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Clarence Edward
HILL
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: October 19,
1982
Date of birth:
December 2,
1957
Victim profile: Stephen Taylor,
26(Pensacola Police Officer)
Method of murder:
Shooting
Location: Escambia County, Florida, USA
Status: Executed
by lethal injection in Florida on September 20,
2006
Hill and a friend, Cliff Jackson, drove from Mobile to Pensacola in
a stolen car to rob the Freedom Federal Savings Bank.
When an alarm went off, Hill ran out the back door and Jackson
fled out the front door. Pensacola Police Officer Stephen Taylor was
one of the first on the scene. Along with Officer Larry Bailly, they
arrested Jackson and were attempting to handcuff him when Hill
approached them from behind and began shooting.
Officer Taylor died in the shootout, and partner Larry Bailly was
wounded. Hill was shot five times and was caught a short time later.
Accomplice Jackson pled guilty and was given a life sentence.
Citations:
Hill v. State, 477 So.2d 553 (Fla. 1985) (Direct Appeal). Hill v. State, 515 So.2d 176 (Fla. 1987) (Direct Appeal). Hill v. Dugger, 556 So.2d 1385 (Fla. 1990) (Postconviction). Hill v. State, 921 So.2d 579 (Fla. 2006) (Lethal Injection). Hill v. Moore, 175 F.3d 915 (11th Cir. 1999) (Habeas).
Final Meal:
Refused.
Final Words:
None.
ClarkProsecutor.org
Florida Department of Corrections
DC Number: 089718
Name: HILL, CLARENCE E
Race: BLACK
Sex: MALE
Hair Color: BLACK
Eye Color: BROWN
Height: 6' 02"
Weight: 211
Birth Date: 12/02/1957
Initial Reception: 05/27/83
Current Facility: FLORIDA STATE PRISON
STARKE - Clarence E. Hill, convicted of killing a Pensacola cop
during a botched bank robbery in 1982, was executed by lethal
injection on Wednesday evening at Florida State Prison. Hill had
been strapped to the death gurney once before, in January, and was
moments away from execution then when the U.S. Supreme Court granted
him a stay of execution so he could challenge Florida's method of
lethal injection on the grounds it violated his civil rights. That
was unsuccessful, there was no reprieve on Wednesday evening and a
combination of three powerful drugs took his life at 6:12 p.m. Hill
had no last words.
The execution marked the end of a crime that began in 1982 when
police say Hill shot two police officers after he and an accomplice
held up a savings and loan in Pensacola. Officer Stephen Taylor, 26,
was one of the first on the scene when the two robbers came out of
different doors of the bank, said Pensacola police Assistant Chief
John Mathis. Taylor and Officer Larry Bailly were attempting to
handcuff suspect Cliff Jackson when Hill came up and began shooting,
according to court records.
Hill shot Taylor in the side, Mathis said. Hill also wounded
Bailly. Both Hill and Jackson were also hit during the exchange of
gunfire. Jackson is serving a life sentence. Taylor's portrait hangs
in the lobby of the Pensacola police station, Mathis said, a ''vivid
reminder'' of what can happen in police work.
Hill's execution came within days of a lengthy American Bar
Association study that says Florida complies with only eight of 93
ABA legal standards covering death penalty cases. Florida also leads
the country in exonerations of prisoners on Death Row, with 22 since
1973. The ABA made 11 recommendations for change in Florida,
including a requirement that Florida juries unanimously recommend
the death sentence as they do in the 37 other death-penalty states.
Today, jurors need only recommend death by a majority vote, and
judges have the final say. Though it apparently hasn't happened
since 1999, the report says, a judge has the authority to override a
jury's recommendation of life in prison and sentence the convicted
person to death.
Hill's execution was the 61st since Florida resumed executions in
1979. The U.S. Supreme Court struck down the death penalty as
unconstitutional in 1974. Florida and other states revised their
laws, and in 1976 the court reversed its ban.
In January, Hill's attorney, Todd Doss, won a stay of execution
and later a unanimous decision from the Supreme Court, sending the
case back to Florida on a narrow legal point. Hill had a right, the
justices said, to file a claim in federal court that the state's
method of lethal injection violated his civil rights against cruel
and unusual punishment. The argument was not whether Hill would be
executed. That had been settled.
Doss argued that if the first drug, a powerful anesthetic called
sodium pentothal, didn't do its job properly, then when the heart-stopping
third drug, potassium chloride, was administered, Hill could feel
intense burning in his veins. But because the second drug in the
series, pancuronium bromide, had paralyzed his muscles, there would
be no way to tell he was in pain, Doss argued. State lawyers have
countered that the initial anesthetic is a very high dose, is
effective and does not wear off before the other drugs are
administered.
The Florida Supreme Court has upheld the Department of
Correction's method of lethal injection, and the U.S. Supreme Court
has not overturned any cases on the issue, said Carolyn Snurkowski,
an assistant attorney general who handles death penalty appeals.
After the Supreme Court cleared the way for Hill to challenge
Florida's procedure, his claim was rejected by a federal judge in
Gainesville. The 11th Circuit Court of Appeal in Atlanta upheld the
lower court ruling.
With Hill's execution, there are 376 men and no women left on
Florida's Death Row. They are housed in two prisons, Florida State
Prison, west of Starke, and nearby Union Correctional Institution.
Florida executes convicted police killer Hill
By Michael Peltier -
Reuters News
Wed Sep 20, 2006
ALLAHASSEE, Florida (Reuters) - Florida prison officials on
Wednesday executed a 48-year-old death row inmate for the 1982
murder of a Pensacola police officer in a case that ignited debate
over the use of lethal injection.
Clarence Hill, 24 at the time of
the murder, was pronounced dead by prison officials at 6:12 p.m.
(2212 GMT), said Anthony De Luise, a spokesman for Florida Gov. Jeb
Bush. His death came hours after the U.S. Supreme Court rejected his
final appeal on a 5-4 vote.
Hill was put to death for the killing of Pensacola officer Stephen
Taylor, 26, who was gunned down during a botched robbery attempt at
a savings and loan office. Hill's accomplice, Cliff Jackson, entered
a plea agreement and is serving life in prison.
Hill was executed by lethal injection, a three-drug cocktail that
anesthetizes, paralyzes the lungs and then causes a massive heart
attack. In January, Hill was strapped to a gurney with tubes
inserted in his arms when he got a last-minute reprieve.
U.S. Supreme Court Justice Anthony Kennedy ordered a hearing into
Hill's claim the execution method was so painful it violated the
Constitution's ban on cruel and unusual punishment. In June, the
nation's highest court unanimously sent Hill's case back for further
review. Last week, a federal judge in Tallahassee and an appellate
court in Atlanta rejected the appeal, basing their rulings largely
on their view Hill filed it too late.
Since the initial ruling in January, states across the country
have been grappling with the lethal injection issue. In August,
South Dakota Gov. Mike Rounds postponed the state's first execution
in 59 years, ordering prison officials to review the state's lethal
injection protocol. On the same day, Oklahoma used lethal injection
to execute a death row inmate for a 1994 murder.
Last week, a federal judge in Missouri ruled that despite changes
to that state's execution protocol, officials there had yet to
convince the court the procedure was not cruel and unusual. A
similar case is pending in California. Federal courts in Arkansas,
Delaware and Ohio have also postponed executions until lethal
injection procedures are reviewed.
Hill requested no special last meal and prison officials said he
refused a meal that included tacos, a tossed salad and apple crisp.
Hill was the 61st inmate executed in Florida since the U.S.
Supreme Court lifted a national death penalty ban in 1976.
Clarence Hill executed
By Paul Flemming -
Tallahassee Democrat
September 20, 2006
STARKE -- Clarence Hill was declared dead at 6:12 p.m.,
fulfilling his death sentence 24 years after he shot and killed
Pensacola police officer Stephen Taylor. For Taylor's family members,
who witnessed Hill's execution, it was justice fulfilled, if delayed.
Death penalty opponents and Hill's lawyer decried the execution and
the judicial system that refused to hear evidence that the drugs
injected to kill him might cause excruciating pain.
Gary Mace, Taylor's cousin, was among the 29 people who witnessed
Hill's execution. He read from a statement following the execution.
"For almost 24 years our family has lived with the loss of Steve one
day at a time," Mace said. "Today's actions do not close the book
for us, they only turn the page that starts a new chapter. It is our
prayer that in the future, when someone commits such a heinous crime
as Clarence Hill and is found guilty and sentenced to death multiple
times, as Hill was by the judicial system, that their sentence will
be carried out in a timely manner, not 24 agonizing years later."
Suzanne Vickrey, Taylor's now-remarried widow, was also a witness.
Hill, 48, was revealed to witnesses already strapped to a
hospital bed, intravenous tubes visible and his head and hands
restrained by leather straps. Hill did not respond when warden
Randall Bryant asked him at 6 p.m. if he had any last words. He
stared, unblinking, at the ceiling in the death house.
At 6:02, Hill blinked several times before heavy lids drooped to
near closed and his chest rose visibly twice. He showed no further
signs of life. A blue-cloaked and hooded medical staffer came in at
6:11 to check Hill's vitals, followed by a similarly clothed doctor
to check Hill with a stethoscope. After two nods to Bryant from the
anonymous member of the execution team, the warden declared Hill
dead.
None in the witness chamber showed visible emotion as Hill was
killed. Afterward, Vickrey, who has since remarried, was unable to
deliver prepared remarks as tears welled in her eyes, her lips
trembled and she put on sunglasses.
Todd Doss, Hill's attorney, also witnessed the execution. Doss's
last-ditch appeal to the U.S. Supreme Court was denied Wednesday
afternoon. Back in January, Hill was minutes away from death when
the highest court granted a stay. Another death warrant against
Hill, in 1989, was blocked by an appeal. Doss sought a delay of the
execution to allow hearings about the state's lethal-injection
procedures.
