Stano had given to Crow. Moxley decided to present the ease to the grand jury in 1982 to encourage the Brevard County Sheriff to spend more time and effort investigating the case. Moxley felt that there was probable cause to indict Stano, but there was sentiment in Brevard County that since Stano was subject to incarceration for life as a result of the Volusia County cases, additional effort should not be devoted to his prosecution for a murder in Brevard County. Therefore, the presentation of information to the initial grand jury by Moxley was designed to learn if the grand jury would recommend further investigation of the case. The grand jury did recommend that the Sheriff further investigate the case.
In March of 1988, Moxley made a second presentation to the Brevard County grand jury. This time he presented as witnesses officers Crow, Hudson, Manis, and Kendrick and his Brevard County State’s Attorney investigator, George Dirshka. The grand jury issued an indictment as to Stano for the murder of Ms. Seharf.
Moxley testified concerning the extensive investigation that he conducted himself and directed others to conduct with reference to the prosecution of the Seharf ease. For instance, he interviewed witnesses, attended two depositions of Paul Crow, and talked to many witnesses in the Maher case because he felt that it involved similar fact evidence under the Williams Rule. Moxley also sent investigators to other jurisdictions to examine their files in an effort to gain other similar fact evidence.
In addition, Moxley personally compared the facts contained in the confession of Stano to Manis with the crime scene and the route which Stano stated to Manis that he had taken. Moxley determined that the description of the body being covered with palm ■fronds was consistent with the several palm fronds placed on top of Seharfs body when she was found. Stano’s statement concerning her Indian jewelry matched the ring with the Indian head that she was wearing when her body was found. Stano’s statement concerning Seharfs clothing, her age, and her general description matched that of the victim.
Further, Moxley determined that Stano’s statement of the circumstances of his travel and the route that he took were consistent with the details of the murder. Moxley personally drove the route given by Stano. Stano mentioned an orange grove and a canal which Moxley located as Stano had described them. In addition, since the time of the murder, the Kennedy Space Center Preserve had been established, and the highway, which formerly had been called “A1A” in 1974 at the time of the murder, was designated State Road 3 at the Kennedy Space Center in 1983 at the time Moxley drove the route. Moxley therefore obtained an old map of the area in order to cheek the facts concerning the route given by Stano. Moxley found that the route given by Stano in his confession in 1982 to Manis was consistent with the facts of the route as they existed in 1974 at the time of the murder although the demarcations along the route in 1983 had been renamed.
Moxley utilized Crow as a fact witness at some proceedings which he handled in Brevard County incident to the Scharf case. At Moxley’s request, as noted above, Crow testified before the second Brevard County grand jury which issued the indictment of Stano in the Scharf case. Crow was also subpoenaed to testify in both trials and was deposed. While Moxley used the statement that Stano made to Crow in March of 1981 in each trial, Moxley testified that without the confessions made on August 11 and August 12, 1982 by Stano to Manis, he would not prosecute the case because, while he had probable cause for the issuance of an indictment, he did not feel that he would have proof beyond a reasonable doubt with only the statement of Stano to Crow. Moxley stated that the confessions of Stano to Manis on August 11 and August 12,1982 were the most important confessions in his prosecution of Stano for the Scharf murder. Moxley testified that he did not consider the statement to Crow made by Stano in March of 1981 as the “lynch pin” of his ease.
Moxley had no information that Stano had been promised life imprisonment for revealing the Scharf murder, and at no time did he have to go through Paul Crow to talk to Stano. Further on two occasions Stano himself confessed to Moxley that he had murdered Scharf and Dubose and offered to plead guilty to both murders in exchange for a promise of life imprisonment.
(8) RELATIONSHIP OF CROW AND GADBERRY
The Court has been troubled with the fact that Officer Gadberry, who took credit for solving the Mary Carol Maher murder in April of 1980, did not indicate his view that Stano did not know the facts of the crime or his concern that Stano had been fed information by Crow or that Stano was factually innocent of this crime until several years later. It therefore appears that a statement of facts on the relationship between Crow and Gadberry should be made.
Paul B. Crow, now Chief of the Daytona Beach Police Department, began in 1966 as a patrolman with this law enforcement agency. At the time of the initial confession by Stano in April of 1980, Crow was a sergeant in the Daytona Beach Police Department, was Gadberry’s supervisor on the Detective Bureau, and reported to Captain Powers.
When Officer James W. Gadberry, Jr. was asked on the witness stand whether Crow was his supervisor at the Detective Bureau at the Daytona Beach Police Department during 1980, Gadberry bristled and answered that Crow was his “unwritten” supervisor. However, both Captain Powers and Crow testified readily when asked the same question that Crow was Gadberry’s supervisor and the person to whom Gadberry reported.
From further evidence it appears that during the 1980’s Gadberry had been reprimanded by Crow and subsequently demoted from detective to patrolman. Captain Powers had charged Sergeant Crow with the responsibility of monitoring case control systems within the police department. Crow stated that during this time he found over 100 of Gadberry’s assigned cases had not been investigated by the department’s required due date and had not been worked for nine to ten months. Crow had a conference with Gadberry and gave the latter two weeks to comply with the police department’s procedures. After this deadline had passed, Crow reviewed Gadberry’s work and found that some of the cases still had not been investigated. When he questioned Gadberry concerning these cases, Gadberry responded that he had been on vacation and had not been able to get to them. Crow investigated and found that Gadberry had not been on vacation and further found that Gadberry had left eases unattended in his desk. Crow reported the incident to Captain Powers. In addition, at approximately the same time, Gadberry was deemed to have improperly handled the investigation of the death of a well-known sports figure, Lewis McSwain, and Crow was assigned to complete this investigation. As a result of these events, Captain Powers suspended Gadberry for one day and transferred Gadberry out of the Detective Bureau, placing him back in the patrol division.
Gadberry had also been criticized for his investigation in the D.H. case. The police report reflects that H. defended herself against Stano, received puncture wounds with a can opener and stab wounds with a knife, and that Stano tried to pour muriatic acid on her. Gadberry noted on the H. report that H. had “superficial wounds”. (Petitioner’s 148) When Lt. John N. Power and his partner Officer O’Brien saw H. in the course of their duties for the Daytona Beach Police Department, she showed them her wounds which were still oozing. They also learned in this conversation that the suspect’s car, license tag and description were available to the police. These police officers then went back to the police station and contacted Gadberry to discuss the casé. After determining that Gadberry was not going to take appropriate action in the case, the police officers made a request to their supervisor, Sgt. Crow, that if Gadberry was not going to conduct the investigation into the H. case that they wished to be assigned the H. case to complete the investigation. As a result of their complaint, Crow talked to Gadberry about the H. case. Shortly thereafter, Gadberry had Stano arrested on April 1, 1980 and brought into the Daytona Beach Police Department where Stano made his first confession as noted earlier.
Captain Powers observed that while Gadberry did not appear to be resentful when Powers initially directed Crow to enter the interview room with Gadberry to question Stano on April 1, 1980, and thereafter when Powers ordered both officers to accompany each other with two backup officers and Stano to see if Stano could locate the site where the Maher body had been found, Powers noticed that Gadberry became resentful toward Crow when the rumors began to flow in the Daytona Beach Police Department that Crow would be writing a book about this experience. Further, while Gadberry testi.fied that he was not for or against the death penalty, that it did not contradict his religious beliefs, and that he held no strong views one way or the other, Captain Powers testified that Gadberry had told Powers that Gadberry was definitely opposed to the death penalty.
Finally, Dean Moxley testified that on July 29, 1983 he interviewed Gadberry about the H. and Maher cases in the course of his trial preparation for the prosecution of Stano in the Scharf murder. Gadberry did not make any statement to Moxley to-the effect that Stano was innocent,, or that he questioned Crow’s interview techniques, or that Crow had led Stano to the place where Mary Carol Maher’s body had been found. Moxley further testified that Gadberry told him during this interview that the odor of Mary Carol Maher’s body was still at the site when Gadberry and Crow visited it with Stano. Gadberry, in contrast, denied that he had ever been contacted by Moxley.
While some of these statements are not material to the issues in this ease, they reflect that Gadberr/s testimony conflicts in part with the testimony of several witnesses and further help to explain why Gadberry has given evidence which is in conflict with the testimony of other witnesses.
In any event, as knowledgeable and experienced police investigators testified during the evidentiary hearing before the Court, most suspects do not tell the truth the first time they are interrogated. Giving • a suspect some information is a proper interrogation technique. It is not inappropriate to tell a suspect details to refresh the suspect’s memory, particularly if he is confessing to many crimes, because details of a crime to a suspect can run together.
It is the finding of this Court after listening to the evidence and observing the demeanor of the witnesses, that Sgt. Crow did not feed information to Stano and thus cause Stano to confess to crimes which he did not commit as contended by Officer Gadberry.
(9) THE PROSECUTION TEAM
The concurring opinion on remand requests a determination whether Detective Paul Crow was “part of the prosecution team in the Scharf case” and whether he acted under the authority of the Brevard County Prosecutor, Dean Moxley. Since this Court has found that there was no collusion or coercion as alleged by Stano, the issue whether Paul Crow of the Daytona Beach Police Department in Volusia County was part of the prosecution team in a jurisdiction outside his own, that of Brevard County, may not be necessary to this opinion. However, since evidence was presented in this trial court on the issue, and the appellate court has indicated its interest, the Court enters its findings of fact as follows.
After Stano acknowledged his responsibility to the six murders within the jurisdiction of Volusia County and entered his plea of guilty in September of 1981, Stano went to prison, and the Volusia County cases were concluded. However, Stano continued to call and write a variety of persons, including but not limited to his former attorney Donald Jacobson, Kathy Kelly and Paul Crow. Donald Jacobson cautioned 'Stano both before and after the conclusion of the six murder cases in Volusia County that his agreement concerning confessing to murders in Volusia County in exchange for life imprisonment had ended on September 2, 1981 when he entered his plea of guilty, and that he should not confess to any other murders unless he first received immunity. Jacobson knew, because of Stano’s confessions to him and from his own investigation, that Stano was responsible for the murders of more than the six women in Volusia County.
The murders to which Stano confessed and the factual circumstances of each often involved different law enforcement agencies and their investigations. It is the custom among law enforcement agencies that the agency which has jurisdiction over the territory where the body of a homicide victim is found will take jurisdiction of the case for purposes of prosecution. However, when a victim resides in and is reported missing in one jurisdiction, and the body is found within the jurisdiction of another agency, it is a common practice for the jurisdiction having responsibility for the prosecution of the murder, i.e. the jurisdiction where the body is found, to request information from other jurisdictions in the course of gathering facts and evidence concerning the case. This is for a variety of reasons, not the least of which is to save the cost and expense of sending investigators from one jurisdiction into another jurisdiction to do work which could be easily accomplished by the jurisdiction receiving the request for information.
