George M. Hodges v. State of Florida
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Supreme Court of Florida
____________
Nos. SC01-1718 & SC02-949
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GEORGE M. HODGES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
GEORGE M. HODGES,
Petitioner,
vs.
JAMES V. CROSBY, JR.,
Respondent.
[October 14, 2004]
REVISED OPINION
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
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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
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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
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for further consideration in light of the Supreme Court's decision in Espinosa v.
Florida, 505 U.S. 1079 (1992). See Hodges v. Florida, 506 U.S. 803 (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.
1. Huff v. State, 622 So. 2d 982 (Fla. 1993).
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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
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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 (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. The second prong requires the
defendant to show that "there is a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different." Id.
at 694. 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 the conduct from
counsel's perspective at the time. Id. at 689. The Supreme Court recently
reiterated and applied these standards in Wiggins v. Smith, 539 U.S. 510 (2003).
The trial court here determined that penalty phase counsel conducted a
reasonable background investigation, and that the deficient results of that
investigation were attributable to an uncooperative defendant and unwilling,
absent, or recalcitrant witnesses.2 Ineffective assistance of counsel claims are
mixed questions of law and fact, and are thus subject to plenary review based on
the Strickland test. See Gaskin v. State, 822 So. 2d 1243, 1246-47 (Fla. 2002).
Under this standard, the Court conducts an independent review of the trial court's
legal conclusions, while giving deference to the trial court's factual findings. See
id.; see also Ragsdale v. State, 798 So. 2d 713, 715 (Fla. 2001). Employing that
standard, we affirm the trial court's determination that Hodges' penalty phase
counsel conducted a reasonable background investigation, and confirm that
2. The trial court acknowledged that analysis of the case was hampered by
penalty phase counsel's limited personal recollection of the case and the loss of the
public defender's case file.
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Hodges indeed had the benefit of counsel as constitutionally guaranteed.
Moreover, even if we assume that counsel performed deficiently, we cannot agree
that there is a reasonable probability that, but for such deficiency, Hodges would
have received a life sentence.
The mitigating evidence presented during the postconviction proceeding did
exceed the quality and quantity of that presented at trial. Trial counsel presented
two witnesses in mitigation, Hodges' mother and brother-in-law, who provided
testimony regarding Hodges' character and dedication to his family.
Postconviction counsel obtained and presented both lay and expert witnesses.
During the postconviction proceeding, two of Hodges' siblings and one neighbor
provided testimony regarding his impoverished and abusive upbringing. A
toxicologist testified that the general area in which Hodges grew up was polluted,
and that a river from which Hodges' family reported that Hodges caught and
consumed fish contained lead. A sociologist testified that Hodges' hometown
constituted a classic example of social disorganization characterized, in part, by a
distrust of outsiders.
The opinion testimony of Dr. Michael Scott Maher, a psychiatrist, changed
sharply between the time of trial and the postconviction proceeding. Prior to trial,
Dr. Maher evaluated Hodges and found that he suffered from depression related to
his then-current circumstances, but found no evidence in mitigation. Dr. Maher
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later changed his testimony to suggest that Hodges suffers from a chronic
depressive disorder, and now believes he was likely under the influence of an
extreme emotional disturbance at the time of the crime. Dr. Maher now also
believes that Hodges has brain damage in the form of frontal lobe impairment,
which, combined with his depression, would have prevented him from exhibiting
the detached, logical decisionmaking process that characterizes the cold,
calculated, and premeditated aggravator. 3 Dr. Maher attributed his change in
opinion to the ability to review additional background materials provided by
postconviction counsel. Despite this contention, Dr. Maher testified that he
rendered an opinion at the time of trial, and did not in any way indicate that he
needed or required additional information to reach his conclusions at that time. 4
The presentation of changed opinions and additional mitigating evidence in
the postconviction proceeding does not, however, establish ineffective assistance
of counsel. See Asay v. State, 769 So. 2d 974, 987 (Fla. 2000); Rutherford v.
State, 727 So. 2d 216, 224 (Fla. 1998). The pertinent inquiry remains whether
counsel's efforts fell outside the "broad range of reasonably competent
3. These conclusions now mirror those of a forensic psychologist, Dr. Craig
Beaver, also presented by Hodges during the postconviction proceeding.
4. Dr. Maher conceded that Hodges exhibited an emotional flatness during
the initial evaluation prior to trial and that he must have simply missed the
diagnosis at that time.
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performance under prevailing professional standards." See Maxwell, 490 So. 2d at
932. Upon review of the trial court's order and record, we conclude that Hodges'
penalty phase counsel performed in accordance with such standards. Our analysis
of this case turns on the distinction between the after-the-fact analysis of the results
of a reasonable investigation, and an investigation that is itself deficient. Only the
latter gives rise to a claim of ineffective assistance of counsel.
As stated by the trial court, Hodges' penalty phase counsel was experienced
with capital cases, and keenly aware of his responsibility to find and introduce
mitigating evidence. During the postconviction proceeding, counsel testified that
he would have introduced any available evidence that would have illuminated
mitigating factors from Hodges' background or possible mental health issues.
While not conclusive, counsel's experience in trying capital cases and appreciation
of the necessity to enter mitigating evidence into the record distinguishes this case
from others in which counsel rendered constitutionally ineffective assistance. See
Ragsdale, 798 So. 2d at 718; Rose v. State, 675 So. 2d 567, 572 (Fla. 1996).
More importantly, the record in the instant case shows that penalty phase
counsel conducted a comprehensive investigation in an attempt to uncover
mitigating evidence. The record in this case directly contravenes the assertion
propounded in the dissenting opinion that Hodges' trial counsel flatly "failed to
investigate Hodges' medical or psychological history, failed to investigate Hodges'
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educational history, and failed to investigate Hodges' military history." Dissenting
op. at 45. Counsel engaged an investigator who made inquiries of more than one
dozen potential witnesses, including both of Hodges' sisters, his parents, Hodges'
best friend, and former employers. While counsel did not contact Hodges' brother,
who would have been less than a good witness having been released from prison
just shortly before Hodges' trial, record evidence shows that Hodges' sister, Karen
Sue Tucker, was indeed contacted. Penalty phase counsel testified that Hodges'
family members were not at all cooperative with the defense, that his best friend
refused to become involved in the matter or to provide any information, and that
his former employers could not even remember him.
The sufficiency of the investigational activity is validated by evidence
demonstrating that Hodges' sister, Karen Sue Tucker, was contacted and imposed
impossible parameters of availability that effectively removed her from the list of
witnesses available to testify, and that Hodges' other sister simply failed to appear
at trial despite assurances that she would attend. Hodges' mother did indeed testify
during the penalty phase, but did not come forward at that time with any
information concerning his upbringing that provided substantial mitigation. The
record also shows, as highlighted by the trial court, that Hodges himself became
uncooperative with counsel during the penalty phase, refusing to testify on his own
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behalf. 5 The scope and nature of counsel's investigative effort and family contact
distinguish this case from those in which this Court has made a determination of
ineffective assistance of counsel. See, e.g., Ventura v. State, 794 So. 2d 553, 570
(Fla. 2001) (deeming background investigation deficient where defendant served
as counsel's sole source for mitigating evidence); Stevens v. State, 552 So. 2d
1082, 1086 n.7 (Fla. 1989) (deeming assistance ineffective where counsel, among
other failures, made no attempt to contact potential witnesses to obtain mitigating
evidence).
In addition to contacting numerous lay witnesses, penalty phase counsel
engaged the assistance of two mental health professionals. Dr. Maher testified that
at the time of trial, counsel asked him to evaluate Hodges' competency to proceed,
5. Contrary to the view expressed in the dissenting opinion, there is ample
record evidence in support of the conclusion that Hodges became uncooperative
with counsel during the penalty phase. See dissenting op. at 51. In our initial
decision affirming Hodges' conviction and sentence, this Court noted in the
recitation of the pertinent facts that "[a]t 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." Hodges I, 595 So.
2d at 931 (emphasis supplied). Indeed, the record shows that after the jury retired
to commence sentencing deliberations, Hodges attempted to commit suicide. In
the text of the suicide note he left, Hodges essentially admitted that he had failed to
cooperate with counsel during the penalty phase. While Hodges' trial counsel
testified during the postconviction hearing that Hodges was cooperative and
unassuming, such testimony does not erase trial counsel's previous assessment of
his client's behavior as uncooperative, and does not negate the other record
evidence supporting this Court's determination that Hodges became uncooperative
during the penalty phase, refusing to testify on his own behalf.
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and his state of mind at the time of the offense, and to provide any and all other
information that might be relevant to his medical or psychiatric condition and
mitigation issues. Given that mandate, Dr. Maher, who testified that he is familiar
with what constitutes mitigating evidence under Florida law, found absolutely none
to present at that time. A second mental health professional also failed to find any
helpful mitigating evidence and, in fact, recommended that his name not even
appear on the witness list because his findings may have been more useful to the
State than the defense. Trial counsel testified that he made a strategic decision not
to present the experts' findings to the jury. In light of evidence demonstrating that
counsel pursued mental health mitigation and received unusable or unfavorable
reports, the decision not to present the experts' findings does not constitute
ineffective assistance of counsel. See Occhicone v. State, 768 So. 2d 1037, 1048
(Fla. 2000); see also Asay, 769 So. 2d at 986 (no ineffective assistance of counsel
in deciding against pursuing additional mental health mitigation after receiving an
unfavorable diagnosis); State v. Sireci, 502 So. 2d 1221, 1223 (Fla. 1987) (not
ineffective assistance of counsel to rely on psychiatric evaluations that may have
been less than complete).
