Supreme Court of Florida
____________
No. SC13-5
____________
GERHARD HOJAN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC13-2422
____________
GERHARD HOJAN,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[September 3, 2015]
PER CURIAM.
Gerhard Hojan appeals an order of the circuit court summarily denying his
motion to vacate his conviction and sentence of death. In addition, Hojan petitions
this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1),
(9), Fla. Const.
Hojan raises six claims on appeal, and we affirm the circuit court’s summary
denial of relief. Even though we conclude that there was no trial court error that
deprived Hojan of a fair trial, we find it necessary to address the unusual procedure
employed for jury selection in Hojan’s trial. Additionally, we reject Hojan’s
claims pertaining to ineffectiveness of appellate counsel and deny the petition for
writ of habeas corpus.
BACKGROUND AND PROCEDURAL HISTORY
The underlying facts are taken from this Court’s opinion on direct appeal:
Gerhard Hojan was charged with armed robbery, armed kidnapping,
attempted murder, and murder arising out of the events of Monday,
March 11, 2002. The evidence presented at Hojan’s trial established
that at approximately 4 a.m., Hojan and Jimmy Mickel entered the
Waffle House where the victims, Barbara Nunn, Christina De La
Rosa, and Willy Absolu worked. Hojan and Mickel had eaten at that
Waffle House on several prior occasions, and the victims recognized
and knew Hojan and Mickel. Mickel had also previously worked at
that Waffle House. Additionally, Nunn knew Mickel and Hojan from
attending a club where Mickel and Hojan worked and where they had
previously admitted Nunn for free.
After eating breakfast, Mickel exited the Waffle House. He
returned with a pair of bolt cutters and went toward the employee
section of the restaurant. Hojan produced a handgun and ordered
Nunn, De La Rosa, and Absolu into the back of the kitchen, where he
directed them into a small freezer and shut them inside. While Mickel
cut the locks to various cash stores, Hojan returned to the freezer a
total of three times. First, Hojan returned and demanded that the
victims give him any cell phones they had. Next, he returned and
demanded their money. Finally, he returned and ordered the victims
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to turn around and kneel on the floor. Nunn protested and tried to
persuade Hojan not to kill them, but Hojan nevertheless shot each of
the victims. . . .
Nunn survived and awoke later with Absolu’s legs on top of her
body. She crawled out of the freezer and went next door to a gas
station. There, with the help of the night attendant, she called 911 and
subsequently her mother and sister. . . . Prior to her helicopter flight,
Nunn gave law enforcement officers a taped statement, in which she
identified Mickel and Hojan as being involved. . . .
Hojan was convicted of two counts of first-degree murder for
the death of Absolu and De La Rosa; one count of attempted first-
degree premeditated murder as to Nunn; one count of attempted first-
degree felony murder as to Nunn; three counts of armed kidnapping;
and two counts of armed robbery. The jury recommended death by a
vote of nine to three, and the trial court followed that recommendation
and imposed two death sentences for the murders of Absolu and De
La Rosa. In sentencing Hojan to death, the trial court found six
aggravators, one statutory mitigator, and two nonstatutory
mitigators. . . .
On appeal, Hojan raises five claims. He argues that (1) the
surviving victim’s statement to an officer at the scene was not an
excited utterance; (2) the trial court improperly treated Hojan’s waiver
of the opportunity to present mitigating evidence in the penalty phase
as a waiver of his opportunity to present motions challenging the
death penalty; (3) his confession should have been suppressed; (4)
Florida’s death penalty statute is unconstitutional; and (5) the trial
court committed error under Koon v. Dugger, 619 So. 2d 246 (Fla.
1993), and Muhammad v. State, 782 So. 2d 343 (Fla. 2001). We
independently assess the sufficiency of the evidence and the
proportionality of Hojan’s sentence. We find no error under Hojan’s
five asserted claims, find that sufficient evidence exists, and conclude
that the death sentence is proportional. Accordingly, we affirm the
trial court’s order sentencing Hojan to death.
Hojan v. State (Hojan I), 3 So. 3d 1204, 1207-09 (Fla. 2009) (citation omitted)
(footnote omitted).