He argued that the series of three drugs used by Florida could
leave condemned prisoners unable to show the pain caused by the
paralyzing and heart-stopping drugs that are used. "He was a man
who'd looked at this twice before. This is his third time going down
to the wire like this," Doss, who last spoke to Hill Tuesday night
said. "I don't think anybody's better off, that's for sure. We're
not any further along in this process. Florida needs to engage in a
meaningful and thorough review of the death penalty -- lethal
injection is just the tip of the iceberg."
Clarence Hill Executed
First Coast News
September 20, 2006
JACKSONVILLE, FL (AP) -- Clarence Hill, who was once minutes from
execution before the U.S. Supreme Court intervened, has been put to
death by lethal injection for the 1982 slaying of a Pensacola police
officer after a saving and loan robbery. Hill was pronounced dead at
6:12 p.m., never getting a hearing on the merits of his contention
that the chemicals used in Florida's lethal injection procedure
caused extreme pain and were unconstitutional.
Clarence Hill was strapped to a gurney with I-V tubes running
into his arms in late January when the U.S. Supreme Court stepped in
and stopped his execution. The high court later ruled that Hill
should be able to file a challenge to Florida's execution procedure
and sent the case back to lower courts to rule on Hill's claims. His
claims were all rejected.
Hill's attorney has filed an appeal and a request that his
execution be stayed until a hearing is held on whether inmates
suffer extreme pain when they are executed. Attorneys for the state
argue that Hill waited too long to challenge the execution process
and his execution should go forward. Hill was convicted of killing a
police officer during a robbery in Pensacola in 1982.
Hill executed for 1982 slaying of police officer
By Ron Word -
Bradenton Herald
Associated Press Wed, Sep. 20, 2006
STARKE, Fla. - A convicted killer who had argued that Florida's
use of lethal injections amounted to cruel and unusual punishment
was put to death by lethal injection Wednesday night after the U.S.
Supreme Court narrowly denied him another stay. Clarence Hill, 48,
was executed for the 1982 murder of a Pensacola police officer in a
savings and loan robbery.
Hill, of Mobile, Ala., was pronounced dead at 6:12 p.m., never
getting a hearing on the merits of his contention that the chemicals
used in Florida's lethal injection procedure caused extreme pain and
were unconstitutional. He stared straight at the ceiling and did not
reply when asked if he had a last statement. He was wearing a white
skullcap, and his head was strapped down, unlike some other
executions.
After the injection, he blinked his eyes a couple times,
his chest heaved and his mouth drooped. The physicians, wearing blue
hoods and dark goggles to protect their identities, checked his
vital signs at 6:11 p.m., and pronounced him dead a minute later.
Hill, who had shot Officer Stephen Taylor from behind, received
visits Tuesday from defense attorney D. Todd Doss, a death row
advocate and the inmate's wife, Serena Mangano, of Modino, Italy,
who married him in June in a no-contact wedding at Florida State
Prison in Starke. Mangano visited him again Wednesday. He did not
order a special final meal and refused to eat the prison meal of
tacos, beans and a salad Wednesday morning, said Robbie Cunningham,
a Department of Corrections spokesman.
In January, Hill was strapped to a gurney and his arms with
hooked up with IV tubes before the Supreme Court stepped in and
stopped his execution. In June, in a 9-0 vote, the high court ruled
that Hill could mount a challenge to the chemicals under a civil
rights motion.
However, a district court in Tallahassee and an
appeals court in Atlanta refused to hear those challenges, ruling
that Hill should have filed earlier and accused him of trying to
delay the process. An appeal was again filed with the Supreme Court,
but this time it voted 5-4 to deny another stay on Wednesday.
Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John
Paul Stevens voted to grant the stay, the court said in a two-sentence
order.
Hill had argued that the three chemicals used in Florida
executions and by many other states - sodium pentothal, pancuronium
bromide and potassium chloride - can cause excruciating pain. The
first drug is a painkiller. The second one paralyzes the inmate and
the third causes a fatal heart attack. The state contended Hill
waited too long to appeal, saying he should have raised his
objections when the state switched from the electric chair in 2000.
Doss claims he could not have raised the issue until Hill's death
warrant was first signed in November.
After the execution, Doss called for an examination of the
state's capital punishment system. "Not getting to the merits (of
Hill's challenge) is obviously disturbing to me," Doss said. "I
don't think anybody is better off, that's for sure." Hill was the
61st inmate to die in Florida since the state resumed the death
penalty in 1979. He was the first inmate to be executed this year.
Suzanne Vickrey, the widow of the slain police officer, witnessed
the execution, along with his brother and a cousin. "Justice was
finally served," Vickrey said. "Twenty-four years is extremely too
long for justice to be served."
On Oct. 19, 1982, Hill and a friend, Cliff Jackson, had driven
from Mobile to Pensacola in a stolen car to rob the Freedom Federal
Savings Bank. When an alarm went off, Hill ran out the back door and
Jackson fled out the front door. Taylor and his partner arrested
Jackson and were attempting to handcuff him when Hill approached
them from behind and began shooting. Taylor died in the shootout,
and partner Larry Bailly was wounded. Hill was shot five times and
was caught a short time later. Jackson was given a life sentence.
Hill was convicted of first-degree murder and, in May 1983,
sentenced to death. The Florida Supreme Court ordered a new
sentencing hearing in October 1985 and in April 1986, Hill was again
sentenced to death.
The U.S. Supreme Court also halted the execution of another
Florida inmate, Arthur Rutherford, who also sought to challenge the
lethal injection procedure. Rutherford, too, had been scheduled to
die in January. He was convicted for the 1985 drowning and
asphyxiation of 63-year-old Stella Salamon at her Milton home. His
execution has not been rescheduled.
For third time, Hill faces death
By Paul Flemming -
Pensacola News
September, 17, 2006
TALLAHASSEE -- Twenty-four years after the murder that brought
Clarence Hill a death sentence, he's again scheduled for execution
on Wednesday and his appeal is again winding its way through federal
courts. Gov. Jeb Bush set a new execution date for Hill last month.
Hill's remaining appeal, kicked back by the U.S. Supreme Court in
June, is now before the 11th Circuit U.S. Court of Appeals. He faces
death for the murder of Stephen Taylor, a Pensacola police officer
shot by Hill in the midst of a daytime bank robbery attempt in 1982.
It's the third time Hill has faced an execution date -- the first
in 1989; the second, earlier this year. Thus far, the result of
Hill's appeal in court has been much the same as it was back in
January when the 43-year-old condemned man was cinched down on a
gurney with needles in his arm ready to deliver the deadly cocktail
of drugs that would kill him. At the last moment, Supreme Court
Justice Anthony Kennedy granted a stay.
Last week, U.S. District Judge Stephan Mickle dismissed Hill's
request to delay his execution and refused to conduct hearings on
whether Florida's execution methods are unconstitutional. "Hill's
emotionally laden arguments raise no new evidence," Mickle wrote in
a Thursday order that denied a rehearing on his earlier rejection of
Hill's motion for a stay.
In June, the U.S. Supreme Court ruled in Hill's favor and said
lower courts should consider as a civil rights claim his appeal that
Florida's way of delivering lethal injections could be cruel and
unusual punishment. It was a procedural decision that nonetheless
gave Hill hope that he could get a full hearing that delivery of a
three-drug cocktail that anesthetizes, paralyzes and then stops the
heart could cause him unconstitutional suffering.
Death penalty opponents heralded the Supreme Court decision as a
chance to review Florida's lethal injection methods, as has taken
place in California and Missouri cases that are similar to Hill's.
But the federal district court continued last week to decide Hill's
appeal on legal grounds that haven't considered the merits of the
argument that lethal injection is cruel and unusual. "The judge at
the district court essentially didn't change anything (from January)
and simply refused to litigate the case," said Mark Elliott,
spokesman for Floridians for Alternatives to the Death Penalty.
Opponents also hoped the court's decision meant a moratorium on
executions for the 376 inmates on Florida's Death Row. But when Bush
renewed Hill's existing death warrant last month, that hope ended.
The courts rolled into action and, thus far, have gone the state's
way.
Elliott said a review of the state's methods are merited. "Whenever
elected officials say there's no problem, but don't look here, that
should raise red flags and the public should be looking there,"
Elliott said. "Our motto is 'In God We Trust,' not In Gov We Trust."
The state has argued that the Hill's argument does not offer any
new information from what's already been tried before in Florida and
that Hill has sought the review too late. "He's complaining about
the fact that you're going to execute me, without really considering
the complaint," said Carolyn Snurkowski, assistant deputy attorney
general for the state. She said the Supreme Court decision meant
only that Hill's appeal had to be considered by the courts as a
civil rights claim. "There's no guarantee you get a stay, no
guarantee of anything."
Hill's attorney, Todd Doss, said there is new material about the
drugs Florida uses to execute prisoners since the 2000 case that the
courts have said settled the issue. Futhermore, Doss said, testimony
offered in Missouri and California cases has revealed relevant
material that the anesthesia used in the executions can fail to
protect the condemned from excruciating pain. Mickle has "never held
a hearing to take any evidence, no discovery whatsoever," Doss said.
"Even absent a stay, we should be able to proceed (with hearings)."
Doss and Snurkowski said they expect a decision from the federal
appellate court on Monday. Doss said that however that goes he
expects the loser to appeal to the U.S. Supreme Court. But for now,
Hill remains scheduled to die at 6 p.m. Wednesday at Florida State
Prison outside Starke.
ProDeathPenalty.com
Clarence Hill and his accomplice, Cliff Jackson, robbed a Savings
and Loan Association in Pensacola, Florida, on October 19, 1982. In
Hill's attempt to escape and prevent the immediate apprehension of
Jackson, Hill stealthily approached the police officers attempting
to handcuff Jackson, drew his gun and shot both officers, killing
one and wounding the other.
Hill was indicted for the first-degree murder of Officer Stephen
Taylor, attempted first-degree murder of Officer Larry Bailly, three
counts of armed robbery and possession of a firearm during the
commission of a felony.
Hill's trial began on April 25, 1983 and concluded on April 29,
1983, with the jury finding Hill guilty of both first-degree murder
and felony murder as alleged in Count I. The sentencing phase began
on April 29 and as a result, the jury returned a 10-2 death
recommendation.
