State v. Dougan

• Citation: 202 So.3d 363
• Decision Date: 20 October 2016
• Docket Number: No. SC13–1826.,SC13–1826.
• Parties: STATE of Florida, Appellant/Cross–Appellee, v. Jacob John DOUGAN, Jr., Appellee/Cross–Appellant.
• Court: United States State Supreme Court of Florida

202 So.3d 363

STATE of Florida, Appellant/Cross–Appellee,

v.Jacob John DOUGAN, Jr., Appellee/Cross–Appellant.

No. SC13–1826.

Supreme Court of Florida.

Oct. 20, 2016.

Pamela Jo Bondi, Attorney General, and Carine L. Mitz, Assistant Attorney General, Tallahassee, FL, for Appellant/Cross–Appellee.

Mark Evan Olive of the Law Offices of Mark E. Olive, P.A., Tallahassee, FL; and Kenneth Howard Haney and Tina M. Eckert of Quarles & Brady, LLP, Naples, FL, for Appellee/Cross–Appellant.

Peter Morlu Brima Sao Dennis, Fort Myers, FL; and Bryan A. Stevenson and Jennifer R. Taylor of the Equal Justice Initiative, Montgomery, AL, for Amicus Curiae Equal Justice Initiative.

PER CURIAM.

By this opinion, we affirm the postconviction court's granting of a new trial to defendant Jacob John Dougan, Jr., for a 1974 Jacksonville murder because of multiple significant problems in his trial, including the false testimony of the key witness against Dougan, and the actions of his own lawyer who was laboring under a conflict of interest that adversely affected his performance at trial. This is the State's appeal of the postconviction order granting a new trial.¹

After a lengthy evidentiary hearing, the postconviction court, in a detailed, 239–page order, concluded that the murder conviction and sentence of death should be vacated and a new trial granted on multiple grounds. A key finding was that the State not only failed to disclose the full extent of its plea deal with William Hearn, the State's only eyewitness to the murder, but also allowed Hearn to testify falsely that he was going to receive a life sentence, thus presenting false testimony about the true nature of his deal with the State. Hearn, who was described by the prosecutor in Dougan's trial as the State's key witness, was a participant in the murder, but there is other evidence that could have pointed to Hearn's greater involvement, including that both his gun and his car were used during the crime.

The postconviction court also found that Dougan's guilt phase counsel, Ernest Jackson, was operating under two conflicts of interest due to his solicitation of two of Dougan's codefendants during the guilt phase trial and his extramarital affair with Dougan's sister, a fact unknown to Dougan. In addition, the postconviction court found that ineffective assistance of counsel occurred in the guilt phase, where the postconviction court found that defense counsel “essentially presented no defense,” and made unfulfilled promises in opening statement about what would be presented in defense.

We conclude that the combined failures of both the State, in violating Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), through the testimony of its key witness, and Dougan's counsel, in providing substandard performance, deprived Dougan of a fair and impartial trial. Accordingly, we affirm the postconviction court's grant of a new trial.

BACKGROUND

The murder in this case occurred in 1974 and was racially motivated. The victim, Stephen Orlando, a young white man, was discovered on the morning of June 17, 1974, off a dirt road in Jacksonville Beach. Near his body, lay a note, which read:

Warning to the oppressive state. No longer will your atrocities and brutalizing of black people be unpunished. The black man is no longer a slave. The revolution has begun and the oppressed will be victorious. The revolution will end when we are free. The Black Revolutionary Army. All power to the people.

Following the discovery of the victim's body, multiple Jacksonville news channels, police, and the family of the victim received cassette tapes in the mail containing recordings talking about the murder.

After his arrest, Dougan, a twenty-seven-year-old African–American man, was tried in 1975 for the murder in a joint trial with three other African–American defendants: Elwood Clark Barclay, Dwyne Crittendon, and Brad W. Evans. The evidence produced at the 1975 guilt phase showed that on the night of Sunday, June 16, 1974, this group of young men and William Hearn rode around in Hearn's car, seeking to find and kill a white person at random.

