Hardwick v. Crosby , 320 F.3d 1127 ( 2003 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ January 31, 2003
THOMAS K. KAHN
CLERK
No. 97-2319
_______________
D. C. Docket No. 95-00250-CIV-J-10
JOHN GARY HARDWICK, JR.,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(January 31, 2003)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
BIRCH, Circuit Judge:
In this habeas corpus, death penalty appeal, we must determine whether an
attorney who provided no defense at the guilt or penalty phase was ineffective in
defending a young drug dealer, who was an alcohol and drug abuser. When relief
was denied in district court, the petitioner appealed on the bases of ineffective
assistance of counsel at the guilt and penalty phases as well as conflict of interests
with counsel. While we AFFIRM denial of habeas relief as to the conviction, we
VACATE the denial of habeas relief as to the death sentence and REMAND to the
district court for an evidentiary hearing to determine if petitioner is entitled to
habeas relief because of ineffective assistance of counsel at the sentencing phase.
I. BACKGROUND
A. Factual Chronology
During the long Christmas weekend in 1984, petitioner-appellant, John Gary
Hardwick, Jr., and various friends consistently consumed alcohol and quaaludes
and smoked marijuana.1 Hardwick, who was unemployed but a drug dealer and
1
For factual completeness to address the issues on appeal in our independent review, we
relate the record facts from witness testimony in pretrial depositions taken by Hardwick's
counsel, the trial, and the state Rule 3.850 proceeding. Additionally, we include facts from
affidavits and expert reports that were exhibits at the 3.850 proceeding but were not part of the
record before the district court. From the significant references to these exhibits in the transcript
of the 3.850 proceeding, it was evident that we needed to review them. After repeated requests
by our court, the exhibits were filed as "Requested Exhibits." The absence of these exhibits from
the district-court record is part of the reason that we remand this case for an evidentiary hearing.
2
user, and his wife Darlene, who was fifteen and seven months pregnant at the time,
had moved into the apartment of Dan Dimaggio in Jacksonville, Florida, two
weeks before Christmas.2 Most of the young men in the neighborhood that
Hardwick had met were teenagers and either involved in drug trade or were drug
purchasers/consumers. Hardwick's brother acknowledged that Hardwick "has
always done a lot of drugs and drank a great deal" and that, in the latter months of
1984, he "was doing even more than usual" such that "[h]e would be so high that
he wouldn't know whether he was coming or going and all of his friends were
druggies."3
Connie Wright, a friend of Hardwick's wife and daily visitor, stated:
From the first time I met John [November or December, 1984]
he was doing drugs and selling drugs, including quaaludes and pot.
He was messed up almost all the time; he was only straight in the
morning when he got up. He took so many drugs that he would pop
Because the dissent accepts the 3.850 factual findings by the state trial judge, who, in turn,
adopted the testimony of Hardwick’s trial counsel, Frank Tassone, we are specific in stating
record facts that directly contradict Tassone’s testimony with particular relevance to the penalty
phase.
2
Dimaggio testified at trial that there were six people living in his apartment at the
relevant time: Dimaggio, Hardwick and his wife, Pete McCoy and some of his family. Trial
Transcript at 431.
3
Affidavit of Jeff Hardwick ¶ 4 (Feb. 7, 1990). Although they had relevant testimony
concerning Hardwick’s drug and alcohol consumption at times proximate to the murder at issue,
Tassone testified that the drug use of Hardwick’s teenaged friends and acquaintances “was
clearly an aspect” in his decision not to call them to testify. 3.850 Proceeding at 117-18.
3
pills in his mouth and swallow them without drinking water. It
seemed like he had problems and he took the drugs to get rid of his
problems.4
Jeff Bartley, a neighborhood friend, described Hardwick's drug and alcohol
consumption the weekend before Christmas:
The weekend before Hardwick was arrested for murder, Pete
McCoy [Hardwick's brother-in-law], Hardwick and myself part[i]ed
together. Friday night we bought three fifths of vodka. Hardwick had
a bunch of quaaludes and quite a bit of pot. All weekend we were
drinking and smoking. Hardwick was eating quaaludes all weekend.
It was not unusual for Hardwick to be high.5
4
Affidavit of Connie Wright ¶ 2 (Jan. 8, 1990) (emphasis added). Dr. Henry L. Dee, a
psychologist, testified at the 3.850 proceeding that Hardwick’s childhood of neglect and
abandonment by his parents was “a model” for creating an “anti-social personality,” which was
manifested by “act[ing] out against authority” in his adolescence and, combined with his being
“emotionally sensitive,” caused him to have “a lot of anxiety and distress,” for which Hardwick
used “psychoactive substances” as a “self cure.” 3.850 Proceeding at 924, 925. We note that we
have not included any testimony from Erika Johnson, since she testified that she was biased
against Hardwick and recanted her affidavit. 3.850 Proceeding at 1044, 1047-1101.
5
Affidavit of Jeff Bartley ¶ 2 (Feb. 8, 1990) (emphasis added). Bartley, who partied with
Hardwick during the Christmas weekend, consumed alcohol and smoked marijuana with him,
and was arrested with Hardwick for his participation in the murder, stated that, at their arrest,
“Hardwick and I were pretty high.” Id. at ¶ 3. Because Bartley passed out from this alcohol and
drug consumption during the night of the murder, Tassone testified that “I didn’t feel [Bartley]
could give any useful information around a twenty- or twelve-hour period, either side of the
homicide.” 3.850 Proceeding at 94. Tassone also testified that he knew from depositions that
there was constant partying during the Christmas weekend and that all involved said that
Hardwick was present. Id. at 95.
[M]y recollection is there was a good bit of testimony about the people who had
gotten together within the two or three days immediately prior to or succeeding
the homicide.
....
I know there was testimony concerning the use of drugs or alcohol by
Hardwick and others at, from December 22 to say 26 or 27.
Id. at 135 (emphasis added).
Dr. Clifford A. Levin, a psychologist who specializes in addictions, prepared a report for
4
Michael Hyzer, a neighbor formerly convicted of possession of marijuana, testified
at trial that, on Saturday, December 22nd, Hardwick came to his house at 10:00
A.M. and asked if Hyzer knew where he could get some marijuana to sell to make
money.6 When Hyzer told Hardwick that he did not know where he could get
marijuana, Hardwick left and returned within an hour and asked to use Hyzer's
telephone. Telling Hyzer that he was going to buy quaaludes, Hardwick left
Hyzer's house and returned at 3:00 P.M. with 100 quaaludes.7 He sold Hyzer
twenty-five for $70.8 That Saturday night before Christmas, Hardwick and others
attended a party at Hyzer’s house, where quaaludes and alcohol were consumed.
On Sunday morning, December 23rd, Dimaggio was awakened at 10:00 or
11:00 A.M. by Hardwick's "running around the house looking for his . . .
the 3.850 proceeding after talking with Hardwick, who told Dr. Levin that he had purchased 150
quaaludes on Thursday, December 20th and 100 quaaludes on Sunday, December 23rd. Levin
Report at 2. Hardwick also reported to Dr. Levin "that during the five days leading to his
offense that he ingested forty or fifty of the Quaaludes, continually smoked marijuana, drank a
fifth of vodka and shared 'a couple of cases of beer' with friends." Id. Mary Braddy, a
correctional officer with the Duval County Sheriff's Department and chaplain's assistant for the
Duval County Jail, averred that Hardwick told her "that he had been doing drugs and drinking
steadily over the whole weekend prior to his arrest" and that "[h]e looked as if he had been on a
binge." Affidavit of Mary Braddy ¶ 3 (Feb. 7, 1990).
6
Trial Transcript at 512.
7
Id. at 511-13.
8
Id. at 513.
5
Quaaludes and his money."9 Subsequently, Hardwick told Dimaggio "that he
would take care of the mother fucker that took his Quaaludes," and "he accused a
couple of people," including Keith Pullum, who sold marijuana for Hardwick.10
Dimaggio testified that Hardwick told him that he would use his .357 Magnum to
"stop" whoever took his quaaludes.11 Darlene Hardwick related that, "when she
got up Sunday [Hardwick] was still drunk and doing Quaaludes."12
In the early afternoon that Sunday, Connie Wright testified that she went to
see Darlene Hardwick and found Hardwick lying on the floor and that "[h]e looked
pretty intoxicated to [her]."13 At approximately 3:00 P.M., Hardwick went to his
9
Id. at 431, 423. After interviewing Hardwick for his report for the 3.850 proceeding,
Dr. Levin explained that, in 1984, Hardwick's "chronic pattern of drug addiction" manifested
itself by a daily pattern of alcohol and drugs. Levin Report at 2. Hardwick's anger at
discovering that his quaaludes were missing was his "inability to 'get high.'" Id. Describing his
dependency on drugs, Hardwick reported to Dr. Levin: "'If I woke up in the morning without
drugs, I couldn't handle the day. . . . I had to stay high to feel right.'" Id. at 4.
10
Trial Transcript at 423, 424; Pretrial Deposition of Jeff Showalter at 8. Dr. Dee
testified that Hardwick’s threats were bravado instead of genuine intentions to kill and that the
reason he shot Pullum was because he made Hardwick angry. 3.850 Proceeding at 1016.
11
Trial Transcript at 424. Neighbor Jeff Showalter testified at trial that Hardwick had the
.357 Magnum in his waistband "[e]verywhere he went." Trial Transcript at 309.
12
3.850 Proceeding at 286. Although Hardwick's wife did not testify at any court
proceeding and was unavailable, she was interviewed by the psychological experts who testified
at the 3.850 proceeding from their notes made while talking with Darlene Hardwick. Id. at 264-
65. This information was related to Dr. George W. Barnard, the court-appointed psychiatrist.
Although Hardwick's recently acquired quaaludes were missing and, consequently, his
opportunity to sell them, he kept a supply in the refrigerator for personal consumption.
13
3.850 Proceeding at 589 (confirming her pretrial deposition testimony at the 3.850
proceeding).
6
mother, Nell Lawrence's trailer home in Jacksonville. At the 3.850 proceeding, she
testified:
[H]e was just totally out of his mind. He couldn't walk. He was
stumbling. His words were slurred. You couldn't understand him,
and my husband was at home and I had asked [Hardwick]
to leave in that condition so that my husband wouldn't ask him to
leave.
....
It was around 3:00 o'clock, and he was—his words were so slurred
you really [could] not understand either what he was saying but he
was trying to tell me that he had come to wish me a merry Christmas.
....
I had just told him—he knew that I didn't want any arguments or
anything. Of course Johnny never argued with my husband but I
always asked him not to, and I had asked him to—if he would leave
. . . before Allen came out and . . . said something to him, and he said,
yeah, . . . and he stumbled on out the driveway.14
14
Id. at 528, 529. Similarly, Nell Lawrence's affidavit describes Hardwick's visit that
Sunday afternoon and states that he was "so high that he could not walk and his speech was
slurred. He was talking crazy. There were a couple of people in the car with him. I had to ask
him to leave so my husband would not see him in that condition." Affidavit of Nell Lawrence ¶
20 (Jan. 7, 1990). Hardwick's brother Jeff, who had a trailer on his mother's lot, witnessed
Hardwick's visit to his mother and described Hardwick as "so stoned that mom asked him to
leave. He could barely walk up the steps and when he spoke, he didn't make sense." Affidavit of
Jeff Hardwick ¶ 5. In contrast to this 3.850 and affidavit testimony, Tassone testified that he did
not recall that Hardwick’s mother had seen him “within any of the timeframe of this homicide.”
3.850 Proceeding at 118. Similarly, his recollection was that Jeff Hardwick had not seen his
brother “in a long time.” Id. at 191. Tassone admitted that, if he had known the condition of
Hardwick witnessed by his mother and brother at 3:00 P.M. prior to the murder early the next
morning, then he would have used them at trial. Id. at 181, 184.
In her affidavit, Hardwick's mother describes Hardwick's deprived and abusive
childhood. Her father had been an alcoholic: "His life centered one hundred percent on
drinking." Affidavit of Nell Lawrence ¶ 2. After she left her first husband and left their five
children with her mother, Hardwick's mother married his father, who was an alcoholic. Id. at ¶
6. Hardwick, the oldest of the three boys from this union, witnessed his father beat his mother,
and he was abusive to Hardwick, once pulling his shoulder out of its socket. Id. ¶¶ 7, 9; see
Levin Report at 3 (Hardwick "described his father as an alcoholic and reported receiving
7
Thereafter, Darlene Hardwick saw Hardwick take eight to ten quaaludes between
3:00 and 6:00 P.M. on that Sunday afternoon.15
'whippings' from his father that left him black and blue from being hit with a belt buckle."). Her
third husband, with whom she had three more children, was jealous of her other children, and
Hardwick did not get along with the children in that family; as a small boy, Hardwick twice
hitchhiked back to South Carolina to be with his father. Id. ¶¶ 13-14.
Florrie Benton, Hardwick’s aunt, sister of Hardwick’s father, stated that Hardwick’s
father s his wife Nell and their children because of his drinking.” Affidavit of Florrie Benton ¶ 3
(Jan. 22, 1990). She explained that Hardwick “grew up on his own, with no one to tell him right
from wrong. He grew up feeling unloved and unwanted.” Id. at ¶ 7. Grady Hardwick,
Hardwick’s uncle, brother of Hardwick’s father, stated that his father, Hardwick’s paternal
grandfather, was “an alcoholic” and that Hardwick’s father “was drinking heavily by the time he
was a teenager.” Affidavit of Grady Hardwick ¶¶ 2,3 (Jan. 22, 1990). Hardwick spent “a few
months” with this uncle when he was “about 19 or 20 years old.” Id. at ¶ 7. The uncle knew that
Hardwick was taking drugs because he had left some pills on a counter, and the uncle could tell
“when he was high” because Hardwick “would talk crazy and do stupid things. He would go
through a complete personality change when he was doing drugs.” Id. at ¶ 8.