UPDATE: Despite his argument that Florida's use of lethal
injections amounted to cruel and unusual punishment Clarence Hill
was put to death by lethal injection Wednesday night after the U.S.
Supreme Court narrowly denied him another stay. Hill, 48, was
executed for the 1982 murder of Stephen Taylor, a Pensacola police
officer, during a savings and loan robbery. Hill did not reply when
he was asked if he had a final statement, and stared at the ceiling.
Hill was visited on Tuesday by his defense attorney and a death
row advocate and the inmate's wife, Serena Mangano, of Modino, Italy,
who married him in June in a no-contact wedding at Florida State
Prison in Starke. Mangano visited him again Wednesday. Jack Taylor,
the brother of the slain police officer, witnessed the execution.
Democracyinaction.org
Clarence Edward Hill, FL September 20, 2006
Do Not Execute Clarence Edward Hill!
Clarence Edward Hill, a black man, faces execution in Florida for
the murder of a police officer during a robbery in Pensacola,
Florida. Hill and his accomplice Cliff Jackson stole a car and a gun
and then attempted to rob a savings and loan association. When
officers arrived, Jackson ran out the front door and was apprehended,
while Hill ran out the back. Hill then came to the front of the
building to shoot the officers that were subduing Jackson.
Hill was 23 at the time and there is evidence to suggest that
Jackson masterminded the crime. Regardless of this evidence, Jackson
was able to plea bargain for a life sentence while Hill received a
death sentence. There is also evidence to suggest that Hill was
under the influence of cocaine at the time of the crime.
Furthermore, evidence and testimony show that Hill was known by
his neighbors and family to be a caring and nonviolent person and
that he had a trouble free-history throughout his years in school
and in the neighborhood where he lived.
In addition, Hill held a steady job from ninth grade until he
became involved with drugs at age 23. Hill used money from work to
help support his large family of 14 children. He also contributed
time to helping raise his younger siblings. Also, although Hill
remained in school until the 12th grade he never progressed beyond a
fifth-grade reading level.
Clearly Hill is not the worst of the worst and therefore the
death penalty is not appropriate for Clarence Edward Hill.
Please write to Gov. Jeb Bush on behalf of Clarence Hill!
Clarence Hill Blogspot
From the BLOG Sentencing, Law and Policy :
September 20, 2006
Will Florida execute Clarence Hill today?
Almost exactly nine months ago, at roughly 6pm on January 24,
2006, Clarence Hill was strapped to a gurney and IV lines were run
into his arms as Florida's execution team awaited the expected
denial of Hill's final appeal to the Supreme Court.
After about an hour in which Hill lay on the gurney anticipating
his execution, Justice Anthony Kennedy issued a stay to allow the
Supreme Court more time to consider whether Hill could attack
Florida's lethal injection protocol through a 1983 action.
Though Hill prevailed in the Supreme Court, as detailed in this
newspaper article, Florida is poised in less than twelve hours to
try again to kill Clarence Hill again. And the merits of his 1983
action have still never been considered. Capital Defense Weekly has
more on Hill's final(?) appeal to the Supreme Court, and Human
Rights Watch has this interesting open letter to Florida Governor
Jeb Bush urging him to postpone Hill's execution.
As I have documented via many blog posts and this recent article,
much has transpired in the death penalty world over the last nine
months. However, for Clarence Hill, it appears that the story will
have a particular Shakespearian quality: Hill's litigation tale
seems likely to end up as one "full of sound and fury; signifying
nothing." Speaking of "sound and fury; signifying nothing," this
newspaper article also spotlights Florida Governor Jeb Bush's
unsurprising reaction to the massive ABA report criticizing
Florida's death penalty (details here):
''I believe that the death penalty process here is protected,
correctly so, by an appeals process that is extensive,'' Bush said,
adding that if anything, it is unfair to crime victims and their
families. ''It can go on for more than 10 years. For a lot of people,
that is denial of justice,'' Bush said.
Clarence Edward Hill
FADP.org
BACKGROUND INFORMATION
Clarence Edward Hill is scheduled to be killed by the people of
Florida in revenge for his murder of Stephen Alan Taylor, a police
officer, during a robbery in Pensacola, Florida. Hill and his
accomplice Cliff Jackson stole a car and a gun and then attempted to
rob a savings and loan association. When officers arrived, Jackson
ran out the front door and was apprehended, while Hill ran out the
back. Hill then came to the front of the building to shoot the
officers that were subduing Jackson.
Hill was 23 at the time and there is evidence to suggest that
Jackson masterminded the crime. Regardless of this evidence, Jackson
was able to plea bargain for a life sentence while Hill received a
death sentence. There is also evidence to suggest that Hill was
under the influence of cocaine at the time of the crime. Evidence
and testimony also show that Hill was known by his neighbors and
family to be a caring and nonviolent person and that he had a
trouble free-history throughout his years in school and in the
neighborhood where he lived.
In addition, Hill held a steady job
from ninth grade until he became involved with drugs at age 23. Hill
used money from work to help support his large family of 14 children.
He also contributed time to helping raise his younger siblings. Also,
although Hill remained in school until the 12th grade he never
progressed beyond a fifth-grade reading level.
Clearly Hill is not the worst of the worst and therefore the
death penalty is not appropriate for Clarence Edward Hill.
LETTER WRITING SUGGESTIONS
Please write a hand written note to Governor Bush with a message
similar to the following suggested language: "I am writing to ask
you to commute the death sentence of Clarence Hill to Life Without
Parole. He is clearly not "the worst of the worst," and executing
him will solve nothing."
Feel free to add any further language, for example: Call for a
"Time-Out on Executions" in general until we can be assured that the
system is both fair and accurate. If you are Christian, and
especially if you are Catholic, challenge Governor Bush to adopt a
completely "Pro-Life" position by respecting ALL life, and reference
his positions against abortion and euthanasia. "We remember the
victim, Stephen Alan Taylor, but killing Clarence Hill will do
nothing to bring Officer Taylor back or heal the wounds still felt
by his family.
WRITE TO: Governor Jeb Bush
South Florida Sun-Sentinel
"Florida has executed 59 inmates since 1979."
(The Associated Press April 5 2005)
Following is a list of 59 inmates executed since Florida resumed
executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of
traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983,
for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant
assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding
the Oct. 23, 1975, contract killing of Tampa private detective
Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing
9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984,
for beating Fort Pierce millionaire rancher Edgar Brown to death
with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old
Gainesville convenience-store clerk Judith Ann Carter, who was shot
five times.
7. David L. Washington, 34, executed July 13, 1984, for the
murders of three Dade County residents _ Daniel Pridgen, Katrina
Birk and University of Miami student Frank Meli _ during a 10-day
span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the
1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March
23, 1974, murder of 81-year-old Orlando civil rights leader Zellie
L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct.
19, 1976, stabbing death of Jacksonville furniture store owner James
N. Stone. He was a co-defendant with Ronald John Michael Straight,
executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for
gunning down Jacksonville police Officer Michael Stewart on April
27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing,
sexually abusing and mutilating Jonathan Mark Kushner, the
11-year-old son of a University of South Florida professor, Oct. 28,
1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six
people July 27, 1977, in the robbery of a ``drug house'' in the
Miami suburb of Carol City. He was a co-defendant with Beauford
White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for
shooting University of Florida associate professor Charles Anderson,
raping the man's wife as he lay dying, then shooting the family dog
on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for
the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and
56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for
the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone.
He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in
the July 27, 1977, shooting of eight people, six fatally, during the
robbery of a small-time drug dealer's home in Carol City, a Miami
suburb. He was a co-defendant with Marvin Francois, executed May 29,
1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the
September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for
the March 1976 murder of hitchhiker Lavonne Patricia Sailer in
Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the
rape and murder of 12-year-old Kimberly Leach of Lake City at the
end of a cross-country killing spree. Leach was kidnapped Feb. 9,
1978, and her body was found three months later some 32 miles west
of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for
strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in
Ocala.
< 22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the
February 1976 shooting deaths of Florida Highway Patrolman Phillip
Black and his friend Donald Irwin, a Canadian constable from
Kitchener, Ontario. Flames shot from Tafero's head during the
execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept.
27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the
April 24, 1984, shooting death of Laureen Jean Edwards during a
robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the
April 27, 1977, shooting murder of scrap metal dealer David Drake in
Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June
27, 1981, sexual assault, shooting and slashing death of Carlene
Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the
June 17, 1975, murder of drug informant Titus R. Walters in Key
West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977
murder of a 19-year-old George Washington University student, who
was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the
April 11, 1981, slayings of Florida Highway Patrol Trooper Howard
McDermon and Floyd Cone after escaping from Union Correctional
Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the
1982 shootings of three hitchhikers in Hernando County. He confessed
to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979
slaying of James Hadden, a service station attendant in small north
Florida town of Lee in Madison County. Veterans groups claimed
Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the
1983 murders of his girlfriend, Grace Reed, her daughter, Candice,
and his 6-month-old son Joshua in Clay County. Durocher also
convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating,
raping and strangling of 77-year-old Margaret Haizlip of Perrine in
Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade
County murders of four men, whose bodies were set afire in car trunk
on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a
customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the
molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982
slaying of Francis Slater, an heir to the Envinrude outboard motor
fortune. Slater was working in a Stuart convenience store when she
was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal
shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982
slaying of his neighbor Dorothy James, 52, in Orlando. Medina was
the first Cuban who came to Florida in the Mariel boat lift to be
executed in Florida. During his execution, flames burst from behind
the mask over his face, delaying Florida executions for almost a
year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the
slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov.
14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May
23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning
death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of
Ocala convenience store clerk Mehrle Reeder in February 1985, the
first of five killings in three states laid to Remeta.
44. Allen Lee "Tiny'' Davis, 54, executed in a new electric
chair on July 8, 1999, for the May 11, 1982, slayings of
Jacksonville resident Nancy Weiler and her daughters, Kristina and
Katherine. Bleeding from Davis' nose prompted continued examination
of effectiveness of electrocution and the switch to lethal
injection.
