IN THE SUPREME COURT OF FLORIDA CASE NO. SC05- GEORGE MICHAEL HODGES, Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC05- GEORGE MICHAEL HODGES, v. Petitioner, JAMES V. CROSBY, JR., Secretary, Department of Corrections, State of Florida, Respondent. PETITION FOR A WRIT OF HABEAS CORPUS LINDA McDERMOTT Florida Bar No McClain & McDermott, P.A. 141 N.E. 30 TH Street Wilton Manors, FL (850) PRO BONO COUNSEL FOR PETITIONER

2 INTRODUCTION This petition for habeas corpus relief is being filed in order to present Mr. Hodges claims arising under the recent decision from the United States Supreme Court in Crawford v. Washington, 124 S.Ct (2004). Therein, the United States Supreme Court announced that: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law as does [Ohio v.] Roberts[, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of testimonial. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed. In this case, the State admitted Sylvia s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actual prescribes: confrontation. Crawford v. Washington, 124 S.Ct at 1374 (emphasis added). The significance of the Supreme Court s pronouncement was underscored when the Court concluded that as to testimonial hearsay, the Court s own rationale in Ohio v. Roberts deviated 1

3 from the historical principles upon which the Confrontation Clause rested. Id. at The Court further called into question its decision in White v. Illinois, 502 U.S. 346 (1992). Id. at 1370 ( Although our analysis in the case casts doubt on that holding, we need not definitively resolve whether it survives our decision today ). Thus, the Supreme Court in Crawford discarded the notion that the Confrontation Clause could be satisfied where rules of evidence permitted the introduction of testimonial hearsay. In Mr. Hodges case, the State presented hearsay at both Mr. Hodges guilt and penalty phases in its successful effort to obtain a conviction for first degree murder and sentence of death. However, this occurred in contravention of Mr. Hodges constitutional right to confront his accusers, as Crawford now makes clear. In Crawford, the prosecution introduced a statement given to law enforcement by the defendant s wife, who did not testify at trial because of the marital privilege. This Court described the hearsay presented at Mr. Hodges guilt and penalty phases in its opinion from Mr. Hodges direct appeal: In the guilt phase the court allowed two detectives to testify, over objection that the victim was adamant about prosecuting Hodges for indecent exposure. These detectives repeated that testimony in the penalty phase and also testified that the victim told them Hodges had been trying to get her to drop the indecent exposure charge. The victim s sister also testified to those matters, over objection, in the penalty phase. Hodges v. State, 595 So. 2d 929, 931 (Fla. 1992). The 2

4 testimony presented throughout Mr. Hodges capital trial was a clear violation of the Confrontation Clause, as explained by the Supreme Court in Crawford. JURISDICTION This is an original proceeding under Fla. R. App. P This Court has original jurisdiction pursuant to Fla. R. App. P (a)(3) and Article V, sec. 3(b)(9), Fla. Const. The Constitution of the State of Florida guarantees that [t]he writ of habeas corpus shall be grantable of right, freely and without cost. Art. I, 13, Fla. Const. This petition presents constitutional issues which directly challenge the judgments and sentences of death imposed upon Mr. Hodges and this Court s review of his convictions and sentences of death during the appellate process. This Court has consistently maintained an especially vigilant control over capital cases, exercising a special scope of review, see Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977); Wilson v. Wainwright, 474 So. 2d 1163, 1165 (Fla. 1985), and has not hesitated in exercising its inherent jurisdiction to remedy errors which undermine confidence in the fairness and correctness of capital trial and sentencing proceedings. This Court has the inherent power to do justice. REQUEST FOR ORAL ARGUMENT Mr. Hodges requests oral argument on this petition. PROCEDURAL HISTORY Mr. Hodges was charged by indictment dated February 22, 3

