Hamilton v. State, 72502

• Decision Date: 27 July 1989
• Docket Number: No. 72502,72502
• Citation: 14 Fla. L. Weekly 403,547 So.2d 630
• Parties: 14 Fla. L. Weekly 403 Thewell E. HAMILTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 630

547 So.2d 630

14 Fla. L. Weekly 403

Thewell E. HAMILTON, Appellant, v. STATE of Florida, Appellee.

No. 72502.

Supreme Court of Florida.

July 27, 1989.

Michael E. Allen, Public Defender, and W.C. McLain, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Gary L. Printy and Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Thewell Hamilton appeals from his convictions on two counts of first-degree murder and the imposition of the death penalty in both counts. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons which follow, we reverse the judgments and sentences as to both counts and remand for a new trial.

On the evening of September 19, 1986, gunshots were heard emanating from the Holmes County house Hamilton shared with his wife, Madeline, his teenaged stepson, Michael, and his two young children, Shannon (an infant) and Shaun (two years old). At approximately 7:00 p.m. an ambulance service received a distress telephone call from a man who stated that his family had been shot. Upon their arrival at the address given by the caller, the ambulance service personnel discovered the bodies of Madeline and Michael, dead of multiple gunshot wounds. Hamilton, who was in a back bedroom with Shannon and Shaun told the police that Madeline's former husband, Gus, who had recently been released from prison, had threatened Madeline. ¹ Police found four spent shotgun shell casings in the house and a sixteen gauge, double-barrel shotgun underneath a van parked seventy-five feet from the Hamilton house. Ballistics tests revealed that this was the shotgun used to shoot both Madeline and Michael.

Approximately two hours after the first distress call was received, a caseworker from the Department of Health and Rehabilitative Services (HRS) took Shannon and Shaun out of the house. During the ride, Shaun told the caseworker: "Mommy dead, Daddy shot Mommy and Michael." Shaun repeated this statement several times.

Hamilton testified on his own behalf as to the events of that evening. He stated that Madeline and Michael engaged in a heated argument that evening and that Madeline had been drinking. Hamilton took the children to the back bedroom, from where he heard gunshots. According to Hamilton, when he entered the hallway where the argument had taken place, Michael was on the floor and Madeline was holding the shotgun. In Hamilton's attempt to wrestle the gun away from Madeline, the shotgun fired twice, killing Madeline.

The jury returned verdicts of guilty on both counts. Following a sentencing proceeding and two jury recommendations of death, the trial court sentenced Hamilton to death for both murders. The court found the following aggravating circumstances: (1) the murders were heinous, atrocious, and cruel; (2) the murders were cold, calculated, and premeditated; and (3) (as to the murder of Michael) Hamilton had been previously convicted of a violent felony, namely the contemporaneous shooting of Madeline. In mitigation, the trial court found the following factors: (1) Hamilton had no substantial history of criminal conduct; (2) Hamilton was a nonviolent person; (3) Hamilton had served honorably in the armed forces for twenty years; and, (4) Hamilton was not known to drink alcohol to excess.

Hamilton alleges three errors were committed by the trial court during the guilt phase of the trial. We agree. First, Hamilton argues that the trial court's denial of his requested challenge for cause of a prospective juror constitutes reversible error. He contends the juror stated she had a preconceived opinion of Hamilton's guilt and that it would take evidence put forth by Hamilton to convince her he was not guilty. The record bears out this allegation. We recognize the juror eventually stated that she could base her verdict on the evidence at trial and the law as instructed by the court. Nonetheless her responses, when viewed together, establish that this prospective juror did not presume Hamilton was innocent. Even after the juror responded affirmatively to questioning by the trial judge regarding whether she could hear the case with an open mind, she again asserted that she had a fixed opinion as to guilt or innocence. Although Hamilton could have used one of his remaining peremptory challenges to remove this juror, he elected not to do so. At the conclusion of voir dire, after Hamilton had exhausted his peremptory challenges, he requested an additional challenge so he could backstrike this juror. The request was denied, and the juror sat on the panel which decided Hamilton's fate.

The denial of the challenge for cause constitutes reversible error. This Court has repeatedly applied the rule set forth in Singer v. State, 109 So.2d 7, 23-24 (Fla.1959):

[I]f there is basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused on motion of a party, or by the court on its own motion.

See also Moore v. State, 525 So.2d 870, 872 (Fla.1988); Hill v. State, 477 So.2d 553, 555 (Fla.1985). This rule must be read together with our statement in 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), that "[t]he test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely on the evidence presented and the instructions on the law given to him by the court."

Although the juror in this case stated in response to questions from the bench that she could hear the case with an open mind, her other responses raised doubt as to whether she could be unbiased. For example, the juror's statement that Hamilton would be required to introduce evidence to convince her that he was not guilty pointedly demonstrates this juror's preconceived opinion of guilt. Essentially, this juror would require a defendant to prove his or her innocence rather than require the state to prove the defendant's guilt. "A juror is not impartial when one side must overcome a preconceived opinion in order to prevail." Hill v. State, 477 So.2d at 556. It is clear that the juror did not possess the requisite impartial state of mind necessary to render a fair verdict and thus should have been dismissed from the jury pool. The failure to excuse this juror upon motion deprived Hamilton of his constitutional right to a fair trial, requiring us to reverse the conviction and remand this case for a new trial.

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