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

844 F.2d 1464, 1988 U.S. App. LEXIS 5192, 1988 WL 39117

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 21, 1988
• Docket: 86-3167
• Status: Published

Opinions

FAY, Circuit Judge:

Roy Allen Harich appeals from a final judgment of the district court denying his petition for a writ of habeas corpus. Ha-rich alleges (1) that he is entitled to an evidentiary hearing to show that trial counsel was ineffective because counsel failed to adequately investigate and present a voluntary intoxication defense, and (2) that the prosecutor and the trial court misled the jurors as to their role in the sentencing procedure in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We affirm.

I. BACKGROUND

The panel opinion thoroughly explains the facts and procedural background of this case. Harich v. Wainwright, 813 F.2d 1082, 1084-87 (11th Cir.1987). To aid in understanding this case, we briefly recount its background.

Roy Harich testified that on June 26, 1981 between 4:00 p.m. and 9:00 p.m. he consumed about fifteen cans of beer and six marijuana cigarettes and became “mildly drunk.” Trial Transcript, Vol. II, at 502-08. On his way home from a friend’s house he met Carlene Kelley and Deborah Miller at a gas station in Daytona Beach. The two girls did not know Harich, but after some discussion they accepted a ride with him. While in Harich’s van, the three smoked a small amount of marijuana.

They stopped at a convenience store to purchase a six-pack of beer. Harich then drove the girls to the woods where he had a marijuana patch. The marijuana leaves were too damp to smoke, so they placed the leaves under the hood of the van to dry. After waiting for about an hour, petitioner began to discuss the sexual problems he had been having with his wife. At this point, Miller asked if they could leave. They got into the van, but petitioner drove only a few yards before stopping. Using a gun, petitioner forced Carlene Kelley to have sex with him. He then offered to give them a ride back, promising not to hurt them. The girls accepted.

After a short drive, petitioner told the two girls that they would have to get out and walk the rest of the way. He instructed them to lie down behind the van while he drove away. The two then laid down on their stomachs behind the van. Harich wrapped his gun in a towel and shot both Kelley and Miller in the back of the head. Petitioner then used a knife to cut both their throats. Kelley died instantly, but Miller survived. Harich drove away.

Miraculously, Miller remained conscious and made her way to the highway. A passing motorist picked her up and drove her to a hospital. At the hospital, Miller described her assailant and his van. She told the police that her attacker’s name was Roy. Trial Transcript, Vol. I, at 228. At trial, she made an in-court identification of the petitioner.

Harich was the only witness for the defense. He claimed that the alcohol and drugs he consumed the night of the murder caused him to forget the events in detail until December, 1981. Harich testified that when his memory became clear he remembered driving Kelley and Miller into the woods to look for marijuana. However, he denied sexually assaulting, attempting to kill, or killing anyone. He claimed that he left the girls, unharmed, at a nearby convenience store at approximately 11:00 p.m., and arrived home at 11:10 p.m. This was about fifty minutes before the police learned of the incident.

The State of Florida charged Harich with first degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The jury found defendant guilty of all charges, and then advised the trial court to impose the death penalty. The trial court sentenced Harich to death for the murder.

After exhausting all available remedies in the state courts,¹ Harich filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The district court dismissed the petition and denied petitioner's request for an evidentiary hearing. The district court also denied petitioner’s request for a certificate of probable cause to appeal. Harich immediately appealed. This Court granted his request for a certificate of probable cause and entered an order staying his execution pending this appeal.

II. DISCUSSION

Having made a thorough examination of this case, we adopt sections IB, II, III, IV, VI, and VII of Judge Clark’s panel opinion. See Harich v. Wainwright, 813 F.2d 1082 (11th Cir.1987).² This opinion discusses ineffectiveness of counsel and the Caldwell issue.

A. Ineffectiveness of Counsel

Petitioner requests an evidentiary hearing to show that trial counsel was ineffective because he was unaware that under Florida law voluntary intoxication is a defense to premeditated murder. Harich claims that as a result of this alleged ignorance, counsel: (1) failed to seek a jury instruction on voluntary intoxication;³ (2) failed to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failed to seek an expert opinion on the impact of Harich’s intoxication on his ability to premeditate. Neither the state courts nor the district court held an evidentiary hearing in this case. Petitioner is entitled to an evidentiary hearing if his allegations, taken as true, might merit relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).

