[Congressional Record Volume 140, Number 17 (Thursday, February 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                   THE NOMINATION OF ROSEMARY BARKETT

  Mr. GRAHAM. Mr. President, earlier today, the distinguished minority 
leader delivered a statement relative to the nomination of Justice 
Rosemary Barkett, currently serving as chief justice of the Florida 
Supreme Court, to the 11th Circuit Court of Appeals. In that statement 
today, the minority leader made reference to certain cases in which 
Chief Justice Barkett has participated at the State level, one of which 
was Foster versus State.
  In that case--I quote from the statement of the minority leader--he 
states:

       Justice Barkett adopts the statistical evidence defense 
     that was explicitly rejected by the U.S. Supreme Court in 
     McCleskey versus Kemp.

  The minority leader goes on to state:

       Justice Barkett's fuzzy reasoning is almost identical to 
     the theory behind the so-called Racial Justice Act, which the 
     Senate has considered and repeatedly rejected. Like the 
     Racial Justice Act, Justice Barkett's view that statistical 
     evidence alone subjects a capital sentence to constitutional 
     challenge would paralyze the enforcement of the death 
     penalty.
       As my colleague from Florida, Senator Graham, has 
     explained, ``The very nature of the criminal justice system 
     does not lend itself to statistical precision. The 
     Constitution requires an individualized determination as to 
     the appropriateness of the death penalty, taking into account 
     the character and record of the murderer and the 
     circumstances of the offenses.''

  Mr. President, since my name was used in this statement, I felt it 
appropriate to use this opportunity to set the record straight both as 
to what I said, what I intended, and also as to what Justice Barkett 
intended in her dissent in the case of Foster versus State. This 
happens to be a case with which I am very familiar. As Governor of 
Florida, I signed the death warrant that led to this case coming to the 
Florida Supreme Court.
  Mr. President, the issue that brought Justice Barkett's dissent in 
Foster versus State was the question of an allegation made by the 
defendant under the State of Florida equal protection clause. As do 
many State constitutions, Florida has a State equal protection clause, 
as there is a similar clause in the U.S. Constitution.
  In his appeal, Mr. Foster raised the issue, and he raised it in the 
context in which he stated that there had been a discriminatory pattern 
by a specific Florida State prosecutorial official, in which that 
official, allegedly, had sought the death penalty more frequently in 
cases in which the victim was white than in cases in which the victim 
was black. The question before the Florida Supreme Court was the 
interpretation of Foster's charge that there had been a violation of 
the State's protection under the equal protection provision.
  Justice Barkett, in those circumstances, was taking the position that 
Foster deserved an opportunity within which to raise that specific 
case.
  I ask unanimous consent that the dissenting opinion be printed in the 
Record immediately after my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. GRAHAM. Justice Barkett, in her dissent suggested, first, the 
fact that there was a different standard under State equal protection 
than under the Federal equal protection. She makes, frankly, a point 
which I as a Floridian am very proud--that the Florida Supreme Court 
was dealing with the question of racially discriminatory selection of 
juries prior to the time that the U.S. Supreme Court recognized that as 
an impediment under Federal equal protection standards. She cites that 
as an example of the fact that State constitutional standards are not 
necessarily intended to just mimic Federal standards.
  She proceeds on to therefore reason that it is appropriate for the 
State to have a process by which claims of denial of equal protection 
under the State constitution can be appropriately determined.
  She suggests the following standard:

       A party asserting racial discrimination in the State's 
     decision to seek the death penalty should make a timely 
     objection and demonstrate on the record that the 
     discrimination exists and that there is a strong likelihood 
     that influences the State to seek the death penalty. Such 
     discrimination conceivably could be based on the race of the 
     victim or the race of the defendant. Once the trial court 
     determines that the initial burden has been met by the 
     defendant, the burden then shifts to the State to show that 
     the practices in question are not racially motivated. If the 
     trial court determines that the State does not meet the 
     burden, the State then is prohibited from seeking the death 
     penalty in the case.

  I have quoted that in order to then distinguish this situation from 
the McCleskey case and the Racial Justice Act, which this Senate has 
debated on a number of instances. The racial justice case does not go 
to the allegation that there was a specific act of racial 
discrimination by a person involved in the case that has brought the 
death penalty to be applied. In this case, the allegation is that there 
was a specific prosecutor who was using racially discriminatory 
standards as to when to seek the death penalty. Rather, the Racial 
Justice Act goes to the broader question of whether an entire judicial 
jurisdiction, such as a State, has been applying the death penalty in a 
discriminatory manner.
  To quote from the Racial Justice Act as it was considered by the 
Congress in 1991, it states:

       No person shall be put to death under color of State or 
     Federal law in the execution of a sentence that was imposed 
     because of, or based on, race or inference of race as the 
     basis of a death sentence. An inference that race was the 
     basis of a death sentence is established if valid evidence is 
     presented demonstrating at the time the death sentence was 
     imposed race was a statistically significant factor in 
     decisions to seek or impose a sentence of death in the 
     jurisdiction in question.

  So what the Racial Justice Act did was to go at the entire criminal 
justice system of a State and attempt to overturn that State's use of 
the death penalty based on statistical evidence as to a wide variety of 
cases that had come before that State. That is a different application 
than the highly specific one which Chief Justice Barkett felt was 
appropriate as it related to claims of equal protection under the 
specific provisions of the State of Florida constitution. To use that 
case to establish the broad principle which the minority leader sought 
to do in his statement earlier today, which was that the chief justice 
of the Florida Supreme Court was in some way less than vigilant in her 
enforcement of the death penalty and in her conduct of her 
responsibilities as the highest judicial officer of the State, I find 
to be a gross misreading of the facts of the case that was utilized and 
the specific circumstances to which he attempted to analogize it in the 
Racial Justice Act.
  Mr. President, the fact is that Chief Justice Barkett has been a 
thoughtful, strong supporter of the death penalty in Florida. No, she 
has not rubberstamped every case in which the death penalty had been 
imposed, but she has found for the majority in the overwhelming number 
of cases that have come before her as a justice of the Florida Supreme 
Court. She has shown a steady willingness to enforce the death penalty 
where that death penalty was appropriate.
  She has stood the test of another statistical study. Our State uses a 
judicial retention procedure whereby judges of the State Supreme Court 
are periodically subject to the vote of the people of Florida to 
determine whether their tenure has been such that they justify 
continued service. Justice Barkett was subjected to that process in 
1992. Sixty-one percent of the people of Florida found that her service 
justified a continuation of her term on the Florida Supreme Court.
  The very charges that are being made now against her nomination to 
serve on the 11th Circuit Court of Appeals were the charges raised in a 
campaign against her continued service on the Florida Supreme Court. 
Three out of 5 Floridians rejected those charges and voted to retain 
her as a member of the Florida Supreme Court.
  Mr. President, this is a jurist of distinction, a human being of 
intellect and compassion, a person of great judicial qualification. I 
am proud that she is serving my State as its chief justice. I am proud 
that the President of the United States has nominated her to high 
Federal office. I hope that this Senate will soon confirm that 
nomination and place Justice Barkett at the service of the people of 
the United States of America.

                               Exhibit 1

 [No. 76639, Supreme Court of Florida, Oct. 22, 1992, Rehearing Denied 
                             April 1, 1993]

   Charles Kenneth Foster, Appellant, v. State of Florida, Appellee.