-3-
On November 19, 2010, Hojan filed a Motion to Vacate Judgment of
Convictions and Sentences with Special Request for Leave to Amend. The
sentencing court treated Hojan’s filing as an initial motion pursuant to Florida Rule
of Criminal Procedure 3.851 in which he raised nine claims for relief.1
The circuit court entered an order that summarily denied all of Hojan’s
claims for postconviction relief. This appeal followed, wherein Hojan raises six
claims.2
1. In his rule 3.851 motion, Hojan raised the following claims: (1) section
119.19, Florida Statutes, and rule 3.852 are unconstitutional facially and as applied
to him; (2) the one-year time limit established by rule 3.851 for filing a motion for
postconviction relief violates his rights to due process and equal protection under
the Fourteenth Amendment to the United States Constitution and Article I, Section
2 of the Florida Constitution; (3) trial counsel was allegedly ineffective during the
guilt phase; (4) the trial court erred by permitting the State to present Williams rule
evidence consisting of testimony from two witnesses attesting that they had seen
Hojan in the past few months with a gun similar to the murder weapon; (5) trial
counsel was allegedly ineffective for failing to adequately advise Hojan about the
risks of waiving mitigation evidence during the penalty phase; (6) Bar rule 4-
3.5(d)(4) burdens Hojan’s exercise of fundamental constitutional rights—including
the right to due process; (7) newly discovered evidence is available to show that
the forensic science used to convict and sentence Hojan was unreliable and invalid;
(8) Florida’s lethal injection protocol is both facially unconstitutional and
unconstitutional as applied to Hojan’s case; and (9) Florida’s death penalty scheme
is unconstitutional because it violates the principles of Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).
2. In the present appeal, Hojan raises the following claims: (1) The circuit
court erred in failing to grant an evidentiary hearing on the issue that Hojan’s
convictions are unreliable; (2) trial counsel provided ineffective assistance for
failing to adequately advise Hojan about waiving mitigation evidence during the
penalty phase; (3) the circuit court abused its discretion in denying access to
records held by certain state agencies pertaining to Hojan’s case; (4) there is newly
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ANALYSIS
Standard of Review
We have previously established that:
“A defendant is normally entitled to an evidentiary hearing on a
postconviction motion ‘unless (1) the motion, files, and records in the
case conclusively show that the movant is entitled to no relief, or (2)
the motion or particular claim is legally insufficient.’ ” Valentine v.
State, 98 So. 3d 44, 54 (Fla. 2012) (quoting Franqui v. State,
59 So. 3d 82, 95 (Fla. 2011)). An evidentiary hearing must be held on
an initial 3.851 motion whenever the movant makes a facially
sufficient claim that requires factual determination. See Amendments
to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So. 2d 488, 491
n.2 (Fla. 2000). “[T]o the extent there is any question as to whether a
rule 3.851 movant has made a facially sufficient claim requiring a
factual determination, the Court will presume that an evidentiary
hearing is required.” Walker v. State, 88 So. 3d 128, 135 (Fla. 2012).
However, merely conclusory allegations are not sufficient—the
defendant bears the burden of “establishing a ‘prima facie case based
on a legally valid claim.’ ” Valentine, 98 So. 3d at 54 (quoting
Franqui, 59 So. 3d at 96).
“To uphold the trial court’s summary denial of claims raised in
an initial postconviction motion, the record must conclusively
demonstrate that the defendant is not entitled to relief.” Everett v.
State, 54 So. 3d 464, 485 (Fla. 2010). When reviewing the circuit
court’s summary denial of an initial rule 3.851 motion, we will accept
the movant’s factual allegations as true and will affirm the ruling only
if the filings show that the movant has failed to state a facially
sufficient claim, there is no issue of material fact to be determined, the
claim should have been brought on direct appeal, or the claim is
positively refuted by the record. See Walker, 88 So. 3d at 135.
discovered evidence establishing that the forensic science used to convict and
sentence Hojan was unreliable and invalid; (5) the Bar rule that prohibits his
lawyers from interviewing jurors to determine if there was any constitutional error
present, unduly burdens his exercise of his rights; and (6) Florida’s lethal injection
protocol and procedures violate the Eighth Amendment to the United States
Constitution.
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Finally, “[b]ecause a court’s decision whether to grant an evidentiary
hearing on a rule 3.851 motion is ultimately based on written
materials before the court, its ruling is tantamount to a pure question
of law, subject to de novo review.” Seibert v. State, 64 So. 3d 67, 75
(Fla. 2010) (citing State v. Coney, 845 So. 2d 120, 137 (Fla. 2003)
(holding that pure questions of law that are discernable from the
record are subject to de novo review)).
Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013). For the reasons that follow, we
affirm the circuit court’s order summarily denying Hojan’s motion for
postconviction relief.
