Hardy v. State, 87469

• Decision Date: 11 June 1998
• Docket Number: No. 87469,87469
• Citation: 716 So.2d 761
• Parties: 23 Fla. L. Weekly S347 Nicholas Lynn HARDY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 761

716 So.2d 761

23 Fla. L. Weekly S347

Nicholas Lynn HARDY, Appellant, v. STATE of Florida, Appellee.

No. 87469.

Supreme Court of Florida.

June 11, 1998.

Rehearing Denied Sept. 4, 1998.

Carey Haughwout of Tierney & Haughwout, West Palm Beach, for Appellant.

Robert A. Butterworth, Attorney General, and Randall Sutton, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Nicholas Lynn Hardy. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

At 11 p.m. on February 25, 1993, Sergeant James Hunt, an officer with the Palm Beach County Sheriff's Office, notified the police dispatcher by radio that he was investigating an alarm call at a bank. Shortly thereafter, Hunt sent a radio transmission that the bank's alarm was malfunctioning and that he was going back into service. At 11:04 p.m., Hunt radioed that he had encountered four suspicious juveniles and requested backup. Deputy Fox reached the scene three minutes later, only to find that Sergeant Hunt had been shot and that his gun was missing. The police immediately began an intensive search of the area, which included the use of a helicopter with an infrared light. One of the young men, Ricky Rodriguez, was found hiding in the bushes. Thereafter, a canine unit discovered the appellant, Nicholas Hardy, who had shot himself in the head.

At the trial, Rodriguez testified that he and Hardy, together with Glen Wilson and Scott Allen, had been driving around when their car broke down. They pushed it into a supermarket parking lot and began walking through the lot. Hardy was carrying a stolen .38-caliber handgun. Sergeant Hunt stopped the four young men and began to pat them down. While Hunt was patting down Rodriguez, Hardy shot Hunt twice in the head at close range. As the others fled, Hardy came back and took Hunt's service revolver, a nine-millimeter pistol, with which he later shot himself. Wilson and Allen corroborated Rodriguez's version of the events.

The self-inflicted gunshot wound entered the roof of Hardy's mouth and exited through the top of his head. Hardy remained in a coma for several weeks and was hospitalized for over a month and a half, after which he was released to his mother, a certified RN, on house arrest. Over time, Hardy gradually regained the ability to walk and speak. In July of 1993, Hardy was remanded to the county jail based on his improved condition.

Hardy was ultimately found to be competent and his trial commenced on October 23, 1995. At the conclusion of the guilt phase of the trial, the jury found Hardy guilty of first-degree murder. At the conclusion of the penalty phase, the jury recommended death by a vote of nine to three. The trial court found that the following aggravating factors applied to the murder: (1) the victim was a law enforcement officer engaged in his official duties; and (2) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The trial court found that Hardy's age of eighteen qualified as a statutory mitigating factor and gave it some weight. He also found the following nonstatutory mitigating factors: (1) Hardy's impoverished and physically and emotionally abusive childhood (given little weight); (2) Hardy's attempt to punish himself by self-infliction of a gunshot wound to his head (given little weight); (3) that the court had the option of sentencing Hardy to life without parole (given some weight); (4) Hardy's good and compliant behavior, making him unlikely to endanger others while in prison and likely to have no problem adapting to a prison setting (given considerable weight); and (5) Hardy is brain-damaged as a result of his suicide attempt (given considerable weight). The trial court also found that the aggravating circumstances, even if each was standing alone, far outweighed the mitigating circumstances and sentenced Hardy to death.

Hardy raises four guilt-phase issues and five penalty-phase issues on appeal.

The Guilt Phase

Hardy contends that the trial court erred in finding that he was competent to stand trial. The issue of Hardy's competency was first visited in a hearing held in August of 1993, wherein Hardy's treating neuropsychologist, the court-appointed psychologist, and the psychologist hired as an expert by the defense all agreed that Hardy was incompetent to stand trial and the trial court declared Hardy incompetent. Because of testimony presented at the competency hearing indicating that Hardy was retarded due to his neurological injuries, the trial court held a placement hearing in December of 1993, where it was determined that Hardy should be sent to the Mentally Retarded Defendant Program at Florida State Hospital. While in this program, Hardy received training in trial procedure, crimes and consequences, self-management skills, and language skills. After fourteen months, the hospital staff advised the court that it now believed Hardy to be competent.