While the record does show that counsel did not obtain all of Hodges'
background materials until after the mental health experts had made their reports,
there is absolutely no indication in any of the school, military, or medical records
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referenced by postconviction counsel that Hodges had been diagnosed with, or
even suspected of suffering from, the existence of brain damage or mental health
problems.6 Contrary to postconviction arguments, Hodges' military records show
that he was discharged due to a "defective attitude," his inability to adjust to a
disciplined environment, and repeated training infractions. Additionally, with
regard to the abstract environmental and sociological reports and testimony offered
during postconvicition, there is no nexus between the testimony regarding the
general social dysfunction of Hodges' hometown area, or the alleged general area
environmental pollution, and a connection with Hodges. The environmental and
sociological status of St. Albans, West Virginia in the abstract has never been
connected to anything related to Hodges, other than that he lived in the area at one
time.
Based on the record in this case, and despite the assertion of new additional
postconviction arguments, we conclude that penalty phase counsel conducted a
reasonable background investigation. This case is analogous to Asay v. State, in
which this Court rejected an ineffective assistance of counsel claim where defense
counsel presented mitigating evidence bearing on the defendant's character, but did
6. We note that the records even contain a mixture of those related to
Hodges and other members of his family. Conditions that may or may not relate to
other family members cannot be attributed to Hodges by simply co-mingling
records.
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not discover evidence regarding the defendant's poverty-stricken and abusive
childhood. See Asay, 769 So. 2d at 987-88. In determining that trial counsel did
not provide unconstitutionally ineffective assistance of counsel, this Court
highlighted the reasonableness of counsel's efforts coupled with the difficulty
counsel encountered in obtaining information from the defendant's mother. See id.
at 988. Likewise, counsel's reasonable efforts to conduct a background
investigation in the instant case were significantly hampered by the failure of the
defendant, his relatives, and his friends to either participate in the process or
provide useful information. See Rutherford, 727 So. 2d at 222.
Contrary to the conclusion reached in the dissenting opinion, defense
counsel's performance in the instant matter is entirely distinguishable from that
deemed constitutionally deficient in Wiggins. Based on the facts presented in
Wiggins, the High Court determined that trial counsel's decision to end the
background investigation after review of the presentence investigation report and
records kept by the Baltimore City Department of Social Services (DSS) did not
reflect "reasonable professional judgment," and did not comport with the
professional standards that prevailed in Maryland in 1989, which called for the
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preparation of a social history report. See Wiggins, 539 U.S. at 522-23, 533-34. 7
The Wiggins Court noted that the DSS records revealed that Wiggins' mother was
an alcoholic, that he resided in numerous foster homes, had emotional difficulties,
was frequently absent from school for long periods, and was left alone with his
siblings without food. The Supreme Court concluded that such information should
have reasonably led to further investigation. See id. at 534.
In the same vein, Hodges contends that further research into the St. Albans
area of West Virginia would have led trial counsel to discover a wealth of
mitigating information, from extreme privation and physical, emotional, and sexual
abuse suffered by Hodges, to the effects of pollution and social disorganization of
his community. The dissenting opinion wholeheartedly endorses that argument,
stating that "despite the fact that trial counsel knew Hodges grew up in one of the
poorest and most polluted communities in the nation, counsel failed to visit the
area in order to develop a meaningful understanding of Hodges' cultural and
environmental influences." Dissenting op. at 43-44.
While it may be true that counsel did not travel to St. Albans, West Virginia
to assess the community conditions, such a decision can hardly be deemed
deficient when counsel consulted numerous—and arguably better—resources in an
7. The Court specifically noted that funds had been made available for
Wiggins' trial counsel to retain a forensic social worker, but that counsel had
chosen not to commission such a report. See id. at 524.
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attempt to obtain background information. Counsel made inquiries of more than a
dozen potential mitigation witnesses, including Hodges' parents, two sisters, and
his best friend—all of whom were intimately familiar with Hodges' family life,
childhood experiences, and the conditions in St. Albans. If related in any way to
Hodges, each of these persons had the opportunity to know and alert trial counsel
to any problems in Hodges' background, but none came forward with helpful
information during the investigation and conversations. It was simply not
unreasonable for counsel to expect the people who surrounded Hodges throughout
his formative years, and who had first-hand knowledge of the family and
community in which he had lived, to bring out during interviews whatever
mitigating evidence was available. Indeed, without assistance from these valuable
resources in supplying the context for Hodges' background, it is unclear what value
would have redounded from merely a visit to St. Albans or environmental and
social conditions in the abstract. Trial counsel also elicited the help of two mental
health experts whose direct interviews with Hodges failed to yield mitigating
evidence. This is simply not a case, like Wiggins, in which trial counsel
unreasonably narrowed the scope of the background investigation to records and
reports which facially indicated the need for further investigation.
Even if we could conclude that penalty phase counsel conducted a deficient
background investigation, Hodges' ineffective assistance of counsel claim would
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still fail because he cannot establish that he was prejudiced by such deficiency.
See Maxwell, 490 So. 2d at 932. As a threshold matter, Hodges' position
overstates the mitigative value of the postconviction testimony regarding the social
dysfunction of his community and the environmental toxins in the area where he
previously lived. The environmental expert who testified during the
postconviction proceeding admitted that she did not even know whether Hodges
was actually exposed to the toxins present in the area in which he previously lived,
and never even examined him for signs of lead exposure, the alleged river toxin.
The sociologist who testified as to the dysfunctional nature of St. Albans could
never connect the social commentary to Hodges because he admitted that he had
never spoken with Hodges, and conceded that Hodges successfully extricated
himself from whatever conditions existed in the town when he moved to Florida,
and apparently into functioning normally in a normal Florida environment.
In assessing the prejudice prong of the Strickland standard, the Wiggins
Court reweighed the evidence in aggravation against the totality of the mitigating
evidence, and determined the evidence of severe privation, physical and sexual
abuse and rape, periods of homelessness and diminished mental capacities,
comprised the "kind of troubled history we have declared relevant to assessing a
defendant's moral culpability." Wiggins, 539 U.S. at 535. Noting that in
Maryland, the death recommendation must be unanimous, the High Court
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determined, "Had the jury been able to place petitioner's excruciating life history
on the mitigating side of the scale, there is a reasonable probability that one juror
would have struck a different balance." Id. at 537.
A similar analysis in the instant matter fails to yield a similar result.
Certainly, the absence of generalized evidence pertaining to the asserted social
dysfunction of Hodges' entire hometown, and his exposure to environmental toxins
in the general area, even when coupled with more specific evidence regarding his
abusive and impoverished upbringing, would not have rendered the sentencing
proceeding unreliable. The jury recommended a death sentence by a ten-to-two
majority, and the trial court found that the State had established two serious
aggravators: commission of murder to disrupt or hinder law enforcement and that
the act was committed in a cold, calculated, and premeditated manner. See Hodges
I, 595 So. 2d at 934. Even with the postconviction allegations regarding Hodges'
upbringing, it is highly unlikely that the admission of that evidence would have led
four additional jurors to cast a vote recommending life in prison. See Asay, 769
So. 2d at 988 (determining that there was no reasonable probability that evidence
of the defendant's abusive childhood and history of substance abuse would have
led to a recommendation of life where the State had established three aggravating
factors, including CCP); see also Breedlove v. State, 692 So. 2d 874, 878 (Fla.
1997).
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Furthermore, we determine that Hodges was not prejudiced by penalty phase
counsel's failure to present mitigating evidence pertaining to Hodges' mental
health. The strongest mitigating factor presented during postconviction was that
Hodges was likely under the influence of an extreme emotional disturbance at the
time of the crime. However, on cross-examination both mental health experts
retreated from and softened their conclusions in this regard. In fact, Dr. Maher
could not opine with any specificity that Hodges was under the influence of an
extreme emotional disturbance at the time of the crime, but came to a "general
conclusion" that at that time in his life, Hodges' mental state more likely than not
would have satisfied the statutory requirement for mitigation. Additional crossexamination revealed that the test used by Dr. Beaver to evaluate Hodges'
symptoms of depression in April of 2000 may not serve as a reliable indicator of
Hodges' mental state at the time of the crime. Moreover, their conclusions
regarding Hodges' mental state were totally rebutted by the State's expert, who
characterized Hodges as suffering from a dysthymic disorder, a form of long-term
depression marked by symptoms less profound than major depression. Based on
the marginal nature of the evidence, we do not agree with the dissent that, but for
trial counsel's failure to present such mental mitigation, there is a reasonable
probability, which has been defined as a probability sufficient to undermine our
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confidence in the outcome, that Hodges would have received a life sentence. See
Strickland, 466 U.S. at 694.
In addition, neither defense expert could conclude with any precision that
Hodges' depression and purported brain dysfunction would preclude him from
engaging in a cold, calculated, and premeditated act. As found by the trial court,
the fact that Hodges had been convicted of a premeditated murder involving the act
of lying in wait for the victim and the concocting of an intricate cover-up would
contravene any such conclusion. 8 According to the State's rebuttal expert, other
indicators of Hodges' ability to perform a cold, calculated, and premeditated act
included his attempt to talk the victim out of prosecuting the indecent exposure
charge prior to the murder, the advanced planning required to commit suicide
while in jail, and his success in extricating himself from the impoverished area
8. On a related topic, we decline to address Hodges' contention that guilt
and penalty phase counsel were ineffective for failing to present evidence showing
that Hodges' mental capacity prevented him from acting in a manner that is cold,
calculated, and premeditated. This Court has held on numerous occasions that
evidence of an abnormal mental condition not constituting legal insanity is
inadmissible to negate specific intent. See, e.g., Spencer v. State, 842 So. 2d 52,
63 (Fla. 2003) (holding that evidence of defendant's disassociative state would not
have been admissible during the guilt phase); Bunney v. State, 603 So. 2d 1270,
1273 (Fla. 1992) (reiterating that commission of a crime during an epileptic seizure
constitutes an exception to the broad prohibition against diminished capacity
defenses); Chestnut v. State, 538 So. 2d 820, 821 (Fla. 1989) (rejecting the
argument that the defendant did not have the requisite mental state for
premeditated murder as a result of extremely low intelligence, a seizure disorder,
diminished cognitive skills, and a passive and dependent personality).
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where he grew up. The fact that these mental health professionals provided such
tepid and inconclusive diagnoses after reviewing the background materials
provided by postconviction counsel undermines the contention that trial counsel's
failure to provide like information resulted in deficient mental evaluations at trial.