Merits
Trial Court Error
Hojan raises four subclaims pertaining to alleged trial court error: (1) failure
to subject certain analysis of forensic evidence introduced by the State’s expert
witness to a Frye3 hearing; (2) failure to inquire into whether Hojan knowingly,
intelligently, and voluntarily waived his Miranda4 rights; (3) failure to recognize
that Hojan was entitled to relief under the Vienna Convention;5 and (4) failure to
disallow the jury selection process as unorthodox and unconstitutional.
3. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
4. Miranda v. Arizona, 384 U.S. 436 (1966).
5. Hojan specifically identifies Article 36(1)(b) of the Vienna Convention
on Consular Relations.
-6-
In light of the record before us, we determine that the circuit court properly
determined that Hojan was not entitled to relief. Hojan’s claims of error are
insufficiently pleaded and without merit. Notwithstanding the absence of trial
court error, we specifically comment below about the jury selection procedure in
this case.
Jury Selection Procedure
Hojan’s allegation that his defense attorney and the prosecuting attorney
colluded to select the jury at a time when he was not present and participating with
his defense team initially caused us great concern. It is a well-settled proposition
of law that a criminal defendant has a right to be present at every critical stage of
his or her trial. Muhammad, 782 So. 2d at 351 (“Criminal defendants have a due
process right to be physically present in all critical stages of trial, including the
examination of prospective jurors.”).
The record before us reflects that Hojan was present during the voir dire of
the entire venire that took place in open court, on the record, and before the
presiding judge. In addition, Hojan was present for all of the cause challenges of
the potential jurors and the trial court’s corresponding rulings on the record. After
reviewing the record before us, we find that the procedure employed in the
selection of Hojan’s jury, while unusual, did not violate his rights to due process
under the law.
-7-
The peculiar aspect of the jury selection process occurred when counsel for
the parties agreed, sometime after the close of the trial proceedings for the day
prior to the intervening weekend, to forego the exercise of any peremptory
challenges to any of the remaining venirepersons. At that time, off the record and
when Hojan and the presiding judge were not present, the attorneys agreed on
twelve jurors and four alternate jurors. On the following Monday, counsel
informed the trial court, on the record, that they had mutually agreed to the jury
and the alternates by way of that out-of-court jury selection procedure. The trial
court granted defense counsel approximately forty-five minutes to confer with
Hojan about the stated jury selection procedure. Afterward, the trial judge
conducted an extensive colloquy with Hojan to ensure that he agreed to the jury
and ratified the jury selection procedure that his defense counsel had engaged in
with the prosecution.
THE COURT: Mr. Hojan, the individuals whose names I’ve called
out -- you’ve been sitting here since we started picking this jury last
Tuesday; is that correct?
MR. HOJAN: Yes, sir.
THE COURT: And you had an opportunity Tuesday and Wednesday --
even though we dismissed the panel that were here Tuesday and
Wednesday until we started again in the afternoon -- you’ve been here
participating with your lawyers through every stage of the jury selection
process; correct?
MR. HOJAN: Yes, Your Honor.
THE COURT: And you’ve consulted with your lawyers as it relates
to the challenges for cause that were raised by the Defense?
MR. HOJAN: Yes, Your Honor.
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THE COURT: And you’re aware that as of today we have twenty-seven
individuals that have not been stricken for cause?
MR. HOJAN: Yes, Your Honor.
....
THE COURT: And of course you were here during all of the questioning
with those individuals; correct?
MR. HOJAN: Yes, Your Honor.
THE COURT: Is that an acceptable group of individuals to try your
case?
MR. HOJAN: Yes, Your Honor.
....
THE COURT: And they’re acceptable to you; correct?
MR. HOJAN: Yes, Your Honor.
THE COURT: Now, you understand in the process of selecting a
jury, in addition to challenges for cause, both the State and the
Defense have what we call preemptory challenges, which you can
utilize to strike individuals from the panel?
MR. HOJAN: Yes, sir.
THE COURT: Your side has ten and the State has ten for a total of
twenty.
MR. HOJAN: Yes, Your Honor.
THE COURT: You understand that effectively we have not gone through
the process of actually exercising strikes?
MR. HOJAN: Yes, Your Honor.
....
THE COURT: So, effectively, without the exercise of preemptory
strikes, effectively both sides were striking certain individuals to get
us to the twelve primary, four alternates.
MR. HOJAN: Yes, Your Honor.
THE COURT: And these individuals are acceptable to you to try the
case?
MR. HOJAN: Yes, Your Honor.
THE COURT: Are you under the influence of any alcohol or drugs?