Therefore, if one jurisdiction is asked for information from another jurisdiction, the second jurisdiction will try to provide the information to the requesting agency. This does not necessarily make the investigation joint. The jurisdiction receiving the request is obtaining evidence or information in a specifically designated'sphere, even though if assistance is provided to the requesting jurisdiction, persons from that other agency may be required to testify as to what was done by them when the requesting agency proceeds with the trial of the ease.
The testimony was without conflict that Sgt. Crow was not part of the Brevard County prosecution team of Dean Moxley. Moxley testified that Crow did no investigation for Moxley and that the Scharf homicide was a Brevard County case from the date on which her remains were found, January 19, 1974, until conclusion of the second trial of Stano in Brevard County in December of 1983 for her murder. Moxley testified that Crow was not under Moxley’s authority or control and that Crow had no role in developing Moxley’s ease for trial. Moxley requested information from Crow as well as from many other persons, and he specifically kept his investigation and trial preparation with reference to the charges against Stano for the murder of Cathy Scharf “self-contained”. There was no jurisdictional overlap between Brevard County and either Volusia County or the Daytona Beach Police Department with reference to control or direction of the Scharf investigation. While Moxley asked Volusia County and the Daytona Beach Police Department for information, including copies of records and witness interviews, Sgt. Crow was used by Moxley solely as a fact witness and as a source of information on other cases.
Evidence was presented on the history of the Scharf murder investigation. James A. McDonald, Jr. was the Brevard County Sheriffs Deputy called to the scene in 1974 where hunters found the body of Scharf on the Cape Kennedy Preserve inside the Brevard County line. At the time he was not aware of a missing person’s report on Scharf in Volusia County. He undertook the investigation of the murder of this young female, including but not limited to background research, interview of witnesses, investigation of her clothing and jewelry, and investigation of missing person’s reports. He was able to identify the victim as Cathy Lee Scharf who lived in Volusia County, and McDonald contacted Lt. Ouellette of the Daytona Beach Police Department to request that representatives of this agency go the last places where Scharf had been seen and also talk to her associates to obtain any information concerning the victim.
Ouellette directed Detective Susan Nix and one or two others under his supervision in the Daytona Beach Police Department to obtain this information for McDonald. McDonald testified that Nix was not an active investigator for him. He had several telephone conversations with Detective Nix, and she as well as others from the Daytona Beach Police Department helped him gather information. However, Lt. Ouellette was McDonald’s primary contact at the Daytona Beach Police Department and the. person with whom McDonald spoke the most at that agency.
McDonald stated that in this early stage of the investigation, the Scharf case was not considered a joint investigation between Brevard County and the Daytona Beach Police Department. The case was always a Brevard County Sheriffs case and never a joint investigation with any other agency.
In the course of attempting to gain more information concerning the Scharf murder, McDonald had his Brevard County Sheriffs crime lab make an intelligence bulletin. The crime lab had no authority to determine if an investigation was joint or not. This intelligence report was a way to seek information concerning the victim, and the intelligence reports were sent to any jurisdictions that might possibly have information on the victim. When a bulletin was sent to another agency, the crime lab automatically listed in the bulletin the name of the Brevard County Sheriffs Department and the agency to whom it was sending the bulletin as well. Thus one bulletin could be sent to many jurisdictions which might have contact with the victim, and the crime lab would caption the bulletin with the name of the Brevard County Sheriff and the name of the jurisdiction receiving the bulletin. The crime lab would insert the name of the agency to whom it was sending the bulletin so that the bulletin would be posted in that agency’s offices to solicit information.
After the Scharf murder was not resolved in 1974 and 1975, the case lay dormant, and little if any further activity with reference to it occurred until Johnny Manis reactivated the investigation of the Scharf murder as a follow up to Sgt. Crow’s inquiry in 1981 concerning a murder victim in Brevard County. Manis, then a Detective with the Brevard County Sheriffs Department, testified that Sgt. Crow had no responsibility to gather evidence in the Scharf case and that there was no jurisdictional overlap between Brevard and Volusia Counties. Since the Scharf body was found in Brevard County, that agency had jurisdiction of the investigation of the Scharf murder. Manis testified that he did not give Sgt. Crow any information that Crow could use to question Stano concerning Scharf and that the only thing Sgt. Crow told Manis on how to question Stano was that if Stano did not like the interviewer, Stano would not talk to him.
The procedures utilized by Dean Moxley and Detective Manis in investigating the Scharf case are not unlike the procedures followed in the investigation of other victims whose bodies were found in jurisdictions outside of the Daytona Beach Police Department. Crow acted in large part as a conduit or channel of information to other agencies because the Daytona Beach Police Department did not have the personnel or the resources to conduct investigations of murders in multiple jurisdictions outside its own jurisdiction. While Crow did investigate the murders committed within the jurisdiction of his own Daytona Beach Police Department and to some extent assisted the investigation of murders within the jurisdiction of the Volusia County Sheriff’s Department, Crow primarily passed along pieces of information Stano gave to other agencies and would try to encourage Stano to talk to representatives of other agencies about crimes in their respective jurisdictions. ■
With reference to the questions posed in the concurring opinion as to the “prosecution team”, the Court finds as follows:
1. There was no collusion between Crow, Jacobson and McMillan, and therefore by implication, and by his direct testimony, Moxley was unaware of any collusion.
2. Crow did not work for Moxley.
3. Crow was not under the control or authority of Moxley.
4.Crow had no significant role in developing the Seharf murder case for trial once he informed Manis of Stano’s statement concerning a victim in Brevard County.
While as to the six murders in Volusia County which were part of Stano’s plea agreement it could be said that there was a jurisdictional overlap and that Paul Crow was a member of Larry Nixon’s prosecution team for the Seventh Judicial Circuit, these cases are distinguishable from the prosecution of Stano for the murder of Cathy Lee Seharf in a separate jurisdiction, Brevard County.
In the Volusia County cases, Sgt. Crow of the Daytona Beach Police Department was responsible for the Maher murder investigation, Detective Lehman of the Volusia County Sheriffs Department was responsible for the Toni Vann Haddocks’ murder investigation, and Detective Hudson of the Volusia County Sheriffs Department was responsible for the murder investigations of Heard, Hamilton, Doe and Neal and also the Haddocks case when Lehman left the Sheriffs office. Nevertheless, Larry Nixon headed the prosecution team within the Seventh Judicial Circuit as to these six murders, and Sgt. Crow obtained information concerning these murders from Stano and others. Don Jacobson, Stano’s attorney in these Volusia County cases, testified that he concurred that Sgt. Crow should be designated as the person to obtain information concerning these murders in Volusia County after Stano had been given immunity and a promise of life imprisonment in exchange for his plea of guilty to the murders of those victims whose bodies were disinterred in the Seventh Judicial Circuit as a result of the information Stano provided.
BRADY CLAIM
B. CONCLUSIONS OF LAW
The Eleventh Circuit remanded this claim to this Court for an evidentiary hearing to resolve disputed facts with respect to whether the alleged evidence of collusion and coercion was’ suppressed by the prosecution. From the factual findings of the Court discussed above, Stano’s Brady claim must fail.
A Brady violation occurs under the following circumstances: (1) the prosecution suppressed evidence; (2) the evidence suppressed was favorable to the defendant or exculpatory; and (8) the evidence suppressed was material to the issues at trial. United States v. Burroughs, 830 F.2d 1574, 1577-1578 (11th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). In the instant case, as discussed above, there was no collusion between Crow, Jacobson and McMillan. Not only was there no collusion, but also Moxley, by implication and by his own direct testimony, was unaware of any collusion. Additionally, there was no coercion imposed by Crow, Jacobson, or McMillan, together or individually, on Stano with regard to the confessions, and the confessions were not tainted. The Court finds that there was no evidence of collusion or of coercion that could have been suppressed by the prosecution. Since the Court is unable to conclude that there was any evidence suppressed by the prosecution, there was no Brady violation.
Moreover, the Eleventh Circuit has determined that “Brady and its progeny apply to evidence possessed by a district’s prosecution team, which includes both investigative and prosecutorial personnel. Brady, then, applies only to information possessed by the prosecutor or anyone over whom he has authority.” United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.1989), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989) (citation omitted) (quotation omitted). Crow did not work for and was not under the control or authority of Moxley and was not otherwise answerable to Moxley. Crow did not have a significant role in developing the Scharf murder case for trial once he informed Manis of Stano’s statement with regard to a victim in Brevard County. Therefore, Crow was not an agent of Moxley. In the event that there was any evidence favorable to Stano’s contentions with regard to Crow’s activities, such evidence was not, as required by Brady, in the possession of the prosecution. Crow’s knowledge was not imputable to Moxley. Hence, Crow was not a part or a member of the “prosecution team” in the Scharf case, and Brady is not applicable. See Meros, 866 F.2d at 1309.
In the present case, there has been no violation of Brady since the Court finds that there was no collusion or coercion between, by, or among Crow, McMillan, and Jacobson and that Crow was not a part of the prosecution team. The evidence presented by Stano on the Brady claim is insufficient to support habeas relief.
II. HENRY CLAIM
A FINDINGS OF FACT
In April of 1983, the State Attorney’s office for the Eighteenth Judicial Circuit of Florida was advised that C.Z. would agree to plead guilty to a charge of the second degree murder of Richard Lee Hunt and to assist the State in the prosecution of his co-defendants charged with this murder. On April 15,1983, the State Attorney, Mr. Douglas Cheshire, Jr., and others traveled to Florida State Prison to interview Z. about becoming a witness in the Hunt murder case. Z. indicated to Cheshire that he wanted his classification changed and a reduction in his sentence. After discussion, Cheshire, Joe Mitchell, Z.’s attorney, and Z. agreed that Z. would enter a plea of guilty to a charge of murder in the second degree of Richard Lee Hunt and receive a sixty year sentence of incarceration instead of the death penalty on this charge. In addition Z. would receive a reduction to sixty years of incarceration on the sentence he was currently serving for other crimes, all sentences to be served concurrently. Z. also agreed to testify against his co-defendants in the Hunt case.
On April 26, 1983, Mr. Dean Moxley, as Assistant State Attorney for the Eighteenth Judicial Circuit, interviewed C.Z. at Florida State Prison. Only the case involving Richard Lee Hunt was discussed at this time, and nothing was discussed which related in any manner to Gerald Eugene Stano. Z. agreed to enter the plea agreement described above and was polygraphed subsequently at the Florida State Prison at the direction of Moxley. When Moxley interviewed Z. on April 26, 1983 at the Florida State Prison, a tape recording of this conversation was made and became part of the plea agreement in the Richard Lee Hunt case.