Indeed, as previously discussed, the content of Hodges' school, medical, and
military records, as judged by the postconviction conclusions drawn from them,
simply does not support the assertion that trial counsel's failure to provide such
information to Hodges' evaluators constituted deficiency resulting in prejudice.
This case is distinguishable from Phillips v. State, 608 So. 2d 778 (Fla.
1992), in which we determined that the defendant was prejudiced by counsel's
failure to present "strong mental mitigation" at trial. Id. at 783. In that case, two
experts opined in the postconviction proceeding that the defendant was suffering
from an extreme emotional disturbance at the time of the crime, was unable to
conform his conduct to the requirements of law, and could not form the requisite
intent to fall under the aggravating factors of CCP or heinous, atrocious, or cruel.
See id. Also important to our analysis of that case was the fact that the mental
mitigation was essentially unrebutted and that the jury had recommended the death
sentence by the slim majority of seven to five. See id. Based on those factors, we
concluded that there was a reasonable probability that "but for counsel's deficient
performance . . . the vote of one juror would have been different, . . . resulting in a
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recommendation of life." Id. The comparatively weak mental mitigation offered
in Hodges' postconviction proceeding coupled with the State's rebuttal of that
evidence and the wide margin by which the jury recommended the death penalty
distinguish this case from Phillips, and undermine any reasonable probability that
presentation of the evidence would have resulted in a life recommendation.
Ineffective Assistance of Mental Health Experts
Hodges argues that penalty phase counsel's failure to ensure that Hodges
received the benefit of fully informed mental health experts constituted
prejudicially deficient performance and deprived Hodges of his entitlement to
expert psychiatric assistance as required under Ake v. Oklahoma, 470 U.S. 68
(1985). The United States Supreme Court held in Ake that where an indigent
defendant demonstrates to the trial judge that his sanity at the time of the offense
will be a significant factor at trial, the state must "assure the defendant access to a
competent psychiatrist who will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83.
Hodges' Ake claim lacks merit. Hodges does not argue that he was denied
access to mental health professionals or that these professionals failed to conduct
the appropriate examinations. Indeed, any such claim would run contrary to Dr.
Maher's testimony that he conducted a standard psychiatric evaluation of Hodges
prior to trial. Hodges had access to multiple mental health experts prior to trial,
- 23 -
and the experts performed all of the essential tasks required by Ake. Thus, Hodges
fails to establish a violation of the Ake rule. See Johnson v. State, 769 So. 2d 990,
1005 (Fla. 2000). Instead, Hodges simply recasts his ineffective assistance of
counsel argument, which we reject for the reasons stated above.
Violation of Due Process
Hodges next claims that the circuit court violated his due process right to a
full and fair hearing and his right to an impartial judge when Judge Maloney
engaged in improper ex parte communications with the State. Hodges' claim stems
from a series of conversations starting on September 9, 1999, when Judge
Maloney's staff attorney contacted Hodges' counsel to discuss the scheduling of a
Huff hearing. On September 22, 1999, Hodges' counsel was informed by the
assistant state attorney that the court had changed the scheduled Huff hearing to an
evidentiary hearing, and requested that the parties draft a proposed order outlining
Judge Padgett's rulings from the Huff hearing held eight months prior.
Hodges claims that the discussion between Judge Maloney's staff and the
State violated the proscription against ex parte contact because the decision to
change the scheduled Huff hearing to an evidentiary hearing bore on the merits of
the pending proceeding. As a result, Hodges argues that he was denied the
opportunity to be heard as to the status of his case, the scope of the evidentiary
hearing, and how an order on the rule 3.850 motion should be prepared. In support
- 24 -
of his argument, Hodges invokes our decision in Rose v. State, 601 So. 2d 1181
(Fla. 1992), in which we held that judicial integrity requires judges to refrain from
engaging in any conversations with a single party to a proceeding, except to
address strictly administrative matters. See id. at 1183.
Hodges' due process argument is without merit. Judge Padgett presided over
a Huff hearing in the instant case on January 25, 1999. At that time, Hodges was
given a full and fair opportunity to present his arguments, and at the close of the
hearing, Judge Padgett entered conclusions into the record orally, granting Hodges
an evidentiary hearing on certain of his claims. In the post-recusal transfer
between Judge Padgett and Judge Maloney, Judge Maloney apparently was not
informed that a Huff hearing had already taken place. Although it is not entirely
clear from the record, this miscommunication concerning the administration of the
case was discovered and rectified either before or during the conversation between
the judge's staff attorney and the assistant state attorney. Nothing in that
conversation could have impacted the merits of Hodges' case because Judge
Padgett had already decided which of his claims would proceed to an evidentiary
hearing. See Swafford v. State, 636 So. 2d 1309, 1311 (Fla. 1994) (distinguishing
Rose based on the fact that a Huff hearing had been conducted).
Moreover, Hodges was not denied an opportunity to review a substantive
order, because Judge Maloney's staff attorney requested both parties to participate
- 25 -
in drafting the order outlining Judge Padgett's findings from the Huff hearing. See
Diaz v. Dugger, 719 So. 2d 865, 867-68 (Fla. 1998) (finding no grounds for
reversal where the communications occurred between the parties and the judicial
assistant and appellant's counsel reviewed the order prior to its submission to the
court). The contact here was simply to address a necessary administrative matter.
Hodges further argues that the ex parte communications between Judge
Maloney's staff and the State cast substantial doubt on his ability to obtain a fair
hearing. As a result, Hodges argues that Judge Maloney abused his discretion in
failing to grant Hodges' motion to disqualify. A motion to disqualify will be
dismissed as legally insufficient if it "fails to establish a well-grounded fear on the
part of the movant that he will not receive a fair hearing." See Arbelaez v. State,
775 So. 2d 909, 916 (Fla. 2000). As with his due process claim, Hodges argues
that the ex parte communications coupled with the recasting of a Huff hearing to
an evidentiary hearing evinces an inability to receive a fair trial. Like the due
process argument, Hodges' contention has no merit. As Hodges establishes no
other basis for a well-grounded fear that he would not receive a fair trial, see
Arbelaez, 775 So. 2d at 916, we determine that Judge Maloney did not abuse his
discretion in rejecting Hodges' motion to disqualify.
Hodges also argues that his due process rights were violated when the trial
court granted the State access to him for the purpose of conducting a mental health
- 26 -
evaluation two days before the evidentiary hearing, thereby forcing defense
counsel to split limited resources between preparing for the hearing and opposing
the motion. As further evidence of a due process violation, Hodges contends that
the defense presented its case without knowledge of the evidence or witnesses the
State would rely on in rebuttal. As a threshold matter, there is no due process
violation in simply granting the State access to the defendant for the purpose of
conducting a mental health evaluation. See Dillbeck v. State, 643 So. 2d 1027,
1030 (Fla. 1994) (holding that fairness dictates providing the State access to a
defendant for purposes of conducting a mental health evaluation where the
defendant intends to present mental mitigating evidence during the penalty phase).
Indeed, the Florida Rules of Criminal Procedure have been amended to allow for
such access in the context of a postconviction proceeding. See Fla. R. Crim. P.
3.851(f)(6) (effective October 1, 2001). While the amended rule does not apply to
Hodges' 3.850 motion, which was submitted prior to the amendment's effective
date, the reasoning undergirding the amendment, and our decision in Dillbeck,
essentially refute any argument that a due process violation would result from the
grant of access alone.
The evidentiary record also contravenes Hodges' contention that the timing
of the State's request for access and the delay between his presentation of mental
mitigating evidence and the State's rebuttal violated his due process rights. The
- 27 -
record does not show that the State purposefully delayed submission of the motion
for access. To the contrary, the State did not receive Hodges' second amended
witness list until October 12, 2000, approximately two weeks prior to the
evidentiary hearing. Shortly after receiving the amended witness list, the State
submitted a motion to depose Hodges' mental health experts, specifically noting
that it had not yet received their expert reports or curricula vitae. Only upon
deposing the experts in late October did the State have notice regarding the precise
nature of Hodges' alleged brain dysfunction. Upon learning the exact nature of the
claims, the State submitted its motion for access to conduct a mental health
evaluation on October 31, 2000. While neither the timing of the State's evaluation
nor the delay between presentation of Hodges' case and the State's case was ideal,
these factors do not amount to a due process violation.
Failure to Grant Evidentiary Hearing
Hodges argues that the trial court erred in summarily denying an evidentiary
hearing on certain of his claims. This Court has set forth the following standard
for determining whether an evidentiary hearing is required for postconviction
claims for relief:
Under rule 3.850, a postconviction defendant is entitled to an
evidentiary hearing unless the motion and record conclusively show
that the defendant is entitled to no relief. The movant is entitled to an
evidentiary hearing on a claim of ineffective assistance of counsel if
he alleges specific "facts which are not conclusively rebutted by the
- 28 -
record and demonstrate a deficiency in performance that prejudiced
the defendant." Upon review of a trial court's summary denial of
postconviction relief without an evidentiary hearing, we must accept
all allegations in the motion as true to the extent they are not
conclusively rebutted by the record.
Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999) (citations and footnote omitted).
A defendant is not entitled to an evidentiary hearing if the postconviction motion is
legally insufficient on its face. See Freeman v. State, 761 So. 2d 1055, 1061 (Fla.
2000). The record supports the trial court's decision to deny an evidentiary hearing
on each of Hodges' following claims.
Hodges contends that he was entitled to an evidentiary hearing on the trial
court's provision of an unconstitutional cold, calculated, and premeditated jury
instruction. The substance of Hodges' claim is procedurally barred because the
Court has previously addressed it and determined that the sufficiency of the cold,
calculated and premeditated instruction was not preserved for review. See Hodges
II, 619 So. 2d at 273. The ineffective assistance of counsel portion of the claim is
meritless because this Court also previously determined 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 id. Thus, as the trial court
determined, Hodges cannot satisfy the prejudice prong of the Strickland test.
