Hitchcock v. Wainwright

• Decision Date: 28 August 1985
• Docket Number: No. 83-3578,83-3578
• Citation: 770 F.2d 1514
• Parties: James Ernest HITCHCOCK, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1514

770 F.2d 1514

James Ernest HITCHCOCK, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 83-3578.

United States Court of Appeals, Eleventh Circuit.

Aug. 28, 1985.

Richard B. Greene, Richard H. Burr, Craig Barnard, West Palm Beach, Fla., for petitioner-appellant.

Richard Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge. ^*

RONEY, Circuit Judge:

This case was taken on rehearing en banc principally to consider two of several constitutional claims raised by petitioner James Ernest Hitchcock. He asserts (1) that at the time of his capital sentencing, Florida law unconstitutionally discouraged his attorney from investigating and presenting nonstatutory mitigating evidence and (2) that the trial court improperly considered petitioner's refusal to plead guilty in imposing a death sentence. The district court denied all claims raised by Hitchcock without conducting an evidentiary hearing. We affirm.

In January 1977, Hitchcock was convicted and sentenced to death for the murder of his brother's thirteen-year-old stepdaughter. The Florida Supreme Court affirmed his conviction and sentence. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 960, 74 L.Ed.2d 213 (1982). The denial of Hitchcock's state post-conviction motion to vacate judgment and sentence was likewise affirmed. Hitchcock v. State, 432 So.2d 42 (Fla.1983). After his federal petition for habeas corpus was denied by the district court, Hitchcock raised five issues on appeal. The panel opinion, one judge dissenting on two issues, affirmed the denial of relief as to all issues. Hitchcock v. Wainwright, 745 F.2d 1332 (11th Cir.1984), vacated for reh'g en banc, 745 F.2d 1348 (11th Cir.1985).

With respect to his claims on sufficiency of the evidence, arbitrariness of the death penalty in Florida, and the Brown issue decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), we now reinstate the sections of the panel opinion denying relief. Although closely following the panel discussion, we set forth fully in the opinion for the en banc court the reasons for rejecting Hitchcock's other two claims.

I. Restriction of Mitigating Evidence.

The confusion in Florida law surrounding nonstatutory mitigating evidence in capital sentencing has been discussed at length in prior decisions of this Court. Hitchcock v. Wainwright, 745 F.2d 1332, 1335-37 (11th Cir.1984); Ford v. Strickland, 696 F.2d 804, 813 (11th Cir.1983) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Proffitt v. Wainwright, 685 F.2d 1227, 1238-39 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983); see also Songer v. Wainwright, --- U.S. ----, 105 S.Ct. 817, 819-22, 83 L.Ed.2d 809, 812-14 (1985) (Brennan, J., dissenting from denial of certiorari). In summary, for six years after the Florida death penalty statute was reenacted in 1972, there was some ambiguity as to whether a defendant had a right to introduce evidence in mitigation at a capital sentencing proceeding when the evidence fell outside the mitigating factors enumerated in the statute. The opinions cited above set forth the manner in which this uncertainty first arose in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and was exacerbated by Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). The confusion was finally alleviated in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), after the United States Supreme Court had ruled in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) that "the 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."

A number of Florida prisoners sentenced to death before Songer was decided have since sought constitutional relief, claiming that the confusion in Florida law inhibited investigation, presentation, and consideration of nonstatutory mitigating evidence at their capital sentencing. The basic legal problems have been addressed in a variety of contexts: as a Lockett challenge to the facial constitutionality of the death penalty statute itself as interpreted in Cooper by the Florida Supreme Court, see Spinkellink v. Wainwright, 578 F.2d 582, 620-21 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); as a claim that counsel was ineffective in failing to investigate or present nonstatutory mitigating evidence, see Proffitt v. Wainwright, 685 F.2d 1227, 1248 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 508 78 L.Ed.2d 697 (1983) and Songer v. Wainwright, 571 F.Supp. 1384, 1393-97 (M.D.Fla.1983), aff'd, 733 F.2d 788, 791 n. 2 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985); as a challenge to jury instructions as restricting the scope of mitigating evidence to that enumerated in the statute, see Ford v. Strickland, 696 F.2d 804, 813 (11th Cir.) (en banc ) cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Foster v. Strickland, 707 F.2d 1339, 1346-47 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); and Songer v. Wainwright, 733 F.2d 788, 792 (11th Cir.1984); and as a claim arising under Lockett v. Ohio that Florida law as applied discouraged and prevented introduction of available nonstatutory mitigating evidence. See Hitchcock v. Wainwright, 745 F.2d 1332, 1335-37 (11th Cir.1984); see also Songer v. Wainwright, --- U.S. ----, 105 S.Ct. 817, 817, 83 L.Ed.2d 809, 810 (1985) (Brennan, J., dissenting from denial of certiorari).

To date, this Court has considered these claims on a case-by-case basis, evaluating the impact of Florida law on each individual petitioner's capital sentencing hearing. We now reaffirm that approach. The en banc Court has determined that an analysis should be made in each case presented to evaluate a petitioner's claim on the particular facts of the case. A court should consider the status of Florida's law on the date of sentencing, the record of the trial and sentencing, the jury instructions requested and given, post-trial affidavits or testimony of trial counsel and other witnesses, and proffers of nonstatutory mitigating evidence claimed to have been available at the time of sentencing. In some cases, full and fair consideration of the claim will necessitate an evidentiary hearing. Although generally an evidentiary hearing on the issue is preferable, in some cases, such as the one before us, the record will be sufficient to support a decision in the absence of an evidentiary hearing.

In the instant case, the district court dismissed this claim on the grounds that Florida law did not limit what evidence could be produced in mitigation at the penalty stage and that the record indicated petitioner's attorney did not think he was constrained by the statute.

The evidence proffered to the district court does not establish the right to constitutional relief. Although there was a proffer of evidence that the trial attorney may have been mistaken about Florida law, the record belies the argument that at the time of the case, the presentation to the jury would have been appreciably different had it not been for the possible confusion of petitioner's attorney as to the law on mitigating circumstances.

Petitioner submitted an affidavit of the attorney, a public defender, who represented him at trial and sentencing. The affidavit of the attorney is carefully written. It states that although the attorney does not have an independent recollection, he is of the opinion, upon reviewing the transcript, that during his representation of petitioner his perception was that consideration of mitigating circumstances was limited to the factors enumerated by the statute. It says he is aware of the current status of the case and that evidence of relevant mitigating circumstances was not investigated or presented in petitioner's sentencing trial. The affidavit does not indicate, however, that he would have done anything differently at that time.

At the sentencing hearing, petitioner's attorney called petitioner's brother, James, who testified about petitioner at the age of five or six, about his father's death, about the farm work of both the mother and the father hoeing and picking cotton in Arkansas, that there were seven children in the family, and that he left "Ernie" to babysit with the brother's small children. Other testimony relating to petitioner's character had come out at trial. Petitioner testified he left home when he was thirteen because he could not tolerate seeing his stepfather abuse his mother. His mother testified that he was a good child and he minded her. Three of his siblings told the jury he was not a violent person. During closing argument the attorney referred to much of the evidence not fitting squarely within the confines of the statutory mitigating circumstances including the difficult circumstances of petitioner's upbringing, the possibility of rehabilitation, and that petitioner voluntarily turned himself in. Finally, he admonished the jury to "look at the overall picture. You are to consider everything together ... consider the whole picture, the whole ball of wax."

Petitioner has suggested several different pieces of evidence of nonstatutory mitigating circumstances which might have been presented. First, he argues that testimony by...