Charles Kenneth Foster, Petitioner, v. Charles G. Strickland, Jr., et al., Respondents, 707 F.2d 1339 (11th Cir. 1983)

Charles Kenneth Foster appeals from the district court's denial of his petition for a writ of habeas corpus. Petitioner was convicted of first degree murder in Florida and sentenced to death. In this collateral appeal, he challenges: (1) the competency of his counsel in the guilt and penalty phases of his trial; (2) the constitutionality of instructions to the jury on the weighing of aggravating against mitigating circumstances; (3) the Florida Supreme Court's alleged use of non-record material in reviewing his sentence; and (4) the constitutionality of jury instructions allegedly limiting consideration of non-statutory mitigating circumstances.

After a careful review of the entire record, including petitioner's state trial transcript and the transcript of his federal habeas evidentiary hearing, we affirm the district court's decision with respect to these claims. We are compelled, however, to reverse because of the trial judge's inadequate findings of fact on the mitigating circumstances, as required by the Florida Death Penalty statute. It is impossible to determine whether petitioner's sentence was the product of reasoned judgment rather than of caprice and arbitrariness, and thus whether it comports with the constitutional requirements expressed by the Supreme Court. See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

Petitioner was convicted of first degree murder and robbery for the July 15, 1975, killing of Julian Lanier. Petitioner apparently met Lanier for the first time at a bar on the evening of July 14, where they became acquainted over several drinks. Lanier asked petitioner if he knew of any women they could hire to engage in sexual relations. Petitioner and Lanier then traveled to another bar where they met two women, at least one of whom knew petitioner, and persuaded them to travel to a remote wooded area in Lanier's motorhome. Both petitioner and Lanier were, apparently, quite intoxicated.

In the early morning hours of July 15, just as Lanier and one of the women were about to engage in sexual intercourse, petitioner, without provocation, screamed that Lanier was taking advantage of his sister and brutally attacked Lanier with his fists. Petitioner then slit Lanier's throat with a knife. With the assistance of the two frightened women, petitioner dragged Lanier out of the motorhome to the woods and covered him, face down, with sticks and leaves. Hearing him breathing, petitioner, with one slice, severed Lanier's spinal cord at the base of his neck. Petitioner and the two women returned to the motorhome, where they allegedly then found Lanier's wallet and divided the money it contained.

Police, acting on information provided by the women, arrested petitioner on the day of the murder. Five days later petitioner gave the police a detailed confession of the crime. His subsequent motion to suppress the confession was denied. Petitioner's appointed counsel then filed a suggestion of insanity, and three court appointed psychiatrists examined petitioner. Two of these psychiatrists had treated petitioner extensively before for emotional disturbances. All three determined that petitioner was competent to stand trial and that he was likely sane when he committed the crime. The court adopted the psychiatrists' conclusions.

Petitioner was found guilty by a jury on October 3, 1975, of murder in the first degree, Fla.Stat.Ann. 782.04(1) (West Supp.1982), and of robbery. During the trial, Foster made a dramatic witness stand confession. The jury recommended the death penalty. Judge Spear sentenced petitioner to death on the murder charge and life imprisonment on the robbery charge. Petitioner's motion for a new trial was denied. The Florida Supreme Court, in an automatic appeal mandated by Florida's death penalty statute, affirmed petitioner's conviction and sentence. Foster v. State, 369 So. 2d 928 (Fla.1979). A motion for rehearing was denied, as was a petition for certiorari to the United States Supreme Court. 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 1116 (1979).

On May 5, 1981, the Governor of Florida signed a death warrant ordering petitioner's execution on June 3, 1981. The Florida Circuit Court denied petitioner's application for a stay of execution and motion for post-conviction relief on May 15, 1981. The Florida Supreme Court affirmed this decision on May 28, 1981. 400 So. 2d 1 (Fla.1981).

The United States District Court for the Northern District of Florida granted a stay of execution when petitioner sought habeas relief from the district court. 515 F. Supp. 22 (N.D. Fla. 1981). After a two day evidentiary hearing, the district court denied the petition for a writ. 517 F. Supp. 597 (N.D. Fla. 1981). Petitioner appealed to this Court. After hearing oral argument in the case, we deferred consideration until this Court issued its en banc decision in Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983), because that decision addresses several issues which we face here. We now proceed to a consideration of each of petitioner's claims.