       Defendant was convicted in the Circuit Court, Bay County of 
     murder and sentenced to death and he appealed. The Supreme 
     Court affirmed, 369 So.2d 928. Denial of first and second 
     postconviction motions were affirmed by the Supreme Court, 
     400 So.2d 1, and 518 So.2d 901, but resentencing was ordered. 
     Denial of federal habeas corpus petitions was affirmed by the 
     Court of Appeals, 707 F.2d 1339, 823 F.2d 402. On remand from 
     resentencing, the Circuit Court, Bay County, Don T. Sirmons, 
     J., entered sentence of death and defendant appealed. The 
     Supreme Court held that: (1) defendant had not received 
     ineffective assistance of counsel; (2) jury was adequately 
     instructed on mitgating circumstances; (3) court properly 
     overruled challenges for cause; but (4) sentencing order was 
     defective for failing to state whether court had found 
     certain mitigating circumstances to exist.
       Affirmed in part and vacated and remanded in part.
       Barkett, C.J., concurred in part and dissented in part and 
     filed an opinion in which Shaw and Kogan, JJ., concured.
       Kogan, J., concured in part and dissented in part and filed 
     an opinion.
       1. Criminal Law 998(21).
       Successive postconviction motion may be dismissed if it 
     fails to allege new or different grounds for relief and the 
     prior determination was on the merits or, if new and 
     different grounds are alleged, the failure to raise those 
     issues in prior motion constitutes an abuse of process. 
     West's F.S.A. RCrP Rule 3.850.
       2. Criminal Law 998(21).
       Postconviction motion alleging ineffective assistance of 
     counsel was an abuse of process where there was no showing of 
     justification for the failure to raise it in either of the 
     two prior motions. West's F.S.A. RCrP Rule 3.850.
       3. Criminal Law 641.13(6).
       In view of defendant's confession, there was no reasonable 
     probability that outcome of trial would have been different 
     had counsel obtained additional evidence, so that defendant 
     did not show ineffective assistance of counsel.
       4. Criminal Law 996(3).
       Witness' unavailability at resentencing hearing, so as to 
     make her prior testimony admissible, was established by 
     evidence that investigators had been unable to locate her or 
     her former husband, that they had called telephone number 
     given to them a number of times and have left messages for 
     the witness, who never returned the calls, and that attempts 
     to subpoena her were unsuccessful.
       5. Criminal Law 662.60.
       Defendant's right to confrontation was not abridged when 
     prior testimony of witness was admitted at resentencing 
     hearing where court admitted the witness' cross-examination 
     testimony in addition to her direct testimony.
       6. Witnesses 337(4).
       It was not an abuse of discretion to exclude evidence of 
     witness' 1989 convictions when admitting at resentencing 
     hearing testimony which she had given at the first trial in 
     1975.
       7. Criminal Law 996(3).
       There was no Brady violation by state's failure to provide 
     defendant with mental health records of witnesses at 
     resentencing hearing where the state denied having the 
     records.
       8. Homicide 357(3, 11).
       Finding that murder was especially heinous, atrocious, or 
     cruel, and cold, calculated, and premeditated, thus 
     authorizing imposition of death penalty, was supported by 
     evidence that victim was severely beaten prior to having his 
     throat slit, that victim was pulled from vehicle by his 
     genitals and stabbed in the throat a second time, that he 
     would have lived 20 to 30 minutes after the wound was 
     inflicted, that defendant then cut the victim's spine with a 
     knife, and that victim would have lived three to five minutes 
     after the spinal cord was severed. West's F.S.A. 
     Sec. 921.141(5)(h, i).
       9. Homicide 311.
       Jury was adequately instructed that it could consider any 
     relevant evidence in determining whether to impose the death 
     penalty where court informed the jurors that they could 
     consider, in addition to other factors, ``any other factor of 
     defendant's character or record and any other circumstance of 
     the crime or offense,'' and defense counsel discussed mental 
     health mitigation in detail.
       10. Homicide 341.
       Error in failing to give defendant's requested instruction 
     containing an expanded definition of the aggravating factor 
     that the homicide was heinous, atrocious, and cruel was 
     harmless where defendants' killing of victim was especially 
     heinous, atrocious, and cruel by any standard.
       11. Jury 90, 105(1), 108.
       Court was not required to strike for cause at resentencing 
     hearing in capital murder prosecution juror who indicated 
     bias against persons who have had numerous appeals, person 
     who went to junior high school with defendant and ``had a 
     couple of fights'' with him, and person who was allegedly 
     predisposed to imposing death penalty for all premeditated 
     murders.
       12. Jury 108.
       Court properly excused venire member who stated on voir 
     dire before resentencing hearing in capital murder 
     prosecution that she did not believe that she could vote to 
     impose the death penalty in any situation other than murder 
     within a prison setting.
       13. Homicide 358(1).
       In the absence of evidence that state's attorney acted with 
     purposeful discrimination in seeking death penalty in 
     defendant's case, court was not required to hold evidentiary 
     hearing on claim that use of the death penalty in the county 
     was racially discriminatory, based on statistical evidence 
     indicating that persons whose victims were white were more 
     likely to be charged with first-degree murder and convicted 
     of first-degree murder.
       14. Homicide 358(3).
       Court's statement in sentencing order imposing death 
     penalty in murder case that it had considered the evidence in 
     support of mitigating factors and that the mitigating 
     circumstances were outweighed by the aggravating factors did 
     not demonstrate that it had determined whether the two 
     statutory mental mitigating circumstances existed or whether 
     any mitigating circumstances were found to exist or what 
     weight was given to them, so that the sentencing order was 
     defective; error was not harmless.
       Richard H. Burr and Steven W. Hawkins of NAACP Legal 
     Defense and Educational Fund, Inc., New York City, and Steven 
     L. Seliger, Quincy, for appellant.
       Robert A. Butterworth, Atty. Gen., and Mark C. Menser, 
     Asst. Atty. Gen., Tallahassee, for appellee.
       Per curiam.
       Charles Kenneth Foster appeals the sentence of death 
     imposed upon him after resentencing. He also appeals the 
     denial of his motion for postconviction relief. Our 
     jurisdiction is based upon article V, section 3(b)(1), 
     Florida Constitution.
       Foster was convicted of murder and sentenced to death in 
     1975. This Court affirmed the conviction and death sentence 
     in Foster v. State, 369 So.2d 928, 929 (Fla.), cert. denied, 
     444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). The 
     following facts are set forth in that opinion:
       ``Anita Rogers, 20 years of age, and Gail Evans, 18 years 
     of age, met defendant and the victim, Julian Lanier, at a 
     bar. They knew defendant, but the victim was a stranger.
       ``The girls, after a discussion, agreed to go to the beach 
     or somewhere else to drink and party with the men. The victim 
     bought whiskey and cigarettes, after which the four of them 
     left in the victim's Winnebago camper. The victim was quite 
     intoxicated and surrendered the driving chore to Gail. The 
     defendant and the girls had planned for Gail to have sex with 
     the victim and make some money. Gail parked the vehicle in a 
     deserted area and, after some conversation concerning 
     compensation, the victim and Gail began to disrobe.
       ``Defendant suddenly began hitting the victim and accusing 
     him of taking advantage of his sister. Defendant then held a 
     knife to the victim's throat and cut his neck, causing it to 
     bleed profusely. They dragged the victim from the trailer 
     into the bushes where they laid him face down and covered him 
     with pine branches and leaves. They could hear the victim 
     breathing so defendant took a knife and cut the victim's 
     spine.
       ``The girls and defendant then drove off in the Winnebago 
     and found the victim's wallet underneath a mattress. The 
     defendant and the girls split the money found in the wallet 
     and left the vehicle parked in the parking lot of a motel.
       ``The next morning Anita Rogers went to the Sheriff's 
     Department and reported what had happened. . . .''--Foster, 
     369 So.2d at 928-29.
       The trial court denied relief on Foster's first 
     postconviction motion, and this Court affirmed. Foster v. 
     State, 400 So.2d 1 (Fla. 1981). In addition, federal courts 