In February of 1995, a second competency hearing was held. Dr. McKenzie, senior psychologist at the Mentally Retarded Defendant Program, testified that Hardy's full-scale IQ was now 81 with a verbal IQ of 74 and a performance IQ of 96. Dr. McKenzie further testified that Hardy denied any memory of events but was otherwise competent to stand trial as long as questions were kept simple and to the point. Dr. Barnard, a psychologist under contract with HRS Developmental Services, testified that Hardy was functioning on a borderline intellectual range with a full-scale IQ of 77, a verbal IQ of 72 and a performance IQ of 89. Dr. Barnard opined that Hardy was competent to stand trial, though he had difficulty reading and took time to respond to questions. Dr. Sternthal, the defense's expert, testified that Hardy was incompetent, could not understand or process information in the courtroom, could not withstand cross-examination, continued to have memory problems, and did not appreciate the seriousness of the offense and continued to be euphoric. The trial court ruled that Hardy was competent to stand trial.

A third competency hearing was held during the middle of jury selection. Dr. Heiken, a clinical psychologist, testified for the defense that Hardy was not competent because he was unable to process information, that he could repeat information but could not explain what had occurred, and that he was well trained to give back responses but did not have an understanding of what he was saying. Dr. Cheshire, who had originally found Hardy incompetent before he was sent to the state hospital, reexamined him the night before the third competency hearing. Dr. Cheshire testified that Hardy now met the criteria for being considered competent to stand trial. He also believed that Hardy was being evasive or cunning in his answers to the doctor's questions. Dr. Barnard, who had reexamined Hardy, testified once again that Hardy was competent to stand trial. While Hardy had difficulty expressing himself due to aphasia, he had the ability to process information and made appropriate responses. From a review of the jail log, Dr. Barnard noted that Hardy had been assisting people, playing cards, chess and checkers, watching television, and discussing his case with fellow inmates. Dr. Barnard agreed that it would be helpful if the proceedings were slowed down and if a third person were available to explain to Hardy the things that were occurring in the trial. The trial court again found that Hardy was competent to stand trial.

In determining whether a defendant is competent to stand trial, the trial court must decide whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the proceedings against him." Dusky v United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); see also § 916.12(1), Fla. Stat. (1993); Fla. R.Crim. P. 3.211(a)(1). In situations where there is conflicting expert testimony regarding the defendant's competency, it is the trial court's responsibility to consider all the evidence relevant to competency and resolve the factual dispute. Hunter v. State, 660 So.2d 244, 247 (Fla.1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996); Watts v. State, 593 So.2d 198, 202 (Fla.1992). The trial court's competency decision will be upheld absent a showing of an abuse of discretion. Hunter, 660 So.2d at 247; Watts, 593 So.2d at 202.

We find that the trial court properly considered all of the evidence presented below regarding Hardy's competence, including the expert testimony, testimony from jail employees regarding Hardy's abilities to communicate and participate in a number of activities while incarcerated awaiting trial, and the trial court's own observations of Hardy's demeanor and ability to assist defense counsel during jury selection. The trial court noted during the third (and last) competency hearing that it found the testimony of Drs. Heiken and Sternthal to be less credible and gave more weight to Dr. Barnard's testimony based on the fact that Dr. Barnard had examined Hardy both before and after his stay at the Mentally Retarded Defendant's Program. The trial court did not abuse its discretion in determining that Hardy was competent to stand trial. Any contention that the court should have followed Dr. Barnard's suggestion to slow down the proceedings is moot because no complaint was ever made about the pace of the trial.

Hardy's last guilt-phase claim ¹ asserts that the trial court erred when it permitted the State to introduce evidence of Hardy's prior statement regarding what would happen if he was involved in a confrontation with police officers. At some point during the two months prior to the murder, Hardy, a mixed-race individual, had made the following statement to...