Thereafter, Z. was returned from Florida State Prison to the Brevard County jail and put in an isolation cell called the “shower cell”. Z. testified that he did not ask for this cell and that he did not know why he was put there. However, it was the same cell in which he had been placed when he was previously in the Brevard County jail. Stano was also in the Brevard County jail during this time although not in Z.’s cell.
Z. testified that he was in the Brevard County jail for approximately three to five months and was returned to the Florida State Prison before Christmas of 1983. Z. entered his guilty plea to the murder of Richard Lee Hunt on May 13, 1983 and was sentenced in October of 1983 in that case. During the time that he was in the Brevard County jail, he was in the exercise yard approximately five times.
There is no evidence that there was any promise from Moxley or anyone else to Z. of leniency in exchange for his testimony or information about crimes other than the murder of Richard Lee Hunt until the telephone call from Joe Mitchell, Z.’s attorney, to Moxley in the fall of 1983 described below. Until then Moxley’s promises to Z. related solely to the Hunt murder ease and are embodied in the plea agreement and transcript of the interview. There is no evidence that Z. was directed by Moxley or Cheshire or any person to get statements for the state from Stano or from any other inmate.
Further, Moxley did not direct that Z. and Stano be put close together in the jail. When Stano was moved from the Brevard County jail and transported to the Seminole County jail on May 12,1983 in response to an order of the state court, Moxley requested that Z. be moved to the shower cell for his security “when Stano is moved”, meaning when Stano was taken to the Seminole County jail. Respondent’s 34. After Z. entered his plea of guilty in the Hunt case in Brevard County on May 13, 1983, Z. was moved into the shower cell at the Brevard County jail. Stano was in the Seminole County jail during this time. At the time of this move, there had been no conversation between Z. and Moxley about Mr. Stano.
On July 14, 1983, Stano’s counsel caused Stano to be transferred back to the Brevard County jail from the Seminole County jail, and in this month Mr. Stano and Mr. Z. had the conversation in the exercise yard during which Stano confessed to committing the murder of Cathy Lee Scharf. Initially, Z. did not tell anyone about Stano’s confession to him because Z. thought Stano would be convicted. After Stano’s first trial resulted in a mistrial in September of 1983, Z. told his attorney, Joe Mitchell, about Stano’s confession. Mitchell then contacted Moxley to advise him that Z. had information concerning Stano.
Moxley testified that he was completely surprised by Joe Mitchell’s contact and the information he related. Moxley thereafter had Z. polygraphed, and when the results showed that Z. was being “nori-decep-tive”, Moxley decided to talk to him. Z. advised Moxley of the confession of Stano to Z. at the exercise yard and asked to be moved from Florida State Prison and to receive the return of his seized truck. Moxley interviewed Z. again shortly before the second trial of Stano and found Z.’s statement of the exercise yard confession by Stano to be the same on this subsequent interview as it had been on Moxley’s previous interview of Z..
Z. testified that he provided the information to the authorities concerning Stano’s confession on his own volition. Both he and Moxley testified that no one had told, suggested or advised Z. to go back into the jail and get more information. Neither Moxley nor anyone on his behalf directed Z. to obtain statements from Stano. There is no credible evidence to the contrary.
The testimony of Marlene Mitchell Alba concerning jail house sweeps in Brevard County, the affidavits of Curtis Davis, Sr. and Johnny Jim Mallory to the effect that snitches were used by Brevard County authorities (Petitioner’s 200 and 209), and the testimony of Melvin Shackleford, Marvin Glen Cook and Lawrence Litus about rumors as to who was a “snitch” in the jail do not constitute proof of Stano’s contention that Z. had been promised leniency in exchange for testimony about other murders or that Z. had been placed in proximity to Stano to obtain additional information for the prosecutor. None of these witnesses had any evidence concerning Mr. Z. or Mr. Stano which supported Petitioner’s contention that Z. was a government agent. Further, the Court finds that the testimony of William Van Poyck, an inmate on death row with Stano who had been asked by Stano to help him in this case, lacks credibility and is of questionable relevancy. In any event, Van Poyck testified that Z. never stated that he was acting as a government agent or that a person acting on behalf of the state attorney asked Z. to get more information concerning Stano.
Moxley stated that on November 14, 1988, he wrote the Supervisor of Corrections, Louis Wainwright, to ask for the transfer of Z. (Petitioner’s 192). This was for security reasons to protect Z. from retaliation while he was in the same prison as Stano. On December 12, 1983 he again wrote the Department of Corrections to request transfer of Z. to another prison to prevent retaliation. (Petitioner’s 193).
On October 3, 1984, Z.’s attorney, J. Robert Cooper, wrote the Parole Commission to ask for a hearing in December because he had requested Moxley to testify and relate the fact that Z. had testified in two cases and had given important cooperation (Petitioner’s 194). However, this letter to the Parole Commission was not written pursuant to any promise Moxley made to Z.. After Stano’s second state court trial, Cooper asked Moxley to make a statement to the parole commission. Moxley testified he did not see Cooper’s letter and did not promise Cooper that he would make favorable comment for Z.. Prior to the end of Stano’s second trial, Moxley had made no promise that he would make a favorable comment to anyone on Z.’s testimony in the Stano case.
HENRY CLAIM
B. CONCLUSIONS OF LAW
Stano alleges that the testimony of C.Z. relating to his jailhouse confession violates United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), because the prosecutor, Dean Moxley, promised leniency to Z. in exchange for testimony about other murders and because Moxley directed that Z. and Stano be placed in proximity to each other in the jail, thus making Z. an agent of the state who elicited statements from Stano in violation of Henry. The evidence of record does not support these contentions, and thus the Court does not need to deal in this opinion with the issue of whether there has been procedural default.
There is no evidence that there was prearrangement for Z. to obtain information for the authorities with reference to Stano or that he was acting in the capacity of a government agent.. While Z. confessed to his role in the murder of Richard Lee Hunt and agreed to testify against co-defendants, he had no promises of leniency except those specifically relating to the Richard Lee Hunt case, i.e. that he would receive a reduction in his current sentence from 180 years to 60 years incarceration and that he could plead guilty to second degree murder and receive a sentence of 60 years concurrent, thus eliminating the potential of the death penalty.
To establish a violation of the Sixth Amendment in a jailhouse informant case, the defendant must demonstrate that a fellow inmate was a government agent and that the inmate deliberately elicited incriminating statements from the defendant. United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115 (1980); see also Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988). The primary concern is “secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1985).
In the present case, there was no evidence that Z. received instructions from the police, from the prosecutors, or from anyone else to do anything whatsoever concerning Stano. There was nothing in the evidence presented to the Court indicating that there was any prearrangement for Z. to obtain anything from Stano. The Court was presented with no evidence indicating that Z. was paid or otherwise rewarded to develop any type of relationship with Stano or to otherwise secure incriminating information. The prosecution did not use Z. to carry out any deliberate and surreptitious interrogation of Stano. Z. was not promised any rewards for any information that he might provide regarding Stano. The prosecution did not request Z. to elicit any information from Stano, and there was no presolicitation of Z. by the prosecution to do anything of any nature concerning Stano. There simply was no evidence that Z. was a government agent or that Z. in any manner deliberately elicited incriminating statements from Stano.
“[A] defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630. In the present case, Stano has merely shown that Z. reported Stano’s incriminating statements to the police. However, “we should keep in mind the duty that is imposed upon all citizens to report criminal activity to the appropriate authorities .... This deeply rooted social obligation is not diminished when the witness ... is involved in illicit activities himself_ [T]he criminal defendant no less than any other citizen is obliged to assist authorities.” Lightbourne, 829 F.2d at 1020 (citation omitted) (quotation omitted). There is no violation of the Sixth Amendment when “ ‘by luck or happenstance [ ] the State obtains incriminating statements from the accused after the right to counsel has attached.’” Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630 (quoting Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985)).
“There is, by necessity, no bright-line rule for determining whether an individual is a government agent for purposes of the sixth amendment right to counsel_ At a minimum, however, there must be some evidence that an agreement, express or implied, between the individual and a government official existed at the time the elicitation takes place.” Depree v. Thomas, 946 F.2d 784, 793-794 (11th Cir.1991). Stano has failed to show that Z. was acting as a government agent when he elicited incriminating statements from Stano. Z. was not paid by, nor was he acting under the instructions or solicitations of the prosecution. “[T]he protections of the Sixth Amendment right to counsel enunciated in ... Henry [is] inapplicable when, after the right to counsel has attached, statements by a defendant are made to an individual who is not an agent for the Government, although he may be a Government informant. This is so regardless of whether the statements were ‘deliberately elicited.’ ” United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987). In the instant ease, Stano has not established any Sixth Amendment violation, and there is no basis for habeas relief.
III. JOHNSON v. MISSISSIPPI CLAIM
The Eleventh Circuit has directed this Court to address the argument that Stano’s sentence should be vacated because “two of the prior convictions which were relied upon by the State in the sentencing phase were found to be invalid by a panel of this court.” See Stano v. Dugger, 901 F.2d 898, 905 (11th Cir.1990). The Eleventh Circuit was referring to its prior opinion in Stano v. Dugger, 889 F.2d 962 (11th Cir.1989), in which this Court was directed to grant Stano’s petition for writ of habeas corpus because of the determination that the state trial judge committed error in accepting Stano’s guilty plea with regard to the murders of Susan Bickrest and Mary Kathleen Muldoon.
However, in Stano v. Dugger, 897 F.2d 1067 (11th Cir.1990), the Eleventh Circuit vacated the opinion reported at 889 F.2d 962 so that the cause could be reheard by the court “in banc.” The Eleventh Circuit subsequently determined in Stano v. Dugger, 921 F.2d 1125 (11th Cir.1991), that Stano had not raised a constitutionally cognizable claim under either self-representation or ineffective assistance of counsel analysis, and “all other appellate issues presented by Stano [were referred] to the original panel for resolution.” Id. at 1154. Hence, the decision of this Court to deny Stano habeas relief with respect to his Sixth Amendment claims was affirmed.
The Eleventh Circuit’s determination that the Johnson claim was still viable arose from its earlier determination that Stano’s convictions for the murders of Bickrest and Muldoon “were found to be invalid by a panel of this court.” Stano, 901 F.2d at 905. However, the opinion invalidating those convictions was subsequently vacated by the Eleventh Circuit, and the Eleventh Circuit, in its opinion reported at 921 F.2d 1125, affirmed this Court’s denial of Stano’s request for habeas relief as to the convictions for the murders of Muldoon and of Biekrest; therefore, this Court does not need to address the argument on the Johnson claim since the convictions for the murders of Muldoon and of Biekrest remain valid.
Therefore, this Court finds the Petitioner’s claims to be without merit, including contentions which may not be specifically addressed in this opinion.