The sixth amendment right to an attorney requires “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland v. Washington sets forth the standard for evaluating ineffective assistance of counsel claims. First, the defendant must show that “in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance.” 466 U.S. at 690, 104 S.Ct. at 2066. In practice this means that courts will not find that an attorney is incompetent for using a particular approach to a case so long as that approach was reasonable. There is a strong presumption that counsel provided effective assistance. Id. at 689-90, 104 S.Ct. at 2065-66. Second, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. “[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696, 104 S.Ct. at 2069.

1. The Range of Professionally Competent Assistance.

The district court, without holding an evidentiary hearing, found that counsel made a tactical decision not to pursue the intoxication defense.⁴ See Record, Tab 12, at 3. According to the record before us, however, no court has heard testimony from trial counsel regarding his decisions in pursuing Harich’s defense. Without a hearing, it is impossible to determine whether counsel’s failure to argue the intoxication defense was an actual trial tactic. To determine whether counsel was ineffective, we must first consider whether competent counsel could have reasonably decided not to pursue the voluntary intoxication defense.

Throughout the guilt/innocence phase of the trial, Harich maintained that he was innocent. He testified that due to the quantity of alcohol and drugs he consumed the night of the murder, he was unable to recall the events in detail. After reading the morning newspaper, he feared that he might be a suspect. Harich then contacted a local defense attorney and the two of them agreed that Harich would go to the police to explain his innocent role in the incident. The police, however, arrested Ha-rich before he contacted them. Harich testified that his memory returned five months later. At that point he admitted driving the victims to the woods to look for marijuana and then dropping them off at a convenience store, unharmed.

Defense counsel faced a difficult dilemma. Harich admitted that he was with the victims that evening, yet insisted that he was innocent of any wrongdoing. He also indicated that he was under the influence of the drugs and alcohol that evening. Armed with these tough facts, defense counsel adopted the primary defensive strategy of asserting factual innocence.

Petitioner suggests that defense counsel should have employed alternative defenses. We believe that it was reasonable not to pursue alternative defenses beyond the length taken by counsel.⁵ Harich testified that he was only “mildly drunk” and did not commit these crimes.

To suggest to the jury that Harich was so drunk that he could not have “intended” the consequences of these acts proved by strong evidence would have been totally contrary to and undermining of the position being taken by Harich himself. Although inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury.

By handling the matter the way he did, defense counsel was able to inject the thought of diminished capacity (due to heavy drinking and marijuana) without totally rejecting the testimony of Harich.

Harich, 813 F.2d at 1105 (Fay, J., dissenting in part, concurring in part).

It is not enough for petitioner to claim that his lawyer was ignorant of the Florida law. Petitioner must prove that the approach taken by defense counsel would not have been used by professionally competent counsel. As the Supreme Court has stated, petitioner “must overcome the strong presumption that counsel provided effective assistance_ There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Considering that defendant denied committing the crimes, and testified as to his factual innocence, we conclude that the approach taken and the presentation made by defense counsel was one which falls well within the objective yardstick that we apply when considering the question of ineffectiveness of counsel.⁶ We cannot say that by failing to pursue an intoxication defense, counsel's approach to this case was outside the range of professionally competent assistance. A competent attorney completely informed on the intoxication defense and faced with a defendant advocating his factual innocence could well have taken action identical to counsel in this case.

2. The Probability of Change in the Outcome.

Even if we found that competent counsel would not have taken the approach defense counsel used in this case, we would affirm. We do not believe that petitioner satisfied the second prong of Strickland by showing any prejudice from counsel’s alleged errors.⁷ Petitioner failed to demonstrate that there is a reasonable probability that including defense counsel’s omissions would have changed the outcome of the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Under Florida law, voluntary intoxication is a defense to first degree murder when the intoxicant renders the defendant incapable of forming the intent to commit the crime. See supra note 3. Even deciding every credibility determination in Harich’s favor, we find that it is not reasonably probable that the jury would have accepted the intoxication defense. Harich’s lawyer built a case around his client’s claim of factual innocence. Through his own testimony, Harich recounted details about what he did, where he went, and when he dropped off the girls. Harich tried to convince the jury that he was not with Kelley and Miller when these crimes were committed. The jury did not believe him.

