Hitchcock v. State, SC92717.

• Decision Date: 23 March 2000
• Docket Number: No. SC92717.,SC92717.
• Parties: James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

755 So.2d 638

James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.

No. SC92717.

Supreme Court of Florida.

March 23, 2000.

Rehearing Denied May 3, 2000.

Richard L. Jorandby, Public Defender, and Gary Caldwell and Richard B. Greene, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

PER CURIAM.

James Ernest Hitchcock appeals the death sentence imposed upon him after a third remand for resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm for the reasons stated herein.

Hitchcock was convicted and sentenced to death for the 1976 strangulation murder of his brother's thirteen-year-old step-daughter. The facts in this case are set forth in detail in Hitchcock v. State, 413 So.2d 741 (Fla.) (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. 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). 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 again 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).

Hitchcock's third resentencing proceeding began on September 9, 1996, and concluded with the jury's recommendation of the death penalty by a 10-2 vote. The court sentenced Hitchcock to death, finding the following aggravating circumstances: (1) the crime was committed by a person under sentence of imprisonment (parole); (2) the crime was committed during commission of the felony of sexual battery; (3) the crime was committed for the purpose of avoiding arrest; and (4) the crime was especially heinous, atrocious, or cruel (HAC). The court found one statutory mitigating factor, Hitchcock's age (twenty). As to nonstatutory mitigation, the court in an amended sentencing order assigned "very little weight" to six circumstances surrounding the instant crime, "some weight" to nine circumstances concerning Hitchcock's background, and "some weight" to eight circumstances concerning Hitchcock's "positive character traits." Hitchcock appeals his third resentencing in this Court, asserting eighteen claims.¹ We find all of Hitchcock's claims to be procedurally barred or without merit for the reasons expressed herein.

In his first claim, Hitchcock argues that the trial court erred in permitting the State to put into evidence a three-page narrative report concerning results of a psychological test known as the Minnesota Multiphasic Personality Inventory (MMPI) administered to Hitchcock by expert witness Dr. Jethro Toomer, a forensic psychologist. The defense called Toomer as part of Hitchcock's case. On cross-examination by the State, Toomer identified the test as having been administered by Toomer as part of his psychological evaluation of Hitchcock. The test was scored at the University of Minnesota, and that scoring was forwarded to Toomer as a "Clinical Interpretive Report" and became a part of Toomer's records concerning his evaluation of Hitchcock's mental health. On cross-examination, the State offered the MMPI report in its rebuttal case after the defense rested. Hitchcock contends that the court should not have allowed the State to introduce the report separately as its own exhibit after Toomer had testified and was excused from the witness stand. Hitchcock argues that the State turned his mitigation evidence into evidence and argument supporting a death sentence and that admission of the report affected his sentence. He also claims that the trial court erred in allowing the prosecutor to discuss the report in closing argument.

We find no merit in Hitchcock's argument. The report was identified by Toomer as having been administered by him as part of his evaluation and as being a part of his records. There was no objection to the report on the basis of a lack of trustworthiness. The report was thus admissible as a relevant business record pursuant to section 90.803(6)(b), Florida Statutes. See Love v. Garcia, 634 So.2d 158 (Fla.1994)

; Baber v. State, 738 So.2d 379, 382 (Fla. 4th DCA),

review granted, No. 96,010, 749 So.2d 502 (Fla. Dec. 21, 1999). The report was relevant in that Hitchcock's mental state was the mitigation issue about which Toomer was called to testify. The fact that the State did not question Toomer further about the report did not render the report inadmissible. Hitchcock's claim that the report should not have been admitted as part of the State's rebuttal case is incorrect. After the report was identified, the State necessarily had to wait to introduce the report as a State exhibit until Hitchcock rested his case. Moreover, once the MMPI report was in evidence, the State could properly comment upon the report in its closing argument. See Davis v. State, 698 So.2d 1182, 1189 (Fla.1997); Craig v. State, 510 So.2d 857, 865 (Fla.1987). Finally, even if the admission of the MMPI report had been error because it was admitted in the State's rebuttal case, any such error would be harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

In his second claim, Hitchcock argues that the trial court erred allowing the prosecutor to argue in closing as follows:

[MR. ASHTON:] This isn't a crime where someone was trying to gain money or trying to get back at society for its evil. This is a rape of a little girl. She didn't do anything to him. She didn't cause his poverty. This wasn't him striking back. His poverty and his living circumstance are not mitigating in this case, at all, because they don't give us any understanding of why he did what he did. They don't reveal anything about his character.

MS. CASHMAN: Objection. Misstating what the law is as to mitigation.

MR. ASHTON: It's my argument.

THE COURT: I'm going to overrule the objection.

MR. ASHTON: The defendant lived through his father's death, and that was a very traumatic experience for his entire family, and you should feel some sympathy for a seven year old who had to watch his father die. Is it mitigating? Does it give you any [insight] into why he did what he did? It doesn't. It just doesn't tell us anything.

I submit to you sheer sympathy isn't mitigation. Mitigation is something that explains the crime or makes us understand the crime or makes the defendant less morally culpable for the crime in some way, not just something that makes us feel sorry for him. If this was about sympathy it would be a totally different process. But we see in the defendant's own family that people overcome. The human spirit can overcome virtually anything, and though the psychologist may not agree with this Pollyanna that I'm speaking, the defendant's mother and family, as example, as hard as it is, there are two ways to go. You work hard, you make a life or you become a criminal. The defendant made that choice. I submit that is not mitigating.

(Emphasis added.) Hitchcock contends that this argument misstated the law as to mitigation and adversely influenced the jury's recommendation as to his sentence.

We agree with Hitchcock to the extent that we find that the jury could have understood the prosecutor's statement that "[Hitchcock's] poverty and his living circumstance are not mitigating in this case, at all, because they don't give us any understanding of why he did what he did" to be a limiting statement as to the jury's consideration of the mitigating circumstance of Hitchcock's background. We caution prosecutors to adhere to the statement in the Standard Jury Instruction which explains that mitigating circumstances are:

8. Any of the following circumstances that would mitigate against the imposition of the death penalty:

a. Any [other] aspect of the defendant's character, record, or background

b. Any other circumstance of the offense.

This instruction is in accord with the following rule set forth in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978):

[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death.

Id. at 604, 98 S.Ct. 2954. In this case, Hitchcock's "poverty and his living circumstance" were circumstances that the jury could consider in mitigation and give to those circumstances whatever weight the jury found to be proven by a preponderance of the...