Fourteenth Judicial Circuit Public Defender Virgil Mayo assumed representation of Foster's case from an assistant about a month before the trial. Mayo has been a member of the Florida Bar since 1951. He has represented defendants at numerous criminal trials, having held the public defender's position since 1963. His experience with capital cases under the recently amended death penalty statute was limited, as was every other attorney's at the time, although Mayo had tried cases under the old statute before it was invalidated by the Supreme Court's decision in Furman v. Georgia. Mayo was assisted in the defense by Bill Wagers, a new assistant public defender, whom the district court noted was a highly competent criminal defense lawyer.

Foster asserts that his trial counsel rendered ineffective assistance at both the guilt and penalty phases. We turn to these contentions.

Petitioner alleges that his counsel failed to provide adequate representation during the guilt phase of his trial. He cites numerous instances of this alleged inadequacy, the most significant of which are that: (1) Mayo failed to inform the examining psychiatrist and the court of Foster's "irrational behavior" exhibited at pre-trial conferences; (2) Mayo failed to challenge the psychiatrists' reports on competency by interviewing the psychiatrists and requesting a competency hearing rather than merely submitting the competency issue on the basis of the reports;¹  (3) Mayo failed to raise effectively the competency issue after the confession and after he discovered Foster's use of Valium during the trial; and (4) Mayo failed to investigate and present an insanity defense.

In evaluating petitioner's claim, we note that he was not entitled to, "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified, 289 F.2d 928 (5th Cir.), cert. denied 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961). In order to establish a claim of constitutionally deficient representation that may be redressed in a habeas action, petitioner must not only show ineffective assistance, he must also "demonstrate that the ineffective assistance created not only 'a possibility of prejudice but that [it] worked to his actual and substantial disadvantage.' " Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir. 1982) (Unit B, en banc), quoting United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816 (1982) (emphasis in original).

It is clear from the record that defense counsel performed his duties competently and conscientiously.²  Mayo did not fail to discover information that was necessary for the competent defense of Foster. The district court did not clearly err, based upon our review of the record, in finding that Mayo interviewed Foster's mother and that he studied all the relevant medical records, including the psychiatric reports of Foster's medical records at the hospitals and clinic where his emotional disturbances were treated. Mayo investigated adequately the competency issue.

Three psychiatrists examined Foster at the court's request, two of whom, Dr. Mason and Dr. Sapoznikoff, had treated him extensively for prior episodes of emotional disturbance. The unanimity of the three professionals that Foster was competent to stand trial and legally sane at the time of the crime weighs heavily against the suggestion that Mayo, by requesting a hearing, somehow could have altered the outcome of the competency determination. Moreover, it does not appear that Mayo possessed any unique information that would have contributed measurably to the doctors' or the court's competency determinations. While Mayo's testimony indicates he had serious doubts about Foster's psychiatric health, the testimony does not demonstrate that Mayo believed Foster was legally incompetent to stand trial in Florida.

Nor did Mayo act inappropriately following Foster's in-court confession. Mayo promptly raised the competency issue after the confession by moving for a continuance and additional psychiatric examinations. The denial of this motion should not reflect upon Mayo's effectiveness in raising this issue. Nor is it apparent that Mayo should have challenged Foster's competency to stand trial when he later learned that petitioner was taking Valium during the trial. The record fails to indicate that the district court erred in finding that Foster did not sleep through much of his trial and that, in light of Foster's extensive history of prescription and nonprescription drug use, a dosage of 10 milligrams three times per day of a mild sedative had an insignificant effect on Foster's ability to appreciate the surrounding events.

