Hegwood v. State, 72336

• Decision Date: 17 January 1991
• Docket Number: No. 72336,72336
• Citation: 575 So.2d 170,16 Fla. L. Weekly 120
• Parties: 16 Fla. L. Weekly 120 Bernell HEGWOOD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 170

575 So.2d 170

16 Fla. L. Weekly 120

Bernell HEGWOOD, Appellant, v. STATE of Florida, Appellee.

No. 72336.

Supreme Court of Florida.

Jan. 17, 1991.

Rehearing Denied March 15, 1991.

H. Dohn Williams, Jr. of H. Dohn Williams, Jr., P.A., Special Public Defender, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Bernell Hegwood appeals his convictions of first-degree murder and sentences of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions, but vacate the death sentences and remand for imposition of life imprisonment with no possibility of parole for twenty-five years.

On May 23, 1987 Fort Lauderdale police officers found the manager and two employees of a Wendy's shot dead inside the restaurant. Three days later Annie Broadway, another Wendy's employee, told police that Hegwood, her son who also worked at Wendy's, had admitted committing the murders and robbery to her. Police arrested Hegwood in Louisiana and returned him to Florida. Evidence produced by the state included Hegwood's several confessions to the police, his mother, girlfriend, and brother; the fact that Hegwood had a considerable and unexpected amount of cash following the robbery, some of which he used to buy clothing and jewelry for himself and his girlfriend; and shoe prints found at the Wendy's that matched the shoes worn by Hegwood when arrested even though he had not been at work for two days and the restaurant floors were scrubbed every night. A jury convicted Hegwood of armed robbery and three counts of first-degree murder. The trial court overrode the recommendations of life imprisonment and imposed three death sentences.

Hegwood's trial began in late January 1988, and the defense rested its case on the afternoon of Friday, February 5. That night a woman named Nellie Burgess called the Fort Lauderdale Police Department and told a detective, in a taped telephonic interview, that she had driven by the Wendy's where the killings occurred early in the morning of the day of the crimes and that two armed black men had run across the street in front of her car. She could not positively identify Hegwood as one of those men. On Sunday morning (February 7) Burgess went to Fort Lauderdale where another detective interviewed her in person. At that time she positively identified Hegwood from a photographic lineup as one of the two men she had seen.

Before court proceedings began the next morning, the police informed the prosecutor and defense counsel that Burgess had come forward and identified Hegwood. The state then presented rebuttal witnesses, and closing arguments began. During those arguments, both sides received copies of the transcription of the Sunday interview with Burgess. The following day, during jury deliberations, defense counsel moved for a mistrial, claiming that Burgess' statement constituted Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), material which the state had not disclosed in a timely manner. Counsel also asked for a Richardson ¹ hearing on this alleged discovery violation. The trial judge stated that he wanted to talk with the detectives, but, before the hearing could be held, the jury returned its verdicts.

After accepting the verdicts and excusing the jury, the court held a Richardson hearing at which the two detectives testified. In argument following that testimony defense counsel claimed surprise because the second detective's verbal statement on Monday did not match the transcript exactly. The prosecutor stated that he would have used Burgess' testimony except for her having waited nine months to come forward and because of discrepancies between her statement and testimony received at trial. ² The court found no discovery violation and denied the motion for mistrial. ³

Burgess testified for the defense at the penalty proceeding and stated that Hegwood was not one of the men she saw run across the street. Following trial, but prior to sentencing, Hegwood filed a motion for new trial, judgment of acquittal after verdict, and arrest of judgment after verdict based on Burgess' testimony, claiming her testimony constituted newly discovered evidence. The court denied the motion.

In challenging his convictions Hegwood claims that the state violated Brady by both withholding and misleading him about exculpatory evidence and that the court erred in not granting a mistrial or a new trial based on the Brady violation or because of newly discovered evidence. After examining this record, we disagree.

Brady holds that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. The United States Supreme Court later qualified this holding, "to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). Additionally, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Id. at 109-10, 96 S.Ct. at 2400-01. Therefore,

[t]o establish a Brady violation a defendant must prove the following: (1) that the Government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989) (citations omitted). Hegwood's claim does not meet this test.

The state disclosed in a timely manner Burgess' existence and her positive identification of Hegwood. Not telling counsel of Burgess' inability to identify him positively in the first interview conducted over the telephone does not amount to suppression of favorable evidence in light of her positive identification during the second interview. See James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984). The state need not actively assist the defense in investigating a case. Hansbrough v. State, 509 So.2d 1081 (Fla.1987). Because her second interview produced evidence favorable to the state, not to Hegwood, and because the prosecutor decided not to call her as a witness, the state had no duty to do more. ⁴

We, like the trial court, find no Brady violation. The state did not know that Burgess' testimony would be favorable to Hegwood, Hegwood had equal access to her testimony, the prosecution did not suppress favorable evidence, and, due to the discrepancies between Burgess' testimony and the evidence produced at trial, including Hegwood's confessions, there is no reasonable probability that the outcome would have been different. See Waterhouse v. State, 522 So.2d 341 (Fla.), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 97 (1988). Moreover, for much the same reasons, we find no abuse of the trial court's discretion in the denial of the motion for new trial based on the characterization of Burgess' testimony as newly discovered evidence. ⁵ See Freeman v. State, 547 So.2d 125 (Fla.1989). Finding no merit to Hegwood's challenge to his convictions and finding the record contains competent substantial evidence to support them, we hereby affirm his convictions of three counts of first-degree murder.

Turning to the sentences, however, we agree with Hegwood that the trial court should not have overridden the jury's recommendation of life imprisonment. ⁶ As this Court has stated before: "In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975). We do not find that the Tedder test has been met in this case. Besides knowing that Hegwood was seventeen years old when he committed the instant crimes, the jury heard testimony from family members and other people about Hegwood's being a generally good and obedient child who had an unfortunate and impoverished childhood. A great part of Hegwood's ill-fated life appears to be attributable to his mother, described by witnesses as a hard-drinking, lying drug addict and convicted felon who tended to abandon her children and who turned Hegwood in and testified against him, apparently motivated by the reward money offered in this case. Based on the mental health expert's testimony the jury may have believed that Hegwood was mentally or emotionally deficient because of his upbringing. On this record we cannot agree that "virtually no reasonable person could differ," id., as to death being the proper sentence here.

Therefore, we affirm Hegwood's convictions, but vacate his sentences and remand to the trial court for imposition of life imprisonment with no possibility of parole for twenty-five years. ⁷

It is so ordered.

OVERTON, McDONALD, BARKETT and KOGAN, JJ., concur.

EHRLICH, Senior Justice, concurs in part and dissents in part with an opinion, in which SHAW, C.J. and GRIMES, J., concur.

EHRLICH, Senior Justice, concurring in part and dissenting in part.

I concur with the Court's affirmation of the defendant's conviction of three counts of first-degree murder but I dissent from the...