     denied Foster relief on two federal habeas petitions. Foster 
     v. Dugger, 823 F.2d 402 (11th Cir. 1987), cert. denied, 487 
     U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); Foster v. 
     Strickland, 707 F.2d 1339 (11th Cir. 1983), cert. denied, 466 
     U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). In Foster v. 
     State, 518 So.2d 901 (Fla. 1987), cert. denied, 487 U.S. 
     1240, 108 S. Ct. 2914, 101 L.Ed. 2d 945 (1988), we affirmed 
     the denial of Foster's second postconviction motion, but we 
     granted his habeas petition and ordered resentencing due to 
     Hitchcock\1\ error.
---------------------------------------------------------------------------
     Footnotes at end of article.
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       On remand for resentencing, Foster filed a 3.850 motion. 
     The trial court refused to continue the resentencing hearing 
     until resolution of the 3.850 motion. Following the jury's 8-
     4 recommendation, the trial judge imposed the death 
     penalty.\1\ Thereafter, the court summarily denied the 3.850 
     motion without an evidentiary hearing.
       We address first Foster's claim that the trial court erred 
     in denying his 3.850 motion without an evidentiary hearing. 
     Foster's motion alleged a violation of Brady v. Maryland, 373 
     U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and 
     ineffective assistance of trial counsel. The Brady claim 
     centers around Foster's allegation that the state failed to 
     disclose that it offered Gail Evans and Anita Rogers deals in 
     exchange for their testimony at trial. Although the court did 
     not hold an evidentiary hearing on this claim, Foster 
     presented the evidence on which he relies to support the 
     claim at a hearing on his motion, to preclude admission of 
     Rogers' and Evans' 1975 trial testimony, Rogers' ex-
     husband testified that several years after the trial, 
     Rogers told him that the state had promised not to 
     prosecute her in return for her testimony.
       In his claim of ineffective assistance of counsel, Foster 
     asserts that trial counsel failed to discover that Rogers and 
     Evans believed that Foster was ``crazy'' at the time of the 
     attack. Had counsel been aware of this, Foster reasons, he 
     would have pursued mental health defenses that would have 
     precluded a finding of premeditated murder. He also alleges 
     that counsel failed to discover, or alternatively the state 
     failed to disclose, that Foster cut off the victim's penis 
     during the course of the attack.
       [1] This is Foster's third postconviction motion. A 
     successive motion may be dismissed if it fails to allege new 
     or different grounds for relief and the prior determination 
     was on the merits or, if new and different grounds are 
     alleged, the failure to raise those issues in a prior motion 
     constitutes an abuse of process. Fla. R. Crim. P. 8.850. To 
     overcome this bar, a movant must allege that the grounds 
     asserted were not known and could not have been known to him 
     at the time of the earlier motion. Christopher v. State, 489 
     So. 2d 22, 24 (Fla. 1986). The movant must show justification 
     for the failure to raise the issues in the prior motions. Id.
       [2] Foster alleged ineffective assistance of trial counsel 
     in his initial postconviction motion. We rejected that claim 
     on the merits.\3\ Foster, 400 So. 2d 1. Foster has not 
     previously raised a Brady claim. Although he alleges the 
     discovery of new facts in order to avoid application of 
     the abuse of process doctrine, he has failed to 
     demonstrate or even allege that the facts could not have 
     been known to him at the time of his earlier motions. We 
     note that Foster has been represented by the same counsel 
     since at least the time of the appeal of the denial of his 
     first post conviction motion in 1981. Having failed to 
     show any justification for his failure to raise the 
     present claims in his earlier post conviction motions, the 
     instant motion constitutes an abuse of process. Spaziano 
     v. State, 545 So.2d 843 (Fla. 1989); Tafero v. State, 524 
     So.2d 987, 988 (Fla. 1987); Booker v. State, 503 So.2d 
     888, 889 (Fla. 1987); Christopher v. State, 489 S.2d at 
     25.\4\
       [3] Even if there were no procedural bar, Foster's claim 
     would not prevail. At trial, Foster made a witness stand 
     confession in which he stated:
       I reckon I'll just cop out. I have done it, killed him 
     deader than hell. I ain't going to set up here, I am under 
     oath and I ain't going to tell no ------ lies. I will ask the 
     Court to excuse my language. I am the one that done it. They 
     didn't have a damn thing to do with it. It was premeditated 
     and I intended to kill him. I would have killed him if he 
     hadn't had no money and I know I never told you about it, but 
     I killed him.''--369 So.2d at 929.
       In light of Foster's confession, there is no reasonable 
     probability that the outcome of the trial would have been 
     different had any of the evidence Foster now asserts was not 
     disclosed or not discovered been presented. Strickland v. 
     Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 
     (1984) (one alleging ineffective assistance of counsel must 
     show deficient performance and prejudice); Hegwood v. State. 
     575 So.2d 170, 172 (Fla.1991) (to establish Brady violation, 
     one must prove that had the evidence been disclosed, a 
     reasonable probability exists that the outcome of the 
     proceedings would have been different).
       [4] Gail Evans personally testified at the resentencing 
     hearing. However, over Foster's objection, the court allowed 
     the state to introduce the testimony of Anita Rogers from the 
     1975 trial. Foster claims that the court failed to conduct an 
     appropriate inquiry into Rogers' unavailability before 
     admitting her prior trial testimony and that the use of her 
     testimony abridged his right of confrontation.
       We find no error in the trial court's determination that 
     Rogers was unavailable. According to the assistant state 
     attorney, in 1989, in an effort to find Rogers, investigators 
     from that office attempted to locate her ex-husband. They 
     were unsuccessful. In late May of 1990, shortly before the 
     resentencing proceeding, defense counsel gave the state 
     attorney Rogers' address and telephone number in Tampa. The 
     state attorney called the number several times. He left 
     messages on an answering machine as well as with a man who 
     answered the telephone and said that he was Rogers' former 
     brother-in-law. Rogers never returned the phone calls. At the 
     state attorney's request, the Hillsborough County Sheriff's 
     Department attempted to subpoena Rogers but were 
     unsuccessful. A deputy attempting to serve the subpoena was 
     advised by someone at Rogers' address that she was out of 
     town at an unknown location. This was sufficient to establish 
     Rogers' unavailability for purposes of the resentencing 
     hearing.
       [5] Further, Foster's right of confrontation was not 
     abridged. The court admitted Rogers' cross-examination in 
     addition to her direct testimony. The court also allowed 
     foster to rebut Rogers' testimony with other witnesses. Under 
     these facts we find no error in the admission of Rogers' 
     trial testimony. See Hitchcock v. State, 578 So.2d 685, 690 
     (Fla.1990) (upholding the admission in 
     resentencing proceeding of trial transcript where the 
     state was unable to locate the witness and the court 
     admitted the witness's entire trial testimony, including 
     cross examination), cert. denied, ---- U.S. ----, 112 
     S.Ct. 311, 116 L.Ed.2d 254 (1991).
       [6] At resentencing, Foster sought to impeach Rogers' trial 
     testimony by introducing evidence that she had been convicted 
     of false reporting of a crime and grand larceny in 1989. The 
     trial court excluded evidence of the convictions, apparently 
     finding that the 1989 convictions were not probative of 
     Rogers' truth and veracity at the time of the 1975 testimony. 
     We find no abuse of discretion in the exclusion of this 
     evidence. Teffeteller v. State, 495 So.2d 744, 745 (Fla. 
     1986). (``[I]t is within the sound discretion of the trial 
     court during resentencing proceedings to allow the jury to 
     hear or see probative evidence which will aid it in 
     understanding the facts of the case in order that it may 
     render an appropriate advisory sentence.'').
       [7] One day before the resentencing proceeding was 
     scheduled to begin, Foster filed a motion pursuant to Brady 
     v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, asking the court to 
     require the state to disclose Rogers' and Evans' mental 
     health records. The state attorney objected, indicating the 
     state did not have the records and had no better access to 
     the records than did defense counsel. Foster challenges the 
     trial court's denial of his motion.