Petitioner also alleges that Mayo failed to investigate and present an insanity defense. The facts as found by the district court indicate that Mayo had no choice but to refrain from doing so. Mayo apparently favored presenting a second degree murder defense based upon a "depraved mind." Mayo felt he could "sell" such a defense to the jury, based upon Foster's unpredictable and disturbed past and the fact that the victim was drunk and engaging a prostitute at the time of the murder. Over the course of several pre-trial conferences, Mayo also explored with petitioner the consequences of pleading not guilty by reason of insanity. Foster rejected both of these defense strategies and insisted that he pin the blame on the two women present at the murder and attribute his inaction at the time of the killing to one of his infrequent epileptic fits. In light of Foster's adamance, Mayo had an ethical obligation to comply with his client's wishes and was thus unable to present an insanity defense.³  Petitioner, who preempted his attorney's strategy choice, cannot now claim as erroneous the very defense he demanded Mayo present.⁴ 

Petitioner contends that Mayo failed to utilize properly his expert witness, Dr. Mason, to convey the impact of Foster's mental illness upon Foster's ability to appreciate the criminality of his conduct. Petitioner also urges that Mayo was ineffective because he failed to present testimony by friends and family of Foster's "crazy behavior." Thus, petitioner claims, the jury and the judge did not have before them crucial evidence supporting several mitigating circumstances.⁵ 

Mayo put Foster's ex-wife and Dr. Mason, the psychiatrist, on the stand during the sentencing phase. Foster's ex-wife testified to Foster's disturbed emotional state and Dr. Mason bolstered her testimony with medical corroboration of Foster's illness. Also, Mayo introduced certain medical records into evidence, so that the jury had, during its deliberations, written evidence of Foster's emotional health.⁶  In addition, the judge should have considered the pre-trial competency reports as part of the material adduced to support the existence of mitigating factors.

Mayo's assessment of the Bay County, Florida, jury as more likely to respond to an appeal to emotion than to complicated medical proof, and his consequent presentation of the mitigating evidence in this manner, does not rise to the level of constitutionally ineffective assistance of counsel. The evidence Mayo in fact presented covered essentially the same subjects as that which petitioner would now have him present. Mayo's choice to present mitigating evidence in the manner he did was a strategic decision informed by years of criminal practice in the region. Mayo's assistance in this regard was not ineffective, nor did it work to petitioner's actual and substantial disadvantage. Washington v. Strickland, 693 F.2d at 1260.⁷ III. WEIGHT OF AGGRAVATING VS. MITIGATING CIRCUMSTANCES

Petitioner alleges that the failure of the court to instruct the jury that any aggravating circumstances must outweigh the mitigating circumstances "beyond a reasonable doubt" for the jury to suggest the death penalty is a denial of due process. Petitioner reasons that the conclusion that aggravating circumstances outweigh any mitigating circumstances is a fact "necessary to constitute the crime of" capital murder and therefore is subject to the due process requirement of In Re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970), and its progeny of proof beyond a reasonable doubt.

This Court recently held that, under the Florida bifurcated death penalty trial which provides for guilt and penalty phases, the Florida sentencing determination is a separate proceeding dealing with facts that are not elements of the crime itself. Ford v. Strickland, 696 F.2d 804 at 817-19. Thus, a finding that the aggravating circumstances outweigh mitigating circumstances is not subject to the due process requirements of In Re Winship. The Ford court noted that the petitioner in that case seriously confused the proof of facts and the weighing of facts in sentencing. The court determined that the weighing process, "is not a fact susceptible of proof under any standard...." Id., at 818. The holding of the Ford court in this regard applies fully to petitioner's claim in the instant action.

IV. THE BROWN ISSUE--NON-RECORD MATERIAL BEFORE THE REVIEWING COURT

Petitioner argues that the Florida Supreme Court relied on nonrecord information, such as psychiatric and pre-sentence investigation reports, in the direct review of his conviction and sentencing. Petitioner claims that this practice infringed on his constitutional guarantees including the right to due process of law, the effective assistance of counsel, confrontation, freedom from cruel and unusual punishment, and the protection against compelled self-incrimination.⁸  He argues that the use of this material runs afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (petitioner was denied due process when death sentence was imposed, at least in part, on the basis of information that he had no opportunity to deny or explain).

The en banc court in Ford denied an identical claim in that action. The Ford court relied upon the Florida Supreme Court's opinion in Brown v. Wainwright, 392 So. 2d 1327, cert. denied, 454 U.S. 1000, 102 S. Ct. 542, 70 L. Ed. 2d 407 (1981),⁹  to conclude that:

Even if members of the [Florida Supreme C]ourt solicited the material with the thought that it should, would or might be used in the review of capital sentences, the decision of the Florida court that it should not be so used, the statement that it was not used, and the rejection of the notion that it affected the judgment of the court ends the matter when addressed at the constitutional level.