Dr. Barnard recognized that some people can be “genetically at risk for becoming
alcohoics” and that circumstances cause them to be “more endangered” than a low-risk
individual. 3.850 Proceeding at 293. Hardwick’s father was “a role model in terms of the
people for him to see and to imitate.” Id. Additionally, Hardwick’s childhood environment
would cause him to “lack the ability to feel good about himself,” which would make him “more
prone then to use these other drugs to . . . bolster his own self-esteem.” Id. Dr. Levin testified
that “it’s well documented that a person whose father is addicted is nine times more likely to
become addicted themselves, and so [Hardwick] had a physical tendency to become alcoholic or
drug addicted.” Id. at 770. Yet, as to Hardwick’s father, Tassone testified: “I am almost certain
that I did not know where Mr. Hardwick’s father was at the time of the trial or whether he was
alive or dead.” Id. at 128.
When Hardwick was seven, his mother put him in a boy's home in Jacksonville because
she "had no money to take care of him." Affidavit of Nell Lawrence ¶ 15. Hardwick' s mother
knew that he "was smoking pot and doing drugs when he was a young teenager. . . . because
some of the other kids told [her] and also because he acted differently when he was high.
Additionally, when he was about 13 years old he called and told [his mother] that he had just
gotten out of the hospital after having hepatitis" from intravenous drug use. Id. ¶ 18; see Levin
Report at 3.
15
3.850 Proceeding at 284 (testimony of Dr. Barnard, the court-appointed psychiatrist
based on notes from his interview of Darlene Hardwick). Hardwick’s wife told Dr. Barnard that
Hardwick’s behavior “that whole weekend” through his arrest was “very scary” and that his
argumentative and aggressive conduct had caused her to tell “him she was going to leave him.”
8
Regarding Hardwick's condition on that Sunday night, Connie Wright
averred: "I saw John a few hours before Keith Pull[u]m was killed, somewhere
around 8:00 p.m. I saw him eat some quaaludes. He was really high, even before
he ate the quaaludes."16 At the 3.850 proceeding, Wright testified concerning the
effects of Hardwick's taking the quaaludes: "He was acting real weird. He was
laying on the floor and sweating and walking and pacing around."17 She also
witnessed an argument between Hardwick and his wife "[o]ver him taking too
many quaaludes"; there was no doubt in her mind that Hardwick "was high."18
In the early evening, Jeff Showalter came over, listened to the radio, and
watched television with Hardwick's wife. At approximately 7:00 P.M., Hardwick,
Jeff Bartley, and Keith Pullum arrived with 160 quaaludes.19 Showalter left
Id. at 288.
16
Affidavit of Connie Wright ¶ 5. Wright also averred that Hardwick called her from jail
after he was arrested for murder "and he said he had done 10 quaaludes the night of the offense."
Id. ¶ 7.
17
3.850 Proceeding at 580. Darlene Hardwick also told Dr. Barnard that she noticed that
Hardwick was sweating profusely that weekend. Id. at 289.
18
Id. at 580. The state trial judge in his factual findings subsequent to the 3.850
proceeding describes Wright’s testimony as “equivocal on the issue of intoxication.” Transcript
of Record, Vol. IV at 594. Wright was 14 at the time of the murder. Hardwick’s wife told Dr.
Barnard that, in addition to the quaaludes that she saw Hardwick consume that Sunday
afternoon, she had seen him drink “some of the whiskey straight on the rocks and then some in a
mixed amount. The best of her recollection he had maybe four small glasses on the rocks prior
to the mixed stuff.” Id. at 317.
19
Trial Transcript at 310-12, 322-23.
9
between 10:00 and 10:30 P.M. and rode his bicycle home, which was five minutes
away.20 Showalter's father went to bed, and Showalter lay down on the couch in the
front room of the house to watch television. Between 10:30 and 11:00 P.M.,
Showalter heard his dog barking, looked out the window, and saw Pullum at the
gate and Hardwick's car parked on the other side.21
Showalter went outside, where Pullum informed him that Hardwick wanted
to talk to him to ask if he had seen Hardwick's quaaludes. Showalter went over to
Hardwick's car; Hardwick, accompanied by Jeff Bartley, told him that his
quaaludes were missing and that Showalter and Pullum were his two suspects.
Hardwick, who was driving, Bartley, and Pullum drove away, and Showalter went
back inside and lay on the couch.
Between 11:00 and 11:30 P.M., Showalter heard his dog bark again, and,
when he went outside, saw only Pullum, who said that he was going home to eat
and then return to Hardwick's.22 Pullum said that Hardwick "was driving around
mad looking for his Quaaludes."23 Showalter went inside his home. Between 11:30
P.M. and midnight, Hardwick, Bartley, and Pullum returned a third time, and
20
Id. at 312, 323.
21
Id. at 312.
22
Id. at 314-15.
23
Id. at 315.
10
Pullum informed Showalter that Hardwick, who was driving, wanted to talk to
him.24 When Showalter walked over to Hardwick's window, he cocked and aimed
his .357 Magnum at Showalter and accused him of stealing his quaaludes, which
Showalter denied. Hardwick threatened that, if he did not have his quaaludes in an
hour, then he would kill either Showalter or Pullum.25 When Showalter offered to
help Hardwick look for the quaaludes in the morning, Hardwick informed
Showalter that he wanted him at his house in an hour, and Hardwick and Bartley,
who had a .22 automatic rifle, drove away.26 Hardwick was driving "pretty
slow."27
Showalter urged Pullum to go into his house, talk to his father, and call the
police. Asserting that Hardwick and Bartley would not "'mess'" with him, Pullum
24
The murder did not occur till some six hours after Showalter last saw Hardwick.
Bartley was with Hardwick and Pullum after they left Showalter’s house. Bartley averred:
Just a few hours before Keith was killed Hardwick and I were real messed up. As
I said before, Hardwick had been doing quaaludes all weekend. I saw Hardwick
take at least one quaalude just a few hours before the murder. That night
Hardwick was acting pretty crazy. He was drinking whiskey, smoking pot,
laughing and running around.
Affidavit of Jeff Bartley ¶ 2 (Feb. 8, 1990). Characterizing Bartley as “a criminal associate,”
3.850 Proceeding at 988, Dr. Levin concluded that Showalter’s testimony regarding Hardwick’s
condition “cancel[led] out” because “Jeff Showalter[, who was 14 at the time] was a potential
victim, and I would assume he was fairly angry with Mr. Hardwick. He is a friend of Keith
Pullum,” id. at 987.
25
Id. at 316.
26
Id. at 326.
27
Id. at 317.
11
started walking toward his house down the same road on which Hardwick and
Bartley had driven away.28 As he watched, Showalter saw the car in which
Hardwick and Bartley were riding stop, turn around, go back to where Pullum was
walking, and stop beside Pullum, but he neither saw Pullum get into the car nor the
interior light illuminate.29 Showalter ran into his house, looked out the window,
and saw the car drive in front of his house. He could not see who was inside
Hardwick's car because it was "too dark."30
The description of the events that transpired after Hardwick, Bartley, and
Pullum drove away from Showalter's house occurs in Dr. Clifford A. Levin's
testimony at the 3.850 proceeding and his report. Dr. Levin not only interviewed
Hardwick, but also he reviewed the pretrial depositions, the trial testimony, and the
affidavits of the witnesses and found internal consistency. While Hardwick told
Dr. Levin that he had killed Pullum, he described his state of mind at the time of
the homicide "as foggy, implying that he didn't have complete knowledge of
28
Id.
29
Id. at 317-18, 331.
30
Id. at 319, 332.
12
all the details that took place."31 Dr. Levin related Hardwick's description to him
of how the murder evolved from his notes from his interview with Hardwick:32
Mr. Hardwick reported that he was with the victim after driving
the victim to a secluded area for the purpose of holding the victim
ransom to obtain his—return of his drugs, quaaludes, and he
alternately said that he took the victim as a way to influence him to
return his drugs. He stated that he became angered when the victim
would not return the drugs. . . .
....
31
3.850 Proceeding at 781. Dr. Levin also related Hardwick's description of his alcohol
and drug use at the relevant time and, specifically, the Christmas weekend during which Pullum's
murder occurred:
[Hardwick] described a period of time in 1984 wherein he was extensively
using alcohol and drugs, a daily usage to the point of intoxication. He described
it in increased usage during the weekend prior to the death of the victim and he
reported being concerned that he had a quantity of quaaludes stolen from his
possession and became very incensed about the absence of these quaaludes
mostly for his personal usage but he also had been reportedly selling these
quaaludes.
From the description of the record and the affidavits provided to me it was
a period surrounding the incident of extensive usage where Mr. Hardwick was
often characterized as looking highly intoxicated and appearing very emotional
and very erratic in his behaviors.
....
He reported using multiple dosages of quaaludes, smoking marijuana,
drinking alcohol and beer.
Id. at 780 (emphasis added). Dr. Levin explained that "whenever an individual . . . who is
addicted to chemicals finds one's self in a stressful circumstance one tends to use to excess in
order to cope with the stress in the fears or whatever feelings that are being felt, and there is a
tendency to indulge to a greater extent than is even typical." Id. at 788-89. Specifically as to
Hardwick, Dr. Levin determined that the apparent drug ingestion, intoxication, and behavior
under the circumstances that resulted in the murder of Pullum exemplified the "characteristic
profile" of the way Hardwick had "dealt with stressful circumstances in the past with the use and
extensive abuse of alcohol or drugs." Id. at 792.
32
Regarding Hardwick's willingness to discuss the murder, Dr. Levin testified that "[h]e
didn't seem hesitant in terms of willingness. He seemed unsure at times about the specifics." Id.
at 782.
13
He reported that he became very angered at the victim's denial
that he had the stolen drugs, and he reported reacting to the victim in
anger and shooting the victim twice with his head turned so he could
not see the victim get shot.
....
He said that he was having difficulty focusing on what he was
doing. He described himself as intoxicated, and he described himself
as confused and unable to clearly think out what he was doing. That
was a verbal report.
He reported that he felt that after shooting the victim he felt
sorry for him and he thought about . . . aiding the person in getting
hospitalized and help and also reported checking with a person who
was with him, who he did not state who it was, for assistance on what
he should do and he was—he reported that he was advised to go ahead
and kill the person.
....
He reported that he was confused as to what he should do at
that point, was wondering if he should take the victim to the hospital
and conferred with apparently someone who was there with him who
encouraged him to in quotes finish the job.
....
At that point, [Hardwick commenced his attempts to kill
Pullum.]
....
Tried to stab him with a crowbar was the next thing. Was
unsuccessful. Was unable to stab him with a crowbar. Got a knife.
Stabbed him twice. The victim passed out, put him in the truck, drove
him to the river[, thinking that Pullum was dead].
....
He thought he was dead and he was going to put him in the
river.
....
He also characterized his thinking at the time saying he wasn't
sure what he was doing—he wasn't sure exactly what he should do,
statements to that effect and talked about stumbling, talked about
being unclear and took a while to get out the information. He was not
sure exactly the sequence of events. He was trying to reconstruct that.
....
14
He did not seem to be holding back information in the sense of
I am not going to tell you that I killed this guy or I am not going to tell
you the gory details. He seemed to be struggling with what exactly
my thoughts were and what exactly was the sequence of events, and
that was of concern to me in terms of it seemed to give credence to
this was not a clear-thinking individual and not a clear memory of the
events that transpired.
....
He put him in the water. He thought he was dead. The victim
got up, stood up and . . . he stated that he went back down to the
victim . . . .
....
And hit him on the head with a car jack and held him under water
until the air bubbles were gone.
....
He said he went back home is the information I got and started
crying and a friend calmed him down.33
At trial, a resident in the Haulover Creek area testified that she heard two
shots between 6:00 and 6:30 A.M. on Christmas Eve, December 24th.34 At 9:40
that morning, a man fishing from a dock at the point where Haulover Creek
empties into the St. Johns River discovered a body floating in the water and called
33
Id. at 781-82, 783, 863, 864, 865-66, 867 (direct and cross examination) (emphasis
added). Dr. Barnard, the court-appointed psychiatrist, also interviewed Hardwick regarding the
killing of Pullum. Dr. Barnard agreed that he had noted that Hardwick told him that he drew his
.357 Magnum on Pullum "to scare him" but instead shot him in the hip. Id. at 327-28. When
Pullum fell down and asked Hardwick to take him to the hospital, Hardwick was "too scared"
and shot Pullum again. Id. at 328. Hardwick could not look at Pullum, "and the bullet hit him in
the arm." Id. Pullum was still alive, and Hardwick "stabbed him with a knife, put him in the car,
took him to the water[;] [Pullum] was still alive and asked to be taken to the hospital." Id.
34
Trial Transcript at 343-44.
