Hitchcock v. Wainwright

• Decision Date: 18 October 1984
• Docket Number: No. 83-3578,83-3578
• Citation: 745 F.2d 1332
• Parties: James Ernest HITCHCOCK, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1332

745 F.2d 1332

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

No. 83-3578.

United States Court of Appeals Eleventh Circuit.

Oct. 18, 1984.

Opinion on Granting Rehearing En Banc Jan. 8, 1985.

Richard B. Greene, Richard H. Burr, Public Defender of Florida, 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 RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

James Ernest Hitchcock was convicted and sentenced to death for the strangulation of his brother's thirteen-year-old stepdaughter. After a direct appeal and post-conviction proceedings in the Florida state courts, ¹ Hitchcock petitioned in federal district court for a writ of habeas corpus. The district court denied the writ without an evidentiary hearing. We affirm.

Petitioner Hitchcock raises numerous issues on this appeal: (1) whether Florida law discouraged his attorney from investigating and presenting nonstatutory mitigating factors; (2) whether the trial court considered petitioner's refusal to plead guilty in imposing the death sentence; (3) whether the evidence was sufficient to support his conviction; (4) whether the death penalty in Florida has been imposed in arbitrary and capricious manner either because of: (a) a defect in Florida's death penalty statute, Fla.Stat.Ann. Sec. 921.141, (b) Florida law which required the jury be instructed on all lesser degrees of the charged offense whether or not there was evidence to support a conviction on the lesser degrees, or (c) racial discrimination; and (5) whether the Brown issue as 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), should be reconsidered. We will address each issue in that order.

The facts of the case can be briefly summarized. Thirteen-year-old Cynthia Driggers was murdered by strangulation on July 31, 1976. Her body was recovered later that same day. An autopsy revealed that Driggers' hymen had been recently lacerated and that sperm was present in her vagina. Her face had cuts and bruises in the vicinity of the eyes. On August 4, 1976, petitioner confessed to the murder. He claimed that he and the victim had consensual sexual relations and he killed her when she became upset afterward and threatened to tell her parents. At trial, petitioner changed his story. He testified his brother Richard, the girl's stepfather, discovered Cynthia and him having intercourse and reacted by strangling the girl.

Restriction of Mitigating Evidence

Petitioner argues the district court should have held an evidentiary hearing on the question of whether he was denied a fair and individualized capital sentencing determination by the preclusion of nonstatutory mitigating factors as a result of either the operation of state law or the denial of effective assistance of counsel because of his counsel's belief that Florida law barred such evidence. After examining the law regarding admission of mitigating evidence as developed in both Florida and federal courts and reviewing the facts of this case, we conclude no constitutional infirmity exists in regard to petitioner's sentencing hearing.

Florida re-enacted its death penalty statute following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which in effect held all extant capital penalty statutes to be unconstitutional. The new statute contained a list of factors designed to guide discretion in the imposition of the death sentence. Both aggravating and mitigating factors were listed. The statute explicitly limited those circumstances that could be considered as aggravating. No such restrictive language, however, was used in conjunction with the mitigating circumstances. See Fla.Stat. Sec. 921.141 (1972). This feature was noted by the Supreme Court in its opinion holding the statute to be constitutional. Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S.Ct. 2960, 2965 n. 8, 49 L.Ed.2d 913 (1976) ("There is no such limiting language introducing the list of statutory mitigating factors.").

The importance of a lack of restriction on the sentencer's consideration of mitigating circumstances in fixing the penalty for a capital crime was confirmed by the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). The Court held unconstitutional an Ohio statute which limited mitigating evidence to a narrow set of factors. As to the distinction between the Ohio and the Florida statute, the Court made the following observation:

Although the Florida statute approved in Proffitt contained a list of mitigating factors, six members of the Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive.... None of the statutes we sustained in Gregg [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859] and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.

438 U.S. at 606-07, 98 S.Ct. at 2965-66.

Two years prior to Lockett and six days after the decision in Proffitt, the Florida Supreme Court in 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), used language which some contend should be interpreted as limiting the introduction of mitigating circumstances to those enumerated in the statute. The court upheld a trial court's refusal to admit testimony regarding a capital defendant's employment history as a mitigating circumstance. The defendant argued that his employment history demonstrated he was not beyond rehabilitation. Neither employment history nor potential for rehabilitation are statutory mitigating factors. See Fla.Stat.Ann. Sec. 921.141(3). The court rejected the defendant's argument, reasoning that employment history was not particularly probative of a person's ability to conform to the law and that

[i]n any event, the Legislature chose to list the mitigating circumstance, which it judged to be reliable for determining the appropriateness of a death penalty ... and we are not free to expand that list.

336 So.2d at 1139. In a footnote, the court emphasized the restrictive design of the Florida statute as regards to both aggravating and mitigating factors, stressing that the statute only would limit the arbitrariness condemned in Furman if discretion was limited "whether operating for or against the death penalty." 336 So.2d at 1139 n. 7. See Perry v. State, 395 So.2d 170, 174 (Fla.1980) (trial judge interpreted Cooper as barring non-statutory mitigating evidence).

Two years later and shortly after the decision in Lockett, the Florida Supreme Court 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), clearly held the Florida death penalty statute does not restrict the mitigating evidence to the factors enumerated in the statute. In denying a motion for rehearing which argued that the Florida statute as interpreted by Cooper violated Lockett, the Florida court said:

In Cooper, this Court was concerned not with whether enumerated factors were being raised as mitigation, but with whether the evidence offered was probative. Chief Justice Burger, writing for the majority in Lockett, expressly stated that irrelevant evidence may be excluded from the sentencing process. 98 S.Ct. at 2965 n. 12. Cooper is not apropos to the problems addressed in Lockett.

As concerns the exclusivity of the list of mitigating factors in Section 921.141, the wording itself, and the construction we have placed on that wording in a number of our decisions, indicate unequivocally that the list of mitigating factors is not exhaustive. This was noted, in fact, in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

We have approved a trial court's consideration of circumstances in mitigation which are not included on the statutory list in Washington v. State, 362 So.2d 658 (Fla.1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla.1975), among others. Obviously, our construction of Section 921.141(6) has been that all relevant circumstances may be considered in mitigation, and that the factors listed in the statute merely indicate the principal factors to be considered.

365 So.2d at 700 (footnote omitted).

Prior to that decision, this Court had addressed the issue of whether Florida's death penalty statute as interpreted in Cooper violated Lockett. In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), we reviewed Proffitt and Lockett and stated "[t]he conclusion is inevitable that the [Supreme] Court continues to view Section 921.141 as constitutional.... Obviously, we are without power or authority to overrule the express finding of the Supreme Court." 578 F.2d at 621. Spinkellink was tried in 1973, prior to Cooper. Spinkellink presented and argued to the jury circumstances not fitting within the statutory mitigating categories.

Petitioner here was tried in January, 1977, which was after the Florida court's decision in Cooper but before the United States Supreme Court's decision in Lockett. Thus, petitioner argues that his counsel, misled by Cooper and without the clarification of Lockett and Songer, believed that he was limited to presenting evidence in mitigation that fit within one of the statutorily enumerated listings. In one...