Hardwick v. State

• Decision Date: 04 February 1988
• Docket Number: No. 68769,68769
• Parties: 13 Fla. L. Weekly 83 John Gary HARDWICK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1071

521 So.2d 1071

13 Fla. L. Weekly 83

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

No. 68769.

Supreme Court of Florida.

Feb. 4, 1988.

Rehearing Denied April 8, 1988.

Clyde M. Collins, Jr., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.

BARKETT, Justice.

John Gary Hardwick, Jr., appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and sentence.

On Christmas Eve morning 1984, a fisherman discovered the body of Keith Pullum floating in the St. Johns River near Jacksonville. Pullum had died of a gunshot and stab wounds, and had been beaten about the head. Michael Hyzer, a friend of both the appellant John Hardwick and the victim, contacted police on Christmas Day and told them of a conversation with Hardwick. According to Hyzer, Hardwick said he had shot and stabbed Pullum earlier in the week for stealing Quaaludes, and then had thrown the body in the river. Shortly thereafter, Hardwick was arrested and charged with murder.

During the guilt phase at trial, arresting officers testified to a number of statements Hardwick made allegedly corroborating Hyzer's initial statement. Hardwick purportedly volunteered that some of his Quaaludes were missing. Two detectives testified that Hardwick said "a man can't go around robbing dope dealers and not expect to get killed." A number of Hardwick's friends and drug customers also corroborated Hyzer's statement. One man, Jeffrey Showalter, said he had seen Hardwick in the company of the victim on December 23, and that Hardwick had threatened to kill the victim or Showalter if his Quaaludes were not returned in an hour. Showalter also testified that, shortly before the murder occurred, he saw Hardwick driving up behind Pullum in a car and slow down, although he was not sure that Pullum got into the car.

Several other witnesses also testified that Hardwick had complained about the theft of his Quaaludes and had threatened to kill the victim, or later had bragged about "taking care" of the individual who took his Quaaludes.

The medical evidence at trial indicated that the victim was stabbed three times in the chest and back, then shot in the lower right back and then struck about the head. According to this testimony, the victim became unconscious within five to six minutes of being stabbed. The blows to the head apparently occurred immediately after death, since there was almost no bleeding from the resulting wounds. There was some evidence the victim's hands had been bound, but the medical examiner could not say with certainty that this had happened.

The defense confined its presentation solely to the proffered testimony of David Buettner, a sailor. Buettner said he had told his superior officer that he and two other military men took a young man to a wooded area in Jacksonville, beat him, stabbed him in the back and shot him. The motive was that the victim allegedly had seduced the men's wives while they were at sea. On cross examination, Buettner admitted that the story was a fabrication, allegedly based on a statement made to Buettner by someone called "Banana Man." He further testified that he had told his superior officer that the killing took place in February 1985. The state's objection to this testimony was sustained, and the defense presented no other witnesses.

During the course of the proceedings below, Hardwick complained to the court about the alleged incompetence of his trial counsel. The court conducted hearings on this question. On each occasion, Hardwick stated that he felt unable to conduct his own trial, but would rather do so than proceed with his court-appointed counsel. However, Hardwick also emphasized that he did not wish to act pro se. Partly because of the ambiguity of Hardwick's statements, the court denied Hardwick's requests.

The jury found Hardwick guilty of first-degree murder. At the penalty phase, the state called no witnesses, but presented evidence of prior convictions reflecting violent felonies. The state offered no other evidence of aggravating factors, and the appellant presented no witnesses or evidence in support of mitigating factors.

The jury returned an advisory sentence recommending death on a seven-to-five vote. The trial court adjudicated Hardwick guilty of first-degree murder and sentenced him to death after finding no statutory or nonstatutory mitigating factors and five aggravating circumstances: (1) prior violent felony convictions, (2) the murder was committed during a kidnapping, (3) the murder was for pecuniary gain, (4) the murder was heinous, atrocious and cruel, and (5) the murder was cold, calculated and premeditated.

Hardwick raises eight issues on appeal. First, Hardwick argues that the trial court improperly excluded the testimony regarding "Banana Man" by precluding Buettner's proffered direct testimony. During the proffer, Buettner testified under oath that he largely had fabricated the entire account, filling in details from what he had seen on television. No other evidence was ever presented that Banana Man existed or had participated in a murder. Moreover, the date of the murder purportedly committed by Banana Man was early February 1985, more than a month after the murder of Pullum. We find substantial evidence in this record that this testimony was unreliable and irrelevant, and therefore hold that the trial court did not abuse its discretion to exclude. See Welty v. State, 402 So.2d 1159, 1162-63 (Fla.1981); Booker v. State, 397 So.2d 910, 914-15 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981).

As his second issue, Hardwick argues that the trial court improperly refused to let him represent himself in violation of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The trial court found the defendant incompetent to represent himself saying:

THE COURT: OKAY,

For the record I am going to find Mr. Hardwick is not, although he does understand the dangers and disadvantages of self-representation, that he is not capable of adequately representing himself, and that he--I am not of the opinion that based on what I hear that he is actually asking to represent himself.

I will find the defendant is asking that [defense counsel] be relieved and another attorney appointed, which is not required. His statement if I do that I'm forcing him to represent himself I think is nullified by the fact he says he is not competent to represent himself and he doesn't want to.

We recognize that, when one such as appellant attempts to dismiss his court-appointed counsel, it is presumed that he is exercising his right to self-representation. Jones v. State, 449 So.2d 253, 258 (Fla.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). However, it nevertheless is incumbent upon the court to determine whether the accused is knowingly and intelligently waiving his right to court-appointed counsel, and the court commits reversible error if it fails to do so. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984). This particularly is true where, as here, the accused indicates that his actual desire is to obtain different court-appointed counsel, which is not his constitutional right. Donald v. State, 166 So.2d 453 (Fla. 2d DCA 1964).

The record before us reflects that the trial court construed Hardwick's comments as effectively requesting self-representation, albeit equivocally, and made the appropriate inquiry. The court examined the defendant's ability to make a knowing and intelligent waiver, his age and mental status, and his lack of knowledge or experience in criminal proceedings. Johnston v. State, 497 So.2d 863, 868 (Fla.1986). We find no error in the trial court's procedure or its findings.

We note that the courts have long required that a request for self-representation be stated unequivocally. Chapman v. U.S., 553 F.2d 886, 892 (5th Cir.1977). See Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541. The record here reflects that Hardwick repeatedly asked for new counsel, admitted his incompetence to conduct the trial, and stated that "I'm not choosing to represent myself." Although vacillation on the question of self-representation has been held a sufficient grounds for denying the request, Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982); United States v. Bennett, 539 F.2d 45, 50-51 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976), the trial court gave the defendant every benefit of the doubt and made the proper inquiry. We conclude that the court below did not err in refusing to dismiss court-appointed counsel, appoint Hardwick as co-counsel or permit Hardwick to represent himself.

Appellant also argues that his right to counsel was impaired by the incompetence of his court-appointed attorney. In this instance, the request was made before trial began and renewed by Hardwick during the trial. On this question, we approve the procedure adopted by the Fourth District:

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson v. State, 274 So.2d 256, 258-59 ...