45. Terry M. Sims, 58, became the first Florida inmate to be
executed by injection on Feb. 23, 2000. Sims died for the 1977
slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000,
for the 1983 slaying of George Wilson, 60, a night watchman abducted
from his job at a seafood wholesaler in Pascagoula, Miss., and
killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000,
for the 1976 murder of another prison inmate, Alfred Sturgis. Demps
spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21,
2000, for a 1984 shooting at the Orange County courthouse in
Orlando. Provenzano was sentenced to death for the murder of William
``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug.
25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and
dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000,
for the 1987 choking and stabbing death of 56-year-old Austin Carter
Scott, who was lured to Castro's efficiency apartment in Ocala by
the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001,
for the kidnapping murder of a Sharilyn Ritchie, a teacher in
Manatee County. She was kidnapped outside a Bradenton shopping mall
and taken to an orange grove in Pasco County, where she was robbed
and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on
Oct. 2, 2002, after dropping appeals from his conviction in the
December 1986 rape-slaying of 11-year-old Katixa "Kathy'' Ecenarro
in Hialeah. Sanchez-Velasco also killed two fellow inmates while on
death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9,
2002, after dropping appeals for deaths of six men along central
Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9,
2002, for the 1979 murder of Catherine Alexander, who was robbed,
held captive for 83 hours, stabbed 16 times and then fatally crushed
by a car.
55. Amos King, 48, executed by lethal inection for the March 18,
1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home.
King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed
by lethal injection for the April 11, 1989 slaying of four members
of a Tampa family. Slawson was convicted in the shooting deaths of
Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two
young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy
Wood's body with a knife and pulled out her fetus, which had two
gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29,
1994, shooting deaths of Dr. John Bayard Britton and his bodyguard,
retired Air Force Lt. Col. James Herman Barrett, and the wounding of
Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on
Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George
was traveling from Plant City to Virginia in August 1985 when her
car broke down on Interstate 95, south of St. Augustine. He abducted
her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by
injection on May 26, 2004, for the calculated slaying in May 2000 of
Raymond Wigley, who was serving a life term for murder. Blackwelder,
who was serving a life sentence for a series of sex convictions,
pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was execited by injection
April 5, 2005, for the October, 1999, strangulation of 28-year-old
convenience store employee Carol Skjerva, who had driven him to his
Osceola County home and had sex with him. He had dropped all appeals.
Hill v. State,
477 So.2d 553 (Fla. 1985) (Direct Appeal)
Defendant was convicted of first-degree murder,
attempted first-degree murder, three counts of armed robbery, and
possession of firearm during commission of felony, in Circuit Court,
Escambia County, Edward T. Barfield, J., and received death penalty.
Defendant appealed conviction for first-degree murder and imposition
of death penalty. The Supreme Court held that: (1) denial of
defendant's challenge for cause to prospective juror was reversible
error, and (2) improper prosecutorial comment during trial was
harmless error. Affirmed in part, vacated in part, and remanded.
Adkins, J., concurred in part and dissented in part.
PER CURIAM.
Clarence Edward Hill appeals his conviction for first-degree murder
and the imposition of the death penalty for the killing of a police
officer during a bank robbery. Hill was also convicted of attempted
first-degree murder, three counts of armed robbery, and the
possession of a firearm during the commission of a felony. He
received consecutive life sentences for the attempted murder and
armed robbery convictions. No sentence was imposed for the
possession of a firearm conviction. We have jurisdiction. Art. V, §
3(b)(1), Fla. Const.
We affirm all of appellant's convictions and
sentences with the exception of the death sentence. We find that the
trial court erred during the jury selection process and that,
consequently, we must vacate the death sentence and remand for a new
sentencing proceeding before a new jury. We also note that improper
prosecutorial comments were made during the course of this trial,
but find that, under the circumstances of this cause, the error was
harmless.
The facts of this cause are as follows. On
October 19, 1982, appellant stole a pistol and an automobile in
Mobile, Alabama. Later that day, appellant and his accomplice, Cliff
Jackson, drove to Pensacola and robbed a savings and loan
association at gunpoint. When the police arrived during the robbery,
appellant fled out the back of the savings and loan building.
Jackson exited through the front door, where he was apprehended
immediately.
Appellant approached two police officers from
behind as they attempted to handcuff Jackson. Testimony established
that appellant drew his pistol and shot the officers, killing one
and wounding the other. A gun battle ensued, during which appellant
received five bullet wounds.
The jury returned guilty verdicts on all counts
and, by a vote of 10 to 2, recommended that the death penalty be
imposed. The trial court sentenced appellant to death for the murder
conviction after finding five aggravating circumstances.
Appellant challenges his conviction and sentence
on eleven grounds. Appellant asserts that the trial court erred: (1)
in excusing for cause two jurors based on their views toward the
death penalty; (2) in refusing to excuse for cause two jurors
because of their preconceived opinions regarding this case; (3) in
denying his motion for a change of venue; (4) in denying his motion
for individual and sequestered voir dire; (5) in denying his request
for additional peremptory challenges; (6) in denying his motions for
mistrial based on alleged prosecutorial misconduct; (7) by allowing
the state to introduce testimony concerning irrelevant collateral
crimes; (8) by allowing the state to introduce into evidence
photographs of the victim's body taken during the autopsy; (9) in
refusing to give the jury specific instructions as to nonstatutory
mitigating circumstances it could consider; (10) in failing to
specify in its sentencing order which mitigating circumstances it
considered; and (11) in finding that the murder was committed in a
cold, calculated, and premeditated manner.
Appellant also claims that the cumulative nature
of the trial court's alleged errors deprived him of a fair trial.
After a thorough review of the record, we find that none of the
asserted errors affected appellant's conviction. With respect to the
penalty phase, we conclude that we need only address the failure of
the trial court to excuse for cause an allegedly biased juror. Our
disposition of that issue makes it unnecessary to consider other
penalty phase errors asserted by appellant.
Appellant contends that a prospective juror,
Johnson, exhibited a strong bias in favor of imposing the death
penalty on appellant based on the opinion he had formed as a result
of the media coverage of this case, and that this opinion mandated
Johnson's excusal for cause. Appellant expressly recognizes that his
argument on this issue is directed only to the penalty phase of the
trial.
The voir dire examination disclosed that Johnson
was about two blocks from the scene of the crime at the time it
occurred; that he noticed the commotion, turned on the radio and
heard a news report concerning the event; that he did not go to the
scene; that he discussed the case at length with his wife, who is a
former bank teller, and with a fellow employee whose husband is a
police officer; that he followed media reports concerning this case,
although he did not recall specific facts; that based on what he
read and heard, he had formed an opinion as to the guilt or
innocence of those charged with the crimes; and that he believed he
could set the opinion aside and listen to the case presented in
court.
When asked whether he would let his prior opinion enter into
his decision, he replied, “That's a hard decision to make right now.
I think I can say I can. I don't know for sure.” The voir dire
transcript also reveals the following colloquy:
PROSECUTOR: Have you ever thought about what type
of case would deserve a death sentence?
JOHNSON: Yes, sir, premeditated murder, and felony murder. When
asked by defense counsel how he was going to keep his preconceived
opinion from affecting his deliberations, Mr. Johnson answered as
follows: Well, basically, like I said, I have not associated that
opinion with Mr. Hill. It was just a blank feeling that ··· someone
that shoots someone else should be punished. ···· I feel anyone that
shoots anyone else in the type of incident as much as I know about
it now, the death penalty should be imposed upon them. That's
basically what I felt at the time. (Emphasis supplied.) Later in the
inquiry, with regard to the imposition of the death penalty, defense
counsel asked: Do you feel like from under the facts that you know
now, do you feel like this might be an appropriate case?
JOHNSON: I don't feel I have really been given any more facts than I
have before coming into the courtroom.
DEFENSE COUNSEL: You
formed an opinion before though?
JOHNSON: Yes, sir.
DEFENSE COUNSEL: Have you discarded that opinion?
JOHNSON: Not necessarily.
DEFENSE COUNSEL: Do you feel that in all cases of premeditated
murder that the death penalty should be applied?
JOHNSON: It's a hard question to answer.
DEFENSE COUNSEL: Yes, sir, sure is.
JOHNSON: I'm not saying in all cases, dependent upon the evidence.
DEFENSE COUNSEL: Are you still inclined towards the death penalty in
this case if in fact there is a conviction?
JOHNSON: Yes, sir.
DEFENSE COUNSEL: That's the presumption that you came into this
court with?
JOHNSON: Yes, sir. (Emphasis supplied.)
Trial counsel for appellant challenged Johnson
for cause on the ground that Johnson had formed an opinion as to the
penalty to be imposed in this case. When the trial court denied the
challenge, appellant expended a peremptory challenge on Johnson.
Appellant subsequently exhausted his peremptory challenges. The
trial judge denied appellant's request for additional peremptory
challenges and his challenge for cause to all remaining prospective
jurors.
This Court recently stated: “The test for
determining juror competency is whether the juror can lay aside any
bias or prejudice and render his verdict solely upon the evidence
presented and the instructions on the law given to him by the court.”
Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, 469 U.S.
873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).
In applying this test, the trial courts must
utilize the following rule, set forth in Singer v. State, 109 So.2d
7 (Fla.1959): [I]f there is a basis for any reasonable doubt as to
any juror's possessing that state of mind which will enable him to
render an impartial verdict based solely on the evidence submitted
and the law announced at the trial[,] he should be excused on motion
of a party, or by [the] court on its own motion. Id. at 24.
In Singer, we reaffirmed the proposition that the
“statement of a juror that he can readily render a verdict according
to the evidence, notwithstanding an opinion entertained, will not
alone render him competent if it otherwise appears that his formed
opinion is of such a fixed and settled nature as not readily to
yield to the evidence.” Id. at 22 (quoting Olive v. State, 34 Fla.
203, 206, 15 So. 925, 926 (1894)). In other early cases this Court
stated that “jurors should if possible be not only impartial, but
beyond even the suspicion of partiality,” O'Connor v. State, 9 Fla.