DONE AND ORDERED at Orlando, Florida this 10th day of June, 1992.
/s/ Patricia C. Fawsett
PATRICIA C. FAWSETT
United States District Court
Copies furnished to:
Counsel of Record
United States Marshal
APPENDIX B
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION Gerald Eugene Stano, Petitioner, v. Robert A Butterworth, et al., Respondents.
Case No. 87-753-CIV-ORL-19
Filed Aug. 17, 1993
ORDER
This case is before the Court on Petitioner’s Motion for Relief From Judgment Under Fed.R.Civ.P. 60(b) (Doc. No. 194, filed July 26, 1993).
Petitioner states that in June, 1993 a book entitled “Blind Fury” was published. According to Petitioner, the book was written by the mother of Assistant Attorney General Belle Turner and “purports to be an account of Paul Crow’s genius at work in the Gerry Stano case.” Petitioner describes the book as “tabloid type,” “sensational,” and “filled with sexual overtones.” Petitioner alleges that the book was written with Paul Crow’s “substantial assistance and active participation” and that Paul Crow wrote the book’s forward. Petitioner requests the Court to set aside its Order of June 10,1992 (Doc. No. 160) because of Mr. Crow’s involvement with the book.
The Court finds that Petitioner’s arguments are without merit. Mr. Crow at all times indicated he considered writing a book, but not until the investigation was over. The investigation is over. The fact that a book has now been published, that it focuses on Mr. Crow and that Mr. Crow wrote the forward does not require the Court to set aside the Order of June 10, 1992. There is no indication that Mr. Crow is the author of this book — only that he assisted the author and wrote the forward. The fact that Ms. Flowers, the author of the book, wrote a sensational book venerating Mr. Crow and that Mr. Crow has not yet been reported to have written a scholarly work as he testified he would like to do does not change the import of the Court’s Order. Other witnesses testified at the evidentiary hearing that they planned to write books involving Mr. Stano which would be based on interviews with, and therefore the assistance of, Mr. Crow. In any event, the Court is unaware of any reason why Mr. Crow would now be foreclosed from authoring a book of his own. Whether his investigation of and testimony concerning Mr. Stano was tainted by his desire to write a book as well as other factors was thoroughly explored at the evidentiary hearing held in this case, and the allegations made in the instant motion demonstrate no facts which would undermine the previous findings of the Court.
Accordingly, Petitioner’s Motion for Relief From Judgment Under Fed.R.Civ.P. 60(b) (Doe. No. 194, filed July 26, 1993) is DENIED.
DONE AND ORDERED in Chambers at Orlando, Florida, this 16th day of August, 1993.
/s/ Patricia C. Fawsett
PATRICIA C. FAWSETT United States District Judge
Copies to: •
psle 8/12
Counsel of Record
Because we reject Stano’s challenge on the merits, we need not decide whether the Henry claim was procedurally barred. See Stano, 901 F.2d at 905.
The two convictions were for the murders of Susan Bickrest and Mary Kathleen Muldoon. Stano v. Dugger, 889 F.2d 962, 963 (11th Cir.1989).
There was some dispute at the evidentiary hearing about whether the transcript of Stano’s August 12, 1982, interview had been deliberately altered by Stano's habeas counsel to substitute Crow as the questioner instead of Detective Manis. After exploring this matter at oral argument, we are satisfied that the alteration was not done deliberately and that Stano's counsel is not guilty of any misconduct in relation to the transcript.
Stano’s motion to recuse the Attorney General's Office as counsel for respondent is denied.
Gadberry's testimony was conflicting concerning the wounds on D.H. He first testified that her wounds were superficial in a picture he saw and that he had seen the wounds personally after they had healed. On cross-examination he admitted that he had no personal knowledge of the wounds but that he knew stitches were required.
Based on information from her mother, the missing person's report stated that Maher was last seen wearing a tan blouse and black slacks. News articles reported that she was last seen wearing tan slacks and a pink shirt with floral designs. (Respondent's 10). These reports did not accurately reflect what clothes were on Maher’s body when it was found. Stano’s description of her clothing was accurate. .Also during the course of this questioning, Detective Lewis of the Daytona Beach Police Department asked Crow to ask Stano if he knew anything about a missing person named Toni Vann Haddocks. At this time the officer did not know Ms. Haddocks was dead. No body of Vann Haddocks had been found, and Crow was given only her name and a photograph of her. When Crow showed Stano the picture of, Toni Vann Haddocks, Stano responded "I don't have anything to do with black people.” As noted below, Crow later learned that this was not true. Further, Stano also stated during the April 1, 1980 interview that he had killed a woman and left her body on an interstate highway which he believed to be either 1-4 or 1-95.
Gadberry testified that they did not get out of the car at the site. Gadberry’s testimony on this point is in conflict with the testimony of other witnesses.
Although Gadberry testified that his agency was under pressure to solve the Maher murder, Powers denied that his police department was under any out of the ordinary pressure to solve the homicide.
At the hearing before this Court, Gadberry testified that Stano gave no fact not first elicited by Crow and only agreed with what Crow said. However, Gadberry also testified that in his experience it is not unusual for a suspect to be reluctant to give details of a crime even though the suspect may not be reluctant to state that he committed the crime. Captain Powers testified that when Gadberry reported to him what happened on their trip to the crime scene on April 1, 1980, Gadberry did not indicate that he felt Crow led Stano to, the body or that Gadberry was concerned about Stano’s confession. Sgt. White testified that it was not until 1985 or 1986 when Gadberry returned to the Daytona Beach Police Department after quitting to become a church director of youth ministries that Gadberry stated he felt Stano was not guilty of anything and that Crow had "made it all up.” When Captain Powers learned of these statements by Gadberry, he conducted his own investigation and concluded that Gadberry was incorrect. While Gadberry testified that he told Captain Powers on April 1, 1980 that Stano only confirmed what Crow showed him, Crow and Gadberry filed reports after the April 1, 1980 interview of Stano (Petitioner’s 154 and 155), and Gadberry signed a transcript of Stano’s confession made on April 1, 1980 (Petitioner's 4). In Gadberry’s police report made in April of 1980, he noted that Stano knew details of Maher’s murder which had not been made public and that Stano had directed the officers to the place where the Maher body had been found. While Gadberry testified before this Court that Crow pointed out things to Stano during this trip to the crime scene and that Stano merely agreed with Crow, Gadberry could not recall crucial information concerning the trip such as when they went to the crime scene, who was driving, whether Stano cried after pointing out the place where the body had been left and whether Stano mentioned anything about foam-backed ticking. There was evidence that during this trip to the crime scene, Gadberry attempted to engage Stano in repeated conversations and failed to observe the route that Stano was directing as well as the facts concerning the crime and its scene which Stano was providing. Gadberry’s testimony before this Court is contrary to his police reports prepared in April of 1980 at the time of these events (Respondent's 4). Further, Stano himself later wrote Kathy Kelly "Before being taken to jail, I took Paul to where I put a body behind the airport.” (Respondent’s 19-D).
Approximately six months later in November of 1980 a state worker found a body in the median of 1-95, and Dave Hudson of the Volusia County Sheriff's office reported that the unidentified body had been found. Crow in his investigation listed this victim as “Jane Doe”.
This chart was similar to Respondent’s 29 referred to in the course of this Court's evidentiary hearing. (See also Respondent’s 28; Petitioner’s 175).
Stano had stated during his April 1, 1980 interview that he liked to meditate at Tomoka State Park because his grandparents were buried there. The body of Ramona Neal, who was reported missing from the Daytona Beach boardwalk area, had been found in Tomoka State Park. Neal's body was also located covered with branches. .On the tape recording of his confession to the murder of Ms. Maher/ Stano explained how he got the blood out of his car with Glory rug cleaner, Clorox and “elbow grease". (Petitioner’s 149). Gadbeny, Crow and Nixon stated they were concerned when no blood or rips were found in the car by the crime laboratory. However Crow and Nixon felt the issue was resolved later in the case when it was ascertained that Stano had a fetish about cleaning his car. Further, Maher was incapacitated so quickly, there was no opportunity to struggle or tear the car’s interior. Nixon also felt the crime lab used was not in a “state of the art" condition.
See also Petitioner's 157.
Although the order appointing Jacobson as counsel for Stano was not entered until May 15, 1980, Jacobson testified that Michael Lambert consented to Jacobson contacting Stano, acting as Stano's attorney and conducting an investigation of the case prior to the entry of this order.
Jacobson did not ask Dr. McMillan to find out if Stano murdered several women as Jacobson learned of the multiple murders from Stano and confirmed these confessions through his own investigation of the facts.
Jacobson testified that he knew Crow from prior cases that Jacobson had handled as a criminal defense attorney. He met Crow after Crow took a course in psychological profiles at the FBI Academy where Jacobson at one time had taught. Jacobson testified that from his past dealings with Crow, he knew Crow to be a fair and honest law enforcement officer. .Jacobson testified that Stano would make a confession, then later recant it. He would go from utter candor to denial from time to 'time. At the same time Jacobson was confirming by his own independent investigation that Stano in fact was guilty of the murders to which Stano confessed, Jacobson was also obtaining information concerning what Sgt. Crow knew about Stano's activities without telling Crow what Jacobson knew. Jacobson testified that what Crow revealed from time to time that Crow had learned in Crow’s investigation of Stano only further corroborated what Stano had already confessed to Jacobson. In this manner, Jacobson was able to learn that Crow "had linked Stano to the Toni Vann Haddocks murder, in addition to the murder of Mary Carol Maher, which were murders Stano had previously admitted to Jacobson that he committed. Jacobson also learned what Crow had ascertained about Stano's out-of-state murder victims in this manner.
Also, in May of 1980, Jacobson told Crow that he wanted everything Crow had on the Mary Carol Maher case so that Jacobson would not have to go through official discovery.
Nixon and Jacobson had been adversaries in previous legal matters. Before Jacobson began to approach Nixon for a plea agreement, Stano had confessed to Jacobson that he had killed several women. Jacobson did not recall on the witness stand all the names of the victims, but stated that Stano had confessed to him that he had killed Mary Carol Maher, Toni Vann Haddocks, Linda Hamilton, Ramona Neal, and Jane Doe before Jacobson began approaching Nixon to try to negotiate a plea agreement.