Hearn testified for the State and was the only witness to provide an eyewitness account of the killing. Hearn testified that his .22 caliber pistol was the murder weapon and that his car was used by the group of defendants to commit the murder. Hearn stated that shortly before the murder, Dougan wrote out the note that was found by the body and that Dougan was the one directing the others as to what to do. Hearn testified that Barclay stabbed the victim, Dougan shot the victim twice using Hearn's .22 caliber pistol, and Evans and Barclay attempted to stick the note onto the victim's chest using Barclay's pocketknife. The State called three other witnesses—James Mattison, Edredge (“Edred”) Black, and Otis Bess, Jr.—who each testified that they were not present on the night of the murder, but that after the murder, on Wednesday, June 19, 1974, and Saturday, June 22, 1974, they were present during the tape-recording sessions. They testified that during those sessions, Dougan made statements taking credit for shooting the victim and wrote down the bulk of what was to be said in the tape recordings.

An FBI agent, who was a handwriting expert, identified Dougan's handwriting on the note that was found by the victim's body. Another expert testified that a .22 caliber pistol that was recovered in Thomas Creek matched the .22 caliber shell casing recovered near the victim's body. Additionally, bullet fragments recovered from the victim's body originated from a .22 caliber bullet. Another expert identified Dougan's fingerprints on the envelope used to mail the tapes. The medical examiner testified that the victim suffered multiple stab wounds to the stomach, chest, and back, and two bullet wounds to the head.

The four defendants on trial—Dougan, Barclay, Crittendon, and Evans—each testified on his own behalf, denying any involvement in the murder itself. However, they all admitted to participating in the making of tape-recorded confessions days after the murder that were sent to the police, news media outlets, and the victim's family.

At the conclusion of the 1975 guilt phase, Dougan and Barclay were both convicted of first-degree murder, while Evans and Crittendon were convicted of second-degree murder. The jury recommended death for Dougan by a vote of ten-to-two and recommended life for Barclay by a vote of seven-to-five. The trial court imposed a sentence of death for both defendants.

On appeal, this Court affirmed both Dougan's and Barclay's convictions and death sentences. Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978) (“Dougan I ”). This Court, then, pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977),² vacated Barclay's and Dougan's death sentences and remanded the case to the trial court for a Gardner hearing, where the defense would have the opportunity to rebut information contained in the presentence investigation reports. Barclay v. State, 362 So.2d 657, 658 (Fla.1978) (“Dougan II ”). After the Gardner hearing, the trial court reimposed Dougan's death sentence, and this Court affirmed. Dougan v. State, 398 So.2d 439, 441 (Fla.1981), cert. denied, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981) (“Dougan III ”).

After Dougan lost the appeal, he filed a petition for writ of habeas corpus, alleging that his appellate counsel, Ernest Jackson, who had also represented Barclay and Crittendon in their appeals, failed to provide effective assistance of counsel. Dougan v. Wainwright, 448 So.2d 1005 (Fla.1984) (“Dougan IV ”). This Court held that Dougan's appellate counsel, Jackson, who had also been Dougan's trial counsel, failed to provide effective assistance due to a conflict of interest in representing the other codefendants, and also failed to raise meritorious claims, even though Dougan appeared to have been his primary client on appeal. Id. at 1006.³ As a result, this Court granted Dougan's petition for habeas corpus and granted him a new appeal. Id.

In the new appeal, this Court determined that Dougan was entitled to a new sentencing proceeding because the State had been permitted to read an indictment for another murder of which Dougan had not been convicted into the record over objection. Dougan v. State, 470 So.2d 697, 701–02 (Fla.1985). Dougan's next and latest sentencing proceeding began on September 17, 1987, at the conclusion of which, the jury recommended by a vote of nine-to-three to again sentence Dougan to death. Dougan v. State, 595 So.2d 1, 3 (Fla.1992). Again, the trial court sentenced Dougan to death. Id. On appeal, this Court affirmed the sentence. Id. at 6.

Justice McDonald, joined by Chief Justice Shaw and Justice Barkett, dissented, explaining that he believed that Dougan's sentence should have been reduced to life based on the substantial mitigation related to Dougan's background. Id. at 6–8 (McDonald, J., dissenting).

Because two of the codefendants had been convicted of second-degree murder and Barclay received a life sentence from this Court, Dougan became the sole defendant of this group of defendants implicated in the victim's murder to remain on death row.

Postconviction Proceedings

The postconviction proceedings in this case have been protracted, lasting over twenty years, and have included a series of public records disputes. Different circuit court judges presided over these proceedings, until eventually Judge Jean M. Johnson was assigned and presided over the final evidentiary hearing. In his amended postconviction motion, Dougan raised twenty-nine separate claims, some of which were divided into multiple subclaims.⁴ After the postconviction evidentiary hearing held on February 25–28, 2013, the postconviction court granted relief in a thorough and lengthy order as to multiple claims. Specifically, relief was granted as to claim III, which...