Hodges v. State

• Decision Date: 14 October 2004
• Docket Number: No. SC01-1718, No. SC02-949.
• Parties: George M. HODGES, Appellant, v. STATE of Florida, Appellee. George M. Hodges, Petitioner, v. James V. Crosby, Jr., Respondent.
• Court: Florida Supreme Court

885 So.2d 338

George M. HODGES, Appellant, v. STATE of Florida, Appellee.

George M. Hodges, Petitioner, v. James V. Crosby, Jr., Respondent.

Nos. SC01-1718, SC02-949.

Supreme Court of Florida.

October 14, 2004.

Rehearing Denied December 22, 2004.

Michael P. Reiter, Capital Collateral Counsel, and Linda McDermott, Assistant CCC-NR, Office of the Capital Collateral Counsel — Northern Region, Tallahassee, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Candance M. Sabella, Senior Assistant Attorney General, Chief of Capital Appeals, and Kimberly Nolen Hopkins, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.

PER CURIAM.

George Michael Hodges seeks review of an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Hodges also petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. For the reasons stated herein, we affirm the circuit court's denial of Hodges' rule 3.850 motion and deny Hodges' habeas petition.

FACTS AND PROCEDURAL HISTORY

On February 22, 1989, George Michael Hodges was indicted by a grand jury and charged with one count of first-degree murder. Hodges pled not guilty, and proceeded to trial. As reflected in Hodges v. State, 595 So.2d 929 (Fla.1992) (Hodges I), the facts pertinent for disposition of the claims presented in Hodges' 3.850 appeal and his habeas petition demonstrate as follows:

In November 1986 Plant City police arrested Hodges for indecent exposure based on the complaint of a twenty-year-old convenience store clerk. Around 6:00 a.m. on January 8, 1987, the day Hodges' indecent exposure charge was scheduled for a criminal diversion program arbitration hearing, the clerk was found lying next to her car in the store's parking lot. She had been shot twice with a rifle and died the following day without regaining consciousness.

Hodges worked on the maintenance crew of a department store located across the road from the convenience store. A co-worker told police that she saw Hodges' truck at the convenience store around 5:40 a.m. on January 8. Hodges, however, claimed to have been home asleep at the time of the murder because he did not have to work that day. His stepson, Jesse Watson, and his wife, Jesse's mother, supported his story. The police took a rifle from the Hodges' residence that turned out not to be the murder weapon. The investigation kept coming back to Hodges, however, and the police arrested him for this murder in February 1989. At trial Watson's girlfriend testified that, during the summer of 1988, she asked Hodges if he had ever shot anyone. She said he responded that he had shot a girl and had given Watson's rifle to the police and had disposed of his. Hodges' wife, contrary to her original statement to the police, testified that she did not know if Hodges had been in bed all night or when he had gotten up, that her son and husband had identical rifles, and that she did not know that Hodges had been arrested for indecent exposure.

As did his mother's, Watson's trial testimony differed from his original statement. He testified that he and Hodges had identical rifles and that his, not Hodges', had been given to the police.... Watson also said that, two months after the murder, he saw the rifle in the back of Hodges' truck, wrapped in dirty plastic, and that there was a hole in the ground near the toolshed....

The jury convicted Hodges as charged, and the penalty proceeding began the following day. At the end of the defense presentation counsel told the court that Hodges had become uncooperative, and Hodges stated on the record that he did not want to testify in his own behalf. After the jury retired to decide its recommendation, it sent a question to the court regarding the instructions. The court had the parties return to discuss the jury's request, but, shortly before that, Hodges had attempted to commit suicide in his holding cell. Defense counsel moved for a continuance and said that he could not waive Hodges' presence. The court, however, held that Hodges had voluntarily absented himself, told the jury that Hodges was absent because of a medical emergency, and reread the instructions on aggravating and mitigating circumstances. When the jury returned with its recommendation of death, Hodges was still absent.

