Hitchcock v. State, SC03-2203.

• Court: United States State Supreme Court of Florida
• Writing for the Court: Per Curiam
• Citation: 991 So.2d 337
• Parties: James HITCHCOCK, Appellant, v. STATE of Florida, Appellee. James E. Hitchcock, Petitioner, v. Walter A. McNeil, etc., Respondent.
• Docket Number: No. SC04-1286.,No. SC03-2203.,SC03-2203.,SC04-1286.
• Decision Date: 22 May 2008

991 So.2d 337 James HITCHCOCK, Appellant,
v.
STATE of Florida, Appellee.
James E. Hitchcock, Petitioner,
v.
Walter A. McNeil, etc., Respondent. No. SC03-2203. No. SC04-1286. Supreme Court of Florida. May 22, 2008. Rehearing Denied September 17, 2008.

[991 So.2d 342]

Bill Jennings, Capital Collateral Regional Counsel, and James L. Driscoll, Jr. and Eric C. Pinkard, Assistant CCR Counsel, Middle Region, Tampa, Florida, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, Florida, for Appellee/Respondent.

PER CURIAM.

James Ernest Hitchcock appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hitchcock was convicted and sentenced to death for the 1976 strangulation murder of his brother's thirteen-year-old stepdaughter. The facts in this case are set forth in detail in Hitchcock v. State, 413 So.2d 741 (Fla.1982) (Hitchcock I), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). This Court affirmed Hitchcock's conviction and sentence. Id. Thereafter, this Court affirmed the denial of Hitchcock's motion for postconviction relief. Hitchcock v. State, 432 So.2d 42 (Fla.1983) (Hitchcock II). In later federal habeas corpus proceedings, the United States Supreme Court granted certiorari and vacated Hitchcock's death sentence because the advisory jury was instructed not to consider and the sentencing judge refused to consider evidence of nonstatutory mitigating circumstances. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). On remand, the jury again recommended the death penalty, which the trial judge subsequently imposed. This Court affirmed the sentence.

991 So.2d 343

Hitchcock v. State, 578 So.2d 685 (Fla. 1990) (Hitchcock III), cert. denied, 502 U.S. 912, 112 S.Ct. 311, 116 L.Ed.2d 254 (1991). On rehearing, the United States Supreme Court granted certiorari and remanded to this Court for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). See Hitchcock v. Florida, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). On remand, we vacated Hitchcock's death sentence and directed the trial court to empanel a jury and conduct a new penalty proceeding within ninety days. Hitchcock v. State, 614 So.2d 483 (Fla.1993) (Hitchcock IV). In Hitchcock's second resentencing proceeding, the jury recommended the death penalty, which the trial judge subsequently imposed. We again remanded for resentencing because evidence portraying Hitchcock as a pedophile was erroneously made a feature of his resentencing proceeding. Hitchcock v. State, 673 So.2d 859 (Fla.1996) (Hitchcock V).

In Hitchcock's third resentencing proceeding, the jury recommended the death penalty by a vote of ten to two. The trial court followed the recommendation, finding four aggravating circumstances: (1) the crime was committed while Hitchcock was under a sentence of imprisonment; (2) he committed the crime while he was engaged in the enumerated felony of sexual battery; (3) he committed the crime for purpose of avoiding or preventing a lawful arrest; and (4) the crime was especially heinous, atrocious, or cruel (HAC). The court found one statutory mitigating factor: Hitchcock was young, twenty years of age, at the time of the murder. The court also found twenty-three nonstatutory mitigating circumstances, divided among the following three categories: (1) there were mitigating circumstances concerning the crime;¹ (2) there were adverse features in Hitchcock's background;² and (3) Hitchcock had positive character traits.³ State v. Hitchcock, No. CR 76-1942 (Fla. 9th Cir. Ct. amended sentencing order filed October 8, 1997) (Sentencing Order). Hitchcock appealed his death sentence, asserting eighteen claims. This Court affirmed, finding that all of the claims were procedurally barred or without merit. Hitchcock v. State, 755 So.2d 638 (Fla. 2000) (Hitchcock VI), cert. denied, 531 U.S. 1040, 121 S.Ct. 633, 148 L.Ed.2d 541