15
the police and rescue unit.35 The medical examiner, who performed the autopsy on
Pullum on Christmas Day, testified that Pullum's body evidenced head injuries as
well as knife, and gunshot wounds; he fixed the time of death as being between
5:40 A.M. and 7:40 A.M.36
On Christmas Eve morning, approximately 10:00 or 11:00 A.M., Dave
Tanner and William Bavar, walking down a road, encountered Hardwick, who also
was walking.37 Hardwick told them that two people had stolen his quaaludes, that
he had taken care of one and fed him to the sharks, and that he was looking for the
other.38 At his deposition, Tanner described Hardwick as being "half wiped out,"
which he clarified as meaning almost "passed out."39 He also testified that
Hardwick was intoxicated, upset over his missing quaaludes, and "[l]ook[ed] like
he had been out partying all night" and "smoking a little pot that night."40 Tanner
further noticed that Hardwick had a pistol in his pants.41
35
Id. at 349-50.
36
Id. at 392, 393.
37
3.850 Proceeding at 721, 726.
38
Id. at 726-27.
39
Id. at 721, 723.
40
Id. at 718, 728-29, 730, 733.
41
Id. at 729.
16
Between 10:00 A.M. and noon on Christmas Eve, Connie Wright went to the
apartment where Hardwick and his wife were staying. She testified: "Darlene was
yelling at Johnny. She was really very mad because he didn't come in the whole
night before and they didn't get to go where they wanted to go."42 At the 3.850
proceeding, Wright testified that Hardwick's clothes were dirty, he looked like he
had been up for days, and "he was just real high."43 Her affidavit details
Hardwick's demeanor:
The next day, the day before Christmas, 1984, John and Jeff
[Bartley] were acting weird. I knew that they had been messed up on
drugs for days. They were dirty, their clothes were messy and they
looked like they had been up for days. John looked worse than usual.
He kept walking down the road and coming back. He would lay on
the floor a few minutes and then get up and pace. He didn't say much
but when he did talk he didn't make any sense. He was shaking,
sweating a lot and his moods kept changing quickly.44
42
Trial Transcript at 465.
43
3.850 Proceeding at 581.
44
Affidavit of Connie Wright ¶ 6 (emphasis added). In his supplemental order following
the 3.850 proceeding, the trial judge concluded that Wright would not be a good witness for the
defense at trial because Hardwick confessed to her that he killed Pullum. The trial judge’s
discussion of Wright, however, related only to the guilt phase. Transcript of Record, Vol. IV at
594. Her testimony concerning Hardwick’s condition that evidenced his consumption of drugs
and alcohol was relevant to the sentencing phase, irrespective of Hardwick’s confession to her
and others. Additionally, Wright substantiated the same description of Hardwick’s condition
given by his wife to the experts who testified at the 3.850 proceeding. As opposed to testimony
showing guilt, Wright’s testimony at the penalty phase, when guilt was no longer an issue, would
have been significant.
17
Wright also testified that she saw Hardwick take ten quaaludes that day.45 Wright
reaffirmed her deposition testimony that, on Christmas Eve afternoon, Hardwick
said that he had taken care of "the mother fucker that stole his drugs, and if Keith
Pullum walked in the door he would believe in ghosts."46 Hardwick's mother
averred that, when he called her on Christmas Eve, "his speech was still slurred and
he was not making sense."47 Additionally, on Christmas Eve, Hardwick robbed a
Marine.48
Between 10:00 P.M. and midnight on Monday, Christmas Eve night, Joseph
Delgross was going home in his pickup truck, when Hardwick came out on the
road and waved to him to stop.49 Hardwick asked Delgross if he had heard that
150 of Hardwick's quaaludes had been stolen. Learning that Delgross did not
45
3.850 Proceeding at 583.
46
Id. at 593. Dimaggio also heard Hardwick's comments. Between 2:00 and 3:00 P.M.,
on Christmas Eve afternoon, Dimaggio returned from Gainesville, where he had gone with Pete
McCoy and his family, Jasper Davis, and others the previous afternoon. Trial Transcript at 436.
Later, Hardwick "walked in the door [and] told [Dimaggio] he took care of the mother fucker
that got his shit." Id. at 426. When Dimaggio asked him what he was talking about, Hardwick
responded: "well, I will put it this way: If Keith Pullum walks through that door he's got a
ghost." Id. Concerning Dimaggio’s testimony following his return from Gainesville on the
afternoon of December 24th, Dr. Levin testified Dimaggio’s testimony that Hardwick was
“jumpy,” “[r]eal nervous,” and “[s]weating” are characteristics of drug ingestion. 3.850
Proceeding at 883-84.
47
Affidavit of Nell Lawrence ¶ 21.
48
3.850 Proceeding at 328.
49
Trial Transcript at 493-94.
18
know about the theft, Hardwick told him that the quaaludes were stolen by two
people, that he had taken "care of one of them and fed him to the sharks and he was
looking for the other."50
At approximately 2:30 A.M. Christmas morning, Michael Marchbanks was
walking along a road when Hardwick drove by in his car, and Marchbanks asked
for a ride home.51 On the way home, Hardwick said "that he had been ripped off"
and that he had taken "care of one guy and he was looking for another guy."52 At
8:00 A.M. Christmas morning, Michael Hyzer and his family were opening
Christmas gifts when he heard his dogs bark.53 Hyzer looked out his window and
saw Hardwick walking toward his driveway; he met him at the road. Hardwick
wanted Hyzer to assist him in getting his stuck truck out of the woods. When
Hyzer told Hardwick that he could not help him, Hardwick said that Pullum had
stolen some quaaludes and that he had shot, stabbed, and thrown him into the
jetties for the sharks.54 Although Hardwick told Hyzer that "we took care of him,"
50
Id. at 494.
51
Trial Transcript at 504.
52
Id. at 505.
53
Id. at 514.
54
Id. at 514. Hyzer was taken aback at Hardwick's description of killing Pullum:
He said Keith ripped me off of some Quaaludes and I shot
19
he did not disclose the identity of the other person.55 After sending Hardwick to
his neighbor to assist with the car, Hyzer called the police homicide division and
talked with Detectives Pruett and Kesinger. He also agreed to go to the morgue
that Christmas morning to identify Pullum.56
Christmas afternoon, police officers arrived in the neighborhood to search
for Hardwick. The neighborhood residents joined in the search and one located
Hardwick in the woods and detained him until the police arrived.57 In performing a
body search of Hardwick, the arresting officer recovered a knife that did not show
blood or any other bodily fluid.58 A .22 revolver also was located in the palmetto
bushes, but Hardwick's .357 Magnum was never located.59
him and stabbed him and threw him into the jetties, and he said
nobody would find him but the sharks. But I kind of thought about
that hard. You know, I'm not around, that kind of thing every day.
I asked him, I said, what did you say. And he said yeah, he ripped
me off and I blew his shit away.
Id. at 514-15.
55
Id. at 515.
56
Id. at 516.
57
Trial Transcript at 541.
58
Id. at 535, 537. Hardwick was arrested at 2:45 P.M. on Christmas day. Id. at 620.
59
Id. at 543.
20
At 5:30 P.M. on Christmas day, Detectives Robinson, Hill, and Officer
Register photographed Hardwick as part of the booking process.60 Hardwick asked
three times "what was happening," and Detective Robinson told him to be quiet
and that the pictures and other vital information would only take a few moments.61
At the third inquiry, Officer Register told Hardwick that officers from homicide
would talk with him, whereupon Hardwick, who had not yet received his Miranda
rights, voluntarily stated: "[A] man can't go around robbing dope dealers and not
expect to get killed. He kept doing that and he got what was coming to him."62
Detective Robinson wrote down Hardwick's statement, which became a state
exhibit at trial. While Detective Robinson testified that Hardwick appeared
"disheveled," no sobriety test was conducted.63 Both he and Detective Hill testified
that Hardwick did not seem to be intoxicated or under the influence of drugs and
that he was "rational," "calm," and "coherent."64
60
Id. at 575. Detectives Robinson and Hill of the Robbery Division were investigating
Hardwick on the robbery charge and were assisting the Homicide Division by taking the booking
photographs and obtaining preliminary information. Id. at 598.
61
Id. at 576.
62
Id. at 576-77.
63
Id. at 579.
64
Id. at 578, 596-97.
21
At 5:40 P.M. on that Christmas day, Detective Kesinger of the Homicide
Division interviewed Hardwick, who was not represented by counsel.65 Detective
Kesinger testified that he did not record Hardwick's statements or have a court
reporter present to transcribe them; he relied on his memory and the "notes on the
back of the constitutional waiver form" that he made.66 He advised Hardwick that
he had been arrested for the murder of Keith Randall Pullum and read him his
constitutional rights for the first time.67 Detective Kesinger then proceeded with
the interview whereupon Hardwick "made a spontaneous statement. He out of the
blue said I'm missing some Quaaludes, but it's not a big deal."68 Detective
Kesinger testified at trial that he did not ask Hardwick anything about quaaludes.69
Shortly after the termination of the interview, Detective Kesinger testified that
Hardwick became incoherent and aggressive:
That was about 15 minutes after the interview had ended
and we had him in the room, and the only thing I can
think of is he apparently had been in possession of some
drugs and had ingested them at some point and totally
65
Id. at 610. In his interview of Hardwick, Detective Kesinger was accompanied by
Detective Pruett of the Homicide Division. Id.
66
Id. at 681, 705.
67
Id. at 610-11.
68
Id. at 614.
69
Id.
22
went out of it and started kicking the door, kicking the
walls inside. I opened the door. He attempted to kick
me. I grabbed him by the throat and tried to go to the
wall with him to pin him against the wall, but there was a
chair and we went over the chair. He was completely
incoherent after that. We had to physically carry him
from the building.
I saw him later that night once I got the search
warrant and he didn't know where he was, who I was. I
read it. They had him in a strip cell. Totally
incoherent.70
After his arrest, Hardwick called his mother and asked her to retrieve some
of his possessions from Dimaggio's apartment.71 She and her son Jeff went to
Dimaggio's apartment and found a number of passed-out individuals from the
partying that had involved drugs and alcohol.72 Jeff Hardwick described the scene
70
Id. at 622 (emphasis added). Dr. Levin testified at the 3.850 proceeding that the
testimony of the robbery detectives who said that Hardwick was coherent at his booking was
inconsistent with the "psychotic episode" that shortly followed. 3.850 Proceeding at 1011-12.
He also noted that, while Detective Kesinger testified that Hardwick was coherent during his
interview concerning the murder, "[h]e also reported that fifteen minutes after his interrogation
of Mr. Hardwick ended that he displayed an unprovoked violent outburst and became 'totally
incoherent.'" Report of Dr. Levin at 3. Consequently, Dr. Levin's view that Hardwick was
intoxicated at the time of the murder or had diminished capacity is not necessarily challenged.
3.850 Proceeding at 1011-12.
71
Affidavit of Nell Lawrence ¶ 21.
72
Nell Lawrence described the scene when she arrived:
I went in the house and there were beer bottles all over the place.
There were a bunch of people there, drunk and passed out. I
remember seeing Darlene's brother [Pete McCoy] and Daniel
Dimaggio and a bunch of other people. I tried to wake some of
them but I could only wake up one person.
23
similarly: "After Johnny's arrest, I went with mother to where Johnny lived, to get
his belongings. The place was a wreck, with beer bottles all over and everyone
passed out. It was hard to even wake someone up."73
During the day on December 26th, Mary Braddy, who then was employed
by the Sheriff's Office as a chaplain's assistant, visited Hardwick.74 She found him
"not responsive at all when spoken to," apparently unaware of her presence, and
"his eyes were very glassy and glazed," and "never seemed to focus."75 Braddy
clarified that her affidavit description of Hardwick looking "as if he had been on a
binge" meant "an alcoholic that would come in the back door that hadn't slept or
eaten in a week and had just been drinking or doing drugs and [had] not bother[ed]
to take care of [himself]."76 In her subsequent conversations with Hardwick, Jeff
Bartley, and Jasper Davis, who also had been arrested for his participation in the
homicide, they consistently related that "there had been a lot of drinking and drugs
Id.
73
Affidavit of Jeff Hardwick ¶ 6.
74
3.850 Proceeding at 600, 601.
75
Id. at 603, 604, 606. She also testified that Hardwick's long hair was "matty and
stringy" and that "he looked dirty." Id. at 604.
76
Id. at 608. Braddy further testified that Hardwick appeared to be intoxicated when she
first saw him. Id. at 623.
24
through their partying over the weekend," and she specifically remembered
Hardwick's "talking about quaaludes."77
Braddy, who had worked as a booking officer, testified that Hardwick's
booking document was dated December 25th at 6:35 P.M., but that it was not
processed until December 26th.78 That document showed "unable" on the line for
Hardwick's signature, which Braddy explained to mean that the inmate was
"physically unable" to sign, which included intoxication, as opposed to refusal to
sign.79 In her affidavit, Braddy noted that Hardwick's intoxicated state should have
been mentioned by the arresting officers: "It would be hard to believe arresting
officers didn't report that Mr. Hardwick was intoxicated when he was brought to
jail. Mr. Hardwick definitely appeared to be under the influence of drugs when he
was brought in. Mr. Hardwick was not even coherent when I saw him [the day
after his arrest]."80
77
Id. at 607, 642. In her affidavit, Braddy stated: "Mr. Hardwick related to me that he
had been doing drugs and drinking steadily over the whole weekend prior to his arrest."
Affidavit of Mary Braddy ¶ 3. Braddy developed a counseling relationship with Hardwick,
arranged special visits in her office for his mother to see him, and became fond of Hardwick
through her professional, counseling relationship with him. 3.850 Proceeding at 617-18, 625-26.