Therefore, summary denial of this claim was appropriate. See Gaskin, 737 So. 2d
at 516.
- 29 -
Hodges also claims that comments by the prosecutor and trial court
diminished the jury's sense of responsibility for the sentencing process, and
merited an evidentiary hearing. This claim is not cognizable on collateral review
because Hodges could have but did not raise the argument on appeal. See Harvey
v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995). Moreover, summary denial of the
ineffective assistance of counsel portion of the claim was appropriate because the
record refutes any claim of prejudice resulting from the complained-of comments.
See Gaskin, 737 So. 2d at 516. This Court has consistently determined that similar
claims lack merit, see Cook v. State, 792 So. 2d 1197, 1201 (Fla. 2001), and the
record in the instant case does not support any conclusion to the contrary.
Hodges further argues that he was entitled to an evidentiary hearing
pertaining to prosecutorial misconduct emanating from the State's penalty phase
closing argument. The substantive portion of this claim is procedurally barred as it
was raised and rejected on direct appeal. In response to substantially the same
argument as Hodges advances in the instant 3.850 appeal, this Court determined
that the prosecutorial comments Hodges complained of did not constitute the type
of victim impact evidence prohibited by Booth v. Maryland, 482 U.S. 496 (1987),
as that rule stands after the U.S. Supreme Court's decision in Payne v. Tennessee,
501 U.S. 808 (1991). See Hodges I, 595 So. 2d at 933. In reviewing Hodges'
direct appeal, this Court also considered the prosecutor's comments regarding the
- 30 -
inappropriateness of life imprisonment for Hodges, and, reaching the substance of
that claim under a harmless error analysis, determined that "on the circumstances
of [Hodges'] case we find the argument harmless error." Hodges I, 595 So. 2d at
934. Consequently, since no reversible error existed, Hodges is unable to
demonstrate the prejudice requisite for a successful ineffective assistance of
counsel claim, rendering summary denial of the issue appropriate. See Gaskin, 737
So. 2d at 516.
Those in dissent agree with Hodges' contention, concluding that counsel was
ineffective for failing to object to the prosecutor's comments regarding life
imprisonment—comments counsel should have known were improper by virtue of
this Court's decision in Jackson v. State, 522 So. 2d 802 (Fla. 1988), rendered one
year prior to Hodges' trial. See dissenting op. at 56. However, this position fails to
acknowledge this Court's prior determination that the commentary upon which the
dissent relies constituted harmless error, and the implication of that determination
for the prejudice prong of the Strickland standard. See Hodges I, 595 So. 2d at
933-34. This Court has previously examined the prosecutor's comments, as set
forth in the dissenting opinion, through the prism of our decisions in Jackson,
Hudson v. State, 538 So. 2d 829 (Fla. 1989), and Taylor v. State, 583 So. 2d 323
(Fla. 1991). In so doing, this Court previously determined that the instant case was
more analogous to Hudson, where the defendant had failed to object to similar
- 31 -
comments deemed not to constitute reversible error, and Jackson, where the
defendant had objected to comments later deemed harmless, than to Taylor, where
this Court determined that similar prosecutorial comments, to which defense
counsel had objected, were not harmless. See Hodges I, 595 So. 2d at 933-34.
There is no compelling reason to revisit that conclusion or overrule a determination
of this Court entered in this case while before us in prior proceedings.
Moreover, this Court's comparison of Hodges' claim to Jackson—a case in
which error was preserved through contemporaneous objection—coupled with the
use of the phrase "harmless error," see id., belies the contention that the Court
applied a fundamental error analysis to the claim. Our prior decision simply does
not support the position that had Hodges' counsel objected to the prosecutor's
remarks, this Court would have reversed his conviction.
The dissenting opinion attempts to focus on counsel's purportedly deficient
performance for failing to object to the prosecutor's closing argument. However,
even a cursory review of the transcript reveals that defense counsel engaged in a
strategy intended to sway the jury to return a life recommendation by
distinguishing the crime committed by Hodges from more heinous first-degree
murders. Trial counsel first debunked the existence of the witness elimination and
CCP aggravators, and then reviewed the remaining statutory aggravators,
- 32 -
reminding the jury after each that it did not apply in Hodges' case, and, thus, that
the death penalty was not warranted.
Finally, Hodges argues that he was entitled to an evidentiary hearing
regarding whether the jury instructions employed in his case misled the jury to
believe that they could not render a valid sentence if they were tied six votes to six.
Again the substantive issue underlying Hodges' claim is procedurally barred
because Hodges could have but did not raise the argument on appeal. See Harvey,
656 So. 2d at 1256. The ineffective assistance of counsel portion of the claim
lacks merit because the judge did indeed advise the jury that if six or more of them
recommended life, they would have made a life recommendation. While Hodges
concedes that these instructions were proper, he contends that they were rendered
nugatory by previous statements giving the jury the erroneous impression that they
could not return a valid sentence if the vote was tied. This Court has recently
considered and rejected a substantially similar argument. See Floyd v. State, 808
So. 2d 175, 185-86 (Fla. 2002). Moreover, as the trial court found, any extant error
was harmless because the jury returned a death recommendation by a vote of ten to
two. Given that the record clearly refutes Hodges' ability to satisfy the prejudice
prong of Strickland, summary denial was appropriate.
Habeas Corpus - Collateral Crime Evidence
- 33 -
In his petition for writ of habeas corpus, Hodges argues that it was an abuse
of discretion for the trial court to admit evidence revealing that the victim had
accused Hodges of indecent exposure, and that appellate counsel was ineffective
for failing to raise this issue on direct appeal. To assess whether Hodges is entitled
to relief on this issue, this Court must determine whether appellate counsel's failure
to raise it on appeal is of "such magnitude as to constitute a serious error or
substantial deficiency falling measurably outside the range of professionally
acceptable performance and, second, whether the deficiency in performance
compromised the appellate process to such a degree as to undermine confidence in
the correctness of the result." Floyd, 808 So. 2d at 183 (quoting Pope v.
Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).
Evidence of other crimes or bad acts committed by the accused is generally
admissible if relevant to a material fact in issue, except where such evidence is
solely relevant to demonstrate the bad character of the accused, or propensity of
the accused to engage in criminal conduct. See Williams v. State, 110 So. 2d 654,
663 (Fla. 1959). The admissibility of collateral crime evidence is within the
discretion of the trial court, and the trial court's ruling shall not be disturbed upon
review absent an abuse of that discretion. See LaMarca v. State, 785 So. 2d 1209,
1212 (Fla. 2001). Under that standard, Hodges cannot sustain a claim for relief on
this issue.
- 34 -
The record shows that upon defense counsel's objection to the introduction
of testimony revealing the nature of the victim's charge against Hodges, the trial
court received argument underscoring the relevance of the evidence to show that
prosecution of the charge angered Hodges, who maintained that the incident was
an accident. The trial court thus reasonably concluded that revealing the nature of
the charge would illuminate a material fact at issue—namely Hodges' attempt to
characterize the incident as an accident and why continued prosecution may have
motivated him to commit murder. There is no basis to conclude that the trial court
abused its discretion in deeming the evidence relevant.
Regardless of relevancy of collateral crime evidence, however, admissibility
is improper where the probative value of the evidence is substantially outweighed
by undue prejudice. See Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988). Based
on the facts of the case, Hodges cannot establish that the prejudicial impact of the
evidence outweighed its probative value. Hodges stipulated to the fact that the
woman he stood accused of murdering had filed charges against him and was
adamant about prosecution. With that fact already in the minds of the jury, it
defies logic to conclude that the scale balancing probative value versus prejudicial
impact would have been tipped by revealing the nature of the pending charges.
With almost no probability of overcoming the abuse of discretion standard, counsel
- 35 -
cannot be faulted for failing to raise the claim on appeal. See Kokal v. Dugger,
718 So. 2d 138, 142 (Fla. 1998).
Habeas Corpus - Juror Dismissal
Hodges contends that his due process rights were violated when the trial
court struck for cause juror Alvarez-Gil based on her views regarding the death
penalty. Hodges argues that he was denied a jury that represented a fair cross
section of the community, and that appellate counsel was ineffective for failing to
raise this issue on direct appeal. This Court has held that a challenge to dismissal
of a juror who expresses a general objection to the death penalty is not preserved
for review where there is no objection at trial. See Maxwell, 490 So. 2d at 930.
Hodges and the State disagree regarding whether trial counsel properly preserved
the issue regarding the dismissal of Alvarez-Gil.
To preserve an issue for review, counsel must timely raise an objection that
is "sufficiently precise that it fairly apprised the trial court of the relief sought and
the grounds therefor." § 924.051(1)(b), Fla. Stat. (2002). In Cannady v. State, 620
So. 2d 165 (Fla. 1993), defense counsel lodged a general objection to the dismissal
of four potential jurors based on what the State characterized as the "philosophy
that no anti-death penalty jurors should be excused." Id. at 169. Expressly noting
that trial counsel had failed to object to the excusal of the jurors individually, this
- 36 -
Court determined that the issue of juror dismissal was not preserved for review.
See id.
As in Cannady, trial counsel in the instant case did not lodge a specific
objection to Alvarez-Gil's dismissal, but did state for the record that she vacillated
in her opposition to the death penalty. When the State sought to strike a second
potential juror for the same reason, trial counsel stated that the State "is striking
every one [sic] who has reservations about the death penalty." Trial counsel
further stated, "I think it's going to invalidate our defendant's right to a fair crosssection of the community." After the State successfully struck a third juror for the
same reason, trial counsel objected and stated that he had the "[s]ame objection for
all of those [the State] struck concerning death penalty."
The record shows that trial counsel made a generalized objection to the
dismissal of jurors based on their death penalty views. As in Cannady, the
objection was not specific to the challenged dismissal. Thus, under controlling
precedent, the objection cannot be given retroactive effect to encompass the
removal of Alvarez-Gil. Therefore, we conclude that the issue of Alvarez-Gil's
dismissal was not properly preserved for review and cannot serve as a basis for an
ineffective assistance of appellate counsel claim.