991 So.2d 344

(2000).⁴

Hitchcock filed the instant motion for postconviction relief in 2001, raising thirteen claims.⁵ The circuit court conducted an evidentiary hearing on this motion from April 7 through April 10, 2003, which was continued on May 8, 2003. In an October 27, 2003, order, the circuit court denied as procedurally barred each of Hitchcock's claims related to the 1977 guilt phase of his trial and denied each of Hitchcock's claims related to his 1996 resentencing on their merits. State v. Hitchcock, No. CR76-1942 (Fla. 9th Cir. Ct. order filed October 27, 2003) (Postconviction Order I). Hitchcock appealed the circuit court's denial of the motion, raising eleven issues.⁶

991 So.2d 345

Hitchcock also petitioned this Court for a writ of habeas corpus, raising six issues.⁷

On March 10, 2005, this Court held oral argument on Hitchcock's postconviction and habeas claims. We determined that the circuit court erred in ruling that the claims relating to the 1977 guilt phase were procedurally barred. We temporarily relinquished jurisdiction to the circuit court for an evidentiary hearing and a ruling on the merits of Hitchcock's guilt-phase issues and newly discovered evidence claims. Hitchcock v. State, No. SC03-2203 (Fla. order filed May 3, 2005). Pursuant to this Court's order, the circuit court considered the evidence presented and proffered in the 2003 evidentiary hearing regarding Hitchcock's guilt-phase claims and conducted a two-part hearing on November 15, 2005, and December 7, 2005, during which the parties presented additional evidence. On March 29, 2006, the circuit court issued an order denying relief on Hitchcock's guilt-phase and newly discovered evidence claims. State v. Hitchcock, No. CR76-1942 (Fla. 9th Cir. Ct. order filed March 29, 2006) (Postconviction Order II). We now consider Hitchcock's remaining issues on appeal and his petition for a writ of habeas corpus.

II. RULE 3.850 MOTION FOR POSTCONVICTION RELIEF A. Guilt-Phase Claims 1. Character Evidence Regarding James and Richard Hitchcock

Hitchcock argues that his guilt-phase counsel was ineffective for opening

991 So.2d 346

the door to admission of negative character evidence about Hitchcock and for failing to secure admission of negative character evidence about his brother, Richard Hitchcock. In order to prove ineffective assistance of counsel, Hitchcock must demonstrate both that counsel's performance was deficient and that the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To be deficient, the attorney's performance must fall below an objective standard of reasonableness based on prevailing professional norms. Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000). The standard for prejudice is a reasonable probability that but for counsel's deficiency, the result of the trial would have been different—that is, a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Cherry, 781 So.2d at 1048. Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004).

First, Hitchcock argues that Charles Tabscott, his guilt-phase counsel, was ineffective because Tabscott put Hitchcock's reputation at issue and thereby allowed negative character evidence about Hitchcock to be introduced. Tabscott called several witnesses to offer evidence of Hitchcock's good character. In response, the State called Judy Hitchcock, the victim's mother, who testified that Hitchcock physically attacked his ex-girlfriend and that he did not have a good reputation. The State also called Richard Hitchcock who testified that Hitchcock "stayed in trouble all the time" when he lived in Arkansas. Hitchcock asserts that his counsel was ineffective because the testimony of the defense witnesses was not entirely positive and the testimony of Judy Hitchcock, Richard Hitchcock, and Hitchcock's ex-girlfriend was devastating to his defense. Hitchcock argues that had counsel adequately consulted with him regarding the likely testimony of the witnesses, counsel could have avoided opening the door to prejudicial testimony.⁸

The circuit court denied this claim. The circuit court concluded that "[d]efendant's allegations lack sufficient credibility or in the alternative, they are conclusively refuted by the record for the reasons which follow." The circuit court then recited a list of actions taken by counsel during trial that indicated that he did prepare for trial and that he did consult with Hitchcock regarding his defense. The circuit court held that Judy Hitchcock's testimony that Hitchcock physically attacked his girlfriend did not prejudice Hitchcock because the girlfriend later testified that "there was no reason to be afraid of [Hitchcock]." The circuit court did not specifically address Judy Hitchcock's testimony that Hitchcock did not have a good reputation and Richard Hitchcock's testimony that Hitchcock was frequently in trouble.

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We agree that Hitchcock is not entitled to relief on this claim. During the postconviction evidentiary hearing, Tabscott testified that he was familiar with the concept of opening the door to character evidence. When asked whether he may have opened the door at trial, Tabscott responded:

I suppose twenty-six years later you could review the transcript and say that. But I remember that...