Stano also wanted Jacobson to assert on his behalf the defense of insanity at the time of the crime so that he could be sent to a mental hospital for a short time and then be released. The testimony indicated that Stano realized that his conduct was not normal, and he desired treatment. This was also indicated by his confession to the murder of Maiy Carol Maher made to booking officer John Michael Gaston on April 1, 1980 during which Stano stated that he was sick and thought that sihce the police had put two and two together, and "had him", he felt confessing was in his best interest and would help him go to a mental institution for a few years, be pronounced cured and then be released. (See Respondent’s 38). Stano himself made this statement on the tape recording of his confession to the murder of Ms. Maher (Petitioner’s 149) and in letters (Petitioner’s 185a). Jacobson had Stano evaluated by two doctors in Gainesville in order to assert a defense of insanity, but when the plea agreement with Nixon was negotiated, this defense was not pursued further. However, based on compassion for Stano’s parents who could not accept that their son committed these murders, Jacobson from time to time spoke in terms of insanity when he conferred with Stano's parents who desired to perceive their son as having a genetic form of insanity. Jacobson at no time advised Crow to question Stano within the context of, or with reference to, a defense of insanity. .Nixon testified that Stano was never offered life in prison in exchange for confessing to all murders he had committed. While Nixon felt he had enough independent corroborating evidence to obtain the death penalty for the murder of Mary Carol Maher, he also had discussed with Crow the latter's suspicion that Stano was involved in other, unsolved homicides.
Further, Jacobson testified that as part of his obligation under the plea agreement, Stano wanted to take a lie detector test to prove that he killed the people he admitted killing, not to prove that he was innocent of these murders. Jacobson refused to allow this. (Petitioner's 184(a) dated 7/21/80).
Crow testified that it was not until after this plea agreement had been negotiated that Don Jacobson indicated to him that Stano might be a multiple killer. Jacobson testified that he asked Crow not to query Stano about bodies outside the Seventh Judicial Circuit. .Jacobson testified that he was in contact with Stano several times a week. Even after Jacobson's representation of Stano had been terminated in November of 1982, Jacobson responded to letters from Stano in prison and admonished him not to discuss any murders outside of those in the Seventh Judicial Circuit unless he received use immunity first. E.g., Petitioner's 130 dated May 19, 1982.
Stano’s first confession to Crow to the murder of Toni Vann Haddocks occurred on May 9, 1980 as discussed below.
Since over twelve years have passed since some of the events described in this opinion, it is understandable that some of the witnesses could not recall dates and details exactly.
Crow could not recall the terms used to describe the test or exactly what the problem was. Crow testified that he was not familiar with the phrases that were being used to describe McMillan’s test. (See Petitioner's 7). McMillan testified that her test on Stano was conducted May 8, 1980.
Crow testified that he did ask Stano about the test within the week, and Stano admitted that he was deliberately flunking it.
McMillan and Jacobson were discussing a previous defendant represented by Jacobson, Mr. DeGregory, and the differences between short term and long term killers. It appears that they may have been trying to persuade Crow to view Stano as a short term killer in an effort to cause him to limit his investigation, although Jacobson and possibly McMillan knew at this time that Stano had confessed to Jacobson that he had committed murders about which Crow either knew nothing or considered Stano only a suspect. When they asked Crow point blank for his opinion, Crow retreated from the conversation and told them he would let them know his views in the future when it was appropriate. Crow suspected at the time that Stano might be a long term killer.
On May 9, 1980, Crow had interviewed Stano concerning the Vann Haddocks’ murder after giving Stano his rights. Stano confessed to this murder as described below.
Ramona Neal.
Nancy Heard.
Susan Hamilton.
Jane Doe.
Although Warren Walker, Don Jacobson's investigator, had been in and out of the Daytona Beach Police Department on his own investigations, Walker was not helping Crow in any investigation which Crow was conducting. Walker had requested from Crow information on murders Crow suspected that Stano had committed. Crow gave Walker cases and a general description of the murders but no details.
From April of 1980 when Stano confessed to the murder of Mary Carol Maher until September of 1981 when Stano entered his plea of guilty with reference to the six Volusia County murders, Crow did not give Jacobson or his agents police reports, photos of crime scenes, or reports on homicides which he suspected Stano had committed. Crow also did not show Stano the police files or investigative reports on any homicides.
According to Eugene Stano, Petitioner's father, Jacobson had explained to him that Stano should confess to any murders that he had committed in Volusia County so he could get life in prison instead of the death penalty. Jacobson explained that there were several open cases that were unresolved and that Stano should confess to what he knew in order to set the minds of the victims' families at ease. On cross-examination, Eugene Stano admitted that no one indicated to him that Stano should falsely confess, and that when he saw his son in jail that he did not tell his son to lie or to confess to crimes that he did not commit but instead told his son to tell the truth.
Crow was able to do his own informal profile of a suspected killer. From his first interview of Stano on April 1, 1980, Crow formed his own opinion of Stano as a person who liked to cruise in an automobile and who liked cars, who would pick up prostitutes, who was very neat and methodical, and who was very angry. Stano had advised Crow in the first interview that when Stano was drinking, he would go into a rage and "see red”. Stano also stated several times that he liked his car, and Crow observed that he was very neat and particular, especially about his clothes.
Testimony with reference to news articles about Petitioner underscores the unreliability of news media reporting relating to Stano in many instances. Further, from time to time newspapers in one area would reprint stories from newspapers in another area without verifying the factual accuracy of the information being printed.
McMillan testified "Beats me why Jacobson would ask me to do this!" or words to like effect.
This contention by Petitioner that McMillan told Crow how to interrogate Stano should be compared to Petitioner's contention based on Officer Gadberry’s testimony that Crow told Stano the facts of the case to elicit "false” confessions. However, the record contains instances where Crow refused to tell Stano facts concerning the case. E.g., Petitioner’s 38, pp. 7-8.
McMillan testified that after meeting Crow at the Deland jail annex, she had no impression that he was working together with Jacobson. She testified that Don Jacobson never said he was not interested in representing Stano unless she found Stano to be a serial killer. McMillan stated that she found no reason to question whether Stano was a serial killer as Stano confessed to committing more than one murder to her. McMillan testified that she did not know of any plea negotiations between Nixon and Jacobson.
As referenced earlier, Crow disagreed with McMillan’s theories.
When shown articles from newspapers written by Terry E. stating that Crow spent hours with McMillan to learn how to interrogate Stano, Crow testified that he never stated this to anyone and that this statement is untrue.
Jacobson’s representation of Stano had ceased thirty days after entry of this plea.
Crow testified that he did not see this or various other correspondence from Jacobson. (E.g., Petitioner’s 137, 138 and 139).
The Vann Haddocks' body was found after Stano confessed to the murder of Ms. Maher on April 1, 1980.
Detective Lewis of the Daytona Beach Police Department had obtained information concerning Volusia County's investigation and had conveyed this information to Crow. .In addition to other facts of the crime, the location Stano described where he had left the victim was a complicated location four houses away from where Stano had formerly lived and where his brother lived at the time. Further, the photographs of the victim did not show a cast, only the victim's face. Stano accurately described her height and weight and also described how he cleaned his car after this murder.
The transcript of the interview of Stano by Officers Lehman and Crow on May 19, 1980 is Petitioner’s 31 and 32, and on June 3, 1980 is Petitioner’s 33.
Crow had been contacted about unsolved murders by authorities in Pennsylvania and New Jersey.
Don Jacobson knew that Crow talked to Stano during this period of time. Stano would call Crow and ask for a radio or tapes or ask questions about his family. Crow tried to satisfy his requests in order to maintain rapport.
See Petitioner’s 32, p. 16, in which Stano insisted on May 19, 1980 that he had only killed two women, Maher and Haddocks. Accord, Petitioner’s 33, p. 6. When Steve Lehman left the Volusia County Sheriff's office, and Dave Hudson took over responsibility for Lehman's cases on behalf of that agency as well as other cases. Crow learned of additional missing women from Hudson, such as Susan Bickrest. (See Respondent’s 13 and Petitioner’s 17). .While Crow had previously testified that he picked up Stano on March 6 and that Stano on that date gave the confessions described later in this opinion, he corrected himself at the hearing before this Court and stated that he had been mistaken about the date earlier. Since the date of Stano's letter was March 6, 1981 and the court order directing him to pick up Stano was executed on March 12, 1981, Crow testified that Stano’s confessions could not have occurred on March 6th as he had previously stated. Crow testified that he was confused previously about the date because of the date on Stano's letter. However, he stated that he believed that Stano delivered the letter dated March 6, 1981 to Hudson and Crow when they picked Stano up on March 12, 1981. It does not-appear to this Court that this misstatement has material impact on the issues in the case. (See Respondent's 13 and Petitioner’s 17).
At one point in Volusia County these two interstate highways intersect.
Up to the time Stano entered his plea of guilty incident to the six Volusia County murders, Stano insisted to Crow that he had murdered only six girls, Maher, Vann Haddocks, Heard, Hamilton, Neal and Jane Doe. It was not until after the plea of guilty had been entered relating to these six cases that. Crow tried to get information on a possible victim from Titusville and called Kathy Kelly at the newspaper for assistance. (See Petitioner's 32, p. 16, in which Stano insisted on May 19, 1980 that he had only killed two women, Maher and Haddocks. Accord, Petitioner’s 33, p. 6.)
Stano had orally described landmarks and demarcations along the route he took to dispose of this body during his confession to this murder on the preceding day. (Petitioner's 168-B).
Respondent’s 17, 17(a) and Petitioner’s 15, 123, 126, 128 and 129. .Between approximately March and September of 1981, Crow learned about unresolved homicides of Susan Bacile, M.K. Muldoon, Barbara Bauer and Susan Bickrest, but obtained no acknowledgment from Stano that he was involved in these cases. He was contacted by Detective Denton who advised him on September 4, 1981 of the Barbara Bauer homicide after Stano entered his plea of guilty before Judge Foxman.
Some of these visits are noted in this opinion. (See also Petitioner’s 187 for a description of Stano's confession to Detective Denton in Starke regarding the Bauer murder.)
Jacobson's former wife, Nancy Jacobson, testified that she did not recall Donald Jacobson ever expressing an interest in writing a book himself. The Court notes this testimony because it was apparent from this witness' demeanor and testimony on the witness stand that her feelings toward her former husband were not amicable.
Crow had also been working on a computer program to help multi-jurisdictions identify crimes involving similar facts.
The Court rejects as unreliable the testimony of Susan Nix that Crow stated to her that he was writing a book about Stano and that the more murders Crow solved the better the profits would be. Not only is Ms. Nix's recollection of these purported conversations vague, but also Ms. Nix's recollection of the facts proved inaccurate in other regards. For instance, she testified that Mr. Morrison, whom she supervised, reported to her that Crow would not let Morrison see Stano, but Morrison testified that he had never tried to see Stano and had not been with anyone who wanted to see Stano. Further, it appears that on at least two occasions, Paul Crow had asked then Detective Nix at the Daytona Beach Police Department to leave the interview area while Stano was present, stating that Stano would not talk in the presence of a lady. These requests appear to have offended Ms. Nix who had conducted initial investigations of some of the murder victims. Further, Sgt. Crow testified that he does not recall ever discussing his idea of a text book with Nix or telling her that he would make a fortune from a book. Crow did not discuss writing a book with Mr. Morrison or Mr. Eugene Stano, Petitioner’s father. Further, he never heard that Don Jacobson was writing a book and did not discuss writing a book with Don Jacobson.