78
Id. at 634, 637, 640.
79
Id. at 612, 614, 615, 616.
80
Affidavit of Mary Braddy ¶ 4. Despite her description of Hardwick’s condition in
custody the day after his arrest with his having no ability to consume drugs or alcohol, the state
trial judge made a factual finding following the 3.850 proceeding in his supplemental order that
Braddy “had no relevant contact with the Petitioner.” Transcript of Record, Vol. IV at 597.
25
On December 27th, Detective Kesinger and a patrolman went to a fire pit on
Alvin Road, where Hardwick shot bullets from his .357 Magnum into concrete
blocks.81 The officers collected copper jackets, shell casings, and lead fragments.82
These items were sent to the Florida Department of Law Enforcement and then to
the FBI laboratory in Washington, D.C., where they ultimately were found to
match the .357 casings found in Hardwick's car and the bullet in Pullum's body.83
B. Procedural History
1. Pretrial Proceedings
Hardwick was indicted for first-degree murder and pled not guilty. In
response to discovery, his court-appointed attorney, Frank Tassone,84 filed a list of
fifty-two witnesses that Hardwick "expect[ed] to call as witnesses at the trial."85
81
Trial Transcript at 637.
82
Id. at 645.
83
Id. at 646, 731-32, 739. A firearms examiner from the Florida Department of Law
Enforcement testified that he could state with a reasonable degree of scientific certainty that the
recovered shells were fired from the same weapon and matched the bullet found in Pullum, and
an FBI agent testified: "It is my opinion that the bullet taken from the victim came from the same
box of ammunition as the four lead fragments found at the fire pit, or from another box of
ammunition which contained bullets of that exact same composition." Id. at 741, 749-50, 761.
84
Originally, the Public Defender for the Fourth Judicial Circuit of Florida was appointed
to represent Hardwick. Because of his prior representation of one of the state's listed witnesses
and a possible conflict of interest, he was permitted to withdraw, and Tassone was appointed to
be Hardwick's counsel.
85
Transcript of Record, Vol. I at 124.
26
Although he took the depositions of the majority of the prospective witnesses, most
of whom were involved in the law enforcement investigation of the murder,
Tassone called none of them at trial.86
On February 13, 1986, Tassone moved to withdraw as Hardwick's counsel
or, alternatively, to appoint Hardwick as co-counsel so that he could participate in
his defense.87 The impetus for this motion was because Hardwick had informed
Tassone that he wanted to represent himself but that he wanted Tassone's advice
and needed him to perform other tasks, such as taking depositions and having
subpoenas issued.88 The trial judge conducted a hearing on this motion on
February 25, 1986. At this hearing, Hardwick explained his reasons for wanting
another attorney appointed to represent him, which he also stated in handwriting
that the judge made it part of the record:
Incompetency of Counsel
86
Notably, the state trial judge’s findings regarding Tassone’s strategic reasons for not
calling Nell Lawrence, Jeff Hardwick, Connie Wright, and Jeff Bartley relate to the guilt-
innocence portion of the trial, concerning Counts II and IV, failing to prepare and present a
voluntary intoxication defense. Transcript of Record, Vol. IV at 593-95. The sentencing phase,
however, involves a more expansive analysis of mitigation factors, such as family background
and inability to conform conduct to the requirements of law, than the guilt-innocence phase.
These witnesses could have provided significant mitigation evidence for the different analysis
required at the sentencing phase.
87
Transcript of Record, Vol. I at 129-30.
88
Id.
27
Counsel has repeatedly told me I should plead guilty to
first degree murder for life with a mandatory 25 years.
He has refused to subpoena people I want subpoenaed to
trial for witnesses, and to get addresses.
I told counsel I wanted motions filed so I could be
present during depositions that were never filed.
I also don't have any confidence he will fight the case for
me, because he has already told me several things that are
not true.
I know more about [the] case than he does, and I have
only saw him twice until I fired him.
I ask the court to appoint me another attorney, because I
cannot adequately represent myself.89
Regarding his impasse with Tassone, Hardwick informed the judge that, without
dismissal of Tassone, he would be forced to represent himself, which he did not
believe that he was qualified to do:
MR. HARDWICK: . . . .
You know, if the Court so forces me to do so I will
represent my own self. But it's not my choice I want to
represent myself. Because I don't feel I'm adequate to
represent my own self in this trial. But if the Court so
forces me to do so I will represent myself rather than
have Mr. Tassone as my counsel.
89
Id. at 131 (emphasis added); Hearing Transcript at 64. Hardwick’s statement in his
motion requesting another attorney that he had only seen Tassone twice is in stark contrast to
Tassone’s 3.850 testimony that he had “a minimum of thirty or forty meetings prior to trial” with
Hardwick. 3.850 Proceeding at 36.
28
THE COURT: Well, the law is pretty clear that you
either have the right to represent yourself, if you are
qualified,—
MR. HARDWICK: I'm not choosing to represent myself.
THE COURT: — or to have Court-appointed counsel.
You are not allowed to fire Court-appointed counsel.
....
I don't hear anything in what you have said that would
cause me to think that [Tassone's] handling of the case
has not been proper.
MR. HARDWICK: Would you like me to read it again?
THE COURT: No. I heard it.
....
Filing a motion to have you moved all around to attend
depositions would have been a waste of his time and
mine and yours because I wouldn't grant it.
MR. HARDWICK: Well, Your Honor, I don't feel that
that's a waste of time because I know Florida Statutes
states it's my right, you know, and—I mean, my life is at
stake in this case. I believe I should be able to exercise
all my rights. I feel like the reasons I have stated—you
know, we have got irreconcilable differences . . . .90
The trial judge denied Tassone's motion to withdraw as counsel91 and
proceeded to examine Hardwick as to his competency to conduct his defense. The
judge determined that Hardwick was not competent to represent himself, which
90
Hearing Transcript at 66-67, 68 (emphasis added).
91
Id. at 69; Transcript of Record, Vol. I at 132.
29
resulted in Tassone's continuing as his counsel.92 Tassone also asked for
clarification of the judge's ruling:
MR. TASSONE: . . . I find myself in a quandary. I have
received messages, my office has received messages,
from Mr. Hardwick that regardless of what the Court's
ruling is today that I was fired.
....
I don't want to get into a quandary or a box of being
between an order of the Court and the instructions by my
client not to proceed further.
92
The exchange between Hardwick and the judge regarding this ruling is as follows:
MR. HARDWICK: If the Court doesn't relieve Mr. Tassone and is
forcing me to represent myself because I do not want Mr. Tassone
as my counsel, I will represent myself before I accept Mr. Tassone
as my counsel.
THE COURT: Let the record show that I find Mr. Hardwick is not
permitted to represent himself and I will deny such request.
....
MR. HARDWICK: So, basically what the Court is saying is that
Mr. Tassone is still going to represent me?
THE COURT: That's correct.
MR. HARDWICK: And that I'm being denied the right to another
attorney?
THE COURT: Yes, sir.
....
The law does not give you the right to choose what attorney
represents you. If you convince me that I have appointed an
attorney that is incompetent, that is not representing you
adequately, or that because of some personality conflict he is out to
see you lose the case, then I could do it. But I'm not convinced of
that at all.
Hearing Transcript at 75, 76 (emphasis added).
30
....
I don't want to get into the position of perhaps violating
any request by my client as opposed to one of the Court,
and I would ask the Court to perhaps inquire of Mr.
Hardwick as to whether it is his decision that I do or do
not perform certain functions on his behalf?
THE COURT: I don't think he can make that decision.
He didn't hire you and he can't fire you. . . . . as long as I
have heard his request to have you relieved and to have
other counsel and I have denied those. I think at this
point that the thing that is binding on you is my order
appointing you. Until you are relieved of that order you
are to fulfill all the duties as his attorney.93
2. State Trial
The testimony and evidence at Hardwick's trial, March 11-13, 1986, focused
on identifying Hardwick as the murderer through witnesses and ballistics evidence.
At the commencement of the second day of trial, Tassone informed the judge that
Hardwick desired to address him. Hardwick again, orally and in handwriting, filed
by the court, moved to have Tassone dismissed as his counsel:
93
Id. at 80, 81-82 (emphasis added).
31
Motion to Dismiss Counsel
1. Mr. Tassone has refused to ask state witnesses who
took the witness stand questions I wanted asked about
differences in their sworn statements and depositions.
2. He has also refused to call the defense witnesses I want
called to the witness stand to tell my side of this case.
3. For this reason Mr. Tassone is incompetent as counsel
and he is also in collusion with the state, and trial court
has erred by not letting me dismiss Mr. Tassone as
counsel on February 25, 1986 and appoint[]ing substitute
counsel. This deprives me of my constitutional right to
effective assistance of counsel. Because of this I have to
ask to represent myself because the court is forcing me to
do this.94
In a side-bar conference with Hardwick and counsel, Hardwick reiterated his
request for appointment of another counsel, which again was denied.95
94
Transcript of Record, Vol. I at 145 (emphasis added); Trial Transcript at 664.
Apparently, inconsistencies in the state witnesses’ depositions and subsequent testimony were
problematic to Hardwick, who knew the true facts. For example, Connie Wright’s deposition
testimony regarding Hardwick’s intoxicated/drugged condition undermined her subsequent
testimony. If Tassone had called the witnesses in the defense case, then their conflicting
testimony could have been resolved. Obviously, Hardwick believed such testimony would have
helped him.
95
The side-bar conference was as follows:
THE COURT: . . .
Mr. Hardwick, from the request that you just made am I to
understand that you want to fire Mr. Tassone and represent
yourself?
MR. HARDWICK: I would like the Court to appoint me another
counsel.
32
THE COURT: Okay. I can't do that.
MR. HARDWICK: But if not—yeah, the Court is forcing me to
represent myself rather than proceeding with Mr. Tassone.
THE COURT: There are not three choices. There are only two.
You either have to be represented by Mr. Tassone or you will have
to represent yourself.
MR. HARDWICK: Uh-huh (yes).
THE COURT: I can't appoint anybody else.
MR. HARDWICK: Why not?
THE COURT: That is not the law.
MR. HARDWICK: I feel I have valid reasons to fire Mr. Tassone
and dismissing him.
THE COURT: It's not the law. The law is you get one attorney
appointed.
MR. HARDWICK: It says if you have voluntarily—reason to
dismiss this attorney, another one will be appointed for you.
THE COURT: No.
I will do either of those two ways you want to do. You can
represent yourself or you can have Mr. Tassone.
MR. HARDWICK: Is the Court forcing me to represent myself
rather than appointing another attorney?
THE COURT: Well, you need to tell me whether you are—
MR. HARDWICK: I'm not going to say that I want to represent
myself in front of this Court.
THE COURT: Yes.
MR. HARDWICK: That's all there is to it.
33
While cross examining Detective Kesinger, Tassone introduced his other apparent
defense of Hardwick, in addition to sufficiency of the evidence, by asking
Detective Kesinger if Mr. Buettner had confessed to killing Pullum. This resulted
in a discussion among counsel, and the judge sustaining the state's objection with
the ruling that the testimony that Tassone was attempting to place before the jury
was hearsay. Later that day, the state rested, and Tassone moved for a directed
THE COURT: Okay.
MR. HARDWICK: I'm not going to say that. Because I do not—I
want another attorney.
THE COURT: Do you think you are capable of representing
yourself?
MR. HARDWICK: No, sir, I do not.
THE COURT: Well, quite frankly, I'm certain that you are better
off with an attorney than without one. I agree with you on that.
The only point on which we disagree is you are telling me Mr.
Tassone is not competent.
MR. HARDWICK: We have a big disagreement there.
Trial Transcript at 665-67 (emphasis added); Transcript of Record, Vol. I at 146.
34
verdict of acquittal based on the state's failure to prove first-degree murder.96 The
judge denied this motion and asked Tassone to call his first witness.
The only witness that Tassone offered was David Buettner on a proffer
outside the presence of the jury. Buettner, a Navy seaman, testified to participating
in killing, with a Marine and another sailor, an individual in Jacksonville while on
limited duty there between December 12, 1984 and August 1, 1985.97 While that
victim also was beaten, stabbed, and shot in the same vicinity as Pullum, he was
stabbed with a bayonet, not a pocket knife, and shot in the back of the head with a
.38 pistol by another sailor with Buettner.98 Moreover, Buettner testified that he
96
Tassone's motion for directed verdict of acquittal was as follows:
The State has charged Mr. Hardwick with murder in the
first degree and they must prove a number of elements, which we
would submit that the State has not brought out any testimony
under the theory of felony murder, and recognizing Mr. Hardwick
is not charged under that particular statute, but the State has failed
to specify elements involving that the death was caused by the
criminal act or agency of Mr. Hardwick, or that there was a
premeditated killing of Mr. Pullum. The Court has heard the
testimony of the various witnesses. We would submit, Your
Honor, that the testimony fails to establish a prima facie case of
guilt against Mr. Hardwick.
Id. at 771. We note that Tassone failed to present testimony to substantiate the bases for his
motion for directed verdict of acquittal.
97
Id. at 774.
98
Id. at 775-76, 777. The motive for this killing allegedly was because the victim had
seduced Buettner's girlfriend and the wives of the other two men while they were at sea. Id. at
795.