       Foster has not shown a Brady violation. The state denied 
     having the records. Further, Foster made no showing that he 
     could not have obtained this evidence with reasonable 
     diligence. See Hegwood v. State, 575 So.2d 170, 172. Foster 
     cites no case for his proposition that it was the state's 
     obligation, rather than his own, to obtain such records.
       [8] Foster also claims that the trial court erred in 
     finding the murder to be especially heinous, atrocious, or 
     cruel\5\ and cold, calculated and premeditated.\6\ The court 
     relied on the following evidence to find the aggravating 
     factor of especially heinous, atrocious, or cruel;
       ``The circumstances of the killing indicate a consciousness 
     and pitiless regard for the victim's life and was 
     unnecessarily tortuous to the victim, Julian Franklin Lanier. 
     The victim did not die an instantaneous type of death. The 
     victim was severely beaten prior to death. His nose was 
     fractured, his face was severely bruised and his eyes were 
     swollen shut from edema from hemorrhage and swelling 
     resulting from the beating. After beating the victim, the 
     defendant took out a knife and told the victim `I'm going to 
     kill you; I'm going to kill you.' There is evidence that one 
     of the girls present asked the defendant not to do it. The 
     defendant then proceeded to stab the victim in the throat. 
     There is evidence of a defensive wound to the victim's hand 
     which indicates the victim attempted to fend off the knife as 
     the defendant stabbed him in the throat.
       ``After stabbing the victim in the throat, the defendant 
     grabbed the victim by his testicles, or genitals, in order to 
     move the victim outside. The victim groaned or moaned and the 
     defendant stabbed the victim in the throat a second time. 
     This second wound cut the victim's internal and external 
     jugular veins. The victim could have lived from 20 to 30 
     minutes after this wound was inflicted.
       ``Neither of these wounds to the neck severed the victim's 
     vocal cords. There is evidence that the victim asked the 
     defendant not to do it again before he was stabbed a second 
     time.
       ``After the second stab wound, the victim was dragged into 
     the woods where he was covered with bushes. The marks on the 
     victim's body indicated to the medical examiner, that the 
     victim was either alive or dead a very short time before he 
     was being dragged. It is consistent with what happened next 
     to assume the victim was alive.
       ``After the victim was covered in the woods, one of the 
     girls accompanying the defendant reported to the defendant 
     that she could hear the victim breathing. The defendant 
     then went back to the victim, who was lying face down, 
     uncovered him and cut the victim's 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. The medical examiner indicated the victim could 
     have lived 3 to 5 minutes after his spinal cord was 
     severed.''--This evidence establishes that the murder was 
     especially heinous, atrocious, or cruel.
       The trial court relied on these same facts to find the 
     murder to be cold, calculated, and premeditated. In addition, 
     the court relied on Foster's witness stand confession and 
     Anita Rogers' trial testimony. Rogers testified that prior to 
     the attack, Foster asked her to exchange class rings with 
     him. Foster's ring bore the initial ``K.'' He told Rogers 
     that he wanted to switch rings because his ring would have 
     left ``K'' impressions on the victim, thus identifying him as 
     the perpetrator. As the prosecutor argued to the jury, if 
     Foster had not intended to kill the victim, it would have 
     made no difference if there were ``K'' impressions on the 
     victim because he would have been alive to identify Foster. 
     These facts establish the existence of a careful plan or 
     prearranged design to kill.\7\ Rogers v. State, 511 So.2d 
     526, 533 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 
     733, 98 L.Ed.2d 681 (1988).
       [9] Next, Foster claims that the jury charge and the 
     prosecutor's closing argument limited the jury's 
     consideration of mitigating evidence in violation of Cheshire 
     v. State 568 So.2d 908 (Fla.1990) (state may not restrict 
     consideration of mitigating circumstances solely to 
     ``extreme'' emotional disturbances; any emotional disturbance 
     relevant to the crime must be considered). The court gave the 
     following special instruction:
       ``Among the mitigating circumstances which you may consider 
     are the following. First, the crime for which the defendant 
     is to be sentenced was committed while he was under the 
     influence of extreme mental or emotional disturbance.
       ``Second, that the capacity of the defendant to appreciate 
     the criminality of his conduct or to conform his conduct to 
     the requirements of law was substantially impaired.
       ``Third, that the defendant had an abusive family 
     background.
       ``Fourth, the defendant's poverty.
       ``Fifth, the physical illness of the defendant.
       ``Sixth, the defendant's love for and love by his family.
       ``Seventh, any alcohol or drug addiction of the defendant.
       ``Eight, a troubled personal life including depression and 
     frustration.
       ``Ninth, physical injuries suffered by the defendant.
       ``Tenth, the defendant's lack of childhood development.
       ``Eleventh, the effect of death of loved ones on the 
     defendant.
       ``Twelfth, the learning disability suffered by the 
     defendant.
       ``Thirteenth, the defendant's potential for positive 
     sustained human relationships.
       ``Fourteenth, any other aspect of the defendant's character 
     or record and any other circumstance of the crime or 
     offense.''
       Foster argues that this instruction created a substantial 
     risk that the jury believed that they could only find the 
     mental health evidence to be mitigating if it rose to the 
     statutory level. In addition to being given the quoted 
     instruction, the jury was informed that it must consider any 
     aspect of the defendant's character and background or any 
     other circumstance presented in mitigation and that there 
     was no limitation on the mitigating factors which could be 
     considered. Viewing the instructions as a whole, we find 
     no reasonable likelihood that the jurors understood the 
     instruction to preclude them from considering any relevant 
     evidence. Robinson v. State, 574 So.2d 108, 111 (Fla.), 
     cert, denied,--U.S.----, 112 S.Ct. 131, 116 L.Ed.2d 99 
     (1991). Further, in closing argument, defense counsel 
     discussed the mental health mitigation in detail. He 
     argued that the evidence rose to the statutory level but 
     nevertheless argued that Foster was clearly under an 
     emotional disturbance even if it did not meet the level 
     required by statute. Accordingly, we reject this claim.
       Next, Foster asserts that the court erred in refusing to 
     give certain jury instructions. The rejected instructions 
     deal with the following subjects: (1) the determination of 
     the aggravating factor of especially, heinous, atrocious, or 
     cruel; (2) the determination of the aggravating factor of 
     cold, calculated, and premeditated; and (3) the jury's pardon 
     power. He also alleges that the jury instructions on these 
     two aggravating circumstances were inadequate.
       [10] The instruction given on heinous, atrocious, and cruel 
     was the same as the one held to be inadequate in Shell v. 
     Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). 
     Therefore, the court erred in failing to give Foster's 
     requested instruction which contained an expanded definition 
     of that aggravating factor. We conclude, however, that the 
     error was harmless. As may be seen from that portion of the 
     trial judge's order previously quoted, Foster's killing of 
     Julian Lanier was especially heinous, atrocious, and cruel by 
     any standard. The jury could not have been misled by the 
     inadequate instruction. We further hold that the court did 
     not abuse its discretion in refusing to give the other jury 
     instructions which Foster had requested.
       [11] Next, Foster asserts that the court erred in failing 
     to strike three venire members for cause. He argues that: (1) 
     Carol Ann Pope should have been excused because she indicated 
     bias against persons who have had numerous appeals; (2) 
     Thomas Martin should have been excused because he went to 
     junior high school with Foster and the two of them ``had a 
     couple of fights''; (8) Marion Pelland should have been 
     excused because she was predisposed toward imposing the 
     death penalty for all premeditated murders. Foster 
     exercised peremptory challenges to excuse these three 
     jurors.
       The test for determining juror competency is whether the 
     juror can lay aside any bias or prejudice and render his 
     verdict solely upon the evidence presented and the 
     instructions on the law given to him by the court.'' Lusk v. 
