Hardwick v. Dugger, s. 75556

• Decision Date: 08 September 1994
• Docket Number: Nos. 75556,78024,s. 75556
• Parties: 19 Fla. L. Weekly S433 John Gary HARDWICK, Jr., Petitioner, v. Richard L. DUGGER, Respondent. John Gary HARDWICK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 100

648 So.2d 100

19 Fla. L. Weekly S433

John Gary HARDWICK, Jr., Petitioner, v. Richard L. DUGGER, Respondent.

John Gary HARDWICK, Jr., Appellant, v. STATE of Florida, Appellee.

Nos. 75556, 78024.

Supreme Court of Florida.

Sept. 8, 1994.

Rehearing Denied Jan. 17, 1995.

Michael J. Minerva, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR, and Fred Parker Bingham II, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent/appellee.

PER CURIAM.

John Gary Hardwick, Jr., a prisoner under sentence of death, appeals the trial court's denial of his motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a petition for writ of habeas corpus. We have jurisdiction pursuant to article V, sections 3(b)(1) and (9) of the Florida Constitution.

Hardwick was convicted of first-degree murder for shooting and stabbing a man in Jacksonville in 1984. The jury recommended and the trial judge imposed the death sentence. On appeal, this Court affirmed both the conviction and sentence. Hardwick v. State, 521 So.2d 1071 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988). After the Governor issued a death warrant in 1990, Hardwick filed a 3.850 motion in circuit court and a petition for habeas relief with this Court. In February 1990, the circuit court conducted a rule 3.850 evidentiary hearing. The Office of the Capital Collateral Representative (CCR) protested the hearing and requested a continuance on the grounds that Hardwick's collateral counsel was unavailable for the hearing. The circuit court denied the continuance and conducted an evidentiary hearing relating to the claims of ineffectiveness of trial counsel. On March 6, 1990, the circuit court entered an order denying Hardwick all relief. On appeal, this Court issued an order staying Hardwick's execution until further order and remanding the matter to the circuit court "for a complete evidentiary hearing on Hardwick's claims under Florida Rule of Criminal Procedure 3.850." The circuit court conducted a bifurcated hearing in May and August 1990. On March 21, 1991, the circuit court issued a supplemental order denying all relief on Hardwick's 3.850 claims.

Rule 3.850 Motion

Hardwick seeks review of the trial court's rejection of the following fifteen claims: 1) denial of due process and a full and fair hearing of his postconviction claims; 2) denial of the effective assistance of trial counsel based upon several failures by counsel; 3) denial of effective assistance of counsel based upon denial of motion to discharge counsel; 4) no knowing waiver of Miranda ¹ rights; 5) vague instructions as to the "cold, calculated and premeditated" (CCP) and "heinous, atrocious or cruel" (HAC) aggravating factors; 6) this Court's failure to remand for resentencing after striking two aggravating circumstances on direct appeal; 7) death sentence imposed on the basis of impermissible victim impact evidence in violation of Booth ² and trial counsel was ineffective in failing to object; 8) Hardwick's absence during critical stages of the proceedings; 9) jury told that sympathy and mercy toward Hardwick could not be considered; 10) trial court's instructions and prosecutor's argument violated Caldwell; ³ 11) admission of unduly inflammatory and prejudicial photographs; 12) introduction of evidence of other crimes and bad character without proper jury instruction; 13) violation of the witness sequestration rule and prejudicial conduct by a spectator; 14) burden shifted to Hardwick to prove that life was the appropriate penalty; and 15) jury misled that a recommendation of life must be by a majority vote.