MR. HOJAN: No, Your Honor.
THE COURT: Do you need additional time or wish additional time with
your lawyers to consult with them on this matter?
MR. HOJAN: No, Your Honor.
-9-
THE COURT: And, in fact, you have had an opportunity, at this
point it’s more like forty-five minutes, to sit, talk with your lawyers,
to go through this process?
MR. HOJAN: Yes, Your Honor.
THE COURT: And [you] understand the jury and the selection of the
jury has to be acceptable to you?
MR. HOJAN: Yes, Your Honor.
THE COURT: This is your case.
MR. HOJAN: Yes, Your Honor.
THE COURT: And you’ve involved yourself and participated in this
selection process; correct?
MR. HOJAN: Yes, Your Honor.
THE COURT: And again, they are acceptable?
MR. HOJAN: Yes, Your Honor.
The record shows that there was no critical stage of Hojan’s trial for which
he was not present. All of the venirepersons who were not previously dismissed by
the trial court for cause by the close of proceedings on the preceding Friday, in
fact, returned to participate in the next day’s trial court proceedings. Because there
is no record evidence that any of the venirepersons were excluded by the out-of-
court jury selection procedure and all were present in court until after the trial court
had formally excused them, we are satisfied that Hojan was not deprived of his
right to due process by being involuntarily absent from a critical stage in his trial.
Because Hojan ratified the jury selection procedure after-the-fact, the circuit court
did not err in summarily denying relief as to this subclaim. See Muhammad, 782
So. 2d at 352 (“This Court held that no error occurs when the defendant is
represented by counsel who waives the presence of the defendant and the
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defendant later ratifies the action of counsel.”) (citing State v. Melendez, 244 So.
2d 137, 139 (Fla. 1971)); see also Kormondy v. State, 983 So. 2d 418, 429 (Fla.
2007) (citing Amazon v. State, 487 So. 2d 8, 11 (Fla. 1986)). Further, because the
circuit court found that the postconviction record conclusively shows neither party
exercised any of its peremptory challenges, the circuit court properly concluded
that Hojan was not entitled to any relief because he was not involuntarily absent
during such a critical stage of his trial. See Muhammad, 782 So. 2d at 352.
Notwithstanding the absence of trial court error in the jury selection of
Hojan’s trial, we strongly caution members of The Florida Bar that counsel should
refrain from engaging in any off-the-record agreements about the selection of the
jury in a criminal trial. We especially emphasize this caution in capital murder
cases where the defendant is subject to the ultimate and immutable sentence of
death. There is no reason for counsel to engage in any trial procedure that gives
even an impression—be it ever so slight—that an impropriety has occurred or that
the defendant may have been deprived of a fair trial. We will be inflexible and
intolerant of any actual violations of defendants’ rights as a result of “creative”
procedures used during the critical stages of criminal trials.
We expect and charge the lawyers and judges of this state that every stage of
the criminal trial of any person shall be conducted on the record so that the
reviewing courts will have the benefit of the clearest and most complete record
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from which to evaluate the propriety of the trial proceedings. We put all on notice
that we will be ever vigilant to fulfill our role as the oversight body of Florida’s
Judicial Branch in ensuring that every person is afforded a fair trial and that the
proper administration of justice is scrupulously maintained.
Ineffective Assistance of Trial Counsel
The circuit court reasonably concluded that the issue of Hojan’s waiver of
his right to present mitigation evidence was procedurally barred because that issue
was fully addressed during his direct appeal. See Hojan I, 3 So. 3d at 1217. Thus,
we find no error in the circuit court’s summary denial concerning this claim.
In addition, the circuit court did not err in denying an evidentiary hearing to
address Hojan’s subclaim that trial counsel failed to ensure that he had a competent
mental health evaluation for purposes of preparing mitigation evidence in
accordance with the requirements of Ake v. Oklahoma, 470 U.S. 68, 84 (1985).
This subclaim is procedurally barred because Hojan failed to raise the issue on
direct appeal. See Floyd v. State, 18 So. 3d 432, 456 (Fla. 2009) (citing Marshall
v. State, 854 So. 2d 1235, 1248 (Fla. 2003)). Furthermore, the circuit court
properly concluded that this subclaim lacked merit because, as it found, there are
numerous places in the record showing that Hojan refused to cooperate with trial
counsel in the preparation of mitigation evidence to be presented during the
Spencer hearing.