Titusville is located in Brevard County, Florida in the Eighteenth Judicial Circuit.
Petitioner’s 169.
From September 2, 1981 when Stano entered his plea of guilty before Judge Foxman until August 10, 1982 when Stano was brought from Florida State Prison to Daytona Beach, Crow went to Florida State Prison twice to see Stano and to listen to anything Stano had to say, but not to question him about the Scharf case.
Detective Johnny L. Manis identified his reports on the Scharf case which he made while he was a Brevard County Sheriff Homicide Detec-five (Petitioner's 47 and 49). He identified Crow’s first letter with information on a homicide in the Brevard County jurisdiction.
Sgt. Crow had nothing to do with Manis' initial interview of Stano at Florida State Prison.
Other than this statement, Crow did not advise Manis how to interrogate Stano, and Crow and Manis did not discuss interrogation methods. Manis did not meet or know Ann McMillan or Don Jacobson. .Stano had been the target of a previous assassination plot when "Cowboy Bob”, the husband of Toni Vann Haddocks, one of Stano's murder victims, had achieved entry as a prisoner into the jail where Stano was housed with intent to murder Stano. This event was also referenced in the confession of Stano to the murder of Vann Haddocks. Petitioner’s 32, p. 8. Also, there was evidence that Stano had attempted suicide on one occasion. Because the trial court made Stano’s safety the responsibility of the Volusia County Sheriff and the Daytona Beach Police Department, Captain Ouellette at Crow's request drafted a bulletin outlining the security measures to be taken with reference to Stano, which bulletin was posted and circulated by Captain Ouellette to jail personnel during the week of August 10, 1982. Petitioner's 38. Crow coordinated interviews of Stano by several people from different jurisdictions who wished to question Stano about unsolved homicides. Generally, Crow would introduce the investigator to Stano, stay for a few minutes to make sure there was rapport, and then leave Stano with the investigator who conducted the questioning.
Neither Crow nor Manis testified that the waiver of rights form was filled in before it was given to Stano. Manis testified that when Crow read Stano his rights, Stano responded verbally to each question and that Stano's responses orally were the same as those responses indicated on the waiver form. Stano signed the form. Manis also testified that the form was blank when Crow first read Stano his rights. (Petitioner’s 50).
Manis initially testified that Crow remained there two or three minutes and then that he was there ten to twenty minutes. On being questioned concerning his testimony in a deposition ■ of April 27, 1983 when he stated that Crow left half way through the interview, Manis stated that Crow left after the start of the interview and that he was not there for the complete interview which lasted approximately one to one and a half hours. Crow testified that after introducing Manis and Stano, Crow stayed in the room with the two men approximately ten to twenty minutes and then left.
Crow did not appear to have information on the Dubose murder.
Manis testified that the waiver of rights form had not been filled out by Crow or anyone else before it was presented to Stano. Similarly, Crow testified that when Manis arrived on August 12, 1982, he did not recall that a waiver of rights form had been filled out prior to the interview with Stano on that date. The transcript of the August 12, 1982 interviews reflects that Stano stated he had been given and waived his rights on August 11, 1982 before he made his confession, and he waived his rights prior to the interview by Manis on August 12, 1982 (Respondent's 30). Moxley testified that he had no information that Crow had filleddn the Miranda rights form before it was read or given to Stano.
Manis testified that he did not recall being interrupted during the taping of the Scharf confession on August 12, 1982 or turning off the tape recorder. He testified that he did not edit the tape recording. The Court finds the testimony of Martin M. Markowitz speculative, unreliable and beyond the competency of this witness with reference to alleged electronic psychological stress analysis, intentional interruption of tape recordings of interviews with Stano in order to coerce him to confess, and his ability to monitor Stano’s central nervous system by listening to the six cassette tapes in Petitioner’s 149 and opine that Stano was conducting a charade and staging rehearsed, involuntary conversations to please the officers by saying what Stano knew they wanted to hear because they fed Stano information and asked Stano leading questions. There is no dispute that Stano would admit to committing a murder and then allow a tape recording to be made at a later time of his confession. Also, from time to time the recordings of interviews were interrupted or stopped.
Moxley was also involved in other Stano cases, the homicide of Ms. Duhose before Judge McGregor in Seminole Couniy and the homicide of Madame X.
Paul Crow did not testify before this body.
The state court judge excluded the Williams rule evidence during the guilt phase of Stano's trial but allowed it in the penalty phase, and Moxley used Crow as a witness on the Maher evidence in the penalty phase of Stano’s trial for the Seharf murder. .For instance, Moxley testified that State Road 3 was in 1974 called “A1A”, the name Stano used to describe his route. Stano described a Stuckey's restaurant on the route he traveled with the victim, Ms. Seharf. Moxley located the former Stuckey’s restaurant building where Stano described it as being at the time of the murder in 1974, but the building was no longer used as a Stuckey's in 1983 when Moxley retraced Stano's route.
Moxley wrote out his questions for Crow as part of his trial preparation. (Petitioner’s 80-A).
Moxley pointed out that the statement Stano made to Crow was contained in Crow's notes on a document that had the name Bickrest at the top. (Petitioner — 160, p. 1437). At the first trial in the Scharf case, Moxley presented the statement of Stano on March 12, 1981 to Sgt. Crow and the two confessions of Stano made to Detective Manis in August of 1982. That case resulted in a mistrial because of an 11 to 1 jury vote.
Moxley testified that in his trial preparation he wrote out his trial questions for Johnny Manis. With reference to his questions as to the August 11, 1982 waiver of rights form, he wrote a note to himself "something funny — Crow already written answer in" (Petitioner No. 78). This was during his preparation for the September 1983 trial. Moxley had no clear memory of why he had written this in the margin but testified that as part of his trial preparation he questioned Manis concerning this and that Manis verified that Stano had been given his rights and that Stano had gone over the waiver of rights form. Moxley testified that he had no information that Crow filled in the Miranda rights waiver form. Moxley also testified that Manis had never told him that Stano invoked his right to counsel at any time or that Crow’s help was necessary to get the confession. Moxley had listened to the tape recording of the August 12, 1982 confession and stated that the voice of the questioner on this tape recording is that of Johnny Manis. This was confirmed by Manis himself during his testimony.
Moxley testified that he had no knowledge of an alleged "conspiracy” between Crow, Jacobson and McMillan to get Stano to confess to crimes, that he had no knowledge that McMillan told Crow how to question Stano, that he had no knowledge Crow deprived Stano of contact with anyone, and that he had no knowledge Crow "fed” Stano details or told Stano to confess to more crimes for an insanity defense.
After Stano was convicted of the murder of Cathy Lee Scharf, Moxley agreed to allow Stano to plead guilty to the murder of Sandra Dubose in exchange for the waiver of the death penalty by the state in this case (Respondent’s — 18). It should be noted that Sgt. Crow was not involved in the Sandra Dubose case.
Gadberry testified that he indicated his concerns on April 1, 1980. However, this statement is contrary to the findings of the Court based on the testimony of other witnesses.
The rule excluding witnesses had been invoked in this proceeding.
Gadberry denied that he had problems with any of his cases. However, Captain Powers testified that Gadberry had in fact fallen behind in his investigation of approximately 100 cases and that Powers suspended Gadberry and transferred him to another division approximately two to three months after the initial interview of Stano on April 1, 1980. Powers stated that he felt the reason in part for Gadberry's poor performance was "burnout” and that Gadberry wanted to be a youth director of a church. Gadberry resigned from the Daytona Beach Police Department in September of 1982 to become the youth director of a church in Kentucky. He was rehired as a patrolman at the Daytona Beach Police Department in June of 1983, a position which he now holds. Patrolman is viewed as a step below the detective division within the Daytona Beach Police Department. .Gadberry's supplemental report on the H. case is dated March 28, 1980. Respondent's 3.
At the time of his testimony before this Court, Captain Powers was no longer working for the Daytona Beach Police Department.
Kenneth Friedland, one of Stano’s attorneys in the Scharf case, testified that one of the defenses in this case was that Crow fed Stano information and Stano had no independent recall of the facts. This was an issue litigated in the state court proceeding.
As noted earlier, Don Jacobson ceased his representation of Stano in November of 1981.
Moxley also called law enforcement officers in other jurisdictions, such as Gainesville, Florida, to obtain information on cases they were handling in his effort to obtain similar fact evidence.
McDonald did not know at that time where Scharf had been murdered.
Petitioner's 52.
Mr. Manis has not worked for law enforcement since 1984.
Both Don Jacobson, Stano's attorney in the six cases to which he pled guilty in Volusia County, and Kenneth Friedland, Stano's attorney in the Scharf murder prosecution, echoed this observation that Stano only talked when it suited his purposes. Jacobson testified that Stano has a complex mind, that "sometimes he would talk to me and sometimes he would not.” .For instance, Donald Allen Denton testified as to the procedures used in the investigation of the murder of a woman, Barbara Ann Bauer, whose body was discovered in Bradford County. Denton first went to Florida State Prison and talked to Stano directly but did not obtain a confession from him concerning this murder. Later, he requested and arranged an interview of Stano through Sgt. Crow at the Daytona Beach Police Department after Stano had been transported there at Stano’s request. Crow introduced Denton to Stano and then left the interview. Stano then gave a confession concerning this Bradford County murder which Denton taped. (Respondent's 32 and 33; Court’s Exhibit 1; Petitioner’s 187). Denton testified that Stano gave new information which Denton did not have from his previous investigation of this murder and which Sgt. Crow had not been told. Denton stated that at no time did Crow deny access to Stano. Stano never stated that he would not talk to Denton without Crow, and Stano talked freely. Denton testified that his agency, and not the Daytona Beach Police Department, was the agency with the jurisdiction to investigate the murder of the victim found in Bradford County. Further, Denton and other Bradford County law enforcement representatives set up an interview with Stano on August 23, 1982 at the Volusia County courthouse without the assistance of Crow, during which Stano again freely confessed to this murder. Respondent's 33.
For instance, when Crow received a letter in July of 1982 (Respondent’s 14) from an inmate listing sixteen homicides Stano may have committed in five counties in three states, Crow requested that the Florida Department of Law Enforcement conduct the investigation of the twelve homicides alleged to have been committed in Florida.
