Hojan v. State
| Decision Date | 03 December 2020 |
| Docket Number | No. SC18-2149,SC18-2149 |
| Citation | 307 So.3d 618 |
| Parties | Gerhard HOJAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
George Edward Reres of Rereslaw, LLC, Fort Lauderdale, Florida, for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
Gerhard Hojan appeals two sentences of death imposed during a resentencing that this Court ordered as a result of Hurst1 error. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm.
The evidence presented at Hojan's 2003 trial established that, at approximately 4 a.m. on the morning of March 11, 2002, Hojan and Jimmy Mickel entered a Waffle House where the victims, Barbara Nunn, Christina De La Rosa, and Willy Absolu, worked. Hojan v. State (Hojan I ), 3 So. 3d 1204, 1207 (Fla. 2009). The victims recognized and knew Hojan and Mickel because they had eaten at that Waffle House on prior occasions, Mickel had previously worked there, and Mickel and Hojan had previously admitted one of the victims to a club where they worked. Id. After eating breakfast, Mickel retrieved a pair of bolt cutters and went to the employee section of the restaurant, and Hojan ordered Nunn, De La Rosa, and Absolu into a freezer at gunpoint, shutting them inside. Id. at 1207-08. While Mickel cut the locks to the cash stores, Hojan returned to the freezer three times. Id. at 1208. After demanding the victims give him their cell phones and money, Hojan returned for a third and final time and ordered the victims to turn around and kneel, shooting each of them. Id. Nunn survived and identified Mickel and Hojan as being involved. Hojan was soon apprehended and subsequently confessed. Id.
Hojan's jury convicted him of two counts of first-degree murder, one count of attempted first-degree premeditated murder, three counts of armed kidnapping, and two counts of armed robbery. Id.2 At the penalty phase, Hojan waived his right to present mitigation evidence. Id. at 1210. The jury recommended that Hojan be sentenced to death by a vote of nine to three, and the trial court followed that recommendation and imposed two death sentences for the murders of Absolu and De La Rosa. Id. at 1208. This Court affirmed Hojan's convictions and sentences on direct appeal, id. at 1219, and the United States Supreme Court denied certiorari. Hojan v. Florida , 558 U.S. 1052, 130 S.Ct. 741, 175 L.Ed.2d 521 (2009).
In 2010, Hojan filed his initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 seeking to vacate his convictions and sentences of death. Hojan v. State (Hojan II ), 212 So. 3d 982, 988 (Fla. 2017). The circuit court summarily denied all of Hojan's claims, and Hojan appealed to this Court and petitioned for a writ of habeas corpus. Id . at 986, 988. This Court affirmed the circuit court's summary denial of Hojan's rule 3.851 motion, denied the accompanying habeas petition, but vacated Hojan's death sentences due to Hurst error and remanded for a new penalty phase. Id. at 1001.
At the conclusion of his new penalty-phase trial, the resentencing jury voted twelve to zero to recommend that Hojan be sentenced to death for both of his first-degree murder convictions. As to count one, the first-degree murder of Absolu, the jury found that the State proved the following four aggravators beyond a reasonable doubt: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to another person; (2) the first-degree murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, the crime of armed kidnapping; (3) the first-degree murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the first-degree murder was especially heinous, atrocious, or cruel.3 As to count two, the first-degree murder of De La Rosa, the jury found that the State proved the following five aggravators beyond a reasonable doubt: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to another person; (2) the first-degree murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, the crime of armed kidnapping; (3) the first-degree murder was committed for the purpose of avoiding or preventing a lawful arrest; (4) the first-degree murder was especially heinous, atrocious, or cruel; and (5) the first-degree murder was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification.4
Following the Spencer5 hearing, the trial court found the same statutory aggravators as the jury and assigned each aggravator "great weight." With respect to both counts, the trial court also found thirty nonstatutory mitigating circumstances and assigned each of them little weight: (1) the defendant has no criminal convictions other than the counts in this case; (2) the defendant has had no disciplinary reports filed against him during his incarceration; (3) under the circumstances, the defendant is a good father; (4) before his incarceration, the defendant was a good son; since his incarceration, he has attempted to maintain a positive relationship with his mother; and his father is deceased; (5) the defendant has no history of drug/alcohol abuse; (6) before this incident, the defendant was a good citizen who maintained consistent employment and helped provide for his family; (7) the defendant has a positive influence on friends and family; (8) the defendant has maintained positive, ongoing relationships during his incarceration; (9) the defendant has been respectful in court; (10) defendant was physically and emotionally abused by his father; (11) the defendant struggled to please his father and was rejected by his father throughout his childhood; (12) the defendant was displaced throughout his childhood; his parents sent him to reside with friends and family members during his childhood; (13) the defendant at age fifteen was sent to live in Miami while his parents remained in Jamaica, and he had limited adult supervision during this time; (14) the defendant did not complete high school because he suffered from a foot injury and was unable to drive himself to school; (15) the defendant's mother was subservient to his father and did not serve as a protector for him during his formative years; (16) the defendant had no positive father figure; (17) the defendant was ridiculed throughout his childhood about his weight by his father; (18) the defendant had a desire to please his mother and his father; (19) the defendant was influenced by others; (20) the defendant has a hobby; he was a passionate kite flyer; (21) the defendant has demonstrated he is able to continue to build positive relationships while incarcerated; (22) the defendant was told by his codefendant that "we can't leave any witnesses"; (23) the defendant has demonstrated remorse, as reflected in his recorded statement made within twenty-four hours of the incident, wherein he expressed he "wished he could take it back"; (24) the defendant has expressed remorse for his actions to his family and has expressed remorse for the victims’ families; (25) the defendant's son suffers from autism and Asperger's syndrome ; the two of them have a close relationship and his son depends upon him for advice; (26) the defendant is loved by all his family members and friends; (27) the defendant obtained his G.E.D. while incarcerated; (28) the defendant cooperated with police by voluntarily giving a statement and consenting to a search of his vehicle; (29) the defendant was diagnosed with and treated for bladder cancer ; he is currently under treatment by Dr. Gupta; and (30) the existence of any other factors in the defendant's character, background, or life, or the circumstances of the offense that would mitigate against the imposition of the death penalty.6
Ultimately, the trial court followed the resentencing jury's recommendation and sentenced Hojan to death as to both counts. In its sentencing order, the trial court considered and weighed the aggravating and mitigating circumstances and found "the aggravating factors in this case far outweigh the mitigating circumstances" with respect to both murders. Hojan now appeals his sentences of death, arguing (1) that the trial court abused its discretion by limiting the scope of defense counsel's questioning during voir dire and (2) that his death sentences are disproportionate.
Hojan first argues that the trial court improperly limited the scope of voir dire by restricting his use of a hypothetical question. We review the trial court's ruling for abuse of discretion. Calloway v. State , 210 So. 3d 1160, 1178 (Fla. 2017).
During voir dire, defense counsel posed the following question to a prospective juror: After the State lodged an objection and the trial court directed defense counsel to "[r]ephrase it," an extended sidebar took place wherein defense counsel argued that he should be allowed to question the prospective jurors using his hypothetical concerning premeditation. The trial court again sustained the State's objection but granted defense counsel's request to "make a record" outside of the presence of the jury. After several additional exchanges with the trial court, defense counsel stated that the ultimate question he wanted to ask the prospective jurors as a...
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