     State, 446 So.2d 1038-1041 (Fla.), cert. denied, 469 U.S. 
     873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The record does 
     not support Foster's allegations regarding these potential 
     jurors. We have reviewed the transcript of jury selection and 
     do not find any basis for excusing these jurors for cause.
       Next, Foster claims that the trial court improperly excused 
     venire member Deluzain for cause in violation of the 
     principles established in Witherspoon v. Illinois, 391 U.S. 
     510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. 
     Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
       [12] A juror may be excluded in a death case if his views 
     on capital punishment ``would prevent or substantially impair 
     the performance of his duties as a juror in accordance with 
     his instructions and his oath.'' Adams v. Texas, 448 U.S. 38, 
     45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The record 
     evinces Deluzain's inability to set aside her own beliefs in 
     deference to the law. Randolph v. State, 562 So.2d 881, 337 
     (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 538, 112 
     L.Ed.2d 548 (1990). She said that she did not believe that 
     she could vote to impose the death penalty in any situation 
     other than a murder within a prison setting. When asked 
     whether she could set aside her feelings against the death 
     penalty if the murder were sufficiently aggravated, she 
     responded that she was not sure that she could. The trial 
     court did not abuse its discretion in excusing her for 
     cause.
       [13] Further, Foster challenges the circuit court's refusal 
     to allow him to show that the use of the death penalty in Bay 
     County, Florida, is racially discriminatory. Foster moved to 
     preclude the state attorney's office from seeking the death 
     penalty in his case based on his assertion that the Bay 
     County State Attorney's Office pursued prosecution much more 
     vigorously and fully in cases involving white victims than in 
     cases involving black victims.
       In support of his claim, Foster proffered a study conducted 
     by his counsel of some of the murder/homicide cases 
     prosecuted by the Bay County State Attorney's Office from 
     1975 to 1987. Analyzing the raw numbers collected, Foster 
     concluded that defendants whose victims were white were 4 
     times more likely to be charged with first-degree murder than 
     defendants whose victims were black. Of those defendants 
     charged with first-degree murder, white-victim defendants 
     were 6 times more likely to go to trail. Of those defendants 
     who went to trail, white-victim defendants were 26 times more 
     likely to be convicted of first-degree murder. The court 
     refused to hold an evidentiary hearing, finding that the 
     alleged facts did not make out a prima facie claim of 
     discrimination.
       The United States Supreme Court rejected a similar 
     challenge in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 
     95 L.Ed.2d 262 (1987). McCleskey claimed that the imposition 
     of Georgia's death penalty was racially discriminatory in 
     violation of the Eighth and Fourteenth Amendments. He relied 
     on a statistical study, the Baldus study, which purported to 
     show a disparity in the imposition of Georgia's death penalty 
     based on the race of the victim and the race of the 
     defendant. The raw figures collected by Professor Baldus 
     indicated that defendants charged with killing white victims 
     received the death penalty in 11% of the cases, but 
     defendants charged with killing blacks received the death 
     penalty in only 1% of the cases. Baldus further found that 
     the death penalty was assessed in 22% of the cases 
     involving black defendants and white victims; 8% of the 
     cases involving white defendants and white victims; and 3% 
     of cases involving white defendants and black victims. The 
     figures indicated that prosecutors sought the death 
     penalty in 70% of the cases involving black defendants and 
     white victims; 32% of the cases involving white defendants 
     and white victims; 15% of the cases involving black 
     defendants and black victims; and 19% of the cases 
     involving white defendants and black victims.
       After accounting for numerous variables that could have 
     explained the disparities on other than racial grounds, the 
     Baldus study found that defendants charged with killing white 
     victims were 4.3 times as likely to receive a death sentence 
     as defendants charged with killing black victims. Black 
     defendants were 1.1 times as likely to receive a death 
     sentence as other defendants. As a black defendant who killed 
     a white victim, McCleskey argued that the Baldus study 
     demonstrated that he was discriminated against because of his 
     race and the race of his victim.
       The Court held that McCleskey ``must prove that the 
     decisionmakers in his case acted with discriminatory 
     purpose.'' McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767. The 
     Court rejected McCleskey's claim because he offered no 
     evidence specific to his own case to support as inference 
     that racial considerations played a part in his sentence. The 
     Court found the Baldus study to be insufficient to support an 
     inference that the decisionmakers in McCleskey's case acted 
     with purposeful discrimination.
       Foster's claim suffers from the same defect. He has offered 
     nothing to suggest that the state attorney's office acted 
     with purposeful discrimination in seeking the death penalty 
     in his case. See Harris v. Pulley, 885 F.2d 1354, 1875 (9th 
     Cir. 1988), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 
     L.Ed.2d 848 (1990); Byrd v. Armontrout, 880 F.2d 1, 10 (8th 
     Cir. 1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 
     L.Ed.2d 501 (1990); Kelly v. Lynaugh; 862 F.2d 1126, 1135 
     (5th Cir. 1988) cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 
     106 L.Ed.2d 608 (1989). The trial court was not required to 
     hold an evidentiary hearing on this claim. Harris, 885 
     F.2d at 1375 (defendant not entitled to evidentiary 
     hearing where he offered no proof that decisionmakers in 
     his case acted with discriminatory purpose).
       Foster argues that McCleskey does not foreclose his 
     challenge because his evidence focuses solely on the 
     practices of one prosecutor's office, whereas the Baldus 
     study consisted of generalized statistics covering every 
     aspect of Georgia's death penalty scheme. The McCleskey Court 
     questioned whether a state ``policy'' of discrimination could 
     be deduced by studying the combined effects of hundreds of 
     decisionmakers.
       The Court in McCleskey held that: [T]he policy 
     considerations behind a prosecutor's traditionally ``wide 
     discretion'' suggest the impropriety of our requiring 
     prosecutors to defend their decisions to seek death penalties 
     ``often years after they are made.'' Moreover, absent far 
     stronger proof, it is unnecessary to seek such a rebuttal, 
     because a legitimate and unchallenged explanation for the 
     decision is apparent from the record: McCleskey committed an 
     act for which the United States Constitution and Georgia laws 
     permit imposition of the death penalty.
       ``. . . Implementation of these laws necessarily requires 
     discretionary judgments. Because discretion is essential to 
     the criminal justice process, we would demand exceptionally 
     clear proof before we would infer that the discretion has 
     been abused.''--McCleskey, 481, U.S. at 296-97, 107 S. Ct. at 
     1769-70 (citations omitted).
       The figures proffered by Foster do not constitute 
     ``exceptionally clear proof'' of discrimination. See Harris 
     v. Pulley, 885 F.2d at 1375. Foster's figures do not account 
     for any of the myriad of nonracial variables that could 
     explain the disparity See McCleskey, 481 U.S. at 295, n. 
     15, 18 S.Ct. at 1769, n. 15 (``decisions whether to 
     prosecute and what to charge necessarily are 
     individualized and involve infinite factual variations. . 
     . .''). Even assuming the validity of foster's study,\8\ 
     the raw numbers analyzed by Foster do not show a 
     significantly greater disparity than figures proffered by 
     the Baldus study which had taken into account numerous 
     nonracial variables.\9\
       [14] Finally, Foster claims that the trial court's 
     sentencing order fails to evaluate the proposed mitigating 
     factors as required by Rogers v. State, 511 So.2d 526 (Fla 
     1987), cert. denied, 484 U.S. 1020, 108 S.C. 733, 98 L.Ed.2d 
     681 (1988). In discussing the manner in which the trial court 
     should consider mitigating circumstances in a case in which 
     the state seeks the death penalty, we said:
       ``[T]he trial court's first task in reaching its 
     conclusions is to consider whether the facts alleged in 
     mitigation are supported by the evidence. After the factual 
     finding has been made, the court then must determine whether 