5 1989, with one count of first degree murder (R. 806). On March 22, 1989, a superseding indictment was filed, again charging Mr. Hodges with one count of first degree murder (R. 815). Mr. Hodges pleaded not guilty to the charge. Mr. Hodges' capital jury trial commenced on July 10, On July 13, 1989, the jury found Mr. Hodges guilty of first degree murder (R. 650). The following day, the penalty phase was conducted. While the jury deliberated, Mr. Hodges attempted to commit suicide in his holding cell. Out of Mr. Hodges presence, the jury recommended a sentence of death by a vote of ten to two (R. 885). On August 9, 1989, the court held a sentencing hearing (R ). The next day, the trial court imposed the sentence of death, finding two aggravating factors and no statutory mitigating factors ( ). On direct appeal, this Court affirmed the conviction and the death sentence. Hodges v. State, 595 So. 2d 929 (Fla. 1992). Thereafter, the United States Supreme Court granted certiorari, vacated and remanded the case in light of the Court's decision in Espinosa v. Florida. See Hodges v. Florida, 113 S. Ct. 33, 121 L.Ed.2d 6 (1992). On remand from the United States Supreme Court, this Court affirmed the death sentence. Hodges v. State, 619 So. 2d 272 (Fla. 1993). On June 20, 1995, Mr. Hodges filed a timely, but incomplete Rule motion (PC-R ). 4

6 Then, on November 28, 1995, Mr. Hodges filed an amended Rule motion (PC-R ). An evidentiary hearing was granted on some of Mr. Hodges claims (PC-R ; ). The evidentiary hearing was conducted on November 2 and 3, 2000 and January 29, On June 6, 2001, the circuit court entered an order that denied Mr. Hodges relief. Mr. Hodges appealed the denial of his Rule to this Court and also filed a Petition for Writ of Habeas Corpus. This Court denied relief. Hodges v. State, So. 2d, 2004 Fla. LEXIS 1812 (Oct. 14, 2004). GROUNDS FOR HABEAS CORPUS RELIEF CLAIM I MR. HODGES RIGHT OF CONFRONTATION WAS VIOLATED AT HIS CAPITAL TRIAL WHEN THE STATE WAS PERMITTED TO INTRODUCE TESTIMONY THAT WAS HEARSAY ABOUT STATEMENTS MADE BY THE VICTIM REGARDING A PRIOR ALLEGATION OF CRIMINAL CONDUCT WHICH WERE NOT SUBJECT TO CROSS-EXAMINATION. A. Testimonial Hearsay Was Presented At The Trial. The proceedings conducted at Mr. Hodges capital trial, in both the guilt and penalty phases, were not conducted in conformity with the Sixth Amendment guarantee to a criminal defendant that he will have the opportunity to confront his accusers. Statements were introduced which Mr. Hodges did could not subject to confrontation. During the guilt phase, two detectives testified that the victim has previously told 5

7 them that she was adamant about prosecuting Mr. Hodges regarding the alleged indecent exposure that occurred prior to the crime for which Mr. Hodges was convicted and sentenced to death. And, further, in the penalty phase, the State again introduced testimony of former statements made by the victim that she was adamant about prosecuting Mr. Hodges and that she told the witnesses that Mr. Hodges was harassing her and trying to convince her to drop the charges. 1. Guilt Phase Over objection, Detective Orzechowski testified that while investigating the alleged indecent assault, where Mr. Hodges was the suspect, he spoke to the victim (R. 297). He testified that Ms. Ricks had told him that she wanted to press charges on [Mr. Hodges]. She was adamant about it. (R. 297). Likewise, Detective Horn testified: [The victim] told me she was adamant about prosecuting [Mr. Hodges]. (R. 305). The prosecutor relied upon the hearsay testimony in his closing argument (R. 576). He told the jury: [Mr. Hodges] wanted her gone. He was angry at her, because she was adamant about prosecuting him for the indecent exposure charge that occurred two months earlier in November. A charge that he told Detective Orzechowski he did not commit. That it was an accident. That he pulled through the barn with his zipper down and didn t know it. But she pursued the charge... (R. 576) See also R Penalty Phase 6