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Similarly, the circuit court did not err in denying an evidentiary hearing to
address Hojan’s subclaim that trial counsel was deficient in adequately advising
Hojan about the reality of being sentenced to death row. The record demonstrates
that trial counsel and the trial court repeatedly discussed with Hojan the
consequences of waiving mitigation during the penalty phase and, subsequently,
during the Spencer6 hearing. Moreover, the record shows that Hojan signed a
notarized document attesting that he instructed his defense team to cease any
investigation of mitigating circumstances in his case. In that notarized document,
Hojan also acknowledged that without presenting mitigation evidence he was more
likely to be sentenced to death. Therefore, the record conclusively shows that
Hojan was not entitled to relief because he cannot establish the deficiency prong
under the Strickland analysis.7 See Barnes, 124 So. 3d at 911; Power v. State, 886
6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
7. Under Strickland v. Washington, 466 U.S. 668 (1984), in order for a
defendant to obtain relief based on an allegation of ineffectiveness of trial counsel:
the claimant must identify particular acts or omissions of the lawyer
that are shown to be outside the broad range of reasonably competent
performance under prevailing professional standards. Second, the
clear, substantial deficiency shown must further be demonstrated to
have so affected the fairness and reliability of the proceeding that
confidence in the outcome is undermined.
Occhicone v. State, 768 So. 2d 1037, 1045 (Fla. 2000) (quoting Maxwell v.
Wainwright, 490 So. 2d 927, 932 (Fla. 1986)).
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So. 2d 952, 959-61 (Fla. 2004) (stating that this Court will not overrule the trial
court’s conclusion that counsel’s performance was not deficient when the record
demonstrates that the defendant interfered with trial counsel’s ability to obtain and
present mitigating evidence).
The circuit court properly concluded that Hojan’s trial counsel was not
ineffective for failing to explain the lethal injection protocol and the risks
associated with the use of pentobarbital. Specifically, the circuit court reasonably
relied on Peede v. State, 955 So. 2d 480, 502-03 (Fla. 2007), in concluding that
trial counsel cannot be deemed ineffective for not anticipating a then-future change
in the lethal injection protocol. Thus, we find no error occurred.
Moreover, the record shows that Hojan’s argument in the circuit court was
conclusory and, therefore, insufficiently pleaded. The expectation that counsel
could speculate about a change in the lethal injection protocol and provide sound
legal advice to Hojan was unreasonable. Seeing that there was insufficient record
evidence for Hojan to establish the deficiency prong under the Strickland analysis,
the circuit court’s summary denial of an evidentiary hearing to address this
subclaim was appropriate. See Barnes, 124 So. 3d at 911.
The circuit court further concluded that Hojan was not prejudiced
concerning the aforementioned subclaims in light of the six aggravating
circumstances found in Hojan’s case. See Hojan I, 3 So. 3d at 1208 (“The
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aggravators found were: (1) Hojan committed a prior capital felony—the
contemporaneous murders and attempted murder; (2) Hojan committed the
murders in the course of an armed kidnapping; (3) the murders were committed to
avoid arrest; (4) the murders were committed for financial gain; (5) the murders
were heinous, atrocious, or cruel (HAC); and (6) the murders were cold,
calculated, and premeditated (CCP).”). The circuit court further noted that even in
the absence of a mitigation case, the trial court found one statutory mitigating
circumstance—no significant prior criminal history. However, as the circuit court
observed, Hojan was only able to articulate that he could offer proof that supported
two non-statutory mitigating circumstances—a history of parental abandonment
and neglect, and evidence of child abuse and head trauma. Thus, the circuit court’s
conclusion that Hojan could not establish the prejudice prong concerning his
allegation that trial counsel was ineffective for failing to advise him about the
consequences of waiving mitigation during the penalty phase is based on
conclusive record evidence. Therefore, the circuit court did not err in summarily
denying Hojan’s subclaims.
Access to Files and Other Public Records
The record before us shows that the circuit court did not err in concluding
that Hojan’s public records request was facially insufficient. As presented in this
appeal, the public records requests do not specify: (1) the purpose for which Hojan
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needs them, or (2) how he would use the public records to collaterally attack his
convictions or sentences. Moreover, Hojan merely alleges that his defense counsel
satisfied the requirements of Florida Rule of Criminal Procedure 3.852 “to obtain
the requested additional public records” and that “the records sought are relevant to
[his] postconviction claims.” In addition, to the extent Hojan raised facial and as
applied constitutional challenges concerning sections 27.7081 and 119.19, Florida
Statutes, and rule 3.852 in the postconviction proceeding, these constitutional
challenges are waived because Hojan did not raise them in the present appeal. See
Rose v. State, 985 So. 2d 500, 509 (Fla. 2008) (“Rose has merely stated a
conclusion and referred to arguments made below. Thus, we consider the issue
waived for appellate review.”); see also Hodges v. State, 885 So. 2d 338, 357 (Fla.
