Hitchcock v. State, 72200

• Decision Date: 20 December 1990
• Docket Number: No. 72200,72200
• Citation: 578 So.2d 685
• Parties: James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee. 578 So.2d 685, 16 Fla. L. Week. S23
• Court: Florida Supreme Court

Page 685

578 So.2d 685

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

No. 72200.

578 So.2d 685, 16 Fla. L. Week. S23

Supreme Court of Florida.

Dec. 20, 1990.

Rehearing Denied May 16, 1991.

Richard L. Jorandby, Public Defender and Steven H. Malone and Eric M. Cumfer, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

In 1977 a jury convicted Hitchcock of first-degree murder and recommended the death penalty, which the trial court imposed and this Court affirmed. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). ¹ After the signing of Hitchcock's death warrant, this Court affirmed the trial court's denial of postconviction relief. Hitchcock v. State, 432 So.2d 42 (Fla.1983). The United States Supreme Court, however, vacated Hitchcock's sentence because "the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and ... the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U.S. , 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion.)" Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987). Hitchcock now appeals the death sentence imposed on resentencing. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm the sentence.

The instant sentencing proceeding extended over several days. The state presented numerous witnesses, including the victim's mother and stepfather (Hitchcock's brother). Hitchcock's witnesses included his mother, two sisters, two nieces, and a cousin, who testified about Hitchcock's life and background and his relationship with them; his former attorney, who testified about Hitchcock's improving himself since being imprisoned; a psychologist and a sociologist, who testified about Hitchcock's current social abilities and character and his future nondangerousness; eight fellow inmates on death row, who testified to Hitchcock's positive acts while imprisoned; and Hitchcock himself, who testified to all of the above matters. The jury recommended that Hitchcock be sentenced to death. After receiving that recommendation and releasing the jury, the court heard additional evidence. The court found four aggravating factors (committed while under sentence of imprisonment, committed during a sexual battery, committed to avoid or prevent arrest, and especially heinous, atrocious, or cruel) and considered several items of mitigation (age, deprivations, character traits, and use of drugs and alcohol). Finding that the mitigating factors did not weigh heavily against those in aggravation, the court sentenced Hitchcock to death.

Hitchcock raises numerous issues on appeal, some of which do not merit discussion. ² Turning to the issues which must be discussed, Hitchcock claims that the trial court improperly refused to grant his challenges for cause to three prospective jurors, thereby forcing him to use peremptory challenges to remove them from the jury. ³ "The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Deciding whether a prospective juror meets the Lusk test is within a trial court's discretion, Pentecost v. State, 545 So.2d 861 (Fla.1989), based upon what the court hears and observes. See Reed v. State, 560 So.2d 203 (Fla.), cert. denied, --- U.S. ----, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990). After examining the record, we find no abuse of discretion because the court's refusal to excuse these persons met the Lusk standard. ⁴

Even if we found that the court should have granted the challenges for cause, such error would be harmless because Hitchcock has shown no prejudice from having to exercise peremptory challenges to remove those persons. The court gave Hitchcock one additional peremptory challenge, but denied his request for a second. Hitchcock, however, did not point to any juror remaining on the panel that he wished to challenge. Trotter v. State, 576 So.2d 691 (Fla.1990); Floyd v. State, 569 So.2d 1225 (Fla.1990); Pentecost. We therefore find no merit to this claim.

Hitchcock also claims that the trial court prevented him from presenting mitigating evidence. Hitchcock proffered the following items: 1) Hitchcock's former attorney's relating a) Hitchcock's friendship with an inmate executed in 1984 and how that execution affected Hitchcock, b) changes he had seen in Hitchcock since his being imprisoned compared to other death row inmates the attorney had been involved with, c) hearsay statements of three now-deceased people who had known Hitchcock in Arkansas, and d) that another death row inmate, with whom Hitchcock had tried to escape, had been resentenced to life imprisonment despite that attempt; 2) claims by Hitchcock's sisters that their brother Richard had exhibited physical and sexual violence toward them while they were growing up; 3) trial transcripts of testimony of two police officers as to Hitchcock's appearance when arrested and his cooperation at that time; 4) the sociologist's theories that a) Hitchcock's execution would not deter others from committing murder, b) it would cost less to imprison Hitchcock for life than to execute him, c) lingering doubt as to Hitchcock's confession, d) the conditions Hitchcock would face under a sentence of life imprisonment, and e) the level of premeditation in this killing in light of Hitchcock's educational level; 5) the report prepared by the psychologist for Hitchcock's 1983 clemency hearing and a study comparing life- and death-sentenced killers and the psychologist's opinion that Hitchcock more closely matched murderers who received life sentences; and 6) the state's offer of life imprisonment in return for a guilty plea. The court rejected the testimony in item 1 as irrelevant, as inadmissible opinion testimony, and as irrebuttable hearsay about which the state had no notice. The court found the testimony in item 2 inadmissible because lingering doubt has been rejected as mitigating evidence. The court held that the trial transcript could not be introduced because the officers' unavailability had not been established (item 3). The court rejected items 4 through 6 as irrelevant.

The United States Supreme Court directed that Hitchcock be resentenced "in a proceeding that comports with the requirements of Lockett." 481 U.S. at 399, 107 S.Ct. at 1825. Lockett requires that a 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 less than death." 438 U.S. at 604, 98 S.Ct. at 2964-65 (emphasis in original, footnote omitted). After making this statement, the Court noted: "Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Id. at n. 12. Therefore, "the State cannot bar relevant mitigating evidence from being presented and considered during the penalty phase of a capital trial." Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990) (emphasis supplied).

As to the court's rejection of Hitchcock's former attorney's proffered testimony, we find items a, b, and d clearly irrelevant to Hitchcock's character, prior record, or the circumstances of the crime at the time of this killing. Capacity for rehabilitation can be mitigating evidence, Skipper and it is possible that some people might view items a and b as tending to show that Hitchcock might be capable of rehabilitating himself. Even if the court should have allowed testimony as to those two items, however, any error would be harmless because most of Hitchcock's other witnesses testified to how they believed he had changed since being imprisoned. Although an accomplice's disproportionate sentence can be argued in mitigation, Hitchcock's accomplice in the attempted escape had nothing to do with the instant crime, for which only Hitchcock was charged and convicted. Item d, therefore, is absolutely irrelevant to this case.

Regarding item c, Hitchcock argues that, although the state's introducing hearsay in a penalty proceeding is limited to that hearsay which a defendant is given the opportunity to rebut, ⁵ a defendant's ability to introduce hearsay is unlimited. While the rules of evidence have been relaxed somewhat for penalty proceedings, they have not been rescinded. We find no merit to Hitchcock's claim that the state must abide by the rules but that defendants need not do so. Additionally, even if admissible, the hearsay statements would have been merely cumulative to other testimony about Hitchcock's past.

Hitchcock argues that his sisters should have been allowed to testify about his brother to create lingering doubt about Hitchcock's having committed this murder (item 2). There is, however, no constitutional right to have lingering doubt about a defendant's guilt considered as a mitigating factor. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). ⁶ Hitchcock's being found guilty is the law of this case, and this Court has consistently held that lingering doubt is not appropriate mitigating evidence. Thomas v. State, 546 So.2d 716 (Fla.1989); King v. State, 514 So.2d 354 (Fla.1987), cert. denied, ...