Remaining Claims
- 37 -
Hodges raises several additional claims in either his 3.850 appeal or petition
for writ of habeas corpus.9 These arguments have consistently been determined to
lack merit. 10 Hodges provides no compelling reason for us to reconsider longestablished law on these points, and we therefore decline to address these claims at
length in this context.
CONCLUSION
For the reasons stated above, we affirm the trial court's decision denying
Hodges' motion for postconviction relief and deny his petition for writ of habeas
corpus.
It is so ordered.
WELLS, LEWIS, CANTERO and BELL, JJ., concur.
PARIENTE, C.J., dissents with an opinion, in which ANSTEAD, J., concurs.
QUINCE, J., recused.
9. These claims include: the jury instructions shifted the burden to Hodges
to prove that the death sentence was inappropriate and the same standard was
employed by the sentencing judge; Florida's death penalty statute is
unconstitutional because aggravating factors are not charged in the indictment,
submitted to a jury, and proven beyond a reasonable doubt by a unanimous vote of
the jury; and the death penalty statute is unconstitutional because it fails to prevent
the arbitrary and capricious imposition of the death penalty, violates due process,
and constitutes cruel and unusual punishment.
10. See Proffitt v. Florida, 428 U.S. 242, 255-56 (1976); Bottoson v. Moore,
833 So. 2d 693 (Fla.), cert. denied, 537 U.S. 1070 (2002); King v. Moore, 831 So.
2d 143 (Fla.), cert. denied, 537 U.S. 1067 (2002); Freeman, 761 So. 2d at 1067;
Sims v. State, 754 So. 2d 657, 666-69 (Fla. 2000); Provenzano v. Moore, 744 So.
2d 413, 416 (Fla. 1999); Fotopoulus v. State, 608 So. 2d 784, 794 n.7 (Fla. 1992).
- 38 -
PARIENTE, C.J., dissenting.
I respectfully dissent, and would grant rehearing based on the United States
Supreme Court's decision in Wiggins v. Smith, 539 U.S. 510 (2003). This is a
particularly troubling death case. The failure to investigate and present mitigation,
in conjunction with defense counsel's failure to object to a patently improper
penalty-phase closing argument, in my view satisfies the first prong of Strickland
v. Washington, 466 U.S. 668, 687 (1984). The postconviction proceedings
revealed substantial mitigation that was never presented at the original penalty
phase which probably would have established that life imprisonment rather than
death was the appropriate punishment for Hodges, satisfying the second prong of
Strickland. The United States Supreme Court opinion in Wiggins, which was
decided seven days after our initial majority opinion, provides even stronger
support for Hodges' ineffective assistance of counsel claim.
The defendant, who was thirty years old, married, employed, and had no
history of prior violent felonies at the time of the murder, shot and killed the
victim. 11 The apparent motive for the murder was that the victim had accused
11
Although the evidence that Hodges was the shooter was wholly
circumstantial, there was no admissible evidence that Hodges was not responsible
for the murder. However, it is troubling that Hodges has always steadfastly
maintained his innocence and, six months before he was sentenced to death,
- 39 -
Hodges of exposing himself, after which Hodges was arrested. However, Hodges
had apparently been directed into a diversion program and there was no suggestion
that this prosecution for a misdemeanor would result in his incarceration.
It is clear in looking at the nature of this crime that mental mitigation could
have made a difference if it had been presented. However, the defense case for
mitigation was almost nonexistent. The penalty phase of the original trial lasted a
total of approximately forty-five minutes, during which time the State put on three
witnesses to testify to hearsay statements by the victim that Hodges had
approached her in an attempt to convince her to drop the exposure charge. The
defense called only two witnesses: Hodges' mother and brother-in-law. Their
transcribed testimony totals less than six pages. No mental health testimony was
introduced. I have appended to this dissent the sum total of the transcribed
penalty-phase testimony presented by the defense.
The deficiencies in counsel's performance during the penalty phase consisted
not only of what he failed to present to the jury in mitigation but also of other
significant omissions. For example, defense counsel's conduct during closing
argument provides additional support for a finding of deficient performance. First,
defense counsel failed to object to the prosecutor's clearly improper closing
voluntarily took and passed a polygraph examination regarding his denial of
involvement in the murder.
- 40 -
argumentCan argument which, if objected to, would have resulted in a reversal and
a new sentencing proceeding. 12 Second, in his closing argument defense counsel's
only argument in mitigation was that Hodges' mother loved her son and the jury
should be compassionate.
Even with the scant mitigation presented, the improper closing argument by
the prosecutor, and the minimal advocacy in the defense closing argument, the jury
recommendation of death was not unanimous (ten-to-two). We now know that
mental health experts, when provided with proper background materials and with
neuropsychological test results, diagnosed Hodges with chronic depressive
disorder and brain damage or dysfunction, which in combination led to Hodges
being under the influence of extreme emotional distress at the time of the crime.
Thus, the experts' testimony would have allowed the jury, the trial court, and this
Court to consider the statutory mitigator of extreme emotional disturbance.
In my view, Hodges has demonstrated that trial counsel was deficient in
failing to conduct an adequate background investigation and in failing to present
substantial mitigating evidence. In addition, Hodges has demonstrated his
counsel's deficiency for failing to object to clearly improper statements in the
prosecutor's closing argument of the type that this Court had specifically
12
In fact, defense counsel did not object at all during the prosecutor's entire
penalty phase closing argument.
- 41 -
condemned in a written opinion one year prior to Hodges' penalty phase. These
deficiencies deprived Hodges of a reliable penalty-phase proceeding and
undermined confidence in the death sentence. Thus, there was ineffective
assistance of penalty-phase counsel under the standard set forth in and reaffirmed
in the recent decision in Wiggins, entitling Hodges to the benefit of a new penalty
phase to determine if death is the appropriate sentence in this case.
INEFFECTIVE ASSISTANCE OF COUNSEL IN PENALTY PHASE
I first address why I conclude that Hodges has demonstrated deficient
performance by counsel in failing to conduct an adequate background investigation
and present substantial mitigating evidence. As noted above, the facts of the case
reveal that Hodges' primary motive for murdering the victim, a woman he barely
knew, was to eliminate the possibility that she would testify against him on a
misdemeanor indecent exposure charge. Hodges' disproportionate reaction to the
threat of testimony should have been explained to the jury, particularly considering
that Hodges had little prior criminal history.
However, defense counsel presented only two witnesses in
mitigationCHodges' mother and brother-in-lawCwho provided minimal testimony
regarding Hodges' relationship with his family. Based on these two witnesses'
testimony, the only mitigating circumstance found by the trial judge concerned
Hodges' character and dedication to his family. See Hodges v. State, 595 So. 2d
- 42 -
929, 934 (Fla. 1992). 13 None of Hodges' three siblings testified during the penalty
phase.
This absence of meaningful mitigation stems from trial counsel's failure to
investigate Hodges' school records, military records, and social and psychological
history. The mental health experts retained by trial counsel to evaluate Hodges
were unable to assist in mitigation primarily because defense counsel did not
provide them with this critical information. Indeed, it is undisputed that trial
counsel did not give the experts the names of Hodges' schools, hospitals, and
treatment centers. The only information trial counsel provided to the experts in
this case consisted of the Plant City Police Department records and reports,
including the autopsy reports and investigative reports. Moreover, despite the fact
that trial counsel knew Hodges grew up in one of the poorest and most polluted
communities in the nation, counsel failed to visit the area in order to develop a
meaningful understanding of Hodges' cultural and environmental influences. 14 As
13
The trial judge characterized this finding as a "statutorily enumerated
mitigating circumstance." Hodges, 595 So. 2d at 934. However, as we noted in
our 1992 opinion, the trial judge's finding was based on the statutorily enumerated
consideration of "all aspects of the defendant's character, i.e., nonstatutory
mitigating evidence." Id. Thus, as a practical matter, Hodges' mitigating evidence
was entirely nonstatutory.
14
In response to the majority's assertion that the evidence regarding the area
was insufficiently tied to Hodges, his siblings testified during the postconviction
- 43 -
revealed in the postconviction proceedings, a competent background investigation
would have led to compelling mitigating evidence and placed that evidence in a
context giving it greater mitigating force.
We have stated that "the obligation to investigate and prepare for the penalty
portion of a capital case cannot be overstatedCthis is an integral part of a capital
case." State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002). In Wiggins, the United
States Supreme Court readdressed the standard for assessing whether counsel is
ineffective for failing to present mitigation evidence in death cases. The Court
stated that
[the] principal concern in deciding whether [counsel] exercised
"reasonable professional judgmen[t]," is not whether counsel should
have presented a mitigation case. Rather, [the] focus [is] on whether
the investigation supporting counsel's decision not to introduce
mitigating evidence of Wiggins' background was itself reasonable. In
assessing counsel's investigation, [the Court] must conduct an
objective review of their performance, measured for "reasonableness
under prevailing professional norms," which includes a contextdependent consideration of the challenged conduct as seen "from
counsel's perspective at the time," [Strickland], at 689 ("[E]very effort
[must] be made to eliminate the distorting effects of hindsight").
539 U.S. at 522-23 (some citations omitted). Relying on the American Bar
Association guidelines, the Court in Wiggins noted that efforts should be made to
hearing that the family consumed fish caught in a polluted river that ran near the
Hodges' home and ate food foraged from a city dump laden with hazardous
materials.
- 44 -
discover available mitigating evidence and evidence to rebut any aggravating
evidence, from such sources as "medical history, educational history, employment
and training history, family and social history, prior adult and juvenile correctional
experience, and religious and cultural influences." Id. at 524. (emphasis omitted)
This case is substantially similar to Wiggins. Hodges' trial counsel failed to
investigate Hodges' medical or psychological history, failed to investigate Hodges'
educational history, and failed to investigate Hodges' military history. Defense
counsel presented no mental health testimony in mitigation of a sentence on a
seemingly irrational crime committed by a person with no significant criminal
history. The only means to develop a credible explanation for Hodges' actions
would have been through a thorough mental health evaluation. As the Supreme
Court recognized in Wiggins, "any reasonably competent attorney would have
realized that pursuing these leads was necessary to making an informed choice
among possible defenses, particularly given the apparent absence of any
aggravating factors in [the defendant's] background." Id. at 525.