215, 222, (1860), and that “[i]f there is a doubt as to the juror's
sense of fairness or his mental integrity, he should be excused.”
Johnson v. Reynolds, 97 Fla. 591, 598, 121 So. 793, 796 (1929).
Singer involved a defendant's challenge for cause
to a prospective juror whose statements during voir dire revealed he
had preconceived ideas regarding the guilt of the defendant, who was
charged with the murder of the county prosecuting attorney's wife.
After concluding that there was a reasonable
doubt as to whether the prospective juror would be able to render a
fair and impartial verdict on the evidence, this Court determined
that he should have been excused for cause. We also recognized in
Singer that the question of a challenged juror's competency is a
mixed question of law and fact and that the decision of the trial
court should not be disturbed unless the error is manifest.
We are unable to distinguish the circumstances
under which error was found in Singer from the circumstances in this
record. It is exceedingly important for the trial court to ensure
that a prospective juror who may be required to make a
recommendation concerning the imposition of the death penalty does
not possess a preconceived opinion or presumption concerning the
appropriate punishment for the defendant in the particular case. A
juror is not impartial when one side must overcome a preconceived
opinion in order to prevail.
When any reasonable doubt exists as to whether a
juror possesses the state of mind necessary to render an impartial
recommendation as to punishment, the juror must be excused for
cause. See Thomas v. State, 403 So.2d 371 (Fla.1981). This record
clearly reflects that juror Johnson did not possess the requisite
impartial state of mind. We find the trial judge in this case failed
to apply the rules of law set forth in Singer. Consequently, his
discretionary authority is not in issue in this proceeding.
The next question we must resolve is whether it
was harmless error for the trial court to refuse to dismiss Johnson
for cause. We find that such error cannot be harmless because it
abridged appellant's right to peremptory challenges by reducing the
number of those challenges available him.
Florida and most other jurisdictions adhere to
the general rule that it is reversible error for a court to force a
party to use peremptory challenges on persons who should have been
excused for cause, provided the party subsequently exhausts all of
his or her peremptory challenges and an additional challenge is
sought and denied. See Singer; Leon v. State, 396 So.2d 203 (Fla. 3d
DCA 1981). See also Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230
(1977); Jones v. Cloud, 119 Ga.App. 697, 168 S.E.2d 598 (1969);
State v. Sugar, 408 So.2d 1329 (La.1982); State v. Ternes, 259 N.W.2d
296 (N.D.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1524, 55 L.Ed.2d
540 (1978); Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978);
Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123 (1980). We
conclude that the denial of appellant's challenge for cause directed
to Johnson was reversible error requiring a new sentencing hearing
before a new jury.
Appellant has also alleged several instances of
improper prosecutorial comment during the trial. We find the
prosecutor acted improperly by asking the jury to consider him a
“thirteenth juror” when it retired to deliberate its verdict in the
guilt phase, but find the error harmless under the circumstances of
this cause. See United States v. Hasting, 461 U.S. 499, 103 S.Ct.
1974, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967).
Had the case involved substantial factual
disputes, this “inexcusable prosecutorial overkill” would have
resulted in harmful error requiring reversal of each of appellant's
convictions. Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983),
cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984).
We again caution prosecutors to note that repeated failure to curb
this misconduct adds fuel to the flame of those who advocate the
adoption of a per se rule of reversal for such misconduct.
We find that none of the alleged
trial court errors asserted by appellant affected his convictions.
Accordingly, we affirm appellant's convictions and sentences with
the exception of the death sentence. For the reasons expressed, we
vacate the sentence of death and remand for a new sentencing
proceeding before a new jury. It is so ordered.
Hill v. State,
515 So.2d 176 (Fla. 1987) (Direct Appeal)
Defendant was convicted in the Circuit Court,
Escambia County, William S. Rowley, J., of murder and sentenced to
death and defendant appealed. The Supreme Court, 477 So.2d 553,
affirmed conviction but vacated sentence and remanded for new
sentencing proceeding before new jury. In resentencing proceeding
death penalty was again imposed and appeal was taken.
The Supreme Court, held that: (1) trial court did
not abuse its discretion in excluding certain testimony of
defendant's parents which focused more on parents' character than
that of defendant; (2) evidence did not warrant instruction to jury
on statutory mitigating circumstances that defendant was acting
under extreme duress or under substantial domination of another
person when he shot arresting police officer; and (3) aggravating
circumstances proven beyond a reasonable doubt were sufficient to
support death penalty. Affirmed.
PER CURIAM.
This is a direct appeal from a resentencing in a capital case. We
previously affirmed the conviction, but reversed the imposition of
the death sentence, requiring a new sentencing proceeding before a
new jury. Hill v. State, 477 So.2d 553 (Fla.1985). In this
resentencing proceeding, the jury recommended, and the trial judge
imposed, the death sentence. We have jurisdiction, article V,
section 3(b)(1), Florida Constitution, and affirm the sentence.
The facts relevant to this sentencing proceeding
reflect that on October 19, 1982, appellant and his accomplice,
Cliff Jackson, stole a pistol and an automobile in Mobile, Alabama.
Later that day, appellant and Jackson drove to Pensacola and robbed
a savings and loan association at gunpoint.
The police arrived during the robbery and, upon
their arrival, appellant fled the savings and loan building through
a back door. Jackson exited through the front door, where he was
apprehended by police. Appellant approached two police officers from
behind as they attempted to handcuff Jackson, and shot the officers,
killing one and wounding the other. By an eleven-to-one vote, the
resentencing jury recommended the death sentence.
The judge, in reimposing the death sentence,
found the following statutory aggravating circumstances: (1) the
defendant had previously been convicted of another capital offense
or violent felony; (2) the defendant knowingly created a great risk
of harm or death to many persons; (3) the murder was committed while
the defendant was engaged in the commission of a robbery; (4) the
murder was committed for the purpose of avoiding or preventing a
lawful arrest or escaping from custody; and (5) the murder was cold,
calculated, and premeditated. In mitigation, the judge found the
appellant's age as a possible factor. Appellant's age at the time of
the offense was twenty-three years.
In this appeal, appellant contends the trial
court erred by: (1) allowing the state to introduce irrelevant
collateral crime evidence; (2) excluding certain testimony
concerning appellant's family background and a defense witness's
health problems; (3) refusing to instruct the jury on the statutory
mitigating circumstance that defendant acted under extreme duress or
under the substantial domination of another person; (4) disclosing
to the new penalty jury the original jury's premeditation finding;
(5) finding the homicide cold, calculated, and premeditated, and (6)
permitting prosecutorial misconduct which denied appellant a fair
trial.
With regard to the first contention, Hill asserts
that evidence of the theft of the car and pistol in Mobile, Alabama,
was irrelevant collateral crime evidence to the robbery/murder at
the savings and loan association in Pensacola. We note that both the
car and pistol were utilized in this offense and their acquisition
was part of a series of events culminating in the crimes for which
appellant has been convicted. We rejected this claim in appellant's
prior appeal and we refuse to address it in these proceedings.
In his second point, Hill claims the trial judge
erred by excluding certain allegedly mitigating testimony concerning
his background and character. The record reflects that five persons,
including Hill's mother and father, testified as character witnesses
for the defense. The judge refused to permit appellant's mother to
testify that she cared for appellant's cousins, as well as her own
children. Similarly, the judge declined to allow defense counsel to
question appellant's father regarding his own ill health and past
job responsibilities.
In our view, the excluded evidence focused
substantially more on the witnesses's character than on appellant's.
There has been no showing that the trial judge abused his discretion
in excluding the testimony and we find no violation of the United
States Supreme Court's recent decision in Hitchcock v. Dugger, 481
U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), or Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), or
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
The third claim concerns the trial judge's
refusal to instruct the jury on the statutory mitigating
circumstance that Hill was acting under extreme duress or under the
substantial domination of another person when he shot the arresting
police officer. In support of the claim, Hill argues that his
codefendant, Jackson, suggested the bank robbery, purchased the
sunglasses for disguise, and directed actions during the crime.
According to Hill, Jackson was the leader in the
bungled robbery. We disagree. The unrefuted facts in this record
establish that, when the twenty-three-year-old Hill and the eighteen-year-old
Jackson entered the bank, Hill was armed and Jackson was not. Hill
did most of the talking, demanded money, and threatened that he
would “blow some brains out.”
Hill also physically abused a bank teller by
kicking him and pulling him by the hair while he lay on the floor.
Finally, Hill chose to help Jackson rather than utilize his
opportunity to escape, and later testified that neither he nor
Jackson was a leader, claiming, “We did it together.” Clearly, under
these circumstances, we find the “substantial domination” mitigating
factor does not apply.
We summarily reject Hill's fourth claim that the
trial judge impermissibly disclosed to the new penalty jury the
original jury's finding that the homicide was premeditated. We
previously affirmed appellant's premeditated first-degree murder
conviction against the various challenges presented in that
proceeding, and its introduction during this resentencing phase was
essential for the jury to carry out its responsibility.
As to Hill's fifth claim, we must again, as we
did in his first appeal, address the claim of prosecutorial
misconduct in the final argument to the jury. Specifically, the
prosecutor, during closing argument, stated to the jury: I want to
end with this, if I can have one minute to tell you this. The more
things change, the more they stay the same. And in America things
haven't changed. Processes have changed a lot, but things are still
the same.
One hundred and fifty years ago if the defendant
left a town and stole a horse to come over to Pensacola, some
desperado robbing a woman of her horse and he rode over here with a
companion, and they robbed a bank in the main street of the town,
and they were seen by hundreds of people, not hundreds of people,
but many people in the main street of town, and the deputy sheriff
came up to arrest the defendant's buddy, and the defendant shot the
deputy in the back, they would have strung him up from the nearest
tree that day.
Now, the process has changed. He now has a jury
trial. It's now taking years to do it, but things still remain the
same. The crime calls for the sternest punishment for killing the
deputy. He must hang from a tree. We're more merciful now. We'll
shock him until he's dead. But that is the sentence that is
appropriate in this case under the law. Thank you.