8 At Mr. Hodges capital penalty phase, over defense objection, the State once again introduced hearsay testimony regarding the alleged indecent exposure and the victim s being adamant about prosecuting (R. 682). In addition, the State sought to introduce additional hearsay statements and relied on this Court s opinion in Chandler v. State, 543 So. 2d 701 (Fla. 1988). The State argued: In the penalty phase, Judge, I have some case law to support my position. I will be asking for the Court to allow me to call three short witnesses, Detective Orzechowski, again, Detective Horn and the victim s sister, Debra Ricks, who will all testify to what I just told the court, what this victim told them on certain occasions, one conversation occurring three weeks before her death, in which she told Detective Orzechowski or Horn, This guy keeps coming back and harassing me. This is going to prove the aggravated assault of witness elimination. I believe the jury needs to hear exactly what this defendant was doing to this victim during this entire period. And how it strongly indicates without any question that the reason he finally came back on that last day and shot her was because he was convinced in his own mind, after all of his harassing her, she was not going to drop the prosecution. I have Chandler versus State, which is at 534 So. 2d 701 (sic).... * * * Hearsay testimony may be taken into account as long as it bears minimal indicia of reliability. There can be no question we have reliability in this case. There wasn t a statement just made to one witness. I can call three witnesses. * * * But I think it s very important that this jury in making a determination as to whether or not the witness elimination aggravating circumstance has been proven beyond a reasonable doubt hear the testimony that I just asked the Court to let me put 7

9 in front of them. (R ). Trial counsel argued that there was no way to rebut the testimony (R. 665). Trial counsel went on to argue that there was no way to subject the testimony to crossexamination (R. 666). When Detective Orzechowski testified he told the jury: Q: What did she tell you about subsequent contacts she had with the defendant? A: [Mr. Hodges] kept coming in the TP Beverage Barn harassing her, trying to get her to drop the charges, and it was scaring her. Q: The last time you talked with her about that, when was that in relation to her death? A: Just prior to it. (R. 683). Detective Horn added: She would tell me things more or less on the line that, she said, You know that guy that flashed me? And I said, Yes. And she says, well, he came in yesterday or he came in the day before and was trying to get me to stop pursuing it. And I would tell her, Well, you need to do that. You can t let them do things like that to you and just let it go. She didn t need any persuading. She was adamant about it. (R. 685). In addition, Detective Horn testified that the victim had characterized Mr. Hodges as a nuisance because he was at her place of employment all the time (R. 685). Finally, Debra Ricks testified to hearsay statements: We usually talk every morning about 6:30. She called me that morning and she said, You are not going to believe who was outside this morning. And I said, Who? She said, Hodges. I said, Hodges? She said, Yes, the one that flashed me. And I said, What did he want? She said, He came 8

10 (R. 690). up here and asked me to drop charges. And I said, He did? And she said, Yes. And she said, He didn t know what he was doing. And she said, Well you should have thought of that before you did it. And she said he said that he had a family and a job and reputation to protect. And she said, Well, I m sorry, you know. I am not. The State argued the hearsay testimony extensively in closing argument telling the jury that the testimony supported the elimination of a witness aggravating factor (R. 714). In fact, the hearsay testimony was the only testimony the prosecutor argued supported the elimination of a witness aggravator. Likewise, in sentencing Mr. Hodges, the court relied on the hearsay testimony in finding the aggravating circumstance that the crime for which the defendant is to be sentenced was committed to disrupt or hinder the lawful exercise of any governmental function or enforcement of laws. The court stated: The evidence shows that the defendant, George Michael Hodges, had been accused by the victim, Betty Ricks of an act of indecent exposure sometime prior to January 8, And that the victim was persisting in a prosecution of formal criminal charges against the defendant for said exposure act, and that the defendant had approached the victim on occasion prior to the murder of the victim, attempting to talk to the victim out of continuing with the prosecution against him. It is apparent that the defendant had told the victim he was very concerned about his family, his reputation, and his job security if the victim was to persist in her prosecution. (R. 796). Like, the State, the only evidence upon which the 9

11 court relied in finding this aggravating circumstance was the hearsay testimony. B. The Direct Appeal. On appeal, this Court agreed that it was error to introduce hearsay evidence at the guilt phase of Mr. Hodges capital trial. Hodges v. State, 595 So. 2d 929, (Fla. 1992). As to the penalty phase, this Court approved of the admission of the hearsay testimony, relying on Chandler v. State, 543 So. 2d 701 (Fla. 1988). Id. at 933. C. Crawford v. Washington Establishes A Confrontation Clause Violation. In Crawford v. Washington, 124 S.Ct 1354 (2004), the United States Supreme Court considered the contours of the right guaranteed by the Confrontation Clause. The defendant s wife had provided law enforcement with a tape-recorded statement. Because of the marital privilege, she was not an available witness at the defendant s trial for assault and attempted murder. The State sought to introduce the taped statement. The defendant argued that the statement s admission would violate his right to confrontation. On the basis of Ohio v. Roberts, 448 U.S. 56 (1980), the trial court found that the statement bore particularized guarantees of trustworthiness. The defendant was convicted of assault. The United States Supreme Court reversed, announcing that the 10