The evidence favoring conviction was the persuasive testimony of the survivor, Deborah Miller, identifying Harich as the assailant and stating that Harich appeared sober on the day of the crimes. In addition, evidence admitted at trial revealed that Ha-rich operated his vehicle without any noticeable impairment. He also tricked the girls into lying down behind his van and shot them in the head with a gun he had the presence of mind to muffle. Finally, after shooting the victims, Harich sliced their throats to insure their death.

Petitioner claims that had counsel included a jury instruction on voluntary intoxication, there is a reasonable probability that the jury would have found him not guilty by reason of intoxication. We find this difficult to believe. The acts committed required a significant degree of physical and intellectual skills. See Keys v. Duckworth, 761 F.2d 390, 393 (7th Cir.1985) (per curiam). Moreover, to accept the intoxication argument, the jury would have had to disbelieve the testimony of both Miller and Harich.⁸ The absence of a jury charge did not prejudice petitioner.

We also feel that there was not a reasonable probability of a different result had defense counsel objected to the prosecutor’s misstatement of the applicable law during closing arguments. Essentially, the prosecutor indicated that because Harich’s state of intoxication was voluntary, Florida law did not permit mitigation of first degree murder. Although the prosecutor incorrectly stated the law, see supra note 3, there was no prejudice. Defense counsel subsequently stated in his closing argument that the jury should consider Ha-rich’s alleged state of intoxication as mitigating evidence. The jury thus heard both positions on this issue. Because the trial judge correctly instructed the jury that closing arguments were not treated as evidence, there was even less chance of prejudice. An objection by defense counsel to the prosecutor’s misstatement was unlikely to change the result for the petitioner.

It is also unlikely that presenting expert testimony on intoxication in the guilt/innoeence phase of the proceedings would have impacted on the jury’s determination of guilt. Telling the jury that Ha-rich was not capable of forming the specific intent to kill, kidnap, or sexually assault the victims because he was suffering from alcohol idiosyncratic intoxication, would implicate him in the murder in contradiction of his own testimony. Defense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence.⁹ It is, therefore, not reasonably probable that presenting expert testimony earlier would have resulted in a different verdict.

We find that given the state of Florida law at the time of trial, even counsel who knew and appreciated the relevance of intoxication could have reasonably decided not to pursue such a defense in this case. We also find that petitioner did not suffer any prejudice thereby, as it is not reasonably probable that the jury would have accepted the intoxication defense petitioner suggests defense counsel should have offered. We do not believe that petitioner raised a colorable claim of ineffectiveness under Strickland. After a thorough review of the record, we hold that under the facts of this case, these allegations, if true, do not constitute ineffective assistance of counsel. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321 (11th Cir.1984). Petitioner, therefore, is not entitled to an evidentiary hearing on this claim.

B. The Caldwell Issue

Petitioner contends that statements made by the prosecutor and by the trial court misled the advisory jury as to its critical role in the sentencing process in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).¹⁰

In Caldwell the prosecutor urged the jury not to view itself as determining whether defendant would die, because the Supreme Court of Mississippi automatically reviewed a death sentence for correctness. The Supreme Court of the United States found that this statement made the jury’s determination that death was the appropriate punishment unreliable, and thus inconsistent with the eighth amendment. The Caldwell Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639.

In Caldwell the prosecutor’s remarks were inaccurate and misleading, thus shifting the sense of responsibility for imposing the death sentence from the jury to the appellate courts. The prosecutor made affirmative statements designed to give the jury the idea that their role in the sentencing process was not a serious responsibility. These statements violated defendant’s constitutional rights and entitled him to a new trial.

The relevant question under Caldwell is whether remarks made at trial lessened the jury’s sense of responsibility toward its role of determining whether the death penalty is appropriate. Although certain language in Caldwell could be interpreted broadly, we must consider such language in light of the facts of Caldwell. We believe the Supreme Court intended that a Caldwell violation should include some affirmative misstatement or misconduct that misleads the jury as to its role in the sentencing process. Caldwell does not mandate reversal if an advisory jury is told that its role is to advise or to recommend.

In Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), we held that Caldwell mandates the reversal of a conviction where an advisory jury is misled as to the importance of its role. “[T]he jury’s role in the Florida sentencing process is so crucial that dilution of its sense of responsibility for its recommended sentence constitutes a violation of Caldwell.” Adams, 804 F.2d at 1530. It is vital that the advisory jury fully understand the gravity of its sentencing decision. The trial court in Adams incorrectly led the jury to believe that the responsibility for imposing the death sentence rested solely upon himself. The trial judge instructed the jury that he could disregard the jury’s recommendation, even if the jury recommended life imprisonment. This was incorrect. Florida law allows for an override of the jury’s recommendation of life imprisonment only upon a clear and convincing showing that it was erroneous.¹¹ Furthermore, the trial court told the jury that: “[Tjbis conscience part of it as to whether or not you’re going to put the man to death or not, that is not your decision to make. That’s only my decision to make and it has to be on my conscience. It cannot be on yours.” Adams, 804 F.2d at 1528. Caldwell prohibits such attempts to shield the jury from the full weight of its advisory responsibility.

Under Florida’s death penalty statute the jury’s role is advisory. After receiving the jury’s recommendation, the trial judge must independently weigh the aggravating and mitigating circumstances and render sentence.¹² Therefore, emphasizing the “advisory” role of the jury, or the fact that the jury is making a “recommendation” to the judge, does not support the Caldwell claim.¹³ Such statements are neither inaccurate nor misleading.¹⁴

In the instant case, petitioner contends that the remarks made by the prosecutor and judge improperly diluted the jury’s sense of responsibility for their sentencing decision in violation of the Eighth Amendment. [Specifically, the prosecutor told the jury during voir dire that its sentencing decision was a recommendation and that the “court pronounces whatever sentence it sees fit.”] Trial Transcript, Vol. I, at 74-75.¹⁵

The trial court made several similar statements during the guilt/innocence phase. Before the trial began, the court told the jury that it is the jury’s duty to determine guilt or innocence, but that “it is the judge’s job to determine what a proper sentence would be if the defendant is guilty.” Id. at 178. In its instructions to the jury at the end of the guilt phase, the court repeated the above statement, Trial Transcript, Vol. II at 732, and also noted:

I will now inform you of the maximum and minimum possible sentences in this ease. The penalty is for the court to decide. You are not responsible for the penalty in any way because of your verdict. ...

Id. at 735-36.

The trial court returned to this theme in the sentencing phase. Before the state began its case, the court told the jurors the following:

As I advised you, when the charge of the law was given you at the conclusion of the case, the punishment of this crime is either death or life imprisonment without possibility of parole for twenty-five years. The final decision as to what punishment shall be imposed rests solely upon the judge of this court. However, the law requires that you, the jury, render to the court an advisory sentence as to what punishment should be imposed upon the defendant.

Id. at 754-55 (emphasis added). The court then told the jurors that their decision should be based on their balancing of the mitigating and aggravating circumstances in the case. After the evidence was presented, the court instructed the jury, in pertinent part, as follows:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed upon the Defendant for his crime of first-degree murder. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the Judge; however, it is your duty to follow the law which will now be given to you by the Court and render to the Court an advisory sentence, based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

Your advisory sentence should be based upon the evidence which you have heard while trying the guilt or innocence of the Defendant and the evidence which has been presented to you in these proceedings.

Trial Transcript, Vol. II, at 914.] 813 F.2d at 1098-99.

We do not believe that the challenged comments misled the jury as to the importance of its advisory role. These statements did not create the intolerable danger that the advisory jury’s recommendation of the death sentence was unreliable. Neither did they minimize the role of the jury. The statements explained to the jury their role with respect to the judge. The judge also instructed the jury to listen to the evidence, weigh the aggravating and mitigating circumstances, and render an advisory opinion as to the applicability of the death penalty in this case. Neither 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.