35
was certain that the killing occurred on February 2 or 3, 1985, and that the body
was left on the beach by a seaway and not thrown into the river.99 Buettner even
testified that aspects of the killing were the result of his "very vivid
imagination."100 Notably, "Banana Man" was an individual that Buettner had met
and who had told him a story that became part of the story that Buettner told about
the murder to his leading petty officer, his immediate supervisor on his ship.101
The judge sustained the state's objection to Buettner's testimony because it was
either fabrication or another murder, since the facts were different.102 Tassone then
informed the judge that "the Defense will present no witnesses to the jury and will
rest."103
While the jury was absent, the judge addressed Hardwick concerning
witnesses on his behalf and his not testifying:
THE COURT: . . . .
Let me make one inquiry of Mr. Hardwick. . . . I want to state
for the record that we are in the part of the trial where you can present
99
Id. at 776, 778, 791.
100
Id. at 777. This imagination extended to identifying the victim as Keith Kennedy, a
man who had drowned. Id. at 791.
101
Id. at 773, 777.
102
Id. at 778-79, 796-97. The judge also ascertained that Tassone did not want to offer
the hearsay statements of Banana Man. Id. at 796.
103
Id. at 798.
36
evidence. Mr. Tassone has indicated that you do not wish to present
any other evidence other than which you have tried to present.
MR. HARDWICK: I would like to present a bunch of evidence, Your
Honor.
THE COURT: I understand. I understand there are things that you
want to present that he has told you you can't or that he thought you
ought not.
MR. HARDWICK: That's correct.
THE COURT: . . . .
Specifically with regard to you taking the stand,—
MR. HARDWICK: Yes.
THE COURT: —it is my understanding that you and he have
discussed that, is that correct; whether or not you should take the
stand?
MR. HARDWICK: I'm the defendant. I'm the defendant. I wouldn't.
....
THE COURT: . . . .
But, for the record, I do understand there are other witnesses
and things that you want to call and that Mr. Tassone has advised you
not to do that.
MR. HARDWICK: Yes, sir, about 20 of them to be exact.
THE COURT: But none of them are yourself?
MR. HARDWICK: No, sir, none of them are myself.
....
MR. HARDWICK: What I want to know is how Counsel can deny me
the right to call witnesses into this trial?
37
THE COURT: Because your Counsel has to call the witnesses.104
Following the close of the evidence in the case, the judge ordered dinner for
the jurors and resumed the trial for closing arguments at 7:30 P.M. on March 12,
1986. A bailiff advised the judge that Hardwick would not leave his cell, and the
judge recalled that Hardwick had said that he wanted to do his closing argument.105
104
Id. at 798, 799, 800-01, 804 (emphasis added). Prior to trial, the state judge conducted
a hearing on Hardwick’s motion to dismiss Tassone. In the course of that proceeding, Hardwick
informed the state judge that the witnesses that he wanted called on his behalf were all of the
state witnesses:
[W]hen it’s time for trial if all my witnesses aren’t called that I want called and
they aren’t on the record—I want it to reflect that I have requested that these
witnesses be called. All State witnesses that are testifying against me, I want
them called on my behalf too because there are so many different statements. I
want them. You know, some of them are disappearing and all this. I don’t want
to—they are talking about they can’t find them and stuff. I would like the record
to reflect I want all State witnesses called so far that have given depositions and
sworn statements in this matter.
Pretrial Hearing (Feb. 25, 1986) at 77 (emphasis added). Because cross examination is restricted
to the scope of direct examination, it is insufficient for eliciting testimony beyond the scope of
direct examination. Thus, the state witnesses who gave depositions and sworn statements were
identifiable and calling them in the defense case would have resolved conflicts in their
testimony.
105
The account of Hardwick's refusal to leave his cell is as follows:
THE COURT: . . . .
Mr. Tassone, your client has indicated to the bailiffs that he
doesn't want to come out.
MR. TASSONE: Yes, Your Honor, he has indicated the same to
me.
THE COURT: I don't mind. He doesn't have to hear closing
arguments.
MR. TASSONE: Your Honor, I agree.
....
38
The judge, counsel, and the court reporter went to Hardwick's cell for the judge to
conduct an inquiry as to the voluntariness of Hardwick's absence from closing
arguments:
MR. TASSONE: Judge, the Judge, court reporter and [the prosecutor]
are here.
I have advised Judge Haddock that it was your decision not to
come out, and the bailiffs have advised him of the same;
Is that your decision?
MR. HARDWICK: Yes. That's my decision because my witnesses
wasn't called and I don't feel that justice is being done and achieved in
this trial. This is a mockery of justice.
MR. TASSONE: Okay.
Mr. Hardwick, I was advised by the bailiff—he indicated
that—you had advised me of that, but one of the bailiffs indicated to
me and to the Court that it was your desire to proceed and do your
own closing argument.
MR. HARDWICK: You may as well do it. You done did everything
else.
MR. TASSONE: Okay.
THE COURT: Prior to my leaving I heard him say something
about him wanting to do his own closing argument.
MR. TASSONE: No, Your Honor.
BAILIFF MONIES: He said that to me.
THE COURT: I would just as soon avoid that. I am not going to
let him do that.
Id. at 810 (emphasis added).
39
THE COURT: Do you understand you have the right to be present
during this stage of the trial?
MR. HARDWICK: Yeah. I understand it.
THE COURT: And you are waiving that right?
MR. HARDWICK: I reckon. I don't know. I'm just not coming in
there.106
In his closing argument, Tassone argued insufficiency of the circumstantial
evidence with no mention of how Hardwick's drugged and intoxicated condition
during the subject weekend could have affected his ability to formulate
premeditated intent. The prosecutor argued the incriminating testimony and
evidence presented through the state's eighteen witnesses and emphasized
Hardwick's premeditated murder of Pullum. Following closing arguments, the
judge conducted the charge conference with the attorneys late into the night.
The next morning, March 13th, the third and last day of trial, Tassone
tendered two jury instructions, the first of which dealt with the effect of drugs
and/or alcohol on formulating specific intent.107 The prosecutor objected to this
106
Id. at 811-12 (emphasis added). In this exchange, in layman’s terms, Hardwick
actually is complaining that he has been denied his Sixth Amendment right to confront the
witnesses against him, and, therefore, he believes that his trial has been unjust and
unconstitutional.
107
Defendant's first Requested Jury Instruction provides:
The crime of First Degree Murder is a specific intent crime.
In order to find the Defendant guilty, you must find that he had the
40
instruction and stated: "I don't recall a scintilla of evidence that this defendant was
intoxicated. As a matter of fact, the evidence was quite to the contrary; that he
seemed very sober the night of the offense."108 The trial judge agreed: "With
regard to number 1, I recall no evidence of intoxication of any sort on the night of
the alleged killing. Therefore, I don't think it's an appropriate charge with this
evidence. I will deny defendant's requested jury instruction number 1."109 After
the instructions and the jury retired to deliberate the verdict, the judge asked
counsel if there were any exceptions or objections to the instructions. Tassone
stated that the defense had none.110 At 4:05 P.M., the jury signaled that it had a
specific intention to kill.
Intoxication from ingesting drugs and/or alcohol may
render an individual incapable of formulating the specific intent
required.
Therefore, if you find the Defendant was intoxicated to the
extent that he was unable to formulate a specific intent to kill, you
must find the Defendant not guilty of Murder in the First Degree.
Transcript of Record, Vol. I at 147 (emphasis added).
108
Trial Transcript at 918 (emphasis added).
109
Id. at 919 (emphasis added). At the 3.850 proceeding, Tassone testified that, because
of the “very, very valuable forensic evidence that tied Mr. Hardwick to the homicide,” the jury
did not need to know about Hardwick’s drug use or possession “to convict Mr. Hardwick”: “I
think they could prove premeditation without ever having mentioned a drug.” 3.850 Proceeding
at 141. Tassone’s statement demonstrates his lack of understanding of the voluntary intoxication
defense and his failure to comprehend the mitigation groundwork/foundation this evidence
would have been for the penalty phase.
110
Id. at 935-36.
41
verdict.111 The jury found Hardwick guilty of murder in the first degree; the judge
set sentencing for March 27, 1986.112
3. Sentencing Proceeding
At sentencing, the judge informed the jurors that it was their duty to render
an advisory opinion as to whether Hardwick's punishment for first-degree murder
should be death or life imprisonment by evaluating the aggravating and mitigating
circumstances.113 The prosecutor presented the judgments and sentences from
Hardwick's previous convictions.114 Tassone presented no mitigating evidence.115
111
Id. at 944. The jury began its deliberations at 10:53 A.M., went to lunch from 12:45
P.M. till 1:45 P.M., when it continued deliberations, and announced a verdict at 4:05 P.M. Id. at
935, 944.
112
Id. at 949-50.
113
Sentencing Transcript at 963-64.
114
Id. at 964. In his argument to the jury at sentencing, Tassone did attempt to moderate
the effect of Hardwick's other convictions by explaining them:
[The prosecutor] argues [these convictions] show[] that
[Hardwick] has a lengthy prior criminal history record. I ask you
to look at the judgment and sentences that were introduced. One in
1978. The other in June of 1985. The 1985 conviction occurring
for robbery and kidnapping which occurred the day after Keith
Pullum's death, December 25th, 1984. The other one occurred in
1978. The offense in the State of North Carolina where it occurred
is a misdemeanor. And the method of this heinous crime, of this
horrible thing the State says, was attempting to hit someone with, I
believe, a steel hardhat. So, look at those. Look at what
circumstances are that are in those judgments and sentences.
Id. at 992-93. Had Tassone provided the details of the 1978 offense, committed while Hardwick
was incarcerated and provoked by a prison guard, as Hardwick's mother explained at the 3.850
proceeding, the effect of that conviction may have been lessened for the jury:
42
Again emphasizing the premeditated and cruel nature of the murder, the prosecutor
told the jury that statutory mitigating factors did not exist to counter the
aggravating circumstances. For example, the prosecutor stated that "there isn't one
shred of evidence that indicates that this defendant was under the influence of any
mental or emotional disturbance" and "[t]here is no evidence that the defendant's
mind was impaired or that he was out of control."116 Rather than giving the jury
any mitigating factors to consider, Tassone's closing and rebuttal arguments
reviewed the evidence in keeping with his sufficiency-of-the-evidence defense.117
When Little Johnny was in a North Carolina road camp some of
the young men in camp with him called me collect. They told me
that a certain guard had been harassing Little Johnny for a while
and had thrown hot tar at Johnny's face. I found out that Little
Johnny was charged with assault because he then threw his hard
hat at the guard. I hired an attorney over the phone to represent
him on that charge.
Affidavit of Nell Lawrence ¶ 17; see 3.850 Proceeding at 523-24 (Lawrence's testimony
concerning this incident).
115
Id. at 965.
116
Sentencing Transcript at 983, 985.
117
Since Hardwick had been convicted under Tassone’s sufficiency-of-the-evidence
defense, sentencing had a different defense purpose: to present mitigating factors to be weighed
against the aggravating factors of the murder to obtain a life sentence instead of death. In
response to questioning about his knowledge of nonstatutory mitigating factors at the 3.850
proceeding, Tassone responded: “I would think anything to try and make a jury to have some
type of sympathy for the defendant I would probably try and get in, or an understanding of the
defendant to lessen his culpability in the crime for which he stood convicted.” 3.850 Proceeding
at 151 (emphasis added). Inconsistent with this testimony was Tassone’s testimony that,
although he knew from either Dr. Barnard or Hardwick’s mother “that when Mr. Hardwick used
alcohol he became violent,” id. at 99, he did not ask Dr. Barnard to evaluate Hardwick for
43
Having presented no defense for Hardwick and following the state's closing
argument graphically describing Pullum's murder, Tassone's last statement to the
jury in his rebuttal argument was notable for its lack of foundation: "I think the
evidence is clear and the lack of evidence even clearer that John Gary Hardwick is
innocent of the crime of first degree murder."118
The judge then instructed the jury that its advisory sentence was to be based
on its
determination as to whether sufficient aggravating circumstances exist
to justify the imposition of the death penalty and whether sufficient
mitigating circumstances exist to outweigh any aggravating
circumstances found to exist.
Your advisory sentence should be based upon the evidence that
you have heard while trying the guilt or innocence of the defendant
and evidence that has been presented to you in these proceedings.
....
Each aggravating circumstance must be established beyond a
reasonable doubt before it may be considered by you in arriving at
your decision.
substance abuse, id. at 113, or statutory mitigating factors in the penalty phase, id. at 180. With
respect to the depositions of witnesses describing Hardwick’s intoxication and use of drugs
during the Christmas weekend, Tassone testified that he did not give those depositions to Dr.
Barnard, and further “that the chance of him receiving the depositions w[as] virtually nil.” Id. at
111. Tassone could have presented to the judge and jury Hardwick’s deprived and abusive
childhood that led to his alcohol and drug addictions that was manifested particularly during the
time period of the murder, when Hardwick participated in the binge, extended holiday weekend
where numerous individuals witnessed his alcohol and drug consumption as well as the effects
on Hardwick of his overindulgence. Instead, Tassone presented no mitigating evidence on
Hardwick’s behalf.
118
Trial Transcript at 892.
44
If one or more aggravating circumstances are established, you
should consider all the evidence tending to establish one or more
mitigating circumstances, and give that evidence such weight as you
feel it should receive in reaching your conclusion as to the sentence
that should be imposed.
A mitigating circumstance need not be proved beyond a
reasonable doubt by the defendant. If you are reasonably convinced
that a mitigating circumstance exists, you may consider it as
established.
....