12 test in Ohio v. Roberts permitting the introduction of hearsay evidence that falls under a firmly rooted hearsay exception or bears particularized guarantees of trustiworthiness departs from the historical principles underlying the Confrontation Clause. Crawford v. Washington, 124 S.Ct. at The Supreme Court explained: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law as does [Ohio v.] Roberts[, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of testimonial. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed. Crawford v. Washington, 124 S.Ct. at 1374 (emphasis added). The Supreme Court reached this conclusion after exploring at length the original meaning of the Confrontation Clause. 124 S.Ct. at The Court examined the history of the Confrontation Clause and concluded, Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless. Id. at Thus, the Confrontation Clause applies to witnesses against the accused--in other words, those who bear testimony. Id. This definition of ex parte testimony encompasses 11

13 [s]tatements taken by police officers. Id. at Reviewing the history of the Confrontation Clause also led the Supreme Court to a second conclusion: the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Crawford, 124 S.Ct. at This is the only exception to the Confrontation Clause, and there are no open-ended exceptions from the confrontation requirement to be developed by the courts. Id. The Supreme Court concluded that the hearsay exceptions and the trustworthiness test described in Ohio v. Roberts, 448 U.S. 56 (1980), depart[] from the historical principles identified above because Roberts was both too broad and too narrow. Crawford, 124 S.Ct. at In its too narrow application--which is relevant to Mr. Hodges case-- the Roberts test admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations. Id. (emphasis in original). Thus, the Court held that when a State admits an out-of-court testimonial statement against a criminal defendant and the defendant has no opportunity to cross-examine the witness who made the statement in front of the trier of fact, [t]hat alone is sufficient to make out a violation of the Sixth 12

14 Amendment because [w]here testimonial statements are at issue, the only indicum of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Id. at Mr. Hodges was denied the right to confront the actual witness against him, that person whose statements were heard by the jury. This Court has repeatedly acknowledged that the Confrontation Clause does apply in capital sentencing proceedings at both the penalty phase before the jury and at the judge sentencing hearing. In Engle v. State, 438 So. 2d 803 (Fla. 1983), this Court reversed a death sentence 1 stating: The sixth amendment right of an accused to confront the witnesses against him is a fundamental right which is made obligatory on the states by the due process clause of the fourteenth amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400 (1965). The primary interest secured by, and the major reason underlying the confrontation clause, is the right of crossexamination. Pointer v. Texas. This right of confrontation protected by cross-examination is a right that has been applied to the sentencing process. Sprecht v. Patterson. In Bruton v. United States, 391 U.S. 123 (1968), it was held that a statement or confession of a co-defendant which implicates an accused is not admissible against the accused unless he has an opportunity to confront and cross-examine the codefendant. To admit such a statement is unquestioned error. 1 The jury had recommended a life sentence. The life recommendation was overridden by the sentencing judge. This Court made clear that it was reversing the judge sentencing only. 13

15 Engle, 438 So. 2d at 814. Subsequently, this Court found a confrontation clause violation in Walton v. State, 481 So. 2d 1197 (Fla. 1985). There, this Court relied upon the decision in Engle when it ordered a new penalty phase proceeding: Appellant contends he was denied his right to confront witnesses against him in the penalty phase of his trial in violation of our decision in Engle v. State, 438 So. 2d 803 (Fla. 1983), cert. denied 465 U.S (1984), because the confessions of the codefendants Cooper and McCoy were presented to the jury and considered by the judge in imposing sentence, without Cooper and McCoy being available for cross-examination. We agree with this contention and find that a new penalty trial before a new jury is required. Walton, 481 So. 2d at Similarly, a confrontation clause violation was found on the basis of Engle when the State introduced a taped statement of the victim in a prior felony conviction of the defendant during the penalty phase proceedings. Rhodes v. State, 547 So. 2d 1201, 1204 (Fla. 1989). For this constitutional error, this Court ordered a new penalty phase proceeding. Most recently, this Court relied on Engle to find a confrontation violation when the trial court admitted the deposition testimony of a co-felon at a capital sentencing hearing. Donaldson v. State, 722 So. 2d 177, 186 (Fla. 1998). Since the penalty phase was reversed on other grounds, the Court addressed the Confrontation Clause issue to give the parties guidance on remand. It is thus clear that though this Court has recognized 14