We conclude, given the total circumstances of
this case, that these comments did not deprive the appellant of a
fair sentencing hearing, and that they constitute harmless error.
The comments were, in our view, ill-advised, and, in another context
and factual situation, could result in harmful error. The trial
courts of this state must accept more responsibility for controlling
prosecutorial comments. The purpose of closing argument is to help
the jury understand the issues by applying the evidence to the law
applicable to the case.
The statements made by the prosecutor in this
case are clearly unrelated to that purpose. We caution that failure
to eliminate unjustified prosecutorial comments wastes valuable
resources. Prosecutors may be walking a dangerous line that could
result in a defendant's release from custody should the
prosecutorial misconduct be deemed intentional, resulting in the
application of the double jeopardy clause.
In his fifth point, Hill challenges the trial
court's finding that the murder was cold, calculated, and
premeditated, arguing that the evidence does not demonstrate a
“heightened degree of premeditation, calculation or planning.”
The evidence indicates that appellant's actions
were committed while attempting to escape from a hopelessly bungled
robbery. We find an absence of any evidence that appellant carefully
planned or prearranged to kill a person or persons during the course
of this robbery. While there is sufficient evidence to support
simple premeditation, we conclude as we did in Rogers v. State, 511
So.2d 526 (Fla.1987), that there is insufficient evidence to support
the heightened premeditation necessary to apply this aggravating
circumstance.
Appellant does not take issue with the finding
that four of the aggravating circumstances were proven beyond a
reasonable doubt. Given these four remaining aggravating
circumstances, and the one mitigating circumstance, we find the
erroneous consideration of the aggravating circumstance that the
murder was committed in a cold, calculated, and premeditated manner
is not such a change under the circumstances of this sentencing
proceeding that its elimination could possibly compromise the
weighing process of either the jury or the judge. See Bassett v.
State, 449 So.2d 803 (Fla.1984); Brown v. State, 381 So.2d 690 (Fla.1980),
cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981);
Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S.
919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Elledge v. State, 346
So.2d 998 (Fla.1977). For the reasons expressed, we affirm the death
sentence. It is so ordered.
Hill v. Dugger,
556 So.2d 1385 (Fla. 1990) (Postconviction)
Defendant was convicted of murder and sentenced
to death before the Circuit Court, Escambia County, Edward T.
Barfield, J. He appealed. The Supreme Court, 477 So.2d 553, affirmed
conviction but vacated sentence and remanded for new sentencing
proceeding before new jury. Death penalty was again imposed after
resentencing proceeding before the Circuit Court, William S. Rowley,
J., and appeal was taken. The Supreme Court, 515 So.2d 176, affirmed.
Defendant sought postconviction and habeas corpus relief. The
Circuit Court denied relief, and defendant appealed.
The Supreme Court held that: (1) additional
evidence of defendant's substance abuse, which might have been
helpful to mental health professionals testifying at trial, did not
rise to level of objectively established head injury and was merely
cumulative; (2) trial counsel was not ineffective; and (3) appellate
counsel was not ineffective for failing to raise on appeal alleged
improper peremptory excusal by state of prospective black jurors
under law at time of appeal. Denial of postconviction relief
affirmed; request for habeas corpus denied. Kogan, J., filed an
opinion concurring in part and dissenting in part.
PER CURIAM.
Clarence Edward Hill appeals the trial court's
denial of his motion for postconviction relief filed pursuant to
rule 3.850, Florida Rules of Criminal Procedure, petitions this
Court for a writ of habeas corpus, and seeks a stay of his scheduled
execution. We have jurisdiction. Art. V, § 3(b)(1) & (9), Fla.
Const. We deny relief and vacate the temporary stay, which we
previously entered, effective January 29, 1990, at 7:00 a.m.
This is the third time this matter has been
before this Court. On October 19, 1982, Clarence Hill and his
accomplice, Cliff Jackson, stole a pistol and an automobile in
Mobile, Alabama, which they later used to rob a savings and loan
association in Pensacola. During the robbery, the police arrived,
and Hill and Jackson fled the savings and loan building from
different exits.
The police immediately apprehended
Jackson, who had exited through the front door. Hill, who had fled
out the back door, approached two officers from behind as they
attempted to handcuff Jackson. Hill shot the officers, killing one
and wounding the other. Hill was convicted of first-degree murder,
attempted first-degree murder, three counts of armed robbery, and
possession of a firearm during the commission of a felony.
The trial court sentenced Hill to death for the
first-degree murder conviction and to consecutive life sentences for
the attempted murder and robbery convictions. On appeal, we affirmed
all of Hill's convictions and sentences with the exception of the
death sentence. We remanded the cause for a new sentencing hearing
before a new jury because of error in the jury selection process.
Hill v. State, 477 So.2d 553 (Fla.1985).
In the resentencing proceeding, a second jury
recommended the death sentence by an eleven-to-one vote. The trial
court reimposed the death sentence, finding five aggravating
circumstances and one mitigating circumstance.
We affirmed the resentence, finding that four of
the five aggravating circumstances were proven beyond a reasonable
doubt and concluding that consideration of the erroneous aggravating
circumstance, that the murder was committed in a cold, calculated,
and premeditated manner, could not possibly have compromised the
weighing process of either the jury or the judge. Hill v. State, 515
So.2d 176 (Fla.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99
L.Ed.2d 512 (1988).
Hill timely filed a motion for rule 3.850 relief
on the following grounds:
(1) the prosecutor peremptorily excused black
prospective jurors solely based upon their race, in violation of the
sixth, eighth, and fourteenth amendments to the United States
Constitution and article one, section 16, of the Florida
Constitution, and appellate counsel was ineffective in not arguing
this issue on direct appeal;
(2) the trial court erred when it responded to
questions from the jury and refused to disclose to Hill and his
counsel the questions asked, in violation of Hill's fifth, sixth,
eighth, and fourteenth amendment rights;
(3) Hill's capital trial and sentencing
proceedings were rendered fundamentally unfair and unreliable, and
violated the fifth, sixth, eighth, and fourteenth amendments, due to
the prosecution's deliberate and knowing presentation and use of
false evidence and arguments and its intentional deception of the
jury, the court, and defense counsel;
(4) Hill was denied the effective assistance of
counsel at the guilt-innocence phase of his trial, in violation of
the sixth, eighth, and fourteenth amendments;
(5) Hill was denied the effective assistance of
counsel at the sentencing phase of his trial, in violation of the
sixth, eighth, and fourteenth amendments;
(6) Hill's sixth, eighth, and fourteenth
amendment rights were violated because counsel unreasonably failed
to present critical mitigating evidence and failed to adequately
develop and employ expert mental health assistance, and because the
experts retained at the time of trial failed to conduct
professionally adequate mental health evaluations;
(7) the cold, calculated, and premeditated
aggravating circumstance was applied to Hill's case, in violation of
the eighth and fourteenth amendments;
(8) this Court's failure to remand for
resentencing after striking an aggravating circumstance on direct
appeal denied Hill the protections afforded under Florida's capital
sentencing statute, in violation of due process, equal protection,
and the eighth and fourteenth amendments;
(9) Hill was denied his eighth and fourteenth
amendment rights because the jury was not properly instructed
concerning the improper doubling of aggravating factors;
(10) Hill's death sentence was imposed in
violation of the eighth and fourteenth amendments because his jury
was prevented from giving appropriate consideration to, and his
trial judge refused to consider, all evidence proffered in
mitigation of punishment, contrary to Eddings v. Oklahoma, 455 U.S.
104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Mills v. Maryland, 486 U.S.
367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); and Hitchcock v. Dugger,
481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987);
(11) during the course of Hill's trial the court
improperly stated that sympathy and mercy toward Hill were improper
considerations, in violation of the eighth and fourteenth amendments;
(12) Hill's sentence of death was based upon an
unconstitutionally obtained prior conviction and therefore upon
misinformation of constitutional magnitude, in violation of the
eighth and fourteenth amendments;
(13) Hill's jury was improperly instructed,
resulting in fundamentally unfair convictions and sentences, in
violation of the fifth, eighth, and fourteenth amendments;
(14) Hill's sentence of death violates the fifth,
sixth, eighth, and fourteenth amendments because the penalty phase
jury instructions shifted the burden to Hill to prove that death was
inappropriate and because the sentencing judge himself employed this
improper standard in sentencing Hill to death; and
(15) the application of rule 3.851 to Hill's case
will violate, and the present warrant has violated, his rights to
due process and equal protection of the law and denied him his right
of reasonable access to the courts.
The trial court denied relief on claims (1), (2),
(3), (7), (8), (9), (10), (11), (12), (13), and (14) on grounds that
they were procedurally barred and could have been or should have
been raised on direct appeal. With regard to claims (4), (5), and
(6), Hill contended below that his trial counsel failed to
investigate and present evidence of Hill's mental condition and drug
intoxication, causing an ineffective presentation by his mental
health expert, which resulted in his inability to present three
substantial mitigating factors, specifically: (a) that Hill was
under extreme mental duress at the time of the offense; (b) that he
lacked the substantial capacity to conform his conduct to the
requirements of law at the time of the offense; and (c) that at the
time of the offense he was under the substantial domination of his
codefendant, Clifford Jackson.
First, to support these allegations, in his rule
3.850 motion Hill proffered affidavits from additional family
members and acquaintances, giving information concerning his family
background and drug use. We note that at the second sentencing four
family members testified on Hill's behalf.
Second, Hill proffered reports from two new
mental health professionals who stated that they would have
testified that Hill's conduct in this incident was the result of
cocaine ingestion, his below average intelligence, and Jackson's
domination.
Third, Hill asserts that his expert witness at
his sentencing proceeding would now testify that he did not have
sufficient information concerning Hill's history of substance abuse
and intoxication at the time of the offense and that, given Hill's
borderline intelligence and those two factors, he would now testify
that Hill suffered from extreme mental disturbance at the time of
the offense and that his poor mental ability impaired his judgment
sufficiently to impair his capacity to appreciate the criminality of
his conduct and to conform his conduct to the requirements of law.
