Hoskins v. State, 84737

• Decision Date: 16 October 1997
• Docket Number: No. 84737,84737
• Parties: 22 Fla. L. Weekly S643 Johnny HOSKINS, n/k/a Jamil Alle, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

Page 202

702 So.2d 202

22 Fla. L. Weekly S643

Johnny HOSKINS, n/k/a Jamil Alle, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 84737.

Supreme Court of Florida.

Oct. 16, 1997.

Rehearing Denied Dec. 9, 1997.

James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Appellant/Cross-Appellee.

Robert A. Butterworth, Attorney General and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.

PER CURIAM.

This is an appeal of Johnny Hoskins' convictions of first-degree murder, burglary of a dwelling, sexual battery with physical force, kidnapping, and robbery and respective sentences, including a sentence of death imposed for the first-degree murder conviction. We also have for review the State's cross-appeal of the trial judge's refusal to find that the murder was committed in a cold, calculated, and premeditated manner. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Hoskins' convictions and the sentences imposed except the sentence of death. For the reasons expressed, we find that we must remand this cause for the limited purpose of conducting a neurological test in accordance with the request of Hoskins' mental health expert before making a determination of whether a new penalty phase proceeding is required. We further conclude that the remaining issues raised by Hoskins and the State's cross-appeal are without merit.

Hoskins was convicted of the offenses set forth above based on the following facts. Police went to eighty-year-old Dorothy Berger's home on Sunday, October 18, 1992, after neighbors discovered that her door was open but no one was home. The television and air-conditioning were on; a small amount of blood, a bent pair of eyeglasses, and a green hand towel were on the bed; several items in the room appeared to be out of place; a shoe impression was visible in the dust on the floor; and Berger's car was gone. There was no sign of forced entry. The victim had last been heard from around 6:30 p.m. on Saturday, October 17.

Hoskins lived with his girlfriend in the house next door to the victim's house. On the evening of October 17, a witness saw him driving a car similar to the victim's. At about 5 a.m. on October 18, Hoskins arrived at his parents' house in Georgia driving that same car. After he got to his parents' house, he borrowed a shovel and left. He returned about twenty minutes later. On Monday, October 19, he was stopped in Georgia for a traffic violation. Police subsequently determined that the car Hoskins was driving belonged to the victim. Police found vegetation and blood in the trunk of the car. Thereafter, Hoskins' father led police to an area near his home where the type of vegetation found in the trunk grew. The victim was discovered there in a grave with her hands tied behind her back and a gag in her mouth.

Further examination revealed that the victim had been raped; had numerous injuries to her body; had several blows to her head, one of which likely caused her to become unconscious; and had died of strangulation, which occurred after the sexual battery and beating. DNA analysis revealed that the semen found on the victim and on the victim's bed sheet could have come from Hoskins. Hoskins was found guilty by the jury of all charges.

The penalty phase proceeding before the original jury was subsequently set aside by the trial judge. Prior to the second penalty phase proceeding, defense counsel asked that Hoskins be transported to Duval County for neurological testing for the purpose of developing mitigating mental health evidence at the suggestion of the defendant's mental health expert. The trial judge denied the request. At the second penalty phase proceeding, the State again presented evidence regarding the facts of this case. Hoskins presented testimony from family members regarding his family life and presented evidence regarding his low I.Q., which was estimated to be about 71. He also presented the testimony of Dr. Krop, a neuropsychologist, regarding his mental condition. In rebuttal, the State presented the testimony of one of the jail nurses, who testified that Hoskins was able to express himself orally and in writing. The State also presented the testimony of a Brevard County School Board employee, who testified that Hoskins was learning disabled but not mentally retarded.

