Hill v. Dugger, s. 75149

• Decision Date: 26 January 1990
• Docket Number: 75332,Nos. 75149,s. 75149
• Citation: 556 So.2d 1385
• Parties: 15 Fla. L. Weekly S265 Clarence Edward HILL, Petitioner, v. Richard L. DUGGER, etc., Respondent. Clarence Edward HILL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1385

556 So.2d 1385

15 Fla. L. Weekly S265

Clarence Edward HILL, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Clarence Edward HILL, Appellant, v. STATE of Florida, Appellee.

Nos. 75149, 75332.

Supreme Court of Florida.

Jan. 26, 1990.

Larry Helm Spalding, Capital Collateral Representative, Thomas H. Dunn, Staff Atty., and Jerome H. Nickerson and Judith J. Dougherty, Asst. Capital Collateral Representatives, Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

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

PER CURIAM.

Clarence Edward Hill appeals the trial court's denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, petitions this Court for a writ of habeas corpus, and seeks a stay of his scheduled execution. We have jurisdiction. Art. V, § 3(b)(1) & (9), Fla. Const. We deny relief and vacate the temporary stay, which we previously entered, effective January 29, 1990, at 7:00 a.m.

This is the third time this matter has been before this Court. On October 19, 1982, Clarence Hill and his accomplice, Cliff Jackson, stole a pistol and an automobile in Mobile, Alabama, which they later used to rob a savings and loan association in Pensacola. During the robbery, the police arrived, and Hill and Jackson fled the savings and loan building from different exits. The police immediately apprehended Jackson, who had exited through the front door. Hill, who had fled out the back door, approached two officers from behind as they attempted to handcuff Jackson. Hill shot the officers, killing one and wounding the other. Hill was convicted of first-degree murder, attempted first-degree murder, three counts of armed robbery, and possession of a firearm during the commission of a felony. The trial court sentenced Hill to death for the first-degree murder conviction and to consecutive life sentences for the attempted murder and robbery convictions. On appeal, we affirmed all of Hill's convictions and sentences with the exception of the death sentence. We remanded the cause for a new sentencing hearing before a new jury because of error in the jury selection process. Hill v. State, 477 So.2d 553 (Fla.1985).

In the resentencing proceeding, a second jury recommended the death sentence by an eleven-to-one vote. The trial court reimposed the death sentence, finding five aggravating circumstances and one mitigating circumstance. We affirmed the resentence finding that four of the five aggravating circumstances were proven beyond a reasonable doubt and concluding that consideration of the erroneous aggravating circumstance, that the murder was committed in a cold, calculated, and premeditated manner, could not possibly have compromised the weighing process of either the jury or the judge. Hill v. State, 515 So.2d 176 (Fla.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).

Hill timely filed a motion for rule 3.850 relief on the following grounds: (1) the prosecutor peremptorily excused black prospective jurors solely based upon their race, in violation of the sixth, eighth, and fourteenth amendments to the United States Constitution and article one, section 16, of the Florida Constitution, and appellate counsel was ineffective in not arguing this issue on direct appeal; (2) the trial court erred when it responded to questions from the jury and refused to disclose to Hill and his counsel the questions asked, in violation of Hill's fifth, sixth, eighth, and fourteenth amendment rights; (3) Hill's capital trial and sentencing proceedings were rendered fundamentally unfair and unreliable, and violated the fifth, sixth, eighth, and fourteenth amendments, due to the prosecution's deliberate and knowing presentation and use of false evidence and arguments and its intentional deception of the jury, the court, and defense counsel; (4) Hill was denied the effective assistance of counsel at the guilt-innocence phase of his trial, in violation of the sixth, eighth, and fourteenth amendments; (5) Hill was denied the effective assistance of counsel at the sentencing phase of his trial, in violation of the sixth, eighth, and fourteenth amendments; (6) Hill's sixth, eighth, and fourteenth amendment rights were violated because counsel unreasonably failed to present critical mitigating evidence and failed to adequately develop and employ expert mental health assistance, and because the experts retained at the time of trial failed to conduct professionally adequate mental health evaluations; (7) the cold, calculated, and premeditated aggravating circumstance was applied to Hill's case, in violation of the eighth and fourteenth amendments; (8) this Court's failure to remand for resentencing after striking an aggravating circumstance on direct appeal denied Hill the protections afforded under Florida's capital sentencing statute, in violation of due process, equal protection, and the eighth and fourteenth amendments; (9) Hill was denied his eighth and fourteenth amendment rights because the jury was not properly instructed concerning the improper doubling of aggravating factors; (10) Hill's death sentence was imposed in violation of the eighth and fourteenth amendments because his jury was prevented from giving appropriate consideration to, and his trial judge refused to consider, all evidence proffered in mitigation of punishment, contrary to Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); (11) during the course of Hill's trial the court improperly stated that sympathy and mercy toward Hill were improper considerations, in violation of the eighth and fourteenth amendments; (12) Hill's sentence of death was based upon an unconstitutionally obtained prior conviction and therefore upon misinformation of constitutional magnitude, in violation of the eighth and fourteenth amendments; (13) Hill's jury was improperly instructed, resulting in fundamentally unfair convictions and sentences, in violation of the fifth, eighth, and fourteenth amendments; (14) Hill's sentence of death violates the fifth, sixth, eighth, and fourteenth amendments because the penalty phase jury instructions shifted the burden to Hill to prove that death was inappropriate and because the sentencing judge himself employed this improper standard in sentencing Hill to death; and (15) the application of rule 3.851 to Hill's case will violate, and the present warrant has violated, his rights to due process and equal protection of the law and denied him his right of reasonable access to the courts.

The trial court denied relief on claims (1), (2), (3), (7), (8), (9), (10), (11), (12), (13), and (14) on grounds that they were procedurally barred and could have been or should have been raised on direct appeal.

With regard to claims (4), (5), and (6), Hill contended below that his trial counsel failed to investigate and present evidence of Hill's mental condition and drug intoxication, causing an ineffective presentation by his mental health expert, which resulted in his inability to present three substantial mitigating factors, specifically: (a) that Hill was under extreme mental duress at the time of the offense; (b) that he lacked the substantial capacity to conform his conduct to the requirements of law at the time of the offense; and (c) that at the time of the offense he was under the substantial domination of his codefendant, Clifford Jackson.

First, to support these allegations, in his rule 3.850 motion Hill proffered affidavits from additional family members and acquaintances, giving information concerning his family background and drug use. We note that at the second sentencing four family members testified on Hill's behalf. Second, Hill proffered reports from two new mental health professionals who stated that they would have testified that Hill's conduct in this incident was the result of cocaine ingestion, his below average intelligence, and Jackson's domination. Third, Hill asserts that his expert witness at his sentencing proceeding would now testify that he did...