Wickham v. State, No. SC05-1012 (Fla. 9/25/2008)
| Decision Date | 25 September 2008 |
| Docket Number | No. SC05-1012,SC05-1012 |
| Parties | JERRY MICHAEL WICKHAM, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida Supreme Court |
Frederick T. Davis of Debevoise and Plimpton, LLP, New York, New York, and Martin J. McClain of McClain and McDermott, Wilton Manors, Florida, for Appellant
Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, Florida, for Appellee
Jerry Michael Wickham appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain, we reverse and remand for a new evidentiary hearing because the postconviction court erred by denying Wickham's motion to disqualify the postconviction judge.
The relevant facts were set out in this Court's opinion in Wickham v. State, 593 So. 2d 191 (Fla. 1991), as follows:
In March 1986, Wickham together with family members and friends, including children, were driving along Interstate 10 when they discovered they were low on money and gas. While at least some members of the party felt they should stop at a church for help, Wickham and others decided they would obtain money through a robbery. The group continued along Interstate 10 and exited at Thomasville Road in Tallahassee.
Proceeding north almost to the Georgia border, the group decided to trick a passing motorist into stopping. They placed one of the vehicles conspicuously on the roadside. One of the women, apparently accompanied by some of the children, then flagged down the victim, Morris "Rick" Fleming. The woman told Fleming her car would not work. Wickham later told a fellow inmate that he had deliberately used the woman and children because "that's what made the guy stop and that's what I was interested in."
After examining the car, Fleming told the woman he could find nothing wrong with it. At this time, Wickham came out of a hiding place nearby and pointed a gun at Fleming. Fleming then turned and attempted to walk back to his car, but Wickham shot him once in the back. The impact spun Fleming around, and Wickham then shot Fleming again high in the chest. While Fleming pled for his life, Wickham shot the victim twice in the head.
Wickham then dragged the body away from the roadside and rummaged through Fleming's pockets. He found only four dollars and five cents. At this point, Wickham criticized the woman-decoy for not stopping someone with more money.
The group drove to a gas station and put two dollars' worth of gas in one of the cars, and two dollars' worth in a gas can. Wickham changed his clothes and threw his bloodstained pants and shoes into a dumpster. Wickham directed one of the others to throw the empty bullet casings and live rounds out the window. A short while later, the group drove past the murder scene and saw that the police and ambulances had begun to arrive. They then headed back south and drove to Tampa, obtaining more gas money by stopping at a church along the way.
. . . .
After being convicted of the murder, the jury recommended by a vote of eleven to one that Wickham be sentenced to death. The trial judge concurred after finding six aggravating circumstances1 and no mitigating circumstances.
Wickham, 593 So. 2d at 192-93.
On direct appeal, we affirmed Wickham's conviction and death sentence. Id. at 191.2 Thereafter, Wickham filed his current rule 3.851 motion for postconviction relief, which he subsequently amended to contain twenty-one claims.3 The Second Circuit trial court granted an evidentiary hearing on some of the claims, summarily denied the remainder,4 and ultimately denied all of Wickham's claims after the evidentiary hearing.
Wickham appeals the circuit court's order denying him postconviction relief.5 Because we conclude that the postconviction court erred by denying Wickham's motion to disqualify the postconviction judge, we reverse and remand for a new evidentiary hearing.
On remand, if a recanting witness invokes the Fifth Amendment privilege against self-incrimination to avoid testifying, the postconviction court must make an independent determination of entitlement to the privilege considering any relevant factors, such as the nature of the potential criminal liability, the applicable statute of limitations, possible immunity, and any waiver of the privilege. Furthermore, in the event a critical exculpatory witness is unavailable to testify due to invocation of the privilege, the court must also determine whether that witness's prior affidavits and depositions are admissible.
We first discuss disqualification. We then address the Fifth Amendment issue.
Wickham asserts that the postconviction court erred by denying his motion to disqualify all Second Circuit judges from deciding his rule 3.851 motion. In light of the unique and extraordinary circumstances in this case, Wickham's motion to disqualify should have been granted.