If a majority of the jury determines that [Hardwick] should be
sentenced to death, your advisory sentence will be: A majority of the
jury, by a vote of blank, you will fill in that blank, advise and
recommend to the Court that it impose the death penalty upon
[Hardwick].
On the other hand, if by six or more votes the jury determines
that [Hardwick] should not be sentenced to death, your advisory
sentence will be: The jury advises and recommends to the Court that it
impose a sentence of life imprisonment upon [Hardwick] without
possibility of parole for 25 years.119
Tassone stated that he had no exceptions or objections to the instructions as
given.120 The jury retired to deliberate its advisory recommendation at 3:17 P.M.
on March 27, 1986, and returned a verdict at 4:18 P.M that afternoon "by a vote of
7 to 5" recommending that Hardwick receive the death penalty.121
119
Id. at 1002-03, 1005-06, 1006-07 (emphasis added).
120
Id. at 1008.
121
Id. at 1008, 1010, 1011.
45
4. Sentencing
At sentencing on April 24, 1986, the judge found that five aggravating
circumstances existed: (1) three prior, violent felony convictions,122 (2) the capital
felony was committed while Hardwick was engaged in a kidnaping, (3) the capital
felony was committed for pecuniary gain, (4) "the murder was especially wicked,
122
The judge stated that the first of these felony convictions was the 1978 North Carolina
incident, and he took "special notice" that the second and third felony convictions "were actually
committed within 24 hours after the defendant committed the murder for which he is now to be
sentenced." Sentencing Hearing at 1029. The Florida Supreme Court has strictly interpreted
prior felony convictions that qualify as an aggravating circumstance at sentencing in a capital
case. See Fla. Stat. § 921.141(5)(b) (1985) (“The defendant was previously convicted of another
capital felony or of a felony involving the use or threat of violence to the person.”). Rejecting
previous felony convictions “involving violence [,] . . . two convictions of breaking and entering
with intent to commit a felony, two convictions of escape, one conviction of grand larceny, and
one conviction of possession of a firearm by a convicted felon,” the Florida Supreme Court held
that none of these crimes falls within the meaning of this aggravating
circumstance as defined by the statute. Only previous conviction of “another
capital felony or of a felony involving the use or threat of violence” will satisfy
section 921.141(5)(b). This subsection refers to life-threatening crimes in which
the perpetrator comes in direct contact with a human victim.
Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981) (per curiam). Hardwick’s misdemeanor in North
Carolina, which arose from his throwing a hard hat at a prison guard who had thrown hot tar in
Hardwick’s face while he was incarcerated, see supra note 114, does not appear to be eligible for
a prior felony conviction, constituting an aggravating circumstance.
Additionally, Hardwick’s second and third felonies were committed subsequent to
Pullum’s killing. Whether these crimes, committed within 24 hours of Pullum’s death, had
resulted in felony convictions prior to Hardwick’s trial for Pullum’s murder is determinative of
whether they qualify as an aggravating circumstance. The Florida Supreme Court has explained
that, under § 921.141 (5)(b), “[i]t is clear that the Legislature referred to ‘previous convictions’
and not ‘previous crimes.’” Elledge v. State, 346 So. 2d 998, 1001 (Fla. 1977). Citing Provence
v. State, 337 So. 2d 783 (Fla. 1976), where two armed robbery charges, and not convictions,
were pending at the time of the defendant’s murder trial, the Florida Supreme Court reiterated
that “[i]t was there emphasized that prior conviction was the essential element of that
aggravating circumstance.” Elledge, 346 So. 2d at 1001.
46
evil, atrocious, or cruel,"123 and (5) the homicide "was committed in a cold,
calculated, and premeditated manner."124 Having found five aggravating
circumstances and "no statutory or non-statutory mitigating circumstances," the
judge sentenced Hardwick to death.125 Following the imposition of the death
penalty, Tassone thanked the judge.126
5. Direct Appeal
On direct appeal, the Florida Supreme Court affirmed Hardwick's conviction
and sentence. Hardwick v. State, 521 So. 2d 1071 (Fla. 1988). The Florida
Supreme Court did determine that two of the aggravating factors found by the trial
court were erroneous: "[T]he trial court erred in finding that the killing was
committed during a kidnapping and was for pecuniary gain. Each of these factors
requires proof beyond a reasonable doubt, not mere speculation derived from
equivocal evidence or testimony." Id. at 1075. That court determined that the
error in weighing the aggravating and mitigating factors was harmless because
"[t]he record before us reflects three aggravating factors and no valid mitigating
123
Id. at 1030.
124
Id. at 1033.
125
Id. at 1034.
126
Id. at 1035.
47
factors."127 Id. at 1076-77. Regarding discounting the mitigation factor of alcohol
and drug addiction, the Florida Supreme Court explained that no supporting
evidence was presented at either the guilt or sentencing phase.128
127
Under Florida law, “[w]here there are one or more valid aggravating factors that
support a death sentence and no mitigating circumstances to weigh against the aggravating
factors, death is presumed to be the appropriate penalty.” Blanco v. State, 452 So. 2d 520, 526
(Fla. 1984) (per curiam).
Florida’s death penalty statute, section 921.141, Florida Statutes (1983), provides
that the jury shall hear the evidence on aggravation and mitigation and render an
advisory sentence based on whether there are sufficient aggravating
circumstances to warrant a death sentence, and, if so, whether there are sufficient
mitigating circumstances to outweigh the aggravating circumstances. The statute
goes on to provide that, notwithstanding the recommendation of the jury, the
judge shall weigh the aggravating and mitigating circumstances and enter a
sentence of life imprisonment or death based on the judge’s weighing process. In
the event the death sentence is imposed, the judge is required to set forth in
writing the findings on which the death sentence is based. . . . [T]he judge is the
sentencing authority and the jury’s role is merely advisory.
....
[The Florida Supreme Court] routinely applies harmless error analysis to, and
affirms, death sentences where the judge has improperly found invalid
aggravating factors provided one or more valid aggravating factors exist which
are not overridden by one or more mitigating factors.
Grossman v. State, 525 So. 2d 833, 839, 844 (Fla. 1988) (per curiam); see Barclay v. Florida,
463 U.S. 939, 103 S.Ct. 3418 (1983) (holding that, when a trial judge has considered an invalid
aggravating circumstance, applying harmless-error analysis does not render the death sentence
unconstitutional). This case is distinguished, however, because our review of the record reveals
that Hardwick’s counsel failed to present statutory and nonstatutory mitigating factors that
should have been weighed against statutory aggravating factors, which we address in our
subsequent discussion of the sentencing phase.
128
The Florida Supreme Court stated:
[T]his record contains nothing beyond a mere implication that
Hardwick suffered from drug or alcohol dependency. Appellant
presented no evidence or testimony from qualified witnesses
during either the guilt or penalty phases of trial. The only
evidence remotely touching on this question was from several lay
48
6. Florida Postconviction, Rule 3.850 Proceeding
Following the signing of a death warrant, Hardwick filed an emergency
motion for stay of execution and a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 on February 16, 1990. The trial judge
conducted an evidentiary hearing on the latter motion on February 22, 1990, and
denied it. On appeal, the Florida Supreme Court stayed Hardwick's execution and
remanded his case "for a complete evidentiary hearing on Hardwick's claims under
Florida Rule of Criminal Procedure 3.850."129 The trial judge conducted further
proceedings on Hardwick's 3.850 motion on May 3-4, 1990, and August 15-16,
1990.
The evidence introduced at these proceedings included the testimony of
Tassone,130
witnesses, friends or acquaintances of appellant, who testified that
on certain occasions he had used drugs and alcohol, had Quaaludes
in his possession and sold drugs to others. Nothing suggests that
appellant's use of intoxicants had reached the level of a continuing
impairment to any degree or that he actually was impaired at the
time of the killing. Indeed, there was testimony to the contrary.
We therefore cannot fault the trial court for failing to find this
factor in mitigation, since it was not established by any significant
evidence in the record.
Hardwick, 521 So.2d at 1076 (emphasis added).
129
Hardwick v. Dugger, Nos. 75,556, 75,673, slip op. at 1 (Fla. Mar. 20, 1990).
130
The Florida Supreme Court found the first of the three evidentiary 3.850 proceedings,
which occurred on February 22, 1990, and contains solely Tassone’s testimony, and resulting
49
order of the trial judge to be insufficient. Tassone’s testimony at this initial evidentiary hearing
is significant not only because Tassone is the focus of the ineffective-assistance-of-counsel
claims at issue in this case, but also it implicates the fairness of the state judge’s conduct of the
proceeding. Tassone’s testimony further reveals his misunderstanding of mitigating factors
critical to the penalty phase. Tassone did not testify again at either of the subsequent 3.850
evidentiary hearings on May 3-4, 1990, or August 15-16, 1990, following the remand of the
Florida Supreme Court. While the dissent accepts and adopts the state trial judge’s factual
findings from his supplemental order after conducting additional evidentiary hearings on
remand, we note that any findings concerning Tassone derive from his testimony at the initial,
February 22, 1990, evidentiary hearing, found to be deficient by the Florida Supreme Court.
The portion of the 3.850 proceedings that contains Tassone’s testimony commenced at
2:15 P.M. on February 22, 1990. 3.850 Proceedings at 4. At the outset, counsel appearing for
Hardwick requested a continuance because Hardwick’s primary counsel was litigating a 3.850
motion in another case in another city. Id. at 5. The “stand in” counsel, who had never met
Hardwick or worked on the case, id., further explained that he had been up all the preceding
night preparing a 3.850 motion for filing that day in another city, id. at 6. Therefore, he “had
absolutely no time to familiarize [himself] with [Hardwick’s] records.” Id. The state judge
determined that “there is really no reason for continuance here today. We can take Mr.
Tassone’s testimony.” Id. at 11.
When the state prosecutor asked Tassone if Hardwick admitted to him that he committed
the murder, his attorney objected, and the judge overruled the objection. Before answering,
Tassone asked for time to consult his attorney, and the judge gave him five minutes. Prior to
cross examination, the judge, at 4:28 P.M., granted Hardwick’s counsel’s motion for a recess,
but ordered that the hearing would reconvene at 8:30 P.M. that evening and required the counsel
“to either have an attorney here who is prepared to go forward with the hearing or, [stand-in
counsel] will have to prepare yourself as best you can in the interim.” Id. at 72.
The hearing reconvened at 8:40 P.M. that evening. Id. at 76. As the hearing proceeded
into the night, Hardwick’s stand-in counsel requested a two-minute restroom break. Id. at 130.
Later, after discussing an objection, the stand-in counsel stated: “I am tired, Your Honor, so I
will try again, but I think Your Honor understands,” whereupon the judge overruled the
objection. Id. at 138.
Subsequently, Hardwick’s attorney asked Tassone about statutory mitigating
circumstances in Florida:
Q Sir, do you know what the statutory mitigating circumstances are in the Florida
system?
A Probably.
....
THE WITNESS: I probably remember some of them.
BY [Hardwick’s Attorney]:
Q It’s late and I know you are tired. Can you tell us which ones you can recall
right now, sir?
A Whether the defendant was under the substantial domination of another, an
50
insignificant prior criminal history, whether he was an active participant in the
crime for which he stood convicted or played some lesser role.
I just can’t remember anymore right now.
Q All right.
A His age at the time of the offense is another one. I think there is two more,
maybe three more.
Q Under extreme mental or emotional distress?
A Yes, sir.
Q The defendant’s capacity to conform his conduct to the requirements of the law
were substantially impaired at the time of the offense?
A I think that is one.
Id. at 151, 152 (emphasis added).
As the hearing continued into the night, Tassone asked the judge: “Your Honor, may we
take a five-minute break? All I want to do is walk up and down and splash water on my face.”
Id. at 168. A short recess followed. Id. at 169. Later, Hardwick’s substitute counsel requested a
recess to call to see if his principal attorney had returned from his 3.850 appearance in another
city. Id. at 177. Unsuccessful at reaching that counsel, Hardwick’s stand-in attorney
subsequently showed weariness in his examination:
[Hardwick’s Attorney]: If the court can bear with me for a moment, sir?
THE COURT: uh-huh.
[Hardwick’s Attorney]: I am losing my train of thought here. I am sorry.
Id. at 179. Following cross examination, the prosecutor requested redirect examination, to which
the state judge responded: “I am not sure you are entitled to a redirect in this kind of hearing.”
Id. at 185. The judge then agreed: “I am indicating he may redirect but with reluctance.” Id.
The hearing proceeded, and the questioning concerned whether Hardwick’s recollection
of the facts of the murder was consistent with someone under the influence of intoxicants, at
which point, Tassone stated: “Your Honor, I—and counsel—I would feel very, very
uncomfortable with the question. I would say I would call my attorney but I would be very
reluctant at this time in the morning. And I think in light of Mr.Hardwick’s counsel asserting the
privileges I probably would decline to answer that question. Id. at 187-88 (emphasis added).
When the prosecutor wanted to question Tassone concerning Bartley’s participation in the
murder, Hardwick’s attorney stated: “Your Honor, I guess I would have to ask at this late time in
the evening what the relevance of all that is? Id. at 190 (emphasis added). At 1:00 A.M.,
Tassone was excused, the prosecutor said that the state had no other witnesses to present, and the
judge asked if the defense had any witnesses to present, to which Tassone’s attorney replied:
[Hardwick’s Attorney]: We have witnesses to present but none that are here at
this time, Your Honor.
THE COURT: Now is the time.
[Hardwick’s Attorney]: It’s 1:00 o’clock in the morning, Your Honor. We have
no witnesses available at this time.