2004) (“[T]he substantive issue underlying Hodges’ claim is procedurally barred
because Hodges could have but did not raise the argument on appeal.” (citing
Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995)).
Newly Discovered Evidence
The record shows that in denying an evidentiary hearing on Hojan’s claim
that the National Academy of Sciences (NAS) 2009 report, entitled “Strengthening
Forensice Science in the United States: A Path Forward” (“2009 NAS Report”),
pertaining to forensic science constitutes newly discovered evidence, the circuit
court reasonably relied on the requirements established in our prior decisions. See
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Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007) (“First, the evidence must not
have been known by the trial court, the party, or counsel at the time of trial, and it
must appear that the defendant or defense counsel could not have known of it by
the use of diligence. Second, the newly discovered evidence must be of such
nature that it would probably produce an acquittal on retrial.”); Johnston v. State,
27 So. 3d 11, 20-21 (Fla. 2010) (“As we explain below, we agree with the
postconviction court that the [2009 NAS Report] presented by Johnston does not
constitute newly discovered evidence. . . . The report cited by Johnston does not
meet the test for newly discovered evidence. . .”). In light of its application of our
precedent, we find that the circuit court did not err in concluding that the 2009
NAS Report does not constitute newly discovered evidence that could affect the
outcome of Hojan’s trial.
Post-trial Juror Interviews
The circuit court provided three reasons why it rejected Hojan’s claim that
Rule Regulating The Florida Bar 4-3.5(d)(4)8 unconstitutionally denies him the
8. Bar rule 4-3.5(d)(4) states that a lawyer shall not:
after dismissal of the jury in a case with which the lawyer is
connected, initiate communication with or cause another to initiate
communication with any juror regarding the trial except to determine
whether the verdict may be subject to legal challenge; provided, a
lawyer may not interview jurors for this purpose unless the lawyer has
reason to believe that grounds for such challenge may exist; and
provided further, before conducting any such interview the lawyer
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opportunity to fully explore possible misconduct and biases of the jury for
purposes of demonstrating the unfairness of the trial. First, relying on Troy v.
State, 57 So. 3d 828 (Fla. 2011), the circuit court concluded that the claim was
procedurally barred because it should have been addressed on direct appeal.
Second, the present claim has been repeatedly analyzed and rejected by this Court.
See, e.g., id. at 841; Sweet v. Moore, 822 So. 2d 1269, 1274 (Fla. 2002); Johnson
v. State, 804 So. 2d 1218, 1225 (Fla. 2001). Third, Hojan neither alleged that he
filed a motion requesting permission to interview any juror nor alleged any specific
juror misconduct. We agree with the circuit court’s conclusion that Hojan’s claim
was an attempted fishing expedition in the guise of a constitutional challenge to
Bar rule 4-3.5(d)(4); these type of fishing expeditions are prohibited under existing
Florida law. See Arbelaez v. State, 775 So. 2d 909, 920 (Fla. 2000) (rejecting the
defendant’s claim relating to his inability to interview jurors because it amounted
to a request to “conduct ‘fishing expedition’ interviews with the jurors after a
must file in the cause a notice of intention to interview setting forth
the name of the juror or jurors to be interviewed. A copy of the notice
must be delivered to the trial judge and opposing counsel a reasonable
time before such interview. The provisions of this rule do not prohibit
a lawyer from communicating with members of the venire or jurors in
the course of official proceedings or as authorized by court rule or
written order of the court.
R. Reg. Fla. Bar 4-3.5(d)(4).
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guilty verdict is returned”). Thus, the circuit court properly summarily denied this
claim.
Florida’s Lethal Injection Protocol
In light of our decisions in Valle9 and Lightbourne,10 the circuit court
correctly rejected Hojan’s claim that this state’s current lethal injection protocol
violates the Eighth Amendment to the United States Constitution because the
administration of the drugs is procedurally inadequate. As the circuit court aptly
points out, this specific Eighth Amendment challenge has previously been raised
by other defendants and rejected by this Court. See, e.g., Tompkins v. State, 994
So. 2d 1072, 1080-82 (Fla. 2008); Power v. State, 992 So. 2d 218, 220-21 (Fla.