We agree with the Supreme Court of Florida that comments which accurately explain the respective functions of the judge and jury are permissible under Caldwell “as long as the significance of [the jury’s] recommendation is adequately stressed.” Pope v. Wainwright, 496 So.2d 798, 806 (Fla.1986), cert. denied, — U.S. —, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). After examining the record, we conclude that the court and prosecutor adequately communicated the seriousness of the jury’s advisory role. We cannot say that this jury felt anything but the full weight of its advisory responsibility. As a result, petitioner’s Caldwell claim must fail.¹⁶

III. CONCLUSION

For the foregoing reasons we affirm, in toto, the denial of relief.

AFFIRMED.

1 . For a more detailed account of the procedural history in this case, see Harich, 813 F.2d at 1084-85.

2 . Brackets enclosing material are used, unless otherwise indicated, to denote insertions or additions taken directly from the panel opinion prepared by Judge Clark.

3 . [As the Florida Supreme Court noted in denying Harich’s habeas corpus petition, 484 So.2d 1237, 1238 n.*, the pre-April 1981 version of the Florida Standard Jury Instructions in Criminal Cases contained an affirmative defense instruction for intoxication. Instruction 2.11(c) read as follows:

When a Defense

Voluntary drunkenness or intoxication (impairment of the mental faculties by the use of narcotics or other drugs) does not excuse nor justify the commission of crime, but intoxication (impairment of the mental faculties by the use of narcotics or other drugs) may exist to such an extent that an individual is incapable of forming an intent to commit a crime, thereby rendering such person incapable of committing a crime of which a specific intent is an essential element. When the evidence tends to establish intoxication (impairment of the mental faculties by the use of narcotics or other drugs) to this degree, the burden is upon the state to establish beyond a reasonable doubt that the defendant did, in fact, have sufficient use of his normal faculties to be able to form and entertain the intent which is an essential element of the crime.

When Not a Defense

Drunkenness (impairment of the mental faculties by the use of narcotics or other drugs) which does not go to the extent of making a person incapable of forming the intent, which is an essential element of a crime, does not in any degree reduce the gravity of the offense. Drunkenness (impairment of the mental faculties by the use of narcotics of [sic] other drugs) arising after the formation of the intent which is an essential element of a crime and voluntarily induced for the purpose of nerving the offender to commit a crime already planned does not excuse nor reduce the degree of the crime. Partial Intoxication

Partial intoxication (impairment of the mental faculties by the use of narcotics or other drugs) which merely arouse the passions or reduces the power of conscience neither mitigates nor lessens the degree of guilt if the offender still knew right from wrong, the probable consequences of his act, and was capable of forming a specific intent to commit the crime.

For some reason, this instruction did not survive the 1981 amendments to the standard instructions, although the other affirmative defense instructions (alibi, insanity, entrapment, and self-defense) were carried forward. Notwithstanding the exclusion of the intoxication instruction in the 1981 amendment, intoxication remains a defense to specific intent crimes in Florida. See Gardner v. State, 480 So.2d 91 (Fla.1985): Linehan v. State, 476 So.2d 1262 (Fla.1985).] 813 F.2d at 1088 n. 4.

4 . Under the umbrella term "pursuing an intoxication defense” we include all three of petitioner’s allegations relating to ineffectiveness of counsel: (1) failure to seek a jury instruction on voluntary intoxication; (2) failure to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failure to seek an expert opinion on the impact of intoxication on Harich’s ability to premeditate.

5 . The record shows that defense counsel made many calculated attempts to uphold petitioner’s position of factual innocence while injecting evidence of intoxication.

6 . Indeed, we think that the lawyer was above average if not outstanding in representing his client in this case.

7 . It is not error to decline to hold an evidentiary hearing on a habeas corpus petition alleging ineffective assistance of counsel where the allegations fail to satisfy the "prejudice” requirement necessary under Strickland v. Washington. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985).

8 .The jury would have had to find that Harich lied about his innocence while telling the truth about his state of intoxication. It is not reasonably probable that the jury would have made such a finding.

9 . The expert’s report and testimony included the following:

Based on a review of the data available to this examiner, it is my opinion that Mr. Harich was suffering from alcohol idiosyncratic intoxication (DSM III 291.40) in that he showed a marked behavioral change (e.g., aggressive behavior) due to the recent ingestion of a large quantity of alcohol and this behavior is atypical of the person when not drinking. In view of this evaluation, it is certainly likely that because of his state of intoxication, Mr. Harich was not capable of forming the specif-ie intent to kill, kidnap, or sexually assault the victims, and was in all probability responding impulsively to the emotional strain in his life at that time.