Ford v. Strickland, at 811. We therefore deny petitioner's Brown claim in the instant action.

V. THE LOCKETT ISSUE--INSTRUCTIONS ON MITIGATING CIRCUMSTANCES

Petitioner's final claim is that the trial judge's instructions precluded the jury from considering non-statutory mitigating circumstances, in violation of the holding of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). The Supreme Court in Lockett held that the "Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any circumstances of the offense the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604, 98 S. Ct. at 964-65 (footnote omitted) (emphasis in original).

During the sentencing phase, the trial judge instructed the jury, "The aggravating circumstances which you may consider are limited to such of the following as may be established by the evidence." The judge then read the statutory aggravating circumstances. He next instructed on the mitigating circumstances by stating, " [t]he mitigating circumstances which you may consider if established by the evidence are these." The judge then read the seven statutory mitigating circumstances. Foster contends that this instruction was insufficient to permit the jury reasonably to understand that they were entitled to consider non-statutory factors in mitigation of petitioner's sentence. Petitioner claims that he adduced evidence of several non-statutory mitigating factors, including: his willingness to cooperate with the police and to confess the crime; the effect of alcohol, due to his mental illness, on petitioner's ability to premeditate and possess the requisite intent to commit murder; and petitioner's need for psychiatric treatment. The State of Florida argues that consideration of this issue is barred under the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 954 (1977), due to Foster's failure to object at trial or to raise this issue on direct appeal.

The petitioner in Ford raised a similar Lockett claim. In Ford, the trial judge instructed the jury, "You shall consider only the following aggravating circumstances ...," and read the statutory language. With regard to mitigating circumstances, he said, "You shall consider the following ...," omitting the word "only" and reading the statutory mitigating circumstances. The Ford Court found that petitioner failed to meet the cause and prejudice exception to Sykes. The Court noted that petitioner's trial occurred two years before Cooper v. State, 336 So. 2d 1133, 1139 n. 7 (Fla.1976), cert. denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 239 (1977), in which the Florida Supreme Court ruled explicitly that the jury could consider only statutory mitigating circumstances, and four years before Lockett, which provided a directly contrary resolution of the issue. Nonetheless, the Ford Court refrained from determining whether this constituted "cause" for petitioner's state procedural default because the Court found that petitioner failed to meet the Sykes prejudice prong. The Court determined that the challenged jury instructions did not rise to the level of "actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816, 832 (1982) (emphasis in original).

We note at the outset of our analysis that the proof of nonstatutory mitigating circumstances adduced by petitioner bears a striking resemblance to the statutory factors the jury indisputably could have considered. We thus treat all but one category of petitioner's adduced proof as encompassed within the statutory mitigating circumstances. Petitioner's proffered evidence of his willingness to confess and cooperate with the police is the only proof which raises the Lockett claim.

We are unable to conclude that Foster's Lockett claim is controlled entirely by the Ford decision. The en banc Court in Ford did not reach the merits of the constitutionality of the jury instructions under Lockett. Despite the fact that the instructions in Ford and the instant action are virtually identical, several features of petitioner's sentencing hearing militate against applying the Sykes bar to Foster's claim. First, the case for cause is similarly strong here as it is in Ford. Foster's trial occurred in 1975, one year before Cooper and three years before Lockett. It would be difficult to characterize the Lockett claim as "available" during petitioner's trial, as the Supreme Court recently required to support a finding of procedural default:

Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labelling alleged unawareness of the objection as cause for a procedural default.

Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1574-75, 71 L. Ed. 2d 783 (1982).

The second reason for not applying the Sykes bar to Foster's claim rests on the en banc court's discussion of the trial judge's order in Ford that, " [T]here are no mitigating circumstances existing--either statutory or otherwise--which outweigh any aggravating circumstances." The en banc Court interpreted this statement as weighing in favor of the conclusion that the jury did not perceive a restriction on the use of any mitigating evidence and that there was a total absence of such evidence. There was no such indication in the instant action. In addition, as we discuss infra at n. 13, petitioner adduced substantial evidence of statutory mitigating factors. Thus, Ford is not necessarily dispositive of our resolution of the prejudice issue here because of this factual distinction.