     the established facts are of a kind capable of mitigating the 
     defendant's punishment, i.e., factors that, in fairness or in 
     the totality of the defendant's life or character may be 
     considered as extenuating or reducing the degree of moral 
     culpability for the crime committed. If such factors exist in 
     the record at the time of sentencing, the sentencer must 
     determine whether they are of sufficient weight to 
     counterbalance the aggravating factors.''--Id. at 534.
       In addressing mitigation in the sentencing order, the trial 
     court first listed thirteen mitigating factors that Foster 
     had offered for consideration. The court then stated:
       ``The Court must note that there is a conflict in evidence 
     on the questions of whether the capital felony was committed 
     while the defendant was under the influence of extreme mental 
     or emotional disturbance and the capacity of the defendant to 
     appreciate the criminality of his conduct to the requirements 
     of law was substantially impaired (emphasis supplied).''
       After discussing the conflict in the evidence, the court 
     then concluded:
       ``The Court will therefore consider this conflict in the 
     weight to be given these two factors in relating to the 
     aggravating circumstances.
       The Court has considered the evidence presented in support 
     of each of these mitigating factors and, in weighing these 
     factors against the aggravating factors, finds that the 
     aggravating circumstances outweigh the mitigating 
     circumstances in this case.''
       While it is evident that the court considered the 
     mitigating circumstances, we cannot tell whether the court 
     determined whether either of the two statutory mental 
     mitigating circumstances existed. In fact, we are unable to 
     say whether the court found any of the mitigating 
     circumstances to exist or what weight was given to them. 
     Unlike Rogers, we cannot say that this defect in the 
     sentencing order was harmless error.\10\
       Accordingly, we vacate the sentence of death and remand the 
     case for the trial judge to enter a new sentencing order 
     following the dictates of Rogers and Campbell v. State, 571 
     So.2d 415 (Fla.1990).\11\ See Lucas v. State, 568 So.2d 18 
     (Fla.1990). We affirm the denial of Foster's motion for 
     postconviction relief.
       It is so ordered.
       OVERTON, McDONALD, GRIMES and HARDING, JJ., concur.
       BARKETT, CJ., concurs in part and dissents in part with an 
     opinion, in which SHAW and KOGAN, JJ., concur.
       KOGAN, J., concurs in part and dissents in part with an 
     opinion.
       BARKETT, Chief Justice, concurring in part, dissenting in 
     part.
       ``I concur in the majority's resolution of all the issues 
     except for Foster's claim regarding the discriminatory use of 
     the death penalty in Bay County, Florida.
       ``The majority concludes that Foster ``Has offered nothing 
     to suggest that the state attorney's office acted with 
     purposeful discrimination in seeking the death penalty in his 
     case.'' Majority op. at 463. My disagreement is not so much 
     with that statement as with a standard that requires showing 
     something that is virtually impossible to show: purposeful 
     discrimination. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 
     1756, 95 L.Ed.2d 262 (1987).
       ``In McCleskey, the U.S. Supreme Court dismissed 
     McCleskey's analogous federal equal protection claims, 
     holding that a defendant must establish both ``the existence 
     of purposeful discrimination'' and a ``discriminatory 
     effect'' on that particular defendant. Id. at 292, 107 S.Ct. 
     at 1767. I agree that under the federal precedent McCleskey 
     would control this case.
       ``Foster, however, claims a violation of the Equal 
     Protection Clause of the Florida Constitution. Art. I, 
     Sec. 2, Fla. Const. Despite the principles adopted in Traylor 
     v. State, 596 So.2d 957 (Fla.1992), establishing the primacy 
     of the Florida Constitution, the majority completely ignores 
     Foster's state constitutional challenge. I believe that 
     Foster's claim deserves full consideration.
       Despite earlier transgressions,\12\ Florida in recent years 
     has clearly established its commitment to equality of 
     treatment in the courts. See, e.g., Report and 
     Recommendations of the Florida Supreme Court Racial and 
     Ethnic Bias Study Commission (1990 & 1991); The Florida 
     Supreme Court Gender Bias Study Commission Final Report 
     (1990). Indeed, while the U.S. Supreme Court was still 
     requiring a defendant to meet the impossible burden of 
     proving that discriminatory jury selection practices were 
     employed systematically in a number of similar cases or 
     contexts, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 
     L.Ed.2d 759 (1965), this Court took the lead in State v. 
     Neil, 457 So.2d 481 (Fla. 1984), clarified by State v. 
     Castillo, 486 So.2d 565 (1986), and established guidelines 
     under the Florida Constitution to guard against the 
     racially discriminatory use of peremptory challenges.\13\ 
     The U.S. Supreme Court followed suit two years later in 
     Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 
     L.Ed.2d 69 (1986), when it overruled the Swain standard 
     and acknowledged that it imposed a ``crippling burden of 
     proof'' that rendered a prosecutor's peremptory challenges 
     largely immune from constitutional scrutiny. Id. at 92-93, 
     106 S.Ct. at 1720-21. The Court found that a prosecutor's 
     use of peremptory challenges is subject to the constraints 
     of the Equal Protection Clause when there is some basis 
     for believing that the challenges are used in a racially 
     discriminatory manner.\14\
       ``The U.S. Supreme Court in Batson recognized the invidious 
     nature of discrimination. Id. at 93-96, 106 S.Ct. at 1721-23. 
     Justice Marshall, in a concurring opinion, noted that 
     discrimination is not often blatantly expressed, and in many 
     cases it is subliminal:
       `A prosecutor's own conscious or unconscious racism may 
     lead him easily to the conclusion that a prospective black 
     juror is `sullen,' or `distant,' a characterization that 
     would not have come to his mind if a white juror had acted 
     identically. A judge's own conscious or unconscious racism 
     may lead him to accept such an explanation as well 
     supported.'--Id. at 106, 106 S.Ct. at 1728 (Marshall, J. 
     concurring).
       Studies of unconscious racism have shown that the 
     perpetrator does not feel particularly punitive toward 
     minorities, rather, he or she wants to remain distant and is 
     less likely to feel empathy because of the distance. Sheri 
     Lynn Johnson, Comment, Unconscious Racism and the Criminal 
     Law, 78 Cornell L. Rev. 1016, 1020 n. 27 (1988). While 
     society has largely rejected blatant stereotypes and overt 
     discrimination, more subtle forms of racism are increasing: 
     ``A burgeoning literature documents the rise of the 
     `aversive' racist, a person whose ambivalent racial attitudes 
     leads him or her to deny his or her prejudice and express it 
     indirectly, covertly, and often unconsciously.'' Id. at 1027-
     28 (footnotes omitted).
       ``Discrimination, whether conscious or unconscious, cannot 
     be permitted in Florida courts. As important as it is to 
     ensure a jury selection process free from racial 
     discrimination, it is infinitely more important to ensure 
     that the State is not imposing the ultimate penalty of death 
     in a racially discriminatory manner. The U.S. Supreme Court 
     may eventually recognize that the burden imposed by McCleskey 
     is as insurmountable as that presented by Swain. In the 
     meantime, defendants such as Foster have no chance of proving 
     that application of the death penalty in a particular 
     jurisdiction is racially discriminatory, no matter how 
     convincing their evidence.\15\
       ``I suggest the following standard: A party asserting 
     racial discrimination in the State's decision to seek the 
     death penalty should make a timely objection and demonstrate 
     on the record that the discrimination exists and that there 
     is a strong likelihood it has influenced the State to seek 
     the death penalty. Such discrimination conceivably could be 
     based on the race of the victim or on the race of the 
     defendant. Once the trial court determines that the initial 
     burden has been met by the defendant, the burden then shifts 
     to the State to show that the practices in question are not 
     racially motivated. If the trial court determines that the 
     State does not meet that burden, the State then is prohibited 
     from seeking the death penalty in that case.
       ``Accordingly, because the majority has applied a federal 
     constitutional standard in Foster's case that is impossible 
     to meet and has missed the opportunity to craft a state 
     constitutional standard such as that discussed above, I 
     dissent from that portion of the opinion.''