Indeed, at the evidentiary hearing on this issue, Hodges' own trial counsel
failed to advance any justification for a penalty-phase strategy that involved little
meaningful investigation. The State's own expert conceded the inappropriateness
of counsel's conduct. Even the majority acknowledges that "[t]he mitigating
evidence presented during the postconviction proceeding . . . exceed[ed] the
- 45 -
quality and quantity of that presented at trial." Majority op. at 8. In light of the
almost nonexistent mitigation presented at trial and the lack of any credible reason
for this failure, that characterization is an understatement. Pursuant to Wiggins,
the decision by trial counsel at the time of Hodges' trial not to present mitigating
evidence could not have been reasonable because the investigation on which this
decision rested fell far below prevailing professional norms.
The majority states that its denial of relief on this issue is controlled by the
"distinction between the after-the-fact analysis of the results of a reasonable
investigation, and an investigation that is itself deficient." Majority op. at 10.
Although I acknowledge that a review of counsel's actual investigation is the
proper analysis to be employed when determining whether counsel was deficient,
such a review cannot exist in a vacuum. The validity of a comparison between the
results yielded by the initial investigation and the investigation in the
postconviction phase is demonstrated by the United States Supreme Court's
analysis in Williams v. Taylor, 529 U.S. 362 (2000). In determining that trial
counsel was ineffective in that case, the Court specifically noted that had counsel
sought certain records, the jury would have learned of Williams' nightmarish
childhood, borderline retardation, and nonviolent nature, all of which were
discovered in the postconviction investigation. See id. at 395-96. Therefore, any
meaningful analysis must necessarily include the disparity between what counsel
- 46 -
uncovered during the original investigation and what postconviction counsel
presented in the rule 3.850 motion or hearing. See id.; Rose v. State, 675 So. 2d
567, 574 (Fla. 1996) ("In light of the substantial mitigating evidence identified at
the hearing below as compared to the sparseness of the evidence actually
presented, we find that counsel's errors deprived Rose of a reliable penalty phase
proceeding.").
In this case, postconviction counsel presented testimony of both lay and
expert witnesses, who testified that (1) Hodges' upbringing was severely
impoverished;15 (2) Hodges was physically, mentally, and possibly sexually
abused; (3) Hodges grew up in a hometown characterized by social disorganization
and a distrust of outsiders; (4) the area where Hodges lived was a "cesspool" filled
with hazardous waste and toxic substances that have been shown to lead to
15
Specifically, with regard to Hodges' impoverished childhood, Dr. Maher,
the psychiatrist who evaluated Hodges both for trial and postconviction
proceedings, testified:
When I speak of impoverishment here, I'm not speaking by any means
exclusively of financial impoverishment, but impoverishment in terms
of family structure, family values, having a clean, safe place to live, to
sleep, academic impoverishment, and impoverishment in his
relationships as a child essentially from the time he was born through
his adolescence, and that that was of a nature which in the modern
United States today is almost unheard of except in some very isolated
areas.
- 47 -
neurological deficits and behavioral and nervous system problems in children; (5)
Hodges had a dull intellect and a history of closed head injuries; and (6) Hodges
had made previous suicide attempts. Moreover, the psychiatrist who evaluated
Hodges at the time of trial, Dr. Maher, drastically changed his opinion of Hodges'
mental state during the postconviction stage. During the postconviction hearing,
Dr. Maher testified that Hodges was likely under the influence of extreme
emotional disturbance at the time of trial, and suffered from depression and brain
damage. This evaluation of Hodges was corroborated by Dr. Craig Beaver, a
forensic psychologist who also testified at the evidentiary hearing.
What is critical is not that Dr. Maher's opinion changed but why it changed.
Dr. Maher's changed opinion was caused, in large part, by the evaluation of records
trial counsel failed to provide prior to the original penalty phase, including the
academic, military, and mental health records contained in the postconviction
record. Many of these records contained "red flags" cumulatively indicative of
mental health dysfunction, including poor academic history, "poor" home life,
speech deficit, IQ testing, and military discharge. Indeed, the military records
indicate that Hodges was discharged after only fifty-five days by "reason of
unsuitability"/"defective attitude." Internal military documents describe Hodges as
"unable to adjust to a disciplined environment." Hodges was also described as a
"mentally dull recruit." Although the majority concludes that these records contain
- 48 -
no suggestion of brain damage or mental health problems, Drs. Maher and Beaver
considered the records highly relevant evidence of mental mitigation. Even the
State's own expert, Dr. Merin, testified that it was inappropriate for Hodges'
defense counsel to fail to present this mental health information.
Hodges' claim of deficient performance is supported not only by the United
States Supreme Court decisions in Wiggins and Williams, but also by this Court's
precedent. This case is like Rose and Ragsdale v. State, 798 So. 2d 713, 716 (Fla.
2001), where we found trial counsel ineffective for failing to present mitigating
evidence. In Rose, we determined that trial counsel's failure to "investigate Rose's
background and obtain the school, hospital, prison, and other records and materials
that contained . . . information . . . as to Rose's extensive mental problems"
deprived Rose of a reliable penalty phase. 675 So. 2d at 572. In Ragsdale, we
noted that counsel presented only one witness in mitigation, who provided minimal
evidence, compared to the "abundance" of mitigating evidence available at the time
of trial and presented during the evidentiary hearing. See 798 So. 2d at 716. As in
Rose and Ragsdale, Hodges' counsel in this case did not secure many critical
records and did not provide the mental health expert with complete information,
- 49 -
the result of which was a penalty phase in which only two witnesses testified to
minimal mitigation. 16
The cases that the majority relies on, Asay v. State, 769 So. 2d 974, 986
(Fla. 2000), and Rutherford v. State, 727 So. 2d 216, 221 (Fla. 1998), are
distinguishable. In both Asay and Rutherford, postconviction counsel presented
more favorable mental health testimony than that presented at trial. We said in
Asay that "the first evaluation is not rendered less than competent simply because
appellant has been able to provide testimony to conflict with the first evaluation."
769 So. 2d at 986. However, in contrast to this case, in both Asay and Rutherford
the postconviction mental health testimony was not based on substantial new
information that trial counsel failed to investigate and produce. Indeed, in Asay we
specifically noted that "the notes attached to the [first] report indicate that [the trial
expert] was aware of most of the facts now advanced by collateral counsel." Id.;
see also Rutherford, 727 So. 2d at 222 (noting that the trial mental health
16
The majority relies on the fact that Hodges' counsel was more
experienced than counsel in Rose and Ragsdale to distinguish those cases.
However, I do not believe that counsel's experience should be determinative. To
the contrary, the argument could be made that experienced counsel should be held
to higher standards of competency, especially when it comes to penalty-phase
investigation, which experienced counsel should know is critical to death penalty
defense. Moreover, counsel could offer no strategic reason for anything he did or
failed to do.
- 50 -
evaluators were aware of Rutherford's alcoholism and anxiety disorder and merely
reached a different conclusion that was not necessarily "inconsistent" with the
postconviction evaluation).
In this case, we are not presented with a situation in which postconviction
counsel has simply secured a more favorable diagnosis based on substantially the
same information available at the time of trial. Rather, Hodges' trial expert has
changed his opinion based on new information that trial counsel failed to provide
and should have provided if he had conducted an adequate investigation.
Finally, to the extent that the majority concludes that this case is like
Rutherford because "counsel's reasonable efforts to conduct a background
investigation in the instant case were significantly hampered by the failure of the
defendant . . . to either participate in the process or provide useful information,"
majority op. at 15, I find this statement to be a mischaracterization of Hodges'
behavior. After the presentation of the two defense penalty-phase witnesses,
counsel informed the court that Hodges was upset with him, and "doesn't want us
to put the second phase on." Counsel did not state that anything Hodges said or
did caused him to refrain from presenting additional penalty-phase evidence or that
Hodges had in any way impeded counsel's penalty-phase investigation. During the
postconviction hearing, Hodges' trial counsel testified that Hodges was "quiet,"
"unassuming," "cooperative," and "would always answer questions appropriately."
- 51 -
Further, the penalty-phase transcript shows that Hodges exercised his right not to
testify after he consulted with counsel. The exercise of this right, which is
personal to the defendant, should not be interpreted as a lack of cooperation.
Furthermore, Dr. Maher specifically testified that Hodges was "absolutely" trying
to assist in the 1989 evaluation. According to both Dr. Maher and Dr. Beaver, any
perceived inadequacies in Hodges' participation were directly caused by his
impairments. As Dr. Maher stated:
His limited IQ, his frontal lobe impairment, his chronic depression,
his personality development, that makes him an individual who is in
the face of authority passive, compliant, non-complaining, not
interested or inclined to air the family's dirty laundry. So, . . . because
of the very same problems that I have identified here, Mr. Hodges'
cooperation in the interviews did not allow me to see sufficiently
clearly a need for further intensive investigation.
Hodges' case highlights the importance of counsel's obligation to conduct a
thorough background investigation in order to ensure that mental health
evaluations are accurate and that mentally impaired defendants such as Hodges are
not penalized for their inability to assist themselves.17
17
To the extent that the majority's conclusion that Hodges was not
cooperative is based on Hodges' suicide attempt during the penalty phase, I note
that this attempt occurred after the presentation of evidence and while the jury was
out deliberating the sentence recommendation. See Hodges, 595 So. 2d at 931.
- 52 -
We have said that "the failure to investigate and present available mitigating
evidence is a relevant concern along with the reasons for not doing so."
Rutherford, 727 So. 2d at 221 (quoting Rose, 675 So. 2d at 571). However, as
noted by the majority, Hodges' trial counsel had very little personal recollection of
the trial and the public defender's office lost portions of the trial file, including trial
counsel's notes. Thus, our evaluation of whether counsel's performance was
deficient is necessarily hindered by the loss of information that would explain
counsel's reasons for not investigating and presenting the information revealed
during the postconviction proceeding. In my view, Hodges should not be
penalized by trial counsel's current inability to justify his trial tactics.