16 that the Confrontation Clause indeed applies at capital sentencing proceedings in Florida, this Court in Mr. Hodges case simply failed to understand the intent of the Framers of the Constitution and correctly apply the Confrontation Clause in Mr. Hodges case. This Court must, at a minimum, order a new penalty phase in light of Crawford. In the unanimous opinion of the Supreme Court in Sullivan v. Louisiana, 508 US. 275 (1993), the Court said, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. Sullivan, 508 U.S. at 278. The Court explained that there must be a verdict that decides the factual issues in order to comply with the Sixth Amendment. In doing so, the Court explained: It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as [In re] Winship[, 397 U.S. 358 (1970)] requires) whether he is guilty beyond a reasonable doubt. In other words the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. 508 U.S. at 278. Given the analogy to the right to trial by jury provided by the United States Supreme Court in Crawford, 2 the principle of Sullivan should apply here. D. Crawford Applies Retroactively Under Witt v. State. Crawford meets the criteria for retroactive application 2 The Court explained, [d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. Crawford, 124 S.Ct. at

17 set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980). Crawford issued from the United States Supreme Court. Witt, 387 So. 2d at 930. Crawford s Sixth Amendment rule unquestionably is constitutional in nature. Witt, 387 So. 2d at 931. Crawford constitutes a development of fundamental significance. Witt, 387 So. 2d at 931. As to what constitutes a development of fundamental significance, Witt explains that this category includes changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293 (1967),] and Linkletter [v. Walker, 381 U.S. 618 (1965)], adding that Gideon v. Wainwright... is the prime example of a law change included within this category. 387 So. 2d at 929. The rule of Crawford is the kind of sweeping change of law described in Witt. In Witt, this Court explained that the doctrine of finality must give way when fairness requires retroactive application: The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of postconviction relief is necessary to avoid individual instances of obvious injustice. Considerations of fairness and uniformity make it very difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases. Witt, 387 So. 2d at 925 (footnote omitted). 16

18 Crawford meets the Witt test. First, the purpose of the rule is to return to the intent of the Framers and restore to the law the core values of the Confrontation Clause. When a capital defendant has been subjected to a sentencing proceeding in which he has been denied the right to confront the witnesses against him, the Confrontation clause is robbed of its purpose. Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. Crawford, 124 S.Ct. 1354, 1371 (2004). A radical defect in the process intended by the Framers has been permitted which necessarily cast[s] serious doubt on the veracity or integrity of the... trial proceeding. Witt, 387 So. 2d at 929. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Crawford, 124 S.Ct. at Inadvertently but nonetheless harmfully, the United States Supreme Court lapsed for a time and enfeebled the right of confrontation through its rulings in Ohio v. Roberts. The Court s retrenchment restored the right to jury trial as a fundamental guarantee of the United States Constitution. Therefore, Crawford should be applied retroactively. E. Conclusion. 17

19 By virtue of Crawford and its application to Florida law, the constitutional error that occurred in the proceedings against Mr. Hodges is now revealed. Mr. Hodges conviction and sentence of death must be vacated, and a new trial ordered at which Mr. Hodges right of confrontation shall be honored. CONCLUSION AND RELIEF REQUESTED WHEREFORE, Mr. Hodges, through counsel, respectfully urges that the Court issue its Writ of habeas corpus and vacate his unconstitutional conviction and sentence of death. 18

20 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Petition for Habeas Corpus has been furnished by United States Mail, first class postage prepaid, to Katherine Blanco, Assistant Attorney General, Concourse Center #4, 3507 E. Frontage Rd., Tampa, FL 33607, on March 3, CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this petition is typed using Courier 12 font. LINDA McDERMOTT Florida Bar No McClain & McDermott, P.A. 141 N.E. 30 th Street Wilton Manors, FL (850) Pro Bono Attorney for Mr. Hodges 19