With the exception of claims 1 and 6 and the claims that allege ineffective assistance of counsel, all of the issues raised by Hardwick are procedurally barred. Claims 3 (denial of motion to discharge counsel) and 13 (violation of witness sequestration rule) were resolved on direct appeal when this Court concluded that the trial court did not err as to either matter. Hardwick, 521 So.2d at 1074, 1075. The remaining claims are procedurally barred because they either could or should have been raised on direct appeal. Smith v. State, 445 So.2d 323 (Fla.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984). Claim 5, which challenges the sufficiency of the jury instructions on the CCP and HAC aggravating factors, is procedurally barred because trial counsel raised no objections to the wording of the instructions. The objections went only to the applicability of the factors in this case. See Kennedy v. Singletary, 602 So.2d 1285 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). Claim 6 (failure to remand for resentencing) was properly denied as the trial court has no authority to review the actions of this Court.

As his first claim, Hardwick argues that he was denied due process below because the judge failed to recuse himself upon motion to disqualify by the defendant, signed verbatim an order prepared by the State denying all relief, initiated ex parte communication with the State, and failed to provide Hardwick with a copy of the 3.850 hearing transcript which was available to the State. We find no merit to any of these claims. Hardwick's motion to disqualify the judge failed to set forth a legally sufficient basis to warrant disqualification. See Tafero v. State, 403 So.2d 355, 361 (Fla.1981) (rule providing for disqualification of judge is not intended as a vehicle to oust judge who has made adverse rulings), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982). Similarly, we find no evidence that the trial court engaged in any improper conduct regarding the transcript of the 3.850 proceeding. Hardwick does not dispute that the State purchased its own transcript in order to prepare its proposed order. Nor does Hardwick dispute that, as provided by law, he received the transcripts and full record after he filed an appeal of the denial of postconviction relief.

In addition, we find no impropriety relating to the proposed order submitted by the State. The State submitted a draft order in September 1990 that was identical to the order denying relief signed by the judge on March 21, 1991. Hardwick argues that the judge engaged in improper ex parte communication by requesting that the State change the date on the last page of the proposed order. Hardwick cites Rose v. State, 601 So.2d 1181 (Fla.1992), to support his contention that this issue warrants reversal of the trial court's order. However, this case is unlike Rose where the trial court adopted the State's proposed order denying postconviction relief without providing the defendant's counsel notice of receipt of the order, a chance to review the order, or an opportunity to object to its contents. Id. at 1182. In the instant case, both parties stipulated to the filing of post-hearing memoranda, the State's proposed order was served on Hardwick's collateral counsel months before the trial judge signed the same order, and Hardwick's counsel filed an extensive response to the proposed order. Under these circumstances, we will not assume that the judge engaged in improper ex parte communication based upon a date change on the order's last page. We also find no merit to Hardwick's contention that the findings in the order are "plain error and not substantially supported by the evidence." To the contrary, the record supports the court's findings regarding the availability of witnesses and strategic decisions made by counsel.

The remaining claims allege that Hardwick was denied effective assistance of counsel based upon deficient performance of trial counsel. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that 1) counsel's performance was deficient and 2) there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984).

In claim 2, Hardwick alleges that he was denied the effective assistance of counsel at trial based upon counsel's alleged failure to investigate and present a defense of voluntary intoxication, to investigate and present available mitigating evidence during the penalty phase, and to ensure adequate mental health evaluations. According to Strickland, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690, 104 S.Ct. at 2066. As discussed at length in the 3.850 order below, the record refutes Hardwick's claim that counsel's performance was deficient as to any of these issues. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." 466 U.S. at 691, 104 S.Ct. at 2066. In the instant case, despite an uncooperative client who disagreed about trial strategy and ordered counsel to present no mitigation evidence at the penalty phase, trial counsel took extensive depositions, interviewed a number of witnesses, obtained a psychiatric evaluation by a mental health expert, and conducted an investigation of Hardwick's background.

In claim 7, Hardwick argues that the death sentence was imposed on the basis of impermissible factors in violation of Booth and that trial counsel rendered ineffective assistance by failing to object to the prosecutor's statements regarding the victim and to move for a mistrial after emotional outbursts by the victim's cousin. Booth claims are procedurally barred in postconviction proceedings if not objected to at trial or raised on direct appeal. Adams v. State, 543 So.2d 1244, 1249 (Fl...