The next prong of an ineffective assistance of counsel claim is prejudice.
The test is whether our confidence in the imposition of the death penalty is
undermined. The substantial additional mitigation that was uncovered and
produced during postconviction investigation, including the mental health
mitigating testimony of Dr. Maher and Dr. Beaver, should not be undervalued in
this case. Particularly compelling is the fact that had Dr. Maher had access to the
information revealed during postconviction proceedings, he would have provided
mental health mitigation that could have helped to establish at least one additional
- 53 -
statutory mitigator18 and undermined the establishment of one aggravator, CCP.
Without the CCP aggravator, Hodges' death sentence would have been supported
by only one aggravatorCwitness elimination. As Justice Barkett stated in her 1992
opinion dissenting from affirmance of the death sentence after concluding then that
Hodges' death sentence was properly supported by only one aggravator:19
Against this [single aggravator], Hodges has grown to adulthood with
no significant prior criminal history. Despite the fact that there was
very little mitigation presented, the trial judge found that Hodges was
a contributing member of society, a good employee, and a good and
caring husband and father to his four children.
Hodges, 595 So. 2d at 935 (Barkett, J., concurring in part, dissenting in part)
(footnote omitted) (emphasis supplied). Furthermore, despite the fact that there
was very little mitigation presented, Hodges' original death recommendation was
not unanimous. I conclude that the change in the balance of aggravation and
mitigation flowing from competent penalty-phase representation could well have
turned four or more jurors away from a death recommendation.
18
Specifically, Dr. Maher's testimony could have helped to establish that
Hodges was under the influence of extreme emotional disturbance at the time of
the crime. See § 921.141(6)(b), Fla. Stat. (Supp. 1988). Both mental health
witnesses testified that although they believed Hodges' ability to appreciate the
criminality of his conduct was impaired, it did not rise to the level required to
establish the statutory mitigator.
19
Justice Barkett concluded in 1992 that "the aggravating factors of witness
elimination and cold, calculated, and premeditated [were] so intertwined here that
they should [have been] considered as one." Hodges, 595 So. 2d at 935 (Barkett,
J., concurring in part, dissenting in part).
- 54 -
We now know that there was substantial mitigation never considered by
either judge or jury. In light of the nature of the aggravation, the substantial
additional mitigation that should have been presented, and the lack of a unanimous
recommendation, Hodges has demonstrated both deficient performance and
prejudice and is entitled to a new penalty phase because his counsel was ineffective
pursuant to Wiggins, Williams, and Strickland.
FAILURE TO OBJECT TO IMPROPER CLOSING ARGUMENT
I next address Hodges' argument that the trial court erred in denying him an
evidentiary hearing on his claim that trial counsel was ineffective in failing to
object to the prosecutor's closing argument. The majority concludes that the trial
court did not err in summarily denying this claim as procedurally barred because it
was raised and rejected on direct appeal. See majority op. at 30. This claim is not
procedurally barred. As we recently stated in Bruno v. State, 807 So. 2d 55 (Fla.
2001), in concluding that the trial court erred in summarily denying a similar claim
as procedurally barred:
Whereas the main question on direct appeal is whether the trial court
erred, the main question in a Strickland claim is whether trial counsel
was ineffective. Both claims may arise from the same underlying
facts, but the claims themselves are distinct andCof necessityChave
different remedies: A claim of trial court error generally can be raised
on direct appeal but not in a rule 3.850 motion, and a claim of
ineffectiveness generally can be raised in a rule 3.850 motion but not
on direct appeal. A defendant thus has little choice: As a rule, he or
she can only raise an ineffectiveness claim via a rule 3.850 motion,
- 55 -
even if the same underlying facts also supported, or could have
supported, a claim of error on direct appeal. Thus, the trial court erred
in concluding that Bruno's claim was procedurally barred.
Id. at 63 (footnotes omitted) (second and third emphasis supplied). As in Bruno,
the trial court in this case erred in summarily denying Hodges' ineffective
assistance of counsel claim as procedurally barred.
On the merits, in my view Hodges has demonstrated that trial counsel's
failure to object was deficient and could not be deemed a reasonable strategic
decision because the argument was clearly improper and, if objected to, would
have constituted reversible error. As part of the State's closing argument at
Hodges' 1989 penalty phase, the prosecutor made the following statements without
objection:
What about life imprisonment? What can a person do in jail for life?
You can cry. You can read. You can watch T.V. You can listen to
the radio. You can talk to people. In short, you are alive. People
want to live. You are living. All right? If [the victim] had had a
choice between spending life in prison or lying on that pavement in
her own blood, what choice would [she] have made? But, you see,
[she] didn't have that choice. Now why? Because George Michael
Hodges decided for himself, for himself, that [she] should die.
Hodges v. State, 595 So. 2d at 933 n.*. Because Hodges' trial counsel did not
object, appellate counsel was forced to argue that these comments were
fundamental error that constituted improper victim impact evidence in violation of
Booth v. Maryland, 482 U.S. 496 (1987). See Hodges, 595 So. 2d at 933. This
- 56 -
Court rejected Hodges' claim of fundamental error. See id. However, we noted
that in "attempting to persuade the jury that life imprisonment would not be
appropriate, Hodges' prosecutor made the same argument made in several other
capital cases," which this Court previously had found to be improper. Id.
In Taylor v. State, 583 So. 2d 323, 329 (Fla. 1991), this Court specifically
addressed this same argument where the prosecutor argued:
But what about life in jail? What can one do in jail? You can laugh,
you can cry, you can eat, you can read, you can watch tv, you can
participate in sports, you can make friends. In short, you live to find
out about the wonders of the future. In short it is living. People want
to live. If [the victim] had the choice of life in prison [or death] . . .
what choice would [the victim] have made? People want to live.
[The victim] didn't have that choice because . . . Taylor . . . decided
for himself that [the victim] should die. And for making that decision
he too deserves to die.
Aware that the prosecutor had previously made similar arguments, Taylor's defense
counsel objected prior to closing. See id. Relying on this Court's decision in
Hudson v. State, 538 So. 2d 829 (Fla. 1989), 20 the prosecutor convinced the trial
judge that the argument was proper. See id. at 330. This Court disagreed,
specifically noting that not only was the prosecutor's reliance on Hudson incorrect
in that this Court had not approved the argument in that case, but also that Jackson
20
In Hudson, this Court noted in a footnote that the defendant's contention
that the prosecutor's use of a similar argument deprived the defendant of a fair trial
was not supported by the record and, thus, did not constitute reversible error. 538
So. 2d at 832 n.6.
- 57 -
v. State, 522 So. 2d 802, 809 (Fla. 1988), a decision issued one year before
Taylor's 1989 trial, clearly prohibited the argument. See Taylor, 583 So. 2d at
329. 21 Moreover, this Court stated in Taylor that "any doubt that the prosecutor
should have known of Jackson [was] belied by the fact that the Jackson case was
tried by his own state attorney's office" in Hillsborough County. Taylor, 583 So.
2d at 330. This Court concluded that the error was not harmless and reversed
Taylor's death sentence. See id.
The prosecutor's argument in Hodges is substantially similar to the argument
in Taylor. Moreover, both Hodges and Taylor were tried in 1989, one year after
this Court issued the Jackson opinion. Finally, like Taylor and Jackson, the
Hodges case was tried in Hillsborough County. Similar to the prosecutor in
Taylor, who we stated should have known that the Jackson opinion clearly
prohibited the closing argument, Hodges' defense counsel also should have known
that the prosecutor's closing argument was improper.
Finally, in my view the majority's reliance on this Court's previous rejection
of this claim of error on direct appeal to support the denial of relief on the
ineffectiveness claim is now misplaced. The majority fails to distinguish between
21
In Jackson, this Court concluded that the prosecutor's comment that "the
victims could no longer read books, visit their families, or see the sun rise in the
morning as Jackson would be able to do if sentenced only to life in prison" was
improper because it urged consideration of factors outside the scope of the jury's
deliberations. 522 So. 2d at 809.
- 58 -
Hodges' current claim of ineffectiveness for failing to object at trial and his claim
on direct appeal based on the substantive error. By concluding that Hodges is not
prejudiced because we denied relief on the substantive claim on direct appeal, the
majority ignores the fact that we denied relief primarily because Hodges' counsel
failed to object. Indeed, it was the failure to object to the improper closing
argument, and thus preserve the issue, that prompted this Court to analogize
Hodges to Jackson and Hudson, and analyze the claim for fundamental error.
I further disagree with the majority's conclusion that relief is foreclosed
because the Court previously found the error "harmless." See majority op. at 3132. Notwithstanding the fact that this Court used the term "harmless" to describe
the impact of the error, the fact remains that Hodges did not object at trial. Thus,
the issue was not preserved for appeal and this Court could not have performed a
conventional harmless error analysis in which the heavy burden would have been
on the State to prove beyond a reasonable doubt that the closing argument error did
not contribute to the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.
1986). The absence of an objection results in a fundamental error approach, which
imposes a heavy burden on the defendant to establish that the error undermined the
fairness of the judicial process. See Maddox v. State, 760 So. 2d 89, 94 (Fla.
2000).
- 59 -
The Court's analysis of the issue on direct appeal clearly shows that its
primary focus was on the failure to timely object and thereby preserve what would
otherwise have been harmful error.