After accepting the jury's recommendation, the court appointed two mental health experts to determine Hodges' competency to be sentenced. These experts' reports cautioned that Hodges might attempt to commit suicide again because of his anger and frustration, but concluded that he was competent to be sentenced. After considering these reports and hearing argument on the appropriate sentence, the court sentenced Hodges to death.

Id. at 930-31. This Court affirmed Hodges' conviction and death sentence. See id. at 935.

Subsequently, Hodges petitioned the U.S. Supreme Court for a writ of certiorari. The Supreme Court granted certiorari and vacated this Court's decision for further consideration in light of the Supreme Court's decision in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). See Hodges v. Florida, 506 U.S. 803, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992). Upon remand, this Court reaffirmed the earlier decision, finding that the sufficiency of the cold, calculated, and premeditated instruction was not preserved for review and that error in the instruction, if any existed, was harmless and would not have affected the jury's recommendation or the judge's sentence. See Hodges v. State, 619 So.2d 272, 273 (Fla.1993) (Hodges II)

.

On June 23, 1995, Hodges filed his initial rule 3.850 postconviction motion to vacate his conviction and sentence. Hodges subsequently amended this motion, and a Huff¹ hearing was held before Thirteenth Judicial Circuit Court Judge J. Rogers Padgett on January 25, 1999. On June 21, 1999, Judge Padgett recused himself from the case due to the election of Hodges' penalty phase defense counsel, Daniel Perry, to the position of circuit court judge in Judge Padgett's judicial circuit. Judge Dennis Maloney of the Tenth Judicial Circuit was assigned to the case. On October 29, 1999, Judge Padgett signed an order related to the Huff hearing he had previously presided over prior to his recusal, which granted Hodges an evidentiary hearing on certain of his claims. On November 2 and 3, 2000, and January 29, 2001, evidentiary hearings were held on these claims with Judge Maloney presiding.

On June 1, 2001, Judge Maloney entered a written order denying Hodges' motion. In his appeal of this denial, Hodges asserts the following seven issues: penalty phase counsel rendered ineffective assistance by failing to conduct an adequate background investigation; mental health experts rendered incompetent assistance prior to trial; the trial court denied Hodges' due process right to a full and fair hearing and impartial judge; guilt and penalty phase counsel rendered ineffective assistance by failing to present evidence showing that Hodges' mental capacity precluded him from acting in a cold, calculated, and premeditated manner; the jury instructions shifted the burden to Hodges to prove that the death sentence was inappropriate and the sentencing judge employed the same standard; Florida's death penalty statute is unconstitutional as applied because aggravating factors are not charged in the indictment and proven beyond a reasonable doubt by a unanimous jury verdict; and the lower court erred in denying an evidentiary hearing on certain of Hodges' claims.

In his petition for writ of habeas corpus, Hodges repeats his claims regarding the burden shifting and aggravating factors. He also argues that appellate counsel rendered ineffective assistance by failing to challenge on appeal the introduction of collateral crime evidence and the trial court's erroneous exclusion of a potential juror. Hodges also claims that Florida's death penalty statute is unconstitutional because it fails to prevent arbitrary and capricious imposition of the death penalty, violates due process, and constitutes cruel and unusual punishment.

Ineffective Assistance of Counsel — Background Investigation

Hodges argues that his penalty phase counsel was ineffective in failing to conduct a reasonable background investigation that, but for counsel's ineffectiveness, would have unearthed substantial mitigating evidence. Hodges contends that the insufficient background investigation also resulted in inadequate mental health evaluations at trial, thereby depriving him of the benefit of substantial mental mitigating evidence. In advancing this argument, Hodges relies heavily on the fact that one of the experts who evaluated Hodges prior to trial amended his evaluation for the postconviction proceeding, finding substantial mental mitigation.

To prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

; see also Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). The first inquiry requires the demonstration of "errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687,

104 S.Ct. 2052. The second prong requires the defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The U.S. Supreme Court has determined that a "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. To fairly assess counsel's performance, the reviewing court must make every effort to eliminate the "distorting effects of hindsight" and to evaluate...