Wickham's motion to disqualify is governed substantively by section 38.10, Florida Statutes (2001), and procedurally by Florida Rule of Judicial Administration 2.160 (1992). See Cave v. State, 660 So. 2d 705, 707 (Fla. 1995). "Whether the motion is `legally sufficient' is a question of law, and the proper standard of review is de novo." Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla. 2004). Under rule 2.160, a motion to disqualify must show "that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge," or that the judge or any relative is interested in the result of the case, or that the judge is related to counsel, or that the judge is a material witness. "The facts alleged in a motion to disqualify must demonstrate that the party has a well-grounded fear that he will not receive a fair trial before the judge." Doorbal v. State, 983 So. 2d 464, 476 (Fla. 2008).
Wickham's motion demonstrated a well-founded fear of judicial bias. In his 3.851 motion, Wickham raised numerous ineffective assistance of counsel claims against his trial counsel, Philip Padovano. Judge Padovano ran for a circuit court judgeship while Wickham's case was still pending and became a judge on the Second Circuit shortly after Wickham's trial. He served as a circuit court judge for almost eight years and was Chief Judge of the Second Circuit from 1993 to 1996. Currently an appellate judge on the First District Court of Appeal, Judge Padovano hears appeals from numerous judicial circuits, including the Second Circuit. After Judge Padovano's appointment to the appellate bench, his wife also joined the Second Circuit as a judge. Under these extraordinary circumstances, it is reasonable for a defendant in Wickham's position to fear that a Second Circuit judge hearing Judge Padovano's testimony in determining Wickham's ineffective assistance of counsel claims would be biased in favor of Judge Padovano and against Wickham. Thus, Wickham's motion to disqualify was based on a well-founded fear and should have been granted.
Because the postconviction court erroneously denied Wickham's motion, we remand this case for a new evidentiary hearing. On remand, the Chief Judge of the Second Judicial Circuit shall request that the Chief Justice of this Court temporarily assign a judge from outside the Second Circuit to preside over Wickham's new evidentiary hearing.
Wickham also claims that the postconviction court improperly gave perjury warnings to four recanting witnesses and allowed them to invoke their Fifth Amendment privilege to avoid testifying. For the reasons stated below, the circuit court should conduct further inquiries if any witness again invokes the Fifth Amendment privilege in the new evidentiary hearing and consider all relevant factors in determining whether invocation of the privilege is justified.
Four witnesses who testified at Wickham's trial in 1988 appeared to testify at his postconviction evidentiary hearing. They were expected to recant their original trial testimony. Specifically, prior to the evidentiary hearing, three of those witnesses executed affidavits recanting parts of their trial testimony; one of these three witnesses also gave a deposition in which she stated that her trial testimony was false; and the remaining witness's affidavit contained generally exculpatory statements. However, before those witnesses testified, the State requested that they be advised that giving contradictory statements might constitute perjury. The court agreed and informed each witness in very general terms that it was possible that their testimony could subject them to perjury charges. The court then appointed counsel for each witness, and after conferring with counsel, all four witnesses individually asserted the Fifth Amendment privilege and declined to testify. The court excused all four witnesses without inquiry.
It is well settled that a person shall not be compelled to answer questions that tend to incriminate him. See State ex rel. Benemovsky v. Sullivan, 37 So. 2d 907, 909 (Fla. 1948). "However, the matter of deciding what answers may be incriminating is not solely up to the witness, but is one requiring the exercise of the trial court's discretion." Suarez v. State, 481 So. 2d 1201, 1208 (Fla. 1985) (citing State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954)). Ordinarily, a trial judge must make a direct inquiry regarding a witness's claim of the Fifth Amendment privilege. See id., 481 So. 2d at 1208; Lopez v. State, 349 So. 2d 1198, 1199-1200 (Fla. 2d DCA 1977). However, when the patent facts within the four corners of the case clearly support the court's conclusion that a witness is entitled to Fifth Amendment privilege, examination is not necessary. Lopez, ...
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