A description of the role Crow played is contained in Petitioner's 176 (See also Petitioner’s Advance Appendix Vol. Ill of V Tab 41), a deposition of Crow taken July 21, 1983 in the Seharf case, in which Stano's attorneys, Messrs. Russo and Friedland, explored with Crow his role in obtaining information from Stano and in passing information to investigators with jurisdiction over the homicide who could question Stano more knowledgeably than Crow. In-this deposition Crow describes the number of homicides which Stano admitted committing (Id. at p. 14-15), how Stano did not "rubber stamp" confessions to homicides (Id. at p. 12), and how Stano had difficulty communicating with some people (Id.). Crow also gave an overview of how Stano might become confused as to the route he took or the year because of the number of murders. However, he noted Stano was usually very accurate as to clothing, jewelry, dialogue, location, and how the murder was effected. For instance, Stano confessed to the murder of two girls in Gainesville and was very accurate as to location, clothing and the means of the murder but was in error as to the year. (Id. at p. 23; see also id. at p. 30).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In United States v. Antone, 603 F.2d 566 (5th Cir.1979), the Fifth Circuit, in dicta, discussed whether the knowledge of state investigators should be imputed to the federal prosecutor. The Fifth Circuit identified the pooling of investigative energies, extensive cooperation, and jurisdictional overlap as factors to consider. Cf. United States v. Goldberg, 776 F.Supp. 513, 520 (C.D.Cal.1991) ("a state official’s knowledge is properly imputed to federal authorities only when state and federal law enforcement officials extensively cooperate with each other in an investigation.”).
Richard Lee Hunt was the brother of one of the assistant state attorneys in the Eighteenth Judicial Circuit.
The transcript of the interview is Petitioner's 86.
Cheshire refused Z.'s request as to designation of place of imprisonment. Id. at pp. 3-6.
Petitioner's 87 and 88; Respondent's 36 and 37. The Plea Agreement was signed in August of 1983 and tiled in the official court records.
Petitioner’s 86.
Respondent’s 23(a) is a diagram of the area.
Since all other co-defendants entered pleas of guilty, Z. was not required to testify in the Hunt murder case.
The sergeant’s log for the Brevard County jail reflects that on May 12, 1983, two Brevard County officers took Stano to the Seminole County jail where he was left, and then they picked up Z. on the same date at the Seminole County jail and returned Z. to the Brevard County jail. Respondent’s 39 lists the cells occupied in such jail by Stano and Z.. Z. and Stano were not housed together in the same cell.
This confession, the circumstance surrounding it, and the promises to Z. for his testimony were subject to extensive cross examination in Stano's subsequent state court trial for the murder of Ms. Scharf. They were also explored in the pretrial deposition of Z.. Petitioner’s 191 pp. 19-31. Kenneth Friedland, an attorney for Stano, testified that he knew of the parameters of Z.'s plea agreement with the state in the Hunt case before Stano's second trial in the Scharf case. .Again, the circumstances of Z.'s statements to Moxley concerning Stano's confession to Z. and the promises made to Z. by the state were the subject of extensive cross-examination and direct examination during the second trial of Stano.
Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).
See Stano v. Dugger, 897 F.2d 1067 (11th Cir.1990).
The Court notes that Respondents have addressed the merits of the Johnson claim in their proposed findings of fact and conclusions of law filed with this Court. However, the Court determines that it is unnecessary to address the merits of the Johnson claim because of the Eleventh Circuit’s opinion reported at 921 F.2d 1125 in which this Court's denial of habeas relief was affirmed. .The transcript of the proceedings before this Court had not been prepared at the time this opinion was issued by the Court.
Gerald Eugene STANO, Petitioner, v. Harry SINGLETARY, Respondent.
No. 90230.
Supreme Court of Florida.
April 23, 1997.
Upon consideration of the Notice of Inability to Accept Representation of Person Under Sentence of Death, this Court expressly recognizes the Office of the Capital Collateral Representative as counsel for Gerald Eugene Stano.
The motion for stay of execution on the issue concerning the electric chair is treated as an extraordinary writ and consolidated as to that issue only with Jones v. Butterworth, Case No. 90,231, — So.2d - [1997 WL 269335] (Fla.1997). These consolidated cases are set for oral argument on Tuesday, May 6, 1997 at 9:00 a.m.
Petitioner shall have until 5:00 p.m. Monday, April 28, 1997, to file a brief on this issue, and respondent shall have until 12:00 noon on Friday, May 2,1997, to file any brief in response. No reply brief shall be filed.
The execution of Gerald Eugene Stano is stayed until May 30, 1997, and the Office of the Capital Collateral Representative is directed to file in the trial court any postconviction motions available to Stano by May 9, 1997. The trial court shall then hear any argument and enter orders with respect to any motions by 5:00 p.m. on May 16, 1997.
OVERTON, GRIMES, HARDING and WELLS, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with an opinion in which KO-GAN, C.J., and SHAW, J., concur.
[OPINION BY ANSTEAD, Justice, type=concurring-in-part-and-dissenting-in-part]
ANSTEAD, Justice,
concurring and dissenting.
I concur that a stay must be entered in this case corresponding with the stay this Court has entered in the Leo Jones case. However, I disagree with the majority’s continued refusal to recognize the undisputed and documented conflict in this case and to force counsel to represent Stano over both Stano’s and counsel’s assertions of conflict, and counsel’s admission that counsel “is unable to provide meaningful or effective assistance of counsel to Gerald Stano in the Circuit Court of Brevard County.”
Indeed, the Attorney General continues to remind us that “the State also maintains that no court has ever specifically relieved Attorney Mark Olive from representation of Stano in regard to this conviction and sentence.” While the majority may well have the option of considering sanctions against counsel based on its perception of counsel’s representations being uttered in bad faith, it goes too far when it ignores its continuing obligation to provide this death-sentenced defendant with competent and conflict-free counsel pri- or to the defendant’s execution.
KOGAN, C.J., and SHAW, J., concur.
Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
No. 92614.
Supreme Court of Florida.
March 20, 1998.
Mark E. Olive, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Kenneth Nunnelley and Judy Taylor Rush, Assistant Attorneys General, Daytona Beach, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Gerald Eugene Stano, a prisoner on death row and under a death warrant, appeals the trial court’s denial of his second motion for postconvietion relief. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the trial court’s ruling.
Gerald Stano was convicted in 1983 for the torturous murder of seventeen-year-old Cathy Lee Scharf. The State introduced Stano’s taped confession to police in which Stano stated that he picked up Scharf while she was hitchhiking and offered to give her a ride to a skating rink. The jury convicted Stano of first-degree murder and recommended death. The trial court found four aggravators: (1) prior conviction of a violent felony (Stano had previously pled guilty to eight other first-degree murders, for which he received two death sentences and six life sentences); (2) the murder was committed during a kidnapping; (3) the murder was heinous, atrocious, or cruel; and (4) the murder was cold, calculated, and premeditated. The trial court found no statutory or nonstatutory mitigators and sentenced Stano to death. Stano’s conviction and sentence were affirmed on appeal. Stano v. State, 473 So.2d 1282 (Fla.1985). The United States Supreme Court denied certiorari on January 21, 1986. Stano v. Florida, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986).
The Governor signed Stano’s first death warrant on May 22, 1986. Execution was scheduled for July 2, 1986. Stano filed his first motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on July 1,1986, the day before his scheduled execution. The trial court denied the request and ruled that all the claims except the ineffective assistance of counsel claims were proeedurally barred. As to the ineffective assistance of trial counsel claims, the trial court ruled that no evidentiary hearing was required after Stano’s counsel conceded that he could not prevail on those claims even if given the opportunity. The trial court then granted a stay of execution until 10 á.m. July 2. 1986, to allow Stano the opportunity to appeal the ruling
This Court granted a temporary stay of execution on July 2,1986, and allowed Stano the opportunity to appeal the trial court’s denial of his 3.850 motion. See Stano v. State, 492 So.2d 1335 (Fla.1986). Thereafter, this Court affirmed the trial court’s denial of relief and vacated the stay of execution. Stano v. State, 497 So.2d 1185 (Fla.1986). The United States Supreme Court denied eertiorari on May 18, 1987. Stano v. Florida, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).
The Governor signed Stano’s second death warrant on June 4,1987. Execution was set for August 26, 1987. On July 6, 1987, this Court denied Stano’s motion for a five-day extension to file a petition for writ of habeas corpus. Stano filed no further collateral motions in the state courts. Stano filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida on August 22, 1987. The district court concluded that of all Stano’s claims, only the ineffective assistance of counsel claims required an evidentiary hearing. After a limited evidentiary hearing, the district court denied relief and granted a temporary stay of execution. On August 28, 1987, the United States Court of Appeals for the Eleventh Circuit granted a stay of execution. Stano v. Dugger, 828 F.2d 12 (11th Cir.1987). Initially, the Eleventh Circuit issued a panel opinion affirming the district court’s denial of habeas relief. Stano v. Dugger, 883 F.2d 900 (11th Cir.1989).
However, the circuit court reconsidered Stano’s claims en bane and affirmed the district court’s denial of habeas relief on Stano’s ineffective assistance of counsel claims, but it remanded the case to the district court for an evidentiary hearing on three issues. Stano v. Dugger, 901 F.2d 898 (11th Cir.1990) (en banc). On June 10, Í992, after conducting an extensive evidentiary hearing over a fifteen-day period, the district court issued a twenty-eight-page order which included detailed factual findings and denied Stano habeas relief. On appeal, the circuit court affirmed the district court’s ruling. Stand v. Butterworth, 51 F.3d 942 (11th Cir.1995). The United States Supreme Court denied certiorari on February 20, 1996. Stano v. Singletary, 516 U.S. 1122, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996).
The Governor signed Stano’s third death warrant. Execution was scheduled for April 29, 1997. On March 18, 1997, Stano filed a notice of conflict in respect to his then counsel who was the Capital Collateral Representative (CCR). On March 25,1997, this Court issued an order finding no conflict of interest in CCR’s representation of Stano. On April 23, 1997, this Court expressly recognized CCR as counsel for Stano, stayed Stano’s execution until May 30, 1997, and consolidated Stano’s case with the litigation concerning the electric chair in Jones v. Butterworth, 691 So.2d 481 (Fla.1997). This Court directed CCR to file in the trial court any postconviction motions available to Stano by May 9, 1997. Stano v. Singletary, 692 So.2d 180 (Fla.1997). No motion was filed in the trial court, and no request for extension of time was filed in either the trial court or this Court. Thereafter, prior to May 30, 1997, this Court stayed Stano’s execution pending resolution of the electric chair issue being litigated in the Jones case.