The jury in the second penalty phase proceeding unanimously recommended death, which the trial judge imposed, finding two aggravating circumstances: (1) the murder was committed during the course of a sexual battery or a kidnapping; and (2) the murder was especially heinous, atrocious, or cruel (HAC). The trial judge found that the evidence did not support the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). Additionally, the trial judge found no statutory mitigators but did find the following nonstatutory mitigating circumstances to each of which he gave little weight: (1) Hoskins had a loving relationship with his family; (2) he was a father figure to his siblings; (3) he had protected his siblings from his father's violence and received beatings therefor; (4) he has low mental abilities; (5) he has a mild brain abnormality; (6) he came from an impoverished and abusive background; (7) he was influenced by racial problems during his school years; (8) he helped support his family; and (9) other miscellaneous aspects of Hoskins' life (tended to his pets, adept at woodworking and making clocks, and not a behavioral problem at school). The judge also sentenced Hoskins to life imprisonment on the burglary, sexual battery, and kidnapping counts, and fifteen years on the robbery count, with all of these sentences to run consecutive to the death sentence but concurrent to each other.

Hoskins raises four issues in this appeal, contending that (1) excusals from jury service were improperly granted; (2) the trial judge improperly denied Hoskins' motion for neurological testing; (3) the trial judge improperly imposed the death penalty; and (4) Florida's death penalty statute is unconstitutional. In its cross-appeal, the State argues that the trial judge erred in rejecting CCP as an aggravating circumstance.

PART I--GUILT PHASE

Improper Excusal of Prospective Jurors

In Hoskins' first and only conviction-phase issue, he argues that he was deprived of his right to be tried by a fair and impartial jury drawn from a representative cross section of the community. He argues that his jury was unfairly selected because excusals from jury service must be granted by a trial court judge rather than the clerk of court and because in this case the court clerk rather than the trial judge was permitted to excuse certain jurors. Consequently, he contends that he is entitled to a new trial. We conclude that this issue has not been properly preserved for review.

At the time the prospective jurors were summoned for the trial in this case, the Eighteenth Judicial Circuit's chief judge had issued an administrative order, which provided in pertinent part: "The jury clerk may excuse members of a jury venire prior to reporting on the initial day of service for reasons set forth in Florida Statutes 40.013(1)-(5) and Florida Statutes 40.013(7)-(9). All other bases for disqualification or excusal are to be directed to a judge." Section 40.013, Florida Statutes (1995), contains nine categories of reasons why prospective jurors may or must be excused from jury service, only two of which, subsections (5) and (6), implicate the court's discretion; the remaining categories require excusal and no discretion is involved. Subsection (6), however, is specifically excluded from the administrative order. Thus, only subsection (5) is at issue. That subsection provides as follows:

(5) A presiding judge may, in his or her discretion, excuse a practicing attorney, a practicing physician, or a person who is physically infirm from jury service, except that no person shall be excused from service on a civil trial jury solely on the basis that the person is deaf or hearing impaired, if that person wishes to serve, unless the presiding judge makes a finding that consideration of the evidence to be presented requires auditory discrimination or that the timely progression of the trial will be considerably affected thereby. However, nothing in this subsection shall affect a litigant's right to exercise a peremptory challenge.

(Emphasis added.) Because the statute specifically provides that the presiding judge may exercise the excusal options set forth in that provision based on "his or her discretion," Hoskins argues that the administrative order issued by the chief judge of the circuit inappropriately removed this discretionary duty from the judge who conducted the trial.

Hoskins filed a "motion with reference to jury procedure." In the motion, he asked the court "to enter an order preventing the jury clerk from excusing members of a jury venire prior to examination by the Court." This motion was filed in open court, at which time any potential jurors whose excusal might have been at issue would have already been excused. While Florida Rule of Criminal Procedure 3.290 ¹ does provide that a jury panel may be challenged on the ground that the prospective jurors were not selected or drawn according to law, the motion at issue merely requests the judge to issue an order preventing the clerk from excusing members of the jury venire; it did not challenge the panel. Consequently, the requested relief was not available at the time the motion was filed because the excusals had already occurred. Because the requested relief was not timely filed, we must find that this issue is procedurally barred.

In reaching this decision, however, we emphasize that we are in...