While we conclude that the Ford decision does not prevent our examination of the merits of petitioner's Lockett claim, we find that Foster has failed to adduce sufficient facts to overcome the Sykes prejudice prong in order to establish a constitutional claim deserving of redress in this habeas action. The only mitigating factor petitioner proffered, which was not already contemplated by the statutory categories, concerns his willingness to confess and cooperate with the police. The record contains only scant evidence to support this claim. Foster called the police to turn himself in only after investigators had already discovered blood soaked clothes in his bathtub. We decline to regard petitioner's pre-trial confession as a factor in mitigation of his crime because petitioner attempted to suppress this confession. Foster cannot in retrospect claim to have cooperated once he lost his confession motion. Similarly, petitioner waited until he was deeply enmeshed in perjured testimony before he confessed on the witness stand. The circumstances of his confession during trial therefore fairly negate any inference of petitioner's cooperativeness.

Because we are not persuaded that petitioner presented significant nonstatutory mitigating evidence that would justify our overturning the state court's factual findings to the contrary, especially in light of the presumption of correctness that attaches to these findings under 28 U.S.C. § 2254(d), we conclude that petitioner's Lockett claim is properly barred by the Sykes prejudice prong.

VI. TRIAL COURT'S FINDINGS OF FACT IN SUPPORT OF SENTENCE

We hold that petitioner's sentence may not stand where the trial judge failed to follow the sentencing procedures required by the Florida Death Penalty Statute and the interpretory decisions of the Florida Supreme Court. The trial judge failed to set forth clearly in writing "its findings upon which the sentence of death is based as to the facts...." Fla.Stat.Ann. Sec. 921.141(3) (West Supp.1982).¹⁰  This deficiency rises to the level of an error of constitutional dimensions infecting petitioner's sentencing hearing, in light of the Supreme Court's recognition that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed," Lockett, 933 U.S. at 604, 98 S. Ct. at 2964, and that state procedural aspects of the death penalty proceedings consequently are subject to the requirements of the Due Process Clause.¹¹ 

The trial judge, in the case at bar, made the following "findings upon which sentence of death is based:"

The Court finds, from the evidence, that sufficient aggravating circumstances exist as enumerated in subsection (5) of section 921.141, Florida Statutes, that justify a sentence of death, and that there are insufficient mitigating circumstances, as enumerated in Subsection (6) of said Section 921.141, to outweigh the aggravating circumstances. The aggravating circumstances found by the Court are as follows: 1. The murder of JULIAN FRANKLIN LANIER was committed while the defendant was engaged in the commission of a robbery. 2. That the capital felony was especially heinous and atrocious. (Emphasis added).

We are unable to determine whether the judge found no mitigating circumstances or if he found certain mitigating circumstances, which he merely failed to specify, and that these were insufficient to outweigh the aggravating circumstances. The Florida Supreme Court's statement on direct review, that "there were no mitigating circumstances to outweigh the aggravating circumstances," 369 So. 2d at 931, is equally ambiguous. Moreover, the state in its Response to Foster's district court habeas petition, interprets these findings to mean that, "there were no mitigating factors to be found." If this interpretation is indeed correct, and absent any indication otherwise, it means that the findings of the trial court and the Florida Supreme Court on direct review were clearly and indisputably erroneous based upon the facts on the record.¹² 

In Hall v. State, 381 So. 2d 683 (Fla.1979), the trial judge had made findings of fact virtually identical to those in the instant case.¹³  The Florida Supreme Court remanded these findings for clarification because the trial court failed to provide a "detailed statement of findings of fact delineating the aggravating and mitigating circumstances found to exist...." Id. 381 So. 2d at 684. The Hall court reasoned:

This additional information is necessary to enable this court to properly review the death sentence in accordance with our pronouncement in Tedder v. State, 322 So. 2d 908, 910 (Fla.1975), that: "In order to sustain a sentence of death following a jury recommendation of life, the findings suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ...."

Id. 381 So. 2d at 684.¹⁴  This same difficulty has now infected the five levels of review to which this case has been submitted.