On October 20, 1997, in view of the decision issued in Jones v. State, 701 So.2d 76 (Fla.1997) (declaring that execution in the electric chair is not cruel or unusual punishment), cert. denied, — U.S.-, 118 S.Ct. 1297, 140 L.Ed.2d 335 (1998), this Court dissolved the stay issued in this case. On the same day, this Court received notice that the Governor had reset Stano’s execution for March 23, 1998. We ordered that any further proceedings in this case be expedited and set oral argument for February 6, 1998. Nothing was filed, and the case was removed from the oral argument calender.
Beginning March 6, 1998, several motions were filed on behalf of Stano. On March 19, 1998, Stano filed the following four motions in the trial court: (1) a 3.850 motion; (2) a motion to disqualify the judges of the Eighteenth Circuit; (3) a motion to disqualify the State Attorney for the Eighteenth Circuit; and (4) a motion to determine the admissibility of evidence., On March 19, 1998, the trial court held a preliminary hearing, after which the trial court denied the first three motions and determined that the fourth motion was moot by virtue of the denials.
In its order, the trial court initially denied relief on the basis that all the claims were barred because this Court had previously issued an order mandating that all Stano’s claims be filed before May 9, 1997. Finding that Stano knew of the basis for each claim before May 9,1997, the trial court ruled that the motion was untimely." Additionally, the trial court ruled that the motion was untimely under Florida Rules of Criminal Procedure 3.850(b) and 3.851(b), reasoning that none of the claims qualified as newly discovered evidence; that the claims were successive under rule 3.850(f) because some claims have been previously resolved; and that any new grounds raised constitute an abuse of procedure under rule 3.850(f) because they could have been raised in previous postconvietion proceedings.
We recognize the propriety of the trial court’s determination that our order dated April 23,1997, barred any further motions on behalf of Stano based upon information available before May 9, 1997. The trial court is bound by this Court’s order. However, in view of the circumstances involved in the stay of this case in respect to the electric chair, we agree with the court’s consideration of the merits of the 3.850 motion belatedly filed on March 19, 1998. We have also considered the 3.850 motion on its merits.
In his motion before the trial court, Stano raised five issues. In his first issue, Stano argued that he should receive a new trial because C.Z. has purportedly recanted his trial testimony. In support of this argument, Stano filed a copy of Nash Rosenblatt’s affidavit in which Rosenblatt, a freelance writer, claims that Z. told him in a telephone interview that Stano never really confessed to killing Scharf. Z. also stated in the interview that Stano’s prosecutors offered him certain rewards in exchange for his testimony against Stano. When Z. agreed to testify against Stano, prosecutors then coached Z. on what he should say. Rosenblatt wrote an article based on this interview and mailed a copy to Stano in April 1997.
The trial court found that this claim is meritless because Stano has failed to demonstrate how Rosenblatt’s testimony regarding Z.’s alleged recantation and allegations of prosecutorial misconduct would be admissible at a new trial under our rules of evidence because there is no indication that Z.’s statement to Rosenblatt was under oath. The trial court notes that there is no affidavit from Z.. We have previously held that recanted testimony is “exceedingly unreliable.” Spaziano v. State, 660 So.2d 1363, 1365 n. 1 (Fla.1995). However, we do not reach the issue of the admissibility of Rosenblatt affidavit. Assuming without deciding that this affidavit is admissible newly discovered evidence, we agree with the trial court that there is no reasonable probability that the outcome of a new trial would, produce an acquittal. In order to qualify as newly discovered evidence, “the asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by- the use of diligence.” Robinson v. State, 707 So.2d 688 (Fla.1998). If the proffered evidence meets the first prong, to merit a new trial the evidence must substantially undermine confidence in the outcome of the prior proceedings or the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Id. Because of the questionable reliability of the proffered evidence and since Stano confessed to Officer Hudson in March 1981 and to Detective Man-ís in a tape-recorded confession in August 1982, in addition to confessing to C.Z., we conclude that it is not probable that this evidence would produce an acquittal on retrial.
We agree with the trial court’s rejection of Stano’s claim that his execution, should be stayed pending Stano’s collateral attack upon five of the eight prior violent felonies, the trial court relied upon to impose a death sentence. This claim is grounded, on the premise that five of Stano’s prior murder convictions are invalid because his attorney for those offenses, Howard Pearl, had a conflict of interest in that while he represented Stano, he was also a special deputy sheriff in Volusia County. Stano filed a 3.850 motion challenging these Volusia ' County murder convictions. The trial court denied the motions, and appeals are pending before this Court and the Fifth District Court of Appeal. As a basis for a 3.850 motion in this case, the trial court correctly found that this claim is time-barred because the Howard Pearl issue has been known since 1989.
We also reject this claim on its merits. Stano argues that under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (vacating death sentence predicated in part on aggravating circumstance of prior conviction of violent felony when conviction upon which that aggravating circumstance was based was later set aside), if his convictions are set aside, then his death sentence in this case would be constitutionally infirm. First, Johnson is not applicable because Stano’s prior convictions have not been set aside. See Eutzy v. State, 541 So.2d 1143, 1146 (Fla.1989) (fact that defendant is merely seeking collateral review of conviction which served as sole evidence of prior violent felony conviction does not entitle defendant to relief under Johnson).
Second, even if these convictions were set aside, Johnson would not require a reversal of the death sentence here. There would remain three other murder convictions upon which the trial court could have relied to find the prior violent felony aggravator. In addition to this, there were three other valid aggravating circumstances. Therefore, even if the convictions were set aside, there still remains sufficient aggravation, especially when pitted against no mitigation, to sustain a death sentence. See Henderson v. State, 617 So.2d 313, 316 (Fla.1993); Tafero v. State, 561 So.2d 557, 559 (Fla.1990); Bundy v. State, 538 So.2d 445, 447 (Fla.1989).
We affirm the trial court’s rejection of Stano’s third and fourth issues. Stano alleged that newly discovered evidence regarding police investigator Paul Crow’s credibility requires that he be granted a new trial.
Stano presented the affidavits of several law enforcement officers stating that Crow is a liar who will lie under oath to protect himself or his cases. We agree with the trial court that this evidence; does not meet the first prong of the test because these stater ments could haye been discovered through due diligence within the time requirements of the rule. Therefore, this argument is procedurally barred. Furthermore, as with the Rosenblatt affidavit, we agree that this evidence, even if newly discovered, would not probably produce an acquittal.
Stano argued that Crow lied to the district court judge in the federal habeas proceeding when, asked if he was pursuing a book deal on Stano’s story. Stano states that he now has audio tapes provided by Andy Campanaro in April 1997 which establish that Crow and Campanaro were negotiating a deal in 1986 for a book which would be based on Stano. We find that the trial court did not abuse its discretion in determining that Stano has failed to establish how Crow’s negotiating for a book deal in 1986 is relevant. Even if the evidence was found to be relevant and not procedurally barred, this evidence is not of such a nature as to make an acquittal on retrial probable.
Stano also argued that the Campanaro tapes reveal that Crow told Campanaro that he had heard Stano confess to a crime which Crow thought he had not done. As the trial court stated in her order, the “false confessor issue” was litigated in the federal habeas proceedings and determined adversely to Stano. Stano, 51 F.3d at 942-43. We agree with the trial court that even if this evidence were considered newly discovered evidence for the reasons previously stated, the evidence would not make an acquittal at a retrial probable.
Next, Stano argued that he should receive a new trial because Crow induced Stano’s confession with the promise of a life sentence. The basis for this argument is Crow’s testimony at the federal proceeding which took place in 1992. Because the facts which form the basis of this argument were known more than five years ago, this argument is procedurally barred. Robinson.
In his fifth issue, Stano claimed that he was denied due process of law because he was denied continuous representation by the Capital Collateral Regional Counsel’s office. Stano presented this exact claim in his motion dated March 6,1998, in which he sought a stay of execution and other mandatory injunctive relief. By order dated March 10, 1998, we denied the motion stating, ‘We find that the motion contains no colorable claim for stay of execution.” The trial court properly denied the claim based on our previous order.
Accordingly, we affirm the denial of Stano’s motion for postconviction relief. We also affirm the trial court’s denial of Stano’s motion to disqualify the judges of the Eighteenth Circuit, his motion to disqualify the State Attorney for the Eighteenth Circuit, and the trial court’s ruling that Stano’s motion to determine the admissibility of evidence was moot. No motion for rehearing will be permitted.
OVERTON, HARDING, WELLS and PARIENTE, JJ., concur.
KOGAN, C.J., and SHAW and ANSTEAD, JJ., concur in result only.
Specifically, in March 1981, Stano confessed regarding Scharf s murder to officers Paul Crow of the Daytona Beach Police Department and David Hudson of the Volusia County Sheriff’s Office. On August 11 and 12, 1982, Stano again confessed regarding the Scharf case to detective John Manis of the Brevard County Sheriff's Office. Manis taped Stano’s August 12, 1982, confession. All three officers testified at Stano’s second trial, and Stano’s taped confession was also introduced.
These two death sentences for murders occurring in Volusia County have been affirmed by this Court. Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985).
Stano raised the following six issues in his 3.850 motion: (1) whether the confessions leading to the six prior guilty pleas which were introduced in aggravation were coerced; (2) whether the State improperly withheld exculpatory evidence that the confessions were coerced; (3) whether counsel was ineffective for failing to adequately cross-examine a State witness; (4) whether trial counsel was ineffective for failing to object to the State's cross-examination of Stano during the sentencing proceeding; (5) whether the trial court erred in allowing two psychiatrists to testify for the State as to statutory mitigators; and (6) whether the defense expert who conducted a psychological study of Stano was incompetent.
The district court was to consider: (1) whether the State withheld exculpatory evidence from Stano in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) whether the testimony of C.Z. violated United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); and (3) whether the sentencing court's reliance on two prior convictions as aggravating factors was reversible error under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), because those convictions were reversed on appeal.
On August 17, 1993, Stano moved the district court to set aside its judgment pursuant to Federal Rule of Civil Procedure 60(b) based on allegations that Paul Crow had written the foreword in a book based on Stano. The district court denied the motion.
The circuit court, citing largely to the district court’s findings of fact, held that there were no violations under Brady or Henry. Moreover, the court held that there was no Johnson violation because the two convictions which were overturned were later reinstated. The circuit court also affirmed the district court’s ruling denying Stano’s rule 60(b) motion.
On March 6, 1998, Stano filed a "Motion for Stay of Execution and Other Mandatory Injunctive Relief.” This Court denied the motion by order dated March 10, 1998. On March 17, 1998, Stano filed a "Motion for Stay of Execution, for Designation of Judge to Hear Rule 3.850 Motion, and for Determination of Question of Law Which Has Not Been, but Ought to be, Decided by the Florida Supreme Court.” By order dated March 18, 1998, this Court denied the motion for stay and denied the remainder of the motion without prejudice to pursue all issues in the trial court.
It is unclear from the filings whether this article was ever published.