Finally, Hill's former trial counsel submitted an
affidavit, appended to Hill's motion for rehearing before the trial
court, setting forth matters that he failed to do, particularly,
failing to adequately investigate Hill's background and family
history and failing to obtain an independent expert on blood testing.
At the hearing on the rule 3.850 motion, the
trial judge found that defense counsel's “record of conduct and
performance did not fail or fall below any adequate, effective
representation of his client which operated to his client's
detriment,” and he denied the request for an evidentiary hearing on
the three ineffective-assistance-of-counsel claims. In his written
order, the judge also summarily denied relief on claim (15), citing
our decision in Cave v. State, 529 So.2d 293 (Fla.1988). The trial
judge also denied, without comment, Hill's motion for rehearing that
was supplemented by trial counsel's affidavit.
Counsel for Hill, in his arguments concerning
Hill's mental state, relies largely on State v. Sireci, 502 So.2d
1221 (Fla.1987), and State v. Sireci, 536 So.2d 231 (Fla.1988). In
those decisions, we first affirmed the trial court's determination
to have an evidentiary hearing where it was discovered that two
court-appointed mental health professionals were unaware that Sireci
had previously suffered a severe concussion sufficient to put him in
a semicoma for two weeks.
Second, we affirmed the trial judge who, after
conducting an evidentiary hearing, determined that a new sentencing
proceeding was required, and we stated: Essentially, the state
argues that Sireci's original psychiatric examinations were adequate.
We acknowledge that there is evidence in the record which would
justify this conclusion.
On the other hand, there is also competent
substantial evidence to support the trial court's findings. This is
a classic illustration of a case in which the appellate court should
not substitute its judgment for that of the trial judge who has
personally heard the pertinent testimony. 536 So.2d at 233. In the
instant case, the omission of the asserted information, which might
have been helpful to the mental health professional, does not, in
our view, rise to the level of the objectively established head
injury in Sireci.
Further, we find that the only evidence in this
record to show that Hill was intoxicated by drug use at the time of
this incident was his own testimony at trial. There was evidence of
prior drug use presented to the jury, but there is no allegation
that any additional evidence is available to show that Hill was
under the influence of drugs at the time of this incident. In our
view, the evidence proffered is nothing more than cumulative to the
evidence already presented to the jury.
We find the trial court properly concluded that
there was no valid claim of ineffective assistance of counsel under
the standards set forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to justify an evidentiary
hearing in this cause.
In Strickland, the United States Supreme Court
stated: First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense.
This requires showing that
counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that
renders the result unreliable. Id. at 687, 104 S.Ct. at 2064.
Accepting as true the alleged failures set forth
by trial counsel in his affidavit, we find none of them “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. Further, we find that none of
counsel's asserted failures were “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id.
Accordingly, we find that the trial court correctly denied all rule
3.850 relief.
Hill also seeks habeas corpus relief in this
Court on the identical grounds contained in the rule 3.850 motion
and on the claim that appellate counsel was ineffective for failing
to raise on appeal the alleged improper peremptory excusal by the
state of black prospective jurors, pursuant to our decision in State
v. Neil, 457 So.2d 481 (Fla.1984), and the United States Supreme
Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986).
Given the state of the law on the Neil issue at
the time of this appeal, as well as the record in this case on the
inquiry and reasons given by the prosecution for the excusal of the
prospective jurors, we find that appellate counsel was not
ineffective under the Strickland test. Accordingly, we deny
petitioner's request for habeas corpus relief. We vacate our
temporary stay, effective January 29, 1990, at 7:00 a.m. It is so
ordered. No petition for rehearing will be entertained.
KOGAN, Justice, concurring in part and dissenting
in part.
I concur in all matters except the trial court's denial of an
evidentiary hearing on the claim of ineffective assistance of
counsel. The attorney who represented the defendant during the
penalty phase has filed an affidavit acknowledging he was
ineffective at trial.
Indeed, the attorney stated that he had failed to
properly challenge state expert witnesses, failed to use effective
investigation techniques, failed to properly develop mitigating
evidence, failed to properly inform mental health experts that Hill
had suffered child abuse and deprivation, and failed to properly
investigate Hill's background. The attorney stated on several
occasions that he had no strategic reason for these omissions.
Accordingly, I must conclude that a hearing is constitutionally
required.
Hill v. Moore,
175 F.3d 915 (11th Cir. 1999) (Habeas).
After his conviction for first-degree murder and
death sentence were upheld on direct appeal, 477 So.2d 553, 515
So.2d 176, petitioner sought federal habeas corpus relief. The
United States District Court for the Northern District of Florida
granted relief with respect to sentence. Petitioner moved Florida
Supreme Court to reopen his direct appeal, which was granted, and
the Florida Supreme Court, 643 So.2d 1071, again affirmed sentence.
Petitioner filed amended habeas petition. The District Court, No.
TCA 90-40023- WS, William Stafford, J., denied relief. Petitioner
appealed. The Court of Appeals, Tjoflat, Circuit Judge, held that:
(1) Florida Supreme Court acted within its province when it limited
the scope of reopened direct appeal of death sentence; (2)
petitioner was not prejudiced by trial counsel's alleged deficiency
in failing to elicit testimony elaborating on amounts of cocaine
that defendant used prior to bank robbery leading to prosecution;
(3) in finding death sentence appropriate, Florida Supreme Court
acted within its province when it reweighed aggravating and
mitigating circumstances, including all nonstatutory mitigating
evidence presented during sentencing phase of capital trial; (4)
failure to offer evidence of defendant's drug use on day of murder
as mitigating evidence did not prejudice defendant; (5) erroneous
exclusion of sentencing phase testimony of petitioner's parents was
harmless error not warranting habeas relief; (6) instruction on
mitigating factor of substantial domination was not warranted; and
(7) prosecutor's manifestly inappropriate comments did not taint
proceedings so as to render death sentence constitutionally
deficient. Affirmed.
TJOFLAT, Circuit Judge:
In these consolidated appeals, the petitioner, a Florida death row
inmate, asks that we reverse the district court's refusal to grant a
writ of habeas corpus either setting aside his conviction or his
sentence for murder. We affirm.
In the early afternoon of October 19, 1982, after
stealing a pistol and an automobile, petitioner and an accomplice,
Cliff Jackson, robbed a savings and loan association in Pensacola,
Florida. When police arrived at the scene and foiled their robbery
plans, petitioner and Jackson fled. Jackson exited the savings and
loan through the front door and was immediately apprehended.
As the police placed Jackson in custody,
petitioner, who had fled through the rear of the building,
approached the arresting officers from behind and shot them, killing
one officer and wounding another. A gun battle ensued, during which
police shot petitioner five times. Though wounded, petitioner fled
the scene. The police apprehended him a short time later.
Following his arrest, an Escambia County grand
jury indicted petitioner on one count of first degree murder, one
count of attempted first degree murder, three counts of armed
robbery, and one count of possession of a firearm during a
felony.FN1
A petit jury found him guilty on all counts.
Because the State sought the death penalty on the murder count, the
jury, after returning its verdicts, reconvened for the sentencing
phase of the case. At the conclusion of that proceeding, the jury
recommended that petitioner be sentenced to death. At the sentencing
hearing held at a later date, the trial judge followed the jury's
recommendation and imposed a death sentence.FN2
FN1. The grand jury also indicted
Jackson for the same offenses. Prior to trial, Jackson and the State
entered into a plea agreement, under which Jackson pled guilty to
first degree murder and was sentenced to prison for life. He
subsequently testified as a defense witness in the sentencing phase
of petitioner's trial.
FN2. In Florida, once a defendant is convicted of
capital murder, the trial court must engage in a separate sentencing
phase to determine whether death is in fact the appropriate sentence.
In order for the defendant to receive the death penalty, the State
must establish the existence of one or more statutory aggravating
factors under Fla. Stat. ch. 921.141(5) (1997).
If aggravating circumstances are established, the
defendant may offer evidence of the existence of one or more
statutory mitigating factors, see Fla. Stat. ch. 921.141(6), and any
other non-statutory mitigating evidence he wishes to introduce. The
jury, which renders an advisory sentence, and the trial judge, who
decides the actual sentence, must weigh the aggravating and
mitigating circumstances against each other in determining the
proper sentence.
Before sentencing petitioner, the court in this
case found that the evidence established five aggravating
circumstances: (1) that the defendant had been convicted of a prior
felony involving the threat of violence to another; (2) in
committing the murder, the defendant knowingly created a great risk
of death to many persons; (3) the murder was committed while the
defendant was fleeing from an attempted robbery; (4) the murder was
committed for the purpose of avoiding arrest; and (5) the murder was
committed in a “cold, calculated, and premeditated manner.” See Fla.
Stat. ch. 921.141(5)(b), (c), (d), (e), (I).
The court also found one statutory
mitigating circumstance, the defendant's young age, 23. See Fla.
Stat. ch. 921.141(6)(g). Finally, although petitioner had presented
several items of non-statutory mitigating evidence, all relating to
his upbringing and background, the court found that such evidence
and petitioner's age “d[id] little to mitigate the circumstances of
the killing.”
Concluding that the aggravating circumstances
outweighed the mitigating circumstances in the case, the court
imposed the death penalty. The court imposed prison sentences for
the other offenses-attempted murder, armed robbery, and possession
of a firearm during commission of a felony-of which petitioner was
convicted. Neither those convictions nor the corresponding sentences
are before us.
On direct appeal, the Florida Supreme Court
affirmed petitioner's convictions, but vacated his death sentence
and remanded the case for a new sentencing proceeding because the
trial judge failed to dismiss a juror who was predisposed to
recommend a death sentence. See Hill v. State, 477 So.2d 553, 557 (Fla.1985).