                               footnotes

     \1\Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 
     L.Ed.2d 347 (1987).
     \2\The trial court found three aggravating circumstances: (1) 
     the murder was committed during the course of a robbery; (2) 
     the murder was cold, calculated, and premeditated; and (3) 
     the murder was especially heinous, atrocious, or cruel. 
     Foster offered thirteen mitigating circumstances. The trial 
     court found that the mitigation did not outweigh the 
     aggravating circumstances.
     \3\In addition, we note that Foster raised ineffective 
     assistance of counsel claims in his two federal habeas 
     petitions. The claims were denied after evidentiary hearing 
     and the denials were affirmed on appeal. Foster v. Dugger, 
     823 F.2d 402 (11th Cir. 1987), cert. denied, 487 U.S. 1241, 
     108 S.Ct. 2915. 101 L.Ed.2d 946 (1988); Foster v. Strickland, 
     707 F.2d 1339 (11th Cir. 1983), cert. denied, 466 U.S. 993, 
     104 S.Ct. 2375, 80 L.Ed.2d 847 (1984).
     \4\In addition, we note that the motion was filed outside of 
     the limitations period established by rule 3.850. The motion 
     fails to allege that the facts upon which his claims are 
     based ``could not have been ascertained by the exercise of 
     due diligence.'' Fla.R.Crim.P. 3.850.
     5. Sec. 921.141(5)(h), Fla.Stat, (1989).
     6. Sec. 921.141(5)(i), Fla.Stat, (1989).
     7. Foster also contends that the application of the cold, 
     calculated, and premeditated aggravating factor to his crime 
     violates the Ex Post Facto Clause because the factor did not 
     exist at the time of this crime. We have repeatedly rejected 
     this claim. See Sirecl v. State, 587 So.2d 450, 454 (Fla. 
     1991), cert. denied,----U.S.----, 112 S.Ct. 1500 117 L.Ed.2d 
     639 (1992); Zeigler v. State, 580 So.2d 127 (Fla.), cert. 
     denied----U.S.----, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991); 
     Combs v. State, 403 So.2d 418, 421 (Fla. 1981), cert. denied, 
     456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (Fla. 1982).
     8. The weight to be given to the results of such a small 
     statistical sample as this is questionable. See McCleskey, 
     481 U.S. at 295, n. 15, 107 S.Ct. at 1768, n. 15.
     9. The figures indicating that of the defendants who went to 
     trial, white-victim defendants were 26 times more likely to 
     be convicted of first-degree murder than were black-victim 
     defendants cannot be attributed to a decision by the Bay 
     County State Attorney's Office and thus are not relevant 
     here.
     10. In view of our disposition of this issue, we do not 
     address Foster's argument with respect to proportionality.
     11. While Campbell did not become final until after the 
     original sentencing order was entered, its additional 
     requirements will obviously be applicable to any new 
     sentencing order.
     12. See, e.g., State ex rel. Hawkins v. Board of Control, 93 
     So.2d 354 (Fla.), cert. denied, 355 U.S. 839, 78 S.Ct. 20. 
     2L.Ed.2d 49 (1957); State ex rel. Hawkins v. Board of 
     Control, 83 So.2d 20 (Fla. 1955), cert. denied, 350 U.S. 413, 
     76 S.Ct. 464, 100 L.Ed. 486 (1956).
     13. See also State v. Slappy, 522 So.2d 18 (Fla.) cert. 
     denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988) 
     (holding that any doubt as to whether the complaining party 
     has met its initial burden, should be resolved in that 
     party's favor).
     14. The U.S. Supreme Court recently held that the Equal 
     Protection Clause also prohibits a criminal defendant from 
     engaging in purposeful discrimination on the basis of race in 
     the exercise of peremptory challenges. Georgia v. McCollum,--
     --U.S.----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). This Court 
     held in Neil that both the State and the defense may 
     challenge the allegedly improper use of peremptories. 457 
     So.2d at 487.
     15. In this case, Foster presented statistical evidence 
     showing that even though blacks constituted 40% of the murder 
     victims in Bay County cases between 1975 and 1987, all 17 
     death sentences that were imposed were for homicides 
     involving white victims.

  Mr. GRAHAM. Mr. President, I ask unanimous consent to print in the 
Record a colloquy between Chief Justice Barkett and Senator Hatch on 
the occasion of her confirmation hearing before the Senate Judiciary 
Committee on February 3 of this year.
  There being no objection, the colloquy was ordered to be printed in 
the Record, as follows:

       Justice Barkett. My only concern in Foster, Senator, is 
     that there would be a vehicle by which a defendant could 
     assert that the law was being discriminatorily applied 
     against a racial minority. My reading of Supreme Court cases 
     and my reading of our own cases in my State preclude the use 
     of a law to be applied in a racially discriminatory manner.
       I did not purport to suggest what proof would be sufficient 
     to overcome that burden, although I recognize that it would 
     have to be a substantial burden of proof, if that claim were 
     to prevail. But the essence of my concerns in Foster revolved 
     around providing a process when there was an occasion that a 
     defendant could assert that a particular prosecutor, for 
     example, was only applying the death penalty against black 
     defendants or only when the victims were white or things of 
     that nature.
       Senator Hatch. I think that is different from applying 
     statistical disparity. If you read your opinion carefully--
     well, let me just say I am very concerned that your approach 
     would paralyze the implementation of the death penalty.
       Now, I myself have lots of qualms about the death penalty. 
     I would use it very sparingly, and then only in cases where 
     there is absolute proof of guilt, where there is no evidence 
     of discrimination, and where the murder is a particularly 
     heinous murder. There may be other factors, but those are 
     three that I would want to find in every case.
       Let me just add that I am hardly alone in this concern. 
     Many of my Senate colleagues, for example, have voiced 
     similar concerns in opposition to legislation labeled by its 
     advocates as the Racial Justice Act. That legislation, which 
     also developed in reaction to the McClesky case decided by 
     the Supreme Court, takes the same or virtually the same 
     statistical approach as your dissent in Foster.
       During the debate on the so-called Racial Justice Act in 
     1991, Senator Graham, who spoke eloquently on your behalf 
     today and influentially to me, as did Senator Mack, but 
     Senator Graham had this to say: ``The reality is that, by 
     enacting the Racial Justice Act, this Congress in a bill 
     designed to enhance Federal criminal justice standards, 
     procedures and laws would destroy the right of a State to 
     impose the death penalty in a constitutional manner. The 
     Racial Justice Act of 1991 might more appropriately be called 
     the Death Penalty Abolition Act of 1991. Seldom has a 
     proposed Federal law gone so far at one time as to unravel 
     first the interest of the States in protecting citizens from 
     murderers, second, to unravel the prosecutorial discretion 
     recognized in every State, and, third, to unravel the jury 
     system.''
       He goes on to say: ``The very nature of the criminal 
     justice program does not lend itself to statistical 
     precision. Each death-eligible decision is inherently 
     individualized and not necessarily subject to being 
     categorized.''
       Now, as you can see, he and I share the same view on the 
     Racial Justice Act, and we have defeated it consistently in 
     our debates over the crime bills that we have had. Let me 
     just ask you to respond to some criticisms of what I felt was 
     your theory in that case.
       For instance, Justice Powell noted in McClesky that 
     implementation of murder statutes inherently requires 
     discretion, which he said ``is essential to the criminal 
     justice process.'' He explained that this process is unique, 
     and that ``the nature of capital sentencing decision and the 
     relationship of the statistics to that decision are 
     fundamentally different from the corresponding elements in 
     jury pool selection and employment discrimination cases. In 
     those cases, the statistics relate to fewer entities and 
     fewer variables and are relevant to the challenged decisions.
       For example, from the time of his arrest until the time of 
     sentencing, you have independent entities functioning, the 
     prosecutor who decides to seek the death penalty, a defendant 
     who may or may not choose to plea bargain, a jury or jury who 
     have to impose it. It is not the same as one employer hiring 
     plumbers or a court administrator seeking a jury pool or 
     other cases where decisions are readily attributable to one 
     entity.
       Justice Powell also said this. He said: ``Another important 
     difference between the cases in which we have accepted 
     statistics as proof of discriminatory intent in this case is 
     that, in the jury pool selection and employment 
     discrimination cases, the decision-maker has the opportunity 
     to explain the statistical disparity. Here the State has no 
     practical opportunity to rebut the statistical study. 
     Controlling considerations of public policy dictate that 
     jurors cannot be called to testify to the motives and 
     influences that led to their verdict.''
       Now, he added even further. He said: ``Similarly, the 
     policy considerations behind a prosecutor's traditionally 
     wide discretion suggest that the impropriety of law requiring 
     prosecutors to defend their decisions to seek death penalties 
     often years after they were made.''
       Now, one study--I am sorry this is so long.
       Justice Barkett. That is all right.
       Senator Hatch. It is important, because it is a matter of 
     great debate here, as well. Many of us who believe that the 
     death penalty is provided by the Constitution and 
     is important know that the reason for the Racial Justice 
     Act is to knock out the death penalty.
       One study you pointed to found, ``That prosecutors sought 
     the death penalty 27 percent of the time when white victims 
     were involved, and only 14 percent of the time when minority 
     victims were involved.'' But each and every one of those 
     cases had different facts and different circumstances. They 
     do not seem susceptible to those who really study this area 
     to statistical comparison such as you called for in the 
     Foster case.
       Go ahead.
       Justice Barkett. I do not think that there is anything in 
     this opinion nor in anything I have written nor in anything I 
     have ever said or feel that suggests that discretion is not a 
     part of this process and has to be a part of the process for 
     many of the reasons that you have enumerated, Senator.
       What I think I am saying in this case, however, and what I 
     think the United States Supreme Court has said in other 
     contexts, for example, the whole Swain v. Alabama and Batson 
     v. Kentucky context, is that discretion cannot be used to 
     selectively enforce the law in a racially discriminatory 
     manner. And I do not think there is any dispute about that 
     principle.
       The second aspect of your question which I would address is 
     that I have not suggested in this opinion or anywhere else 
     that statistics is the be-all and the end-all of the inquiry. 
     I do believe that perhaps statistics may be something that 
     could be submitted to be included in an offer of proof on 
     this question, but I clearly do not believe that some 
     questions can be resolved only by use of statistical 
     analysis.
       And I think that the passage that you read indicates why it 
     would be so troublesome, if you attempted to challenge a 
     whole State's use of statistics or statistics which impact an 
     entire State as dispositive of anything. There are many 
     prosecutors in a State, there are many districts, and so on 
     and so forth.
       But when an allegation is made that there is one prosecutor 
     who is unambiguously using his or her discretion in a way to 
     only selectively enforce the law or apply the law in a 
     racially discriminatory manner, there has to be a vehicle in 
     which a person can raise this claim and in which it can be 
     decided.
       Senator Hatch. But that was not the claim in the Foster 
     case. In this case, you said--I have a LEXIS/NEXIS, I do not 
     know whether you have the same thing I do, so I cannot really 
     tell you the page, but it is near the end of your opinion, I 
     would say about five paragraphs before the end--you say: ``I 
     believe that statistical evidence of discrimination in 
     capital sentencing decisions should similarly establish a 
     violation of Article I, section 2 of the Florida 
     Constitution, Statistical evidence should be construed 
     broadly to include not only historical analysis of the 
     disposition of first-degree murder cases in a particular 
     jurisdiction, but also other information that could suggest 
     discrimination, such as the resources devoted to the 
     prosecution of cases involving white victims as contrasted to 
     those involving minority victims--
       Justice Barkett. Exactly.
       Senator Hatch. --``and the general conduct of a State 
     attorneys office, including hiring practices and the use of 
     racial epithets and jokes, when racial bias, whether 
     conscious or unconscious, exists in an environment where 
     decisions about seeking the death penalty are made, all 
     aspects of that bias should be available for evaluation by 
     the court in reviewing evidence of discrimination.''
       That may be in reviewing evidence of discrimination, but 
     not in making the final decision as to whether capital 
     punishment should be imposed.
       Justice Barkett. I think if you continue in the opinion, 
     Senator, you will find that what I am talking about is using 
     all of these things, certainly not exclusively. And as I 
     point out at the very end of the opinion, it is impossible to 
     anticipate the circumstances in which it may be manifested, 
     the trial judge should make a determination, and I suggest a 
     vehicle which provides a specific standard, that is, the 
     defendant has the burden of showing a very strong 
     likelihood of discrimination, and the trial court would 
     then hear whatever evidence, which would not be simply 
     statistical evidence as the only evidence to be 
     considered.
       Senator Hatch. As I read the opinion, your standard is very 
     open-ended. For example, prosecutor's decision as to how much 
     resources to put into the case turns on many subjective 
     factors, amount of investigation, trial preparation, attorney 
     resources needed in the case, as well as available resources.
       And since the facts of any set of cases are never alike, 
     how is it possible to draw meaningful comparisons for that 
     kind of statistical analysis?
       Justice Barkett. Suppose, Senator, I guess if you take the 
     best case scenario, that there had been 100 murders in a 
     particular county and 90 of them were against black victims, 
     only 10 against white victims, and the death penalty was 
     sought only in those 10 or only in the one case, where there 
     may be many, many others. All I am trying to suggest to you 
     is I believe there would be a scenario where it would be 
     clear that the death penalty was being applied in a racially 
     discriminatory manner.
       The only thing I was suggesting in Foster is that there be 
     a vehicle by which one can bring that claim to the court and 
     the court can evaluate it. I was not attempting to suggest, 
     nor do I suggest now, that there is a particular way of 
     making that proof. I was suggesting different ways that 
     certainly would be considered by the trial court.
       Senator Hatch. The point I was making is that your standard 
     is a vague, manipulable standard that would absolutely 
     paralyze the death penalty, if it were adopted by courts, 
     under which the burden would be placed upon the State to 
     prove a negative, and that is what bothered me about that 
     case.
       Like I say, every murder case is unique. You cannot 
     compare, for example, resources applied between cases or the 
     decision to seek the death penalty in those cases in a 
     meaningfully statistical way and come to a conclusion about 
     racial discrimination. Comparing what happens in two murder 
     cases is like comparing an apple to an orange.
       Justice Barkett. Absolutely.
       Senator Hatch. So you feel that if you go on the Circuit 
     Court of Appeals, you would be bound by the McClesky case?
       Justice Barkett. I do not think there is any question of 
     that, Senator.

  Mr. GRAHAM. Thank you, Mr. President
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. SHELBY). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. PELL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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