THE COURT: I want you to tell me, for the record, if you had somebody at 1:30
this afternoon who has left. I will send for them.
51
[Hardwick’s Attorney]: No, Your Honor. I indicated on the record this afternoon
that I did not have any witnesses that were available to testify at this time.
I would strenuously argue if we are not allowed to call any witnesses at this time
that we have just wasted everyone’s entire day because, clearly, we have
not resolved any of the issues upon which you indicated we needed
to rule, Rule 3.850, evidentiary hearing.
We have obvious witnesses that need to be called based upon the testimony that has been
presented here and, clearly, which is in conflict, and we would request the court allow us to do
that.
THE COURT: Do I interpret that as a motion for continuance?
[Hardwick’s Attorney]: Yes, sir.
THE COURT: I will deny the motion for continuance and —
[Hardwick’s Attorney]: And, Your Honor, if I could, just for the record proffer at
this time that, clearly, we could call Dr. Barnard, and we would proffer his
testimony which I think would contradict significant aspects of the testimony of
Mr. Tassone.
Clearly, all of the witnesses that were proffered through the affidavits
indicated that that information was never specifically asked of them; that they
would have testified to that.
We definitely would want to proffer the evidence, the testimony from Mr.
Hardwick, himself, concerning discrepancies that he would have with Mr.
Tassone’s testimony.
Additionally, we would ask the court to allow us to present copies of Mr.
Tassone’s files which will contradict things that he said on the record here today.
And, additionally, we would ask the court to allow us to present the
testimony from Dr. Dee and from Dr. Levin which would contradict things that
Mr. Tassone has said and would also be relevant evidence as to the Claim No. XI
[failure to assist defense counsel] which Your Honor indicated we were entitled to
an evidentiary hearing on.
Clearly, all of those witnesses need to be called for Your Honor to make
any kind of factual findings in this case.
The affidavits from Mrs. Lawrence and from Jeff Hardwick are in direct
contradiction of what Mr. Tassone says.
Your Honor cannot make fact findings without hearing from those
witnesses. We would proffer that what Dr. Barnard would say would contradict
that.
Again, Your Honor does not have any of that evidence before him and we
would renew our request for a continuance in order to present that information.
[Prosecutor]: . . .
The State can attach a little credence, perhaps, to the proffer.
....
The fact is they have been allowed to present the affidavit[s] of these
52
psychiatric experts, members of Hardwick's family, and other witnesses, as well as
affidavits and diagnostic reports from the expert witnesses. Tassone's testimony
witnesses and the State has stipulated to what they say they will testify to. I don’t
see how anyone has been prejudiced here today.
....
[Hardwick’s Attorney]: Clearly, Your Honor, affidavits cannot be drafted to
anticipate what may need to be rebutted in the course of cross examination of an
attorney/witness and, clearly, our affidavits couldn’t do that and don’t do that.
And, therefore, calling them as witnesses is obviously necessary, not to
mention the fact that Your Honor did not determine an issue of credibility based
upon a piece of paper.
Additionally, as to Dr. Barnard, we didn’t feel we needed an affidavit
based on a report that Your Honor has before you. And I think the report speaks
pretty clear for itself. There is not one mention of Dr. Barnard ever indicating
that his evaluation of Mr. Hardwick had anything to do with anything but
competency and sanity.
And so, no, Your Honor, we didn’t waste any time trying to get an
affidavit from an expert who clearly in his report indicated what he did for a case.
[Prosecutor]: . . ..
The fact of the matter is the State is prejudiced because we cannot cross
exam affidavits, either and, therefore, you know, the State has been prejudiced
here more than the defense.
....
The issue here is the performance of counsel from his shoes at the time.
And we have already stated that these people would come in, and at least now,
according to affidavits procured from them, they now allege that they would come
in and testify. That has been stipulated to.
....
THE COURT: Okay. I am going to deny the defendant’s motion for a
continuance, and I will declare the evidentiary phase of this hearing closed.
It is 1:00 a. m. Friday morning. I do not propose to start listening to
arguments at this time of night. I will take the case under advisement.
....
I will, while we’re here, enter an order on the application for a stay of
execution. Since we have now held the hearing that was the grounds for that
motion, I will deny the application for stay of execution.
Id. at 192, 193-195,196, 197-99 (emphasis added). The state judge deferred Hardwick’s motion
to compel because “I just don’t want to ask you to argue, mainly because my court reporter is
about to give up on us.” Id. at 200. The hearing ended at 1:05 A.M. Id. at 201.
53
reveals his misunderstanding of aggravating and mitigating factors as they relate to
a voluntary intoxication defense:"I am not too sure an abuse of alcohol or drugs is
a aggravating or a mitigating factor. I mean, I guess what I am saying is I am not
too sure it's mitigating or aggravating."131 This misunderstanding, together with his
belief that Hardwick would be convicted of first-degree murder,132 appeared to
govern his defense of Hardwick at both the guilt and penalty phases. Although
Tassone recognized that voluntary intoxication is "where an individual through
ingesting either alcohol or drugs may be unable to formulate the intent or the
requisite intent required in a specific intent crime,"133 he did not ask the court-
appointed psychiatrist to evaluate Hardwick relative to a voluntary intoxication
defense but to determine his competency to stand trial and his sanity at the time of
131
3.850 Proceeding at 52. Tassone explained his perception of whether voluntary
intoxication was an aggravating or mitigating factor:
I feel that — and my theory is in terms of voluntary intoxication that there
is a difference between an individual say perhaps who is addicted to some
narcotic and steals bologna and cheese from the 7/Eleven and an individual who
is intoxicated on narcotics, who is not only a user, whether occasional or regular,
but who also sells the narcotic for a living.
To me, that is a aggravating factor rather than a mitigating factor.
Id. at 57-58.
132
Id. at 133.
133
Id. at 121. In his supplemental order denying Hardwick post-conviction relief, the
state trial judge concluded that “[o]f course, Hardwick was sane and competent despite any drug
problem.” Transcript of Record, Vol. IV at 599.
54
the offense.134 In contrast, the two other psychiatric experts who were asked to
perform this evaluation opined and testified, based on their review of the record
and interviews with Hardwick, his family, and witnesses, that the degree of
134
Id. at 122. Based upon the state judge’s undocumented assertion that Tassone
discussed mitigating testimony and evidence with Dr. Barnard, the court-appointed psychiatrist,
the dissent accepts as a fact entitled to a presumption of correctness, that Tassone did discuss
mitigating evidence with Dr. Barnard relating to Hardwick’s case. Instead, Dr. Barnard’s 3.850
testimony is clear that he performed a two-part evaluation of Hardwick pursuant to the state
court’s order for him to determine: (1) Hardwick’s competence to stand trial and (2) his sanity at
the time of the homicide. 3.850 Proceeding at 252-53. Both of these inquiries focused on the
guilt-innocence phase of Hardwick’s trial and not on mitigating circumstances relevant to
sentencing. Practically, Tassone wanted a determination of whether Hardwick was capable of
assisting in his defense. As Dr. Barnard explained, a negative finding as to competence to stand
trial would be the basis for involuntary hospitalization. Id. at 261. Tassone also wanted a
determination of whether Hardwick could be considered sane at the time of the murder; if not, an
insanity plea would be appropriate. Id. at 309. Consequently, Dr. Barnard’s conclusion that
Hardwick knew what he was doing at the time of the murder related only to his sanity at the time
of the murder and did not encompass mitigating circumstances. As the trial judge explained:
sanity is not an issue at the penalty phase because it has no purpose at that point in the
proceedings. Id. at 850. Dr. Barnard testified that, if he had been asked to evaluate specific
intent as it related to statutory or nonstatutory mitigating factors relevant to voluntary
intoxication, then this analysis would not only be in his report but also in his notes. Id. at 262,
342. Dr. Barnard specifically testified that he did not provide an opinion concerning Hardwick’s
voluntary intoxication at the time of the homicide or statutory or nonstatutory factors present in
his case. Id. at 262.
In contrast, Dr. Dee and Dr. Levin were asked to evaluate Hardwick as to mitigating
factors. In addition to talking with Hardwick and his wife as well as reviewing the depositions
and trial testimony of witnesses, both doctors independently determined that, to a reasonable
degree of psychological certainty, Hardwick was substantially impaired such that he did not have
the capacity to formulate specific intent or to conform his conduct to the requirements of law at
the time of the homicide. Id. at 787, 975. To the extent that Dr. Barnard talked in these terms at
the 3.850 proceeding, he also made abundantly clear that he simply did not assess statutory or
nonstatutory mitigating factors in his evaluation of Hardwick because he was not asked to do so.
Dr. Barnard, however, testified that he did not recall discussing statutory or nonstatutory
mitigation evidence with Tassone, 3.850 Proceeding at 262, 300, and that he received no
correspondence from Tassone, id. at 253. Moreover, if the judge or Tassone had asked him to
evaluate mitigating factors relating to Hardwick’s case, then Dr. Barnard testified that he would
have done so. Id. at 262.
55
Hardwick's intoxication at the time of the homicide mitigated his ability to
formulate specific or premeditated intent.135
Additionally, Tassone testified that he either discounted or discredited many
of the witnesses at the relevant time because of their age or drug use.136 He did not
recall interviewing Hardwick's mother as to whether she saw her son and his
condition within the relevant time of the homicide.137 Hardwick's family members,
including his siblings, who could have testified concerning Hardwick's alcohol and
drug use from childhood, averred that Tassone did not contact them and that they
would have been willing to testify.138 The trial court denied Hardwick
135
Id. at 791 (Dr. Clifford A. Levin); id. at 975 (Dr. Henry L. Dee).
136
Tassone explained his disinterest in many of the young witnesses in the drug
community who saw Hardwick at the relevant time:
Most of them admitted to being drug users, a lot of them because of their age, a
lot of them because of their or some of them because of their past criminal
history.
Some of them were seventeen and eighteen, were not going to school,
were not working. Their parents were not supporting them but, but they had no
means of support and things like that.
So, all those factors. But, clearly, drug use was one of the factors.
Id. at 118.
137
Id. at 118-19.
138
See, e.g., Affidavit of Nell Lawrence ¶ 23 (mother); Affidavit of Jeff Hardwick ¶ 7
(brother); Affidavit of Jerry Hardwick ¶ 7 (brother); Affidavit of James Britt ¶ 10 (half brother);
Affidavit of Grady Hardwick ¶ 11 (uncle); Affidavit of James Hardwick ¶ 9 (uncle); Affidavit of
Grace Powell ¶ 6 (aunt); Affidavit of Florrie Benton ¶ 8 (aunt).
56
postconviction relief,139 and the Florida Supreme Court affirmed and also denied
his petition for writ of habeas corpus. Hardwick v. Dugger, 648 So. 2d 100 (Fla.
1994) (per curiam).
7. Federal Habeas Corpus Proceeding
Hardwick then filed the subject petition for habeas corpus relief pursuant to
28 U.S.C. § 2254 in the Middle District of Florida, which the district court
dismissed with prejudice. Of the twenty issues raised, only the subject claims of
ineffective assistance of trial counsel at the guilt and penalty phases and a claim of
conflict of interests between Hardwick and his trial attorney remain. Without an
evidentiary hearing, the district judge determined that alleged guilt-phase
ineffective assistance for failure to advance a voluntary intoxication defense was
inconsistent with the evidence, that alleged penalty-phase ineffective assistance
was justified as attorney strategy, and that Hardwick was not entitled to another
appointed counsel.
When Hardwick sought a certificate of appealability/probable cause, the
district judge applied the Antiterrorism and Effective Death Penalty Act of 1996
139
Discounting any potential mitigating evidence that could have been presented at the
penalty phase and approving Tassone’s “strategic decision to rely upon argument rather than this
evidence of mixed value,” the state trial judge stated in his supplemental order: “The court does
not find any reasonable probability that a different recommendation would have come from the
advisory jury. The evidence would not, if offered, have prompted a sentence other than death
from this Court.” Transcript of Record, Vol. IV at 599.
57
(AEDPA), 28 U.S.C. § 2253(c) and issued a certificate of appealability for three of
Hardwick's twenty claims for relief. Pursuant to Hardwick's argument that the
district judge erroneously had applied the AEDPA because his petition was
pending on April 26, 1996, when the AEDPA was enacted, our court remanded for
"reevaluation of Hardwick's application for a certificate of probable cause in light
of pre-AEDPA law." Hardwick v. Singletary 122 F.3d 935, 936 (11th Cir. 1997)
(per curiam). On remand, the district judge again relied on the AEDPA and
granted a certificate of appealability. Following Hardwick's motion for relief from
the order, we construed the district court's certificate of appealability "as a grant of
a certificate of probable cause to appeal all issues presented in the petitioner's
federal habeas petition." Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.
1997) (per curiam). After oral argument, we directed counsel to provide
supplemental briefs discussing the effect of Williams v. Taylor, 529 U.S. 420, 120
S.Ct. 1479 (2000), on this appeal. We now turn to the three issues before us:
Tassone’s neffective assistance of counsel at the guilt and penalty phases and
conflict of interest between Hardwick and his counsel.140
II. DISCUSSION
140
"Issues not clearly raised in the briefs are considered abandoned." Marek v.
Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995).