On remand, a new judge empaneled a jury and the
sentencing phase of the case was relitigated. The new jury, like its
predecessor, recommended the death sentence. At the ensuing
sentencing hearing, the court followed the jury's recommendation and
imposed the death penalty.FN3
FN3. The trial judge found the same aggravating
circumstances the previous judge had found. See supra note 2. He
also found a statutory mitigating circumstance in the defendant's
age. After summarizing the other evidence petitioner adduced in
mitigation, all of a non-statutory nature, the court found that it
was insufficient to amount to mitigation.
The court disposed of this
evidence with the following statement on the record: “Any other
aspect of the defendant's character or record and any other
circumstances of the offense-several witnesses, James Wilson knew
the defendant for 19 years and was a school mate; Lucille Tillie
knew the defendant and his family for 19 years; Miss Petway knew the
defendant and his family for a number of years in Mobile, since
1968; Grace Singleton, 79 years old, knew the defendant when he was
a little boy; Patsy McCaskill, his sister-in-law, knew him about six
years; and the mother and father of the defendant testified as to
the particulars of his character when he was a boy for honesty and
peacefulness.
On cross-examination Tillie didn't know the
defendant had been arrested for robbery in Mobile, as did Petway.
Singleton was not aware of the robbery. McCaskill did not know about
the robbery. The Court is of the opinion that this evidence is
insufficient to support [the finding of any non-statutory mitigating
factors].” Thereafter, the court balanced the aggravating
circumstances against the defendant's age, found that the former
outweighed the latter, and imposed a death sentence.
Again petitioner appealed his sentence of death,
but this time the Florida Supreme Court affirmed. See Hill v. State,
515 So.2d 176 (Fla.1987). The court did so although the evidence did
not support one of the aggravating circumstances-that the murder was
cold, calculated, and premeditated. Given the existence of the four
other aggravating circumstances and one statutory mitigating
circumstance (petitioner's age), the trial judge's consideration of
the erroneous factor was “not such a change under the circumstances
of this sentencing proceeding that its elimination could possibly
compromise the weighing process of either the jury or the judge.” Id.
at 179.
After unsuccessfully petitioning
the United States Supreme Court for a writ of certiorari, petitioner
moved the trial court, pursuant to Fla. R.Crim. P. 3.850, to vacate
his capital conviction and sentence. He contended that his
conviction and sentence should be set aside because of
constitutional errors committed by the trial court and the Florida
Supreme Court, and because his trial attorneys had rendered
ineffective assistance of counsel in both guilt and sentencing
phases of his case.
The trial court summarily denied relief with
respect to petitioner's claims of trial court and supreme court
error on the ground that those claims were procedurally defaulted (for
failure to raise those claims on direct appeal). As for petitioner's
ineffective assistance of counsel claim, the court concluded that
petitioner's allegations, when considered in the light of the record
of his prosecution, were insufficient as a matter of law. The court
therefore denied relief on that claim without holding an evidentiary
hearing. On appeal, the Florida Supreme Court affirmed. See Hill v.
Dugger, 556 So.2d 1385 (Fla.1990).
At that point, petitioner repaired to the United
States District Court for the Northern District of Florida for
relief. He petitioned that court to grant a writ of habeas corpus
setting aside his murder conviction and corresponding death sentence.
His petition presented several claims for relief.FN4
The district court denied relief with respect to
the conviction but issued the writ with respect to the sentence.FN5
The court held that the trial judge, in sentencing petitioner,
failed to recognize as mitigating evidence several aspects of
petitioner's background.FN6
Thereafter, the Florida Supreme
Court, in affirming petitioner's sentence on harmless error grounds,
failed to cure this error by acknowledging the presence of such
mitigating factors and placing them in the sentencing balance; that
is, by determining whether the aggravating circumstances outweighed
the mitigating circumstances (in addition to the statutory
mitigating factor, age, which the trial court found).
As the district court noted, Parker v. Dugger,
498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), requires that a
reviewing court in a “weighing” jurisdiction, such as Florida,
engage in such weighing, and explicitly state that it is doing so in
determining whether the trial court would have imposed the death
sentence had it considered the mitigating evidence.
* * *
The State appealed the district court's decision
regarding the death sentence; petitioner cross-appealed the court's
denial of relief on other grounds (with respect to both his murder
conviction and his sentence). While the appeal was pending, the
State dismissed its appeal, and petitioner moved the Florida Supreme
Court to reopen his direct appeal. We stayed our consideration of
petitioner's cross-appeal pending the supreme court's decision.
The Florida Supreme Court reopened petitioner's
appeal from his death sentence, limiting its review to the question
whether it had conducted the proper harmless error analysis in
affirming petitioner's death sentence. The court affirmed the
sentence. Following that decision, petitioner filed an amended
habeas petition in the district court, challenging the supreme
court's decision affirming his sentence. The district court,
concluding that the supreme court had satisfied the dictates of
Parker, denied relief. Petitioner now appeals.
* * *
Petitioner contends that his
counsel were ineffective during the sentencing phase of his trial,
primarily due to their failure to offer evidence of petitioner's
drug use on the day of the murder-this time as a mitigating
circumstance rather than as a defense to premeditated murder.
Petitioner contends further that counsel were ineffective for
failing to present background evidence to the court-appointed
psychologist (thereby “causing” an incorrect evaluation) and for
failing to pursue evidence of his history of drug and alcohol abuse
and evidence of his abusive and neglect-ridden childhood. The
district court concluded that none of this evidence was “so
compelling that it would have changed the result of the proceedings
in this case.”
We agree. As we indicated earlier, Strickland
requires that a petitioner demonstrate a reasonable probability that
the proffered evidence would have changed the result in the case.
See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
The evidence petitioner proffered in his habeas
petition regarding his drug use the day of the murder is largely
irrelevant. It does not matter that he was seen with a bag of
cocaine that morning; nor does it matter that Jackson had supplied
petitioner with drugs prior to the commission of the crime; nor is
it enough to allege that another drug test (which defense counsel
could not have obtained) may have shown a smaller, “recreational”
amount of cocaine in his blood on the day of the robbery.
Petitioner has not, and cannot, show that there
was any measurable amount of cocaine in his blood. In the end, the
only evidence he has proffered that would support his claim that he
was intoxicated during the robbery is the statement of his
accomplice that they had been using drugs that day. That evidence is
insufficient to demonstrate a reasonable probability that, had
counsel put that evidence before the jury, it would not have
recommended, and the trial court would not have imposed, a death
sentence. We reach the same result as to petitioner's claim that
counsel failed to pursue evidence of his childhood neglect. The
extent of his proffer in this regard is that his mother often gave
him “good whippings.”
While times have changed and
corporal punishment is becoming less accepted as an appropriate
means of disciplining a child, we cannot reasonably conclude that
counsel's failure to pursue this evidence affected petitioner's
sentence.
As to petitioner's argument that counsel failed
to provide the psychologist evaluating petitioner's mental state
with vital information regarding his background, the district court
changed its course and concluded that petitioner failed to satisfy
the deficiency prong of the Strickland test. See id. at 687-88, 104
S.Ct. at 2064-65.
We cannot fault the court's conclusion. Given the
time the court-appointed psychologist invested in his evaluation of
petitioner and his knowledge that mitigating factors were vital to
petitioner's defense, we cannot conclude that counsel were deficient
for failing to provide their expert witness with information that,
if it existed, the witness was in a position to discover. Because
the petitioner could not satisfy the requirements of Strickland, he
cannot demonstrate that the evidence proffered, if true, would
entitle him to relief. Thus, he is not entitled to an evidentiary
hearing on this claim.
* * *
Finally, petitioner contends that the prosecutor
made improper and inflammatory comments before the jury during the
sentencing phase of his trial. The prosecutor told the jury that
petitioner did not deserve the same life sentence Jackson received
because petitioner elected to stand on his not guilty plea and to
put the State to its proof at a trial. The prosecutor ended his
closing statement with the following remarks:
I want to end with this, if I can
have one minute to tell you this. The more things change, the more
they stay the same. And in America things haven't changed. Processes
have changed a lot, but things are still the same. 150 years ago if
the defendant left a town and stole a horse to come over to
Pensacola, some desperado robbing a woman of the horse and he rode
here with a companion, and they robbed a bank in the main street of
the town, and they were seen by ··· many people in the main street
of town, and the deputy sheriff came up to arrest the defendant's
buddy, and the defendant shot the deputy in the back, they would
have strung him up from the nearest tree that day. Now, the process
has changed.
He now has a jury trial. It's now taking years to
do it, but things still remain the same. The crime calls for the
sternest punishment for killing the deputy. He must hang from a tree.
We're more merciful now. We'll shock him until he's dead. But that
is the sentence that is appropriate in this case under the law.
Thank you.
The State has not contended that such comments
were appropriate; rather, its position is that the comments, if
misguided, were harmless. The district court agreed, stating:
“[t]here being no reasonable probability that, but for the
prosecutor's improper remarks, the verdict or sentence would have
been different, Hill's request for habeas corpus relief on the basis
of improper prosecutorial comment must be denied.”
The prosecutor's comments certainly were crass
and manifestly inappropriate; they did not, however, so taint the
proceedings as to render petitioner's death sentence
constitutionally deficient. There was ample evidence in the record
to support a sentence of death, and the trial judge charged the jury
to make its decision on the basis of the evidence alone. That being
the case, we will not upset the determination of the Florida Supreme
Court that the prosecutor's conduct did not affect petitioner's
sentence.
For the foregoing reasons, the district court's
denial of habeas relief is AFFIRMED.
The victim
Police Officer Stephen
A. Taylor Pensacola Police Department
Florida
End of Watch: Tuesday, October 19, 1982
Biographical Info
Age: 26 Tour of Duty: Not available Badge Number: 183
Incident Details
Cause of Death: Gunfire Date of Incident: Tuesday, October 19, 1982 Weapon Used: Gun; Unknown type Suspect Info: Executed in 2006
Officer Taylor was shot and killed while
responding to a bank robbery at Palafox Street and Gregory Street.
The suspect was arrested and sentenced to death.
The suspect received a last minute stay of
execution from the US Supreme Court on January 24, 2006, but was
later executed by lethal injection on September 20, 2006.
Officer Taylor was survived by his wife, daughter,
parents, brother, and three sisters.