The Supreme Court's continuing concern that sentencing discretion be directed and limited so that state procedures do not create a substantial risk that the death penalty will be imposed in an arbitrary and capricious manner¹⁵  mandates our refusal to permit petitioner's sentence to stand based upon the trial court's inadequate factual findings. Moreover, the Supreme Court has unambiguously stated that the death penalty sentencing process must meet the requirements of the Due Process Clause:

First, five members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188 [96 S. Ct. 2909, 2928-33, 49 L. Ed. 2d 859] (Opinion of Stewart, Powell, and Stevens, JJ); see id., at 231-241 [96 S. Ct. at 2973-77] (Marshall, J., dissenting); Furman v. Georgia, 408 U.S., at 286-291 [92 S. Ct. at 2753] (Brennan, J., concurring), 306-310 [92 S. Ct. at 2760-63] (Stewart, J., concurring); see id., at 314-371 [92 S. Ct. at 2764-94] (Marshall, J., concurring). From the point of the view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.

Second, it is now clear that the sentencing process as well as the trial itself must satisfy the requirements of the due process clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128 [88 S. Ct. 254, 19 L. Ed. 2d 336]; Specht v. Patterson, 386 U.S. 605 [87 S. Ct. 1209, 18 L. Ed. 2d 326]. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v. Illinois, 391 U.S. 510, 521-523 [88 S. Ct. 1770, 1776-78, 20 L. Ed. 2d 776] (footnote omitted).

Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977).

These statements make clear that the penalty phase of petitioner's trial failed to comport with the requirements of the Constitution. "Without full disclosure of the basis for the death sentence, the Florida capital death sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia." Gardner, 430 U.S. at 361, 97 S. Ct. at 1206 (footnote omitted) (death sentence unconstitutional where court relied on confidential non-record sentence report). The trial judge's failure to set forth findings of fact upon which his decision to impose the death sentence was based violates the concern for consistency and objectivity in death penalty sentencing. Absent more detailed findings, as required under Florida law, we have no "meaningful basis for distinguishing the ... case in which [capital punishment] is imposed from ... the many cases in which it is not." Gregg, 428 U.S. at 188-89, 96 S. Ct. at 2931-32.¹⁶ 

When, as here, there is substantial evidence on the record that would have allowed the trial judge to impose a life sentence, and it is unclear whether the judge even considered this evidence in reaching his conclusion, we find a substantial "risk that the death penalty ... [was] imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." Lockett, 438 U.S. at 605, 98 S. Ct. at 2965. We therefore reverse the district court's decision insofar as it upholds Foster's death sentence and remand for the district court to request the trial court to enter adequately detailed findings of fact, as required by the Florida Death Penalty statute.¹⁷ 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

RONEY, Circuit Judge, dissenting:

Although I concur with the result Judge Tuttle reaches on all other issues, I cannot concur in Section VI, Trial Court's Findings of Fact in Support of Sentence.

I respectfully dissent from the decision that the writ of habeas corpus could be granted because of perceived inadequacies in the findings of fact of the sentencing judge. Although the Florida Supreme Court determined that the findings were adequate for review purposes, Foster v. State, 369 So. 2d 928, 931-32 (Fla.), cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979), this Court reaches a contrary result by relying on Hall v. State, 381 So. 2d 683, 684 (Fla.1978) (Order for Clarification), a case neither cited in Foster's briefs nor addressed by the state.

It strikes me that the Court here is raising to a constitutional level an issue that is largely a matter of state law. The extent to which a reviewing court will tolerate inadequate findings of a trial court generally depends upon the appellate court's willingness to review an entire record and take note of undisputed evidence. The sufficiency of findings is often a matter of discretionary judgment. I do not think the Florida Supreme Court's decision in this regard rises to a constitutional fault.

This Court is, in effect, reversing the Florida Supreme Court's decision that the findings were sufficient to enable that court to fulfill its review function. The Florida court acknowledged Foster's argument that he had committed the crime while under the influence of extreme mental or emotional disturbance, a statutory mitigating factor he claimed the trial court had not considered. The state court responded:

Before imposing the death sentence, the trial judge considered three psychiatric reports (with which defendant's attorney was familiar) and found that there were no mitigating circumstances sufficient to overcome the heinous nature of the homicide. The defendant committed the homicide in an effort to fulfill his intentions and complete his desire, i.e., "ripping the victim off." An elderly gentleman had agreed to go out and have some fun, but the price of such activity was his life. Defendant showed no compassion when he cut the victim's throat, beat him, dragged him into the woods, and cut his spine with a knife. As described by one witness, there was no air coming from the body of the victim after she heard "the cracking" of the spine.

