Hill v. State, 68706

• Citation: 515 So.2d 176,12 Fla. L. Weekly 480
• Decision Date: 17 September 1987
• Docket Number: No. 68706,68706
• Parties: 12 Fla. L. Weekly 480 Clarence Edward HILL, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 176

515 So.2d 176

12 Fla. L. Weekly 480

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

No. 68706.

Supreme Court of Florida.

Sept. 17, 1987.

Rehearings Denied Dec. 8, 1987.

Steven L. Bolotin, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is a direct appeal from a resentencing in a capital case. We previously affirmed the conviction, but reversed the imposition of the death sentence, requiring a new sentencing proceeding before a new jury. Hill v. State, 477 So.2d 553 (Fla.1985). In this resentencing proceeding, the jury recommended, and the trial judge imposed, the death sentence. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the sentence.

The facts relevant to this sentencing proceeding reflect that on October 19, 1982, appellant and his accomplice, Cliff Jackson, stole a pistol and an automobile in Mobile, Alabama. Later that day, appellant and Jackson drove to Pensacola and robbed a savings and loan association at gunpoint. The police arrived during the robbery and, upon their arrival, appellant fled the savings and loan building through a back door. Jackson exited through the front door, where he was apprehended by police. Appellant approached two police officers from behind as they attempted to handcuff Jackson, and shot the officers, killing one and wounding the other. By an eleven-to-one vote, the resentencing jury recommended the death sentence. The judge, in reimposing the death sentence, found the following statutory aggravating circumstances: (1) the defendant had previously been convicted of another capital offense or violent felony; (2) the defendant knowingly created a great risk of harm or death to many persons; (3) the murder was committed while the defendant was engaged in the commission of a robbery; (4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or escaping from custody; and (5) the murder was cold, calculated, and premeditated. In mitigation, the judge found the appellant's age as a possible factor. Appellant's age at the time of the offense was twenty-three years.

In this appeal, appellant contends the trial court erred by: (1) allowing the state to introduce irrelevant collateral crime evidence; (2) excluding certain testimony concerning appellant's family background and a defense witness's health problems; (3) refusing to instruct the jury on the statutory mitigating circumstance that defendant acted under extreme duress or under the substantial domination of another person; (4) disclosing to the new penalty jury the original jury's premeditation finding; (5) finding the homicide cold, calculated, and premeditated, and (6) permitting prosecutorial misconduct which denied appellant a fair trial.

With regard to the first contention, Hill asserts that evidence of the theft of the car and pistol in Mobile, Alabama, was irrelevant collateral crime evidence to the robbery/murder at the savings and loan association in Pensacola. We note that both the car and pistol were utilized in this offense and their acquisition was part of a series of events culminating in the crimes for which appellant has been convicted. We rejected this claim in appellant's prior appeal and we refuse to address it in these proceedings.

In his second point, Hill claims the trial judge erred by excluding certain allegedly mitigating testimony concerning his background and character. The record reflects that five persons, including Hill's mother and father, testified as character witnesses for the defense. The judge refused to permit appellant's mother to testify that she cared for appellant's cousins, as well as her own children. Similarly, the judge declined to allow defense counsel to question appellant's father regarding his own ill health and past job responsibilities. In our view, the excluded evidence focused substantially more on the witnesses's character than on appellant's. There has been no showing that the trial judge abused his discretion in excluding the testimony and we find no violation of the United States Supreme Court's recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), or Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), or Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The third claim concerns the trial judge's refusal to instruct the jury on the statutory mitigating circumstance that Hill was acting under extreme duress or under the substantial domination of another person when he shot the arresting police officer. In support of the claim, Hill argues that his codefendant, Jackson, suggested the bank robbery, purchased the sunglasses for disguise, and directed actions during the crime. According to Hill, Jackson was the leader in the bungled robbery. We disagree. The unrefuted facts in this record establish that, when the twenty-three-year-old Hill and the eighteen-year-old Jackson entered the bank, Hill was armed and Jackson was not. Hill did most of the talking, demanded money, and threatened that he would "blow some brains out." Hill also physically abused a bank teller by kicking him and pulling him by the hair while he lay on the floor. Finally, Hill chose to help Jackson rather than utilize his opportunity to escape, and later testified that neither he nor Jackson was a leader, claiming, "We did it...