2008); Woodel v. State, 985 So. 2d 524, 533-34 (Fla. 2008); Schwab v. State, 969
So. 2d 318 (Fla. 2007). Furthermore, Hojan has not presented any compelling
reason why we should reconsider our position on this matter. Accordingly, we
conclude that the circuit court did not err in summarily denying Hojan any relief as
to this claim.
HABEAS CORPUS
Standard of Review
9. Valle v State, 70 So. 3d 530 (Fla. 2011).
10. Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007).
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It is well-settled that
[c]laims of ineffective assistance of appellate counsel are
appropriately presented in a petition for writ of habeas corpus. See
Freeman, 761 So. 2d [1055, 1069 (Fla. 2000)]. Consistent with the
Strickland standard, to grant habeas relief based on ineffectiveness of
appellate counsel, this Court must determine first, whether the alleged
omissions are of such magnitude as to constitute a serious error or
substantial deficiency falling measurably outside the range of
professionally acceptable performance and, second, whether the
deficiency in performance compromised the appellate process to such
a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Lynch
v. State, 2 So. 3d 47, 84-85 (Fla. 2008); Freeman, 761 So. 2d at 1069.
In raising such a claim, “[t]he defendant has the burden of alleging a
specific, serious omission or overt act upon which the claim of
ineffective assistance of counsel can be based.” Freeman, 761 So. 2d
at 1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981).
Jackson v. State, 127 So. 3d 447, 476 (Fla. 2013).
Merits
Hojan alleges that his appellate counsel was ineffective during his direct
appeal for failing to raise three issues that would have warranted a reversal of the
judgments of guilt or the sentences imposed: (1) that Hojan was involuntarily
absent from the jury selection, which is a critical stage of the trial proceedings; (2)
that the trial court erred in admitting remote prior bad acts that were unduly
prejudicial; and (3) how the Fourth District’s decision in Jimmy Mickel’s direct
appeal should have impacted the review of the trial court’s finding of the cold,
calculated, and premeditated (CCP) aggravating circumstance and this Court’s
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proportionality analysis. We find that each of these would have been meritless had
they been raised. We therefore do not find appellate counsel ineffective.
Involuntary Absence of the Defendant
As we previously discussed, the record is clear about the fact that Hojan
subsequently ratified the jury selection procedure that was employed during his
trial. Therefore, we do not find any reason that trial counsel acted unreasonably by
not doing anything to preserve this sub-issue at trial for subsequent review on
direct appeal. See Muhammad, 782 So. 2d at 352. Accordingly, had appellate
counsel chosen to raise the issue of Hojan’s absence when the jury was selected on
direct appeal, such a claim would have been rejected as unpreserved and meritless.
See Stephens v. State, 975 So. 2d 405, 426 (Fla. 2007) (“[A]ppellate counsel
cannot be deemed ineffective for failing to raise this claim on direct appeal because
even if he had done so, this Court would have declined to address the merits of the
claim.” (citing Lukehart v. State, 776 So. 2d 906 (Fla. 2000))).
Impermissible Admission of Bad Act Evidence
Even though the prior bad acts subclaim was not raised on direct appeal,
appellate counsel’s failure to do so does not constitute ineffectiveness. The rule
governing the admissibility of evidence related to other crimes, wrongs, or acts that
was established in Williams v. State, 110 So. 2d 654 (Fla. 1959), has been codified
in section 90.404, Florida Statutes:
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Similar fact evidence of other crimes, wrongs, or acts is admissible
when relevant to prove a material fact in issue, including, but not
limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, but it is
inadmissible when the evidence is relevant solely to prove bad
character or propensity.
§ 90.404(2)(a), Fla. Stat. (2002).
The circuit court’s order denying Hojan’s rule 3.851 motion drew the
following notable conclusion:
[T]he testimony of witnesses Kendrick and Burkhardt, which
established that [Hojan] possessed a gun similar to the one used to
shoot the victims in this case, does not fall within the Williams
rule. . . . The testimony was properly admitted to show that [Hojan]
possessed the same type of weapon [as used in these crimes] . . .
especially since [Hojan] did not want to stipulate that he possessed the
murder weapon.
Order at 23-24.
Based on the record before us, we independently conclude that because the
testimonial evidence challenged by Hojan is not the kind of evidence that violates
the Williams rule, appellate counsel cannot be deemed ineffective for not raising a
meritless challenge pertaining to this subclaim during Hojan’s direct appeal. See
Stephens, 975 So. 2d at 426.