Rl-3 (Appendix) — Exh. B; see Trial Transcript, Vol. Ill at 812-22.

10 . The State of Florida argues that the Caldwell claim is procedurally barred. Because the panel opinion correctly disposes of this issue, see Harich, 813 F.2d at 1098 n. 17, we see no need to address it further.

11 . [T]he jury’s recommendation, which represents the judgment of the community as to whether the death sentence is appropriate in a ■given case, is entitled to great weight, McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (per curiam), and may be rejected by the trial judge only if the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam).

Adams, 804 F.2d at 1529.

12 . [Florida’s death penalty statute provides for bifurcated proceedings in capital cases. First, the jury must determine whether the defendant is guilty of a capital crime. Second, if the defendant is found guilty, the court conducts a separate sentencing proceeding to determine whether the appropriate penalty is death or life imprisonment. Fla.Stat. § 921.141(1). The sentencing phase consists of three subphases. First, the jury considers the mitigating and aggravating evidence and renders an advisory sentence to the court. Fla.Stat. § 921.141(2). Second, the trial court decides whether to accept the jury’s recommended sentence. If the court decides to impose the death sentence, it must set forth in writing its findings upon which the sentence of death is based. Fla.Stat. § 921.141(3). Finally, the judgment of conviction and sentence of death is subject to automatic review in the Supreme Court of Florida. Fla. Stat. § 921.141(4).

The division of authority between the jury and the trial judge under the Florida death penalty statute has been upheld against constitutional challenge. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Spaziano, the Court made reference to the fact that the jury’s recommendation is entitled to some deference by the trial court. 104 S.Ct. at 3165-66.] 813 F.2d at 1100 n. 19.

13 .One concern expressed in Caldwell was that a sentencing jury "unconvinced that death is the appropriate punishment, ... might nevertheless wish to 'send a message’ of extreme disapproval for the defendant's acts.” The jury might thus tend to sentence the defendant to death ‘“because the error may be corrected on appeal.’” The Supreme Court feared that a defendant might thus be executed, "although no sentencer had ever made a determination that death was the appropriate sentence.” Caldwell, 472 U.S. at 331-32, 105 S.Ct. at 2641.

This aspect of Caldwell is not applicable to this case. The appellate court in Caldwell would have had to rely on appellate briefs and transcripts to make a determination of whether death was appropriate. Although Florida juries play a crucial role in the sentencing process, the trial judge serves as the true sentencer. The Florida trial judge, like the jury, hears firsthand all testimony and evidence.

14 . We note that the Supreme Court of Florida has held that jury instructions and statements informing the jury that their role is advisory are accurate. Pope v. Wainwright, 496 So.2d 798, 805 (Fla.1986), cert. denied, — U.S. —, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Aldridge v. State, 503 So.2d 1257, 1259 (Fla.1987); Smith v. State, 515 So.2d 182 (Fla.1987).

15 . [The prosecutor explained the bifurcation of proceedings in capital cases and then told the jury that, in the sentencing phase:

[Y]ours is a recommendation to the Court. The Court pronounces whatever sentence it sees fit. But yours is a recommendation, giving some direction to the Court as to what the circumstances show.

Trial Transcript, Vol. I at 74-75. Immediately prior to this statement, the prosecutor warned the jury that the sentencing phase "is a very serious part of the trial and a very serious proceeding.” Id. at 74. Immediately after this statement, the prosecutor noted that the sentencing phase is not "a proceeding based upon sympathy or based upon any emotion, it is proceeding [sic] based upon law, law and facts.” Id. at 75.] 813 F.2d at 1098 n. 18.

16 . Petitioner also contends that the prosecutor and trial judge should have informed the jury about the weight accorded its sentencing verdict. The Florida trial judge uses this Tedder standard, see supra note 11, when determining whether to override the jury's verdict of life imprisonment. We can find no reason why the jury would not take their role seriously simply because the trial judge did not inform them of a rule of law applicable only to him.