Foster v. State, 369 So. 2d at 931. Then, stating that the aggravating circumstances were proven beyond a reasonable doubt, the Florida court compared the facts of this case with those in the following similar Florida cases in which the death penalty had been imposed: Sullivan v. State, 303 So. 2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S. Ct. 3226, 49 L. Ed. 2d 1220 (1976); Proffitt v. State, 315 So. 2d 461 (Fla.1975), aff'd, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); and Henry v. State, 328 So. 2d 430 (Fla.), cert. denied, 429 U.S. 951, 97 S. Ct. 370, 50 L. Ed. 2d 319 (1976), 444 U.S. 885, 100 S. Ct. 176, 62 L. Ed. 2d 114 (1979). The state court then concluded:

Although the findings of the trial judge in the case sub judice were not expansive, the justification of his sentence of death in writing was sufficient to show that the sentence of death resulted from reasoned judgment. This reasoned judgment comports with our consideration of other cases and the sentence of death was appropriate under the circumstances.

Foster v. State, 369 So. 2d at 931-932.

I see no constitutional error in this determination. The evidence of "mitigation" was essentially undisputed. The weight to be given it was the issue. It is the state court's job, not ours, to weigh the aggravating circumstances against the mitigating circumstances, and make a reasoned decision. Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1 (1982). If a federal court determines that the state has followed the procedure found constitutional in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), and that the record supports a reasoned judgment of capital punishment, the constitutional requirements are fulfilled, and it matters little that the federal court would have reached a different judgment, or would have required more of the trial court than the Florida Supreme Court has required. Foster has not argued that the death penalty in this case is infirm because of lack of proportionality or because the trial court could not hold the aggravating circumstances sufficient to outweigh the mitigating evidence. Based upon the facts and record in this case, Foster simply could not argue that the death penalty has been inflicted in an arbitrary and capricious manner.

To the extent that any argument suggests there might be clear error in the state court's failure to find certain non-statutory mitigating circumstances, it seems to me to head in the wrong direction. There are two kinds of mitigating evidence. First, under the Florida statute, evidence of certain specified circumstances must be considered mitigating. Although the weight to be given any such circumstance is for the sentencer, that it is mitigating is statutorily ordained. Second, under Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978), the trier of fact must not be precluded from considering, as a mitigating factor, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." It is confusing, however, to suggest that the sentencer must necessarily view as mitigating any evidence offered by the defendant as a non-statutory mitigating circumstance. More than just weight is involved. The first question is whether it is mitigating at all. What may seem mitigating to one may seem neutral, or even aggravating, to another. That the defendant must be allowed to present and argue to the sentencer any relevant evidence he considers mitigating is an altogether different proposition from a proposal that the sentencer must consider the evidence mitigating simply because the defendant classifies it as such. For instance, if due process were violated anytime a sentencer failed to consider drug or alcohol addiction as mitigating, the United States Supreme Court could not have held the Florida statute constitutional, since that statute does not require the sentencer to consider drug and alcohol addiction as mitigating. Certainly, it is not the job of the federal court to second-guess the sentencing jury and judge as to what is, and what is not, a non-statutory mitigating circumstance as long as the defendant has been able to present evidence and argue the point.

I would affirm the denial of habeas corpus relief by the district court.ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

PER CURIAM:

Upon further consideration, we conclude that the failure of the appellant to raise the issue concerning "the trial court's findings of fact in support of its sentence" in its brief or in oral argument before us forecloses our consideration of the issue sua sponte. Cf. Stephens v. Zant, 716 F.2d 276 (5th Cir. 1983), on remand from the Supreme Court of the United States).

That part of our opinion in this case beginning with VI and through the conclusion, together with the dissenting opinion, are hereby stricken and the following is substituted in lieu thereof:

THE JUDGMENT OF THE TRIAL COURT DENYING THE WRIT IS AFFIRMED.

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure, Eleventh Circuit Rule 26), the Suggestion for Rehearing En Banc is DENIED.