Failure to Consider the Decision in Former Codefendant’s Case
Hojan alleges that appellate counsel was ineffective for failing to argue that
Hojan’s codefendant substantially dominated him. To support his claim, Hojan
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cites the following excerpt from Mickel v. State, 929 So. 2d 1192 (Fla. 4th DCA
2006):
The judge, after reviewing the [pre-sentencing investigation report],
hearing comments from the victim’s families, considering the
evidence at Mickel’s trial, and considering the state’s
recommendation, stated:
There is no question having sat through both Mr. Hojan’s
trial and your trial that you were the mastermind behind
this entire thing. You manipulated Mr. Hojan. He was
there, he did your bidding, and the three times that he left
that freezer and went back to your location, there was no
question what was going on at that point. You were
telling him, no witnesses, no witnesses, no witnesses, and
he went back and he went forth, and he went back, and
he pulled the trigger and that pull of the trigger was a
cold, calculated, premeditated act that was precipitated
by your direction. No question about that.
The court sentenced Mickel to five consecutive life sentences.
Id. at 1195-96. Hojan thus argues that our decision in Mickel lends clear support
for a conclusion that Mickel substantially dominated Hojan during the entire
criminal episode that resulted in Hojan’s convictions and sentences. We disagree.
In Lawrence v. State, 846 So. 2d 440 (Fla. 2003), we considered the claim
that the trial court abused its discretion by not recognizing there was sufficient
evidence for finding the substantial domination mitigating circumstance.
Lawrence, 846 So. 2d at 448-50.
We, however, do not find support in the record for Lawrence’s
contentions. There was no evidence presented or proffered indicating
how Rodgers’ record influenced Lawrence’s behavior in the instant
crime. While Lawrence argued to the trial court that the time
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Lawrence and Rodgers spent together in a mental hospital suggested
that Lawrence knew the substance of Rodgers’ record, no evidence
was presented or proffered to further this assertion. The mere
possibility that Lawrence might have been able to establish this
foundation through his own testimony does not create a constitutional
infirmity. See State v. Raydo, 713 So. 2d 996, 1000 (Fla. 1998).
Moreover, if the trial court erred in excluding Rodgers’ record, that
error was harmless given the extensive evidence in the record
regarding Rodgers’ history with Lawrence. See State v. DiGuilio, 491
So. 2d 1129, 1135 (Fla. 1986).
Regarding the trial court’s finding that the substantial
domination mitigator was not established by the evidence, we find
that there is competent, substantial evidence to support the trial
court’s finding.
Id. at 449.
Here, Hojan attempts to establish that appellate counsel was ineffective for
failing to raise the issue that is premised on the trial judge’s characterization of his
former codefendant Jimmy Mickel as the “mastermind” to substantiate his
substantial domination subclaim. However, the record in Hojan’s case is more
reminiscent of that which was found in Lawrence—namely, Hojan’s conclusory
claim only points to a “mere possibility” that the trial judge’s denomination of
Mickel as the mastermind “establish[es] [a] constitutional infirmity.” See id. In
such light, it is unclear how Hojan’s claim constitutes a fully developed issue that
appellate counsel reasonably could have raised during his direct appeal. Thus,
appellate counsel was not ineffective as to this subclaim. See Floyd, 18 So. 3d at
458 (“This Court has held that ‘[i]f a legal issue “would in all probability have
been found to be without merit” had counsel raised the issue on direct appeal, the
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failure of appellate counsel to raise the meritless issue will not render appellate
counsel’s performance ineffective.’ ”) (quoting Rutherford, 774 So. 2d 643);
Stephens, 975 So. 2d at 426 (same proposition).
CONCLUSION
Because the record conclusively shows that Hojan is not entitled to relief, we
affirm the circuit court’s order that summarily denied his rule 3.851 motion. And,
finding no serious omission or overt act upon which the claim of ineffective
assistance of appellate counsel can be based, we deny Hojan’s petition for writ of
habeas corpus.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Broward County,
Paul Lawrence Backman, Judge - Case No. 062002CF005900B88810
And an Original Proceeding – Habeas Corpus
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Todd
Gerald Scher, Assistant Capital Collateral Regional Counsel, Southern Region, and
Jessica Leigh Houston, Staff Attorney, Capital Collateral Regional Counsel,
Southern Region, Fort Lauderdale, Florida,
for Appellant/Petitioner
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Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa-Marie Krause
Lerner, Assistant Attorney General, West Palm Beach, Florida,
for Appellee/Respondent
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