A further word about the prosecutor's argument is needed,
however. In attempting to persuade the jury that life imprisonment
would not be appropriate, Hodges' prosecutor made the same
argument made in several other capital cases. E.g., Taylor v. State,
583 So.2d 323 (Fla.1991); Hudson v. State, 538 So.2d 829 (Fla.), cert.
denied, 493 U.S. 875, 110 S.Ct. 212, 107 L.Ed.2d 165 (1989);
Jackson v. State, 522 So.2d 802 (Fla.), cert. denied, 488 U.S. 871, 109
S.Ct. 183, 102 L.Ed.2d 153 (1988). In Hudson we summarily
dismissed the issue because Hudson had not objected and the
argument did not constitute reversible error in that case. In both
Jackson and Taylor we held that the instant argument was improper
and, because on the circumstances of Taylor the argument was not
harmless error and had been objected to, vacated Taylor's sentence
and ordered resentencing. In Jackson, on the other hand, we found the
argument harmless. The instant case is closer to Hudson and Jackson
than to Taylor. Hodges did not object to the prosecutor's argument
and on the circumstances of his case we find the argument harmless
error.
Hodges, 595 So. 2d at 933-34 (footnote omitted) (emphasis supplied).
Had counsel objected to the improper argument, this case would have been
just like Taylor, where we stated:
[Hudson] . . . stands only for the fact that the prosecutor's argument,
under the circumstances of that case, did not constitute reversible
error. [N. 5]. Second, the Jackson opinion, which was issued a year
before this trial, clearly prohibits this type of argument. . . . Finally,
any doubt that the prosecutor should have known of Jackson is belied
by the fact that the Jackson case was tried by his own state attorney's
office. . . . [W]e believe that the circumstances of this case compel us
to require a resentencing proceeding.
- 60 -
[N. 5] It should be noted that no objection to the argument was
interposed in Hudson.
583 So. 2d at 323. As noted above, each of the reasons we gave to justify ordering
a resentencing in Taylor is equally applicable in this case.
Moreover, in Taylor the jury recommended death by a unanimous vote and
there were no mitigating circumstances and three aggravating circumstances,
including the fact that the murder for which Taylor was convicted was especially
heinous, atrocious, or cruel. See 583 So. 2d at 325. Thus, it seems likely that had
counsel objected to the improper argument in this case, we would have applied
Taylor and found the error harmful, since Hodges' death recommendation was not
unanimous and the trial judge found less aggravation and more mitigation to
support the death sentence than in Taylor. In my view, trial counsel's failure to
object to an error that, if preserved, would likely have resulted in reversal is
exactly the type of conduct that an ineffective assistance of counsel claim is
designed to address.22
22
While I acknowledge that this Court has recently held in Brown v. State,
755 So. 2d 616 (Fla. 2000), that the failure to object to the type of argument
condemned in Hodges, Taylor, and Jackson is not ineffective assistance of counsel,
I conclude that Brown is distinguishable. In that case, this Court relied in part on
the fact that defense counsel did not object to the argument because at the time of
trial no case law had held the argument to be improper. See id. at 624-25. Indeed,
as we specifically noted, Brown's trial took place in 1987, one year prior to the
Jackson opinion. See id. at 623 n.9. Thus, contrary to Hodges' counsel, who tried
- 61 -
As has been stated by our district courts of appeal, "defense counsel has a
duty to object to improper comments by the State and to move for mistrial where
required." Eure v. State, 764 So. 2d 798, 801 (Fla. 2d DCA 2000) (reversing a
conviction based on ineffective assistance of counsel where counsel failed to object
to clearly improper closing arguments); see also Gordon v. State, 469 So. 2d 795,
796-98 (Fla. 4th DCA 1985) (reversing a conviction based on ineffectiveness
where counsel failed to object to numerous improper comments of prosecutor). In
my view, defense counsel's failure to stay apprised of pertinent death penalty
decisions that would have indicated that this argument was clearly improper and to
timely object to a clearly impermissible closing argument falls outside the "broad
range of reasonably competent performance under prevailing professional
standards." Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986); see also
State v. Riechmann, 777 So. 2d 342, 350 (Fla. 2000).
CONCLUSION
In sum, the United States Supreme Court decisions in Wiggins and
Williams, as well as this Court's own precedent, clearly demonstrate that counsel's
failure to investigate and present mitigating evidence constituted deficient
performance. When these deficiencies are combined with the failure to object to a
Hodges' case one year after the Jackson opinion, Brown's counsel did not have the
benefit of Jackson.
- 62 -
clearly improper closing argument that probably would have resulted in a reversal
of the death penalty, I conclude that Hodges has established both deficient
performance and prejudice, satisfying the test for ineffective assistance of counsel
under Strickland. Thus, confidence in the imposition of the death penalty is
undermined and Hodges is entitled to a new penalty phase.
ANSTEAD, J., concurs.
- 63 -
ATTACHMENT
Complete Transcript of Testimony
Presented by Defense in Penalty Phase
MR. PERRY [defense lawyer]: Lula Hodges, Your Honor.
THE BAILIFF: Please step forward before the clerk and be sworn, ma'am.
Please be seated on the witness stand, ma'am.
THE COURT: As you testify, ma'am, please speak up in a clear, loud voice
so we can all hear you.
LULA HODGES,
being sworn, was examined and testified as follows:
DIRECT EXAMINATION BY MR. PERRY:
Q.
Would you state your name, please, ma'am?
A.
Lula Hodges.
Q.
Mrs. Hodges, where do you live?
A.
4905 Denver Street, Dayton, Ohio.
Q.
Did George Hodges live, grow up in Dayton, Ohio?
A.
No, he didn't.
Q.
Where?
A.
West Virginia.
Q.
Is that where you and will your husband are originally from?
-1-
A.
Yes.
Q.
Do you have any other children besides George?
A.
Yes, I have four others besides him.
Q.
Are all of those children living?
A.
No. Three of them is living. I have one dead.
Q.
What year was George born?
A.
In '57.
Q.
1957? Was he your youngest, your oldest?
A.
He was the youngest.
Q.
Your son that is deceased, how did he die?
A.
He drowned.
Q.
Were he and George close?
A.
Yes, they were.
Q.
Did his death have any affect on George?
A.
Yes, it did.
Q.
What affect did his death have on George?
A.
It just seemed to change him completely, because they was real close.
Q.
You indicate now that you live in Ohio. George grew up in West
Virginia during the time he was growing up. Did you move around a lot?
A.
Yes, we did.
-2-
Q.
Was George able to establish any long term friendships?
A.
No, he wasn't.
Q.
Were most of his activity, most of his friendships more or less limited
to the family unit, to his brothers?
A.
Yes.
Q.
Have you had occasion to see George with his children and
stepchildren, I believe, Jessie Watson?
A.
Yes. Yes.
Q.
Star, and I can't remember his youngest daughter's name.
A.
Jennifer.
Q.
Jennifer?
A.
Yes.
Q.
How is George with his children?
A.
He was, they loved him. He was good with them.
Q.
Did George ever finish high school?
A.
No, he didn't.
Q.
You know why he quit?
A.
Well, we had moved to another job in another state and he was living
-3-
with his sister. And he decided wanted to go with us, instead of finishing
school.
Q.
And did he ever finish school?
A.
He got a GED test, yes.
Q.
Has George ever been married before?
A.
Yes, he has.
Q.
When was that?
A.
I think it was either '77 or '78. I am not sure.
Q.
Does he have a child from that?
A.
Yes, he does.
Q.
Did you have have occasion to see George interact with that child?
A.
Yes.
Q.
What was his relationship with that child?
A.
They were good.
Q.
How would you describe your relationship with George?
A.
I -- good. We have, we were close.
MR. PERRY: I have no further questions, Your Honor.
THE COURT: Cross?
MR. BENITO: I have no questions of Ms. Hodges.
THE COURT: You may step down, ma'am. Thank you much. Call your
next witness.
[The witness leaves the courtroom.]
MR. PERRY: The State would call, I mean the defense would call Harold
Stewart. Excuse me, Judge.
THE BAILIFF: Please step forward to the clerk and be sworn, sir. Please
be seated here on the witness stand, sir.
THE COURT: As you testify, sir, please speak up a clear, loud voice so we
can all hear you.
HAROLD STEWART,
being sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. PERRY:
Q.
State your name, please, sir.
A.
Harold Stewart.
Q.
Mr. Stewart, where do you live?
A.
4107 Street Mulberry.
Q.
Where are you employed, Mr. Stewart?
A.
Local 1240.
Q.
Okay. And what do you do there?
-5-
A.
I am a laborer.
Q.
Okay. Do you know George Hodges?
A.
Yes, sir.
Q.
Is George Hodges your brother-in-law?
A.
Yes, sir.
Q.
And his wife is your sister; is that correct?
A.
Right.
Q.
Do you work with George?
A.
Yes.
Q.
Or did you work with George?
A.
Yes.
Q.
What type of worker was George?
A.
A good worker.
Q.
Did you ever have any problems with him on the job?
A.
No.
Q.
And did you have occasion to be with George besides at work, on
social occasions with he and their children?
A.
Yes. He got along with them fine.
Q.
What was his relationship with his children, with his stepchildren and
his children?
-6-
A.
He loved them.
Q.
Would you say he was a good father?
A.
Yes.
Q.
How did George get along with your mother, with his in-laws?
A.
Got along just fine. They always liked him. They called him if they
needed any help in any way, he would come over and help them in any way he
could.
Q.
Did George have any hobbies that you participated in with him?
A.
Well, mostly, fishing. He loved to fish.
Q.
Did you go fishing with him often?
A.
Yes.
Q.
And that was basically the thing that he enjoyed do?
A.
Right.
Q
Did Jessie go with you when you went fishing as kids?
A.
On occasions he would go.
Q.
Do you still consider George a friend?
A.
Yes, sir.
Q.
And would George still be welcome in your house?
A.
Any time.
MR. PERRY: I don't have any further questions.
-7-
THE COURT: Cross?
MR. BENITO: No questions.
THE COURT: You are excused, sir. You may step down.
Two Cases:
An Appeal from the Circuit Court in and for Hillsborough County,
Dennis P. Maloney, Judge - Case No. 89-2165
And An Original Proceedings - Habeas Corpus
Michael P. Reiter, Capital Collateral Counsel, and Linda McDermott, Assistant
CCC-NR, Office of the Capital Collateral Counsel – Northern Region, Tallahassee,
Florida,
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, Florida,
for Appellee/Respondent
-8-
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