58
A. Review Standards
Under pre-AEDPA law, we review the denial of a § 2254 petition and a
district court's legal conclusions de novo. Johnson v. Alabama, 256 F.3d 1156,
1169 (11th Cir. 2001). A district court's factual findings are reviewed for clear
error. Id. While factual findings by a state court following a merits hearing on the
claims raised generally are accorded a presumption of correctness, this
presumption does not obtain if any of the eight exceptions in former § 2254(d)
apply.141
141
Regarding the presumption of correctness and the eight exceptions, the applicable
former statute provides:
In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination after a
hearing on the merits of a factual issue, made by a State court of
competent jurisdiction in a proceeding to which the applicant for
the writ and the State . . . were parties, evidenced by a written
finding, written opinion, or other reliable and adequate written
indicia, shall be presumed to be correct, unless the applicant shall
establish or it shall otherwise appear, or the respondent shall
admit—
(1) that the merits of the factual dispute were not resolved in the
State court hearing;
(2) that the factfinding procedure employed by the State court was
not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the
State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or
over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel to
represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate
59
hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in
the State court proceeding;
(8) or unless that part of the record of the State court proceeding in
which the determination of such factual issue was made, pertinent
to a determination of the sufficiency of the evidence to support
such factual determination, is produced as provided for hereinafter,
and the Federal court on a consideration of such part of the record
as a whole concludes that such factual determination is not fairly
supported by the record . . . .
28 U.S.C. § 2254(d) (1994) (emphasis added); see Sumner v. Mata , 449 U.S. 539, 544-47, 101
S.Ct. 764, 769 (1981) (making no distinction between factual determinations of state trial or
appellate courts); Bundy v. Wainwright, 808 F.2d 1410, 1416 (11th Cir. 1987) (“[N]o
presumption arises if any one of the eight numbered conditions is shown to exist.”).
In contrast to the dissent’s acceptance of the factual findings in the trial judge’s
supplemental order following the augmented 3.850 proceeding, the majority views the first part
of the 3.850 proceeding to have failed in providing “a full, fair, and adequate hearing.” 28
U.S.C. § 2254(d)(6). That evidentiary hearing, consisting only of Tassone’s testimony that the
Florida Supreme Court found to be deficient, was conducted with an unprepared, stand-in
counsel because Hardwick’s principal counsel could not be present. Although counsel and the
witness, Tassone, were weary, the trial judge nonetheless forced them to complete the hearing,
which began in the early afternoon and did not end until the following morning. Because
witnesses and Hardwick were unavailable late that night, and the trial judge refused to grant a
continuance, facts material to mitigating circumstances relevant to Hardwick’s sentencing
proceeding were not presented and resolved adequately.
Although the Florida Supreme Court found this proceeding to have been deficient,
Tassone never testified again. In the two subsequent portions of the 3.850 proceeding, the
witnesses presented testified regarding Hardwick’s deprived and abusive childhood as well as
Tassone’s errant advice to them or lack of contact. This testimony exposed issues of Tassone’s
ineffectiveness relating to Hardwick’s sentencing, but Tassone never addressed or responded to
this testimony, which the district court’s evidentiary hearing on remand will reconcile.
Additionally, we conclude that some factual issues decided by the state judge were “not
fairly supported by the record.” 28 U.S.C. § 2254(d)(8); see Fortenberry v. Haley, 297 F.3d
1213, 1220 (11th Cir. 2002) (per curiam). To the extent that the dissent seems to fault the
majority for “repeatedly contrast[ing] statements or findings of the 3.850 court with the [record]
evidence,” Dissent at 4, our review under § 2254(d)(8) requires such evaluation of the state
judge’s 3.850 factual findings before they are accorded a presumption of correctness. See
Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850 (1983) (“This deference requires
that a federal habeas corpus court more than simply disagree with the state court before rejecting
its factual determinations. Instead, it must conclude that the state court’s findings lacked even
‘fair support’ in the record.”). Simply because a state judge’s postconviction order states certain
60
A presumption of correctness usually applies to "basic, primary, or historical
facts." Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S.Ct. 457, 464 (1995).
Questions of law or mixed questions of law and fact, however, are not subject to
the presumption.142 Id. at 109-10 & n.9, 116 S.Ct. at 464-65 & n.9. Accordingly,
our court has recognized that the presumption of correctness generally applicable
to federal habeas review of state-court factual findings is not insurmountable or
irrebuttable. Historical facts found by state courts in evaluating ineffectiveness
claims are not presumed correct if they are clearly erroneous. Bolender v.
Singletary, 16 F.3d 1547, 1558 n.12 (11th Cir. 1994). State-court factual findings
factual findings does not mean that a federal habeas court automatically accepts them if the
record shows that those fact findings are erroneous. That is, a state judge’s factual findings are
not presumed correct for federal habeas review purposes just because the state judge says so,
when the record evidence on federal review shows otherwise.
142
Under pre-AEDPA review standards, a federal habeas court owes no deference to a
state court’s resolution of mixed questions of constitutional law and fact. Williams, 529 U.S. at
400, 120 S.Ct. at 1516 (O’Connor, J., concurring) (citing Miller v. Fenton, 474 U.S. 104, 112,
106 S.Ct. 445, 450 (1985)). A determination by state courts of ineffective assistance of counsel
is a mixed question of law and fact, which is not entitled to a presumption of correctness under
28 U.S.C. § 2254(d), as our court consistently has held. See, e.g., Routly v. Singletary, 33 F.3d
1279, 1284 (11th Cir. 1994) (per curiam); Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir.
1992); Davis v. Kemp, 829 F.2d 1522, 1537 (11th Cir. 1987); Thomas v. Kemp, 796 F.2d 1322,
1324 (11th Cir. 1986). Unless one of the § 2254(d) exemptions applies, we accord a presumption
of correctness to the trial court’s findings of historical facts underlying the claim. The separate
determination of whether counsel’s representation was effective or ineffective is a question of
law. Thus, we generally accept the historical facts found by a state court and then decide
whether counsel’s representation satisfied Sixth Amendment requirements under Strickland.
61
are not entitled to a presumption of correctness where the petitioner “did not
receive a full, fair and adequate hearing in the state court proceeding.” 28 U.S.C. §
2254(d)(6); Porter v. Wainwright, 805 F.2d 930, 938 (11th Cir. 1986). “[T]he
ultimate focus of inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.
Consequently, an evidentiary hearing in district court may be required to resolve
“conflicting inferences.” Porter, 805 F.2d at 938. A federal court
reviewing a state prisoner's petition for habeas relief must make an "independent
federal determination" in deciding questions involving constitutional law and the
application of constitutional law to the facts "under the totality of the
circumstances" of a particular case. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct.
445, 450-51 (1985). Therefore, a trial court's determination as to whether a
petitioner has been denied his Sixth Amendment right to effective counsel is not
entitled to the presumption; we must make that determination anew.143 Strickland
v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070 (1984). “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
143
“‘We have always held that federal courts, even on habeas, have an independent
obligation to say what the law is.’” Williams, 529 U.S. at 402, 120 S.Ct. at 1517 (O’Connor, J.,
concurring) (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 2497 (1992)).
62
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064.
B. Guilt Phase
The crux of Hardwick's discontent with his trial counsel was Tassone's
failure to call witnesses that Hardwick wanted to testify on his behalf. Hardwick,
who has a G.E.D. acquired during previous incarceration, has not specified which
witnesses he desired or what their testimony would be. There is no dispute that
Hardwick handed Tassone a list of witnesses that he wanted to testify, but that list
inexplicably has disappeared from the record, while Hardwick's other handwritten
motions are part of the record. Nonetheless, the lack of specificity as to the
identity of the witnesses Hardwick wanted called for his defense or the substance
of their testimony even at this appellate stage in the federal habeas proceedings
makes his unsubstantiated allegation of ineffective assistance of his trial counsel
difficult to analyze.
To be successful in his contention of his trial counsel's ineffective
representation, Hardwick must satisfy well-delineated Supreme Court and circuit
law. In Strickland, the Court established a two-part test to show ineffective
assistance that violates the Sixth Amendment right to counsel: (1) "the defendant
must show that counsel's performance was deficient," defined as "representation
63
[that] fell below an objective standard of reasonableness," and (2) "the defendant
must show that the deficient performance prejudiced the defense" by demonstrating
"that there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." 466 U.S. at 687, 688, 694,
104 S.Ct. at 2064, 2068. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.
“[I]t is sufficient that a petitioner must show only a reasonable probability
that the outcome would have been different; he ‘need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.’” Brownlee
v. Haley, 306 F.3d 1043, 1059-60 (11th Cir. 2002) (quoting Strickland, 466 U.S. at
693, 104 S.Ct. at 2068); see DeLuca v. Lord, 77 F.3d 578, 590 (2d Cir. 1996)
(“The Strickland test does not require certainty that the result would have been
different.”). “When evaluating this probability, ‘a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or jury.’”
Brownlee, 306 F.3d at 1060 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at
2069). "The petitioner bears the burden of proof on the 'performance' prong as
well as the 'prejudice' prong of a Strickland claim, and both prongs must be proved
to prevail." Johnson, 256 F.3d at 1176.
64
Our circuit reviews an attorney's performance "with considerable deference."
Id. "[T]he issue is not what is possible or 'what is prudent or appropriate, but only
what is constitutionally compelled.'" Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794, 107
S.Ct. 3114, 3126 (1987)), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217 (2001).
"The petitioner must establish that particular and identified acts or omissions of
counsel 'were outside the wide range of professionally competent assistance.'" Id.
at 1314 (quoting Burger, 483 U.S. at 795, 107 S.Ct. at 3126).
In this case, court-appointed Tassone took a number of pretrial depositions,
which he did not use to explain, moderate, or mitigate the direct testimony of the
state's witnesses, many of whom were quite young at the relevant time and
embittered toward Hardwick, a newcomer to their community, for killing Pullum,
their longstanding, neighborhood friend. Convinced of Hardwick's guilt, Tassone
advised him to plead guilty. When the evidence shows that a defendant was so
intoxicated that he could not form specific intent to commit murder, Florida law
recognizes voluntary intoxication as a defense, and an instruction on the defense
should be given to the jury. Gardner v. State, 480 So. 2d 91, 92 (Fla. 1985) (per
curiam). Tassone apparently believed that there was sufficient credible evidence
that Hardwick was sober at the time of the murder to justify not presenting this
65
defense and pursued sufficiency of the evidence as Hardwick's defense.144
Additionally, witnesses had testified that Hardwick threatened to kill Pullum prior
to the murder and boasted of the killing afterward. Together with the multiple
means of inflicting death, a jury could have found premeditation for first-degree
murder.145 There has been no claim of actual innocence in this case.
While other attorneys may have used voluntary intoxication as Hardwick's
primary defense theory, Tassone's decision to forego this defense is not outside the
ambit of strategic choice recognized by Strickland and our circuit law. Because
Hardwick has failed to prove the performance and prejudice prongs of the
Strickland test, we conclude that constitutional ineffective assistance of counsel in
144
As a practical matter, an attorney might decide that he does not want to argue to a jury
that his client did not commit the murder, but, if he did, he was incapable of formulating specific
intent because of voluntary intoxication. While this argument may not be inconsistent legally,
see Pope v. State, 458 So. 2d 327 (Fla. Dist. Ct. App. 1984); Mellins v. State, 395 So. 2d 1207(Fla. Dist. Ct. App. 1981), it may be so perceived by a jury. Hardwick's refusal to plead guilty
presented this dilemma for Tassone. Consequently, he elected not to develop and present a
voluntary-intoxication defense that might have created reasonable doubt regarding Hardwick's
ability to formulate premeditated intent and may have resulted in an instruction on this defense
to the jury, the jury's consideration of a verdict on second-degree murder rather than first-degree
murder, and foundation information for the sentencing phase.
145
Tassone also determined that some of the witnesses that Hardwick wanted to call
might have been subject to impeachment or have given damaging testimony on other points.
While our review of the record shows otherwise, as we discuss in our sentencing-phase analysis,
Tassone made a defense choice at the guilt phase, and the testimony plus the ballistics evidence
appear to have been insurmountable as to Hardwick's guilt.
66
the guilt phase has not been established and, consequently, affirm the district
court's denial of habeas relief as to the guilt phase.146
C. Sentencing Phase
“The Sixth Amendment guarantees a criminal defendant the right of
effective assistance of counsel during a capital sentencing hearing.” Harris v.
Dugger, 874 F.2d 756, 762 (11th Cir. 1989). The two-part Strickland test also
applies in a capital sentencing proceeding because "counsel's role in the proceeding
is comparable to counsel's role at trial—to ensure that the adversarial testing
process works to produce a just result under the standards governing decision."
466 U.S. at 687, 104 S.Ct. at 2064; Glock v. Moore, 195 F.3d 625, 634-35 (11th
Cir. 1999). “Circumstances which would warrant a presumption of prejudice from
counsel’s ineffectiveness are those where ‘the adversary process itself is [rendered]
146
Even when we have been convinced that the trial attorney misunderstood the
applicable law, which was outside reasonably competent representation in a capital murder case,
the petitioner’s confession “sealed his conviction” and prevented his proving prejudice because
“even a highly competent lawyer could not have won [petitioner] an acquittal.” Cave, 971 F.2d
at 1518. To the extent that Hardwick contends that Tassone should have conducted more
investigation for presentation at trial, we have determined that “‘[s]peculation is insufficient to
carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by
further investigation.’” Brownlee, 306 F.3d at 1060 (alteration in original) (quoting Aldrich v.
Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)). “The decision whether to present a line of
defense or even to investigate it, ‘is a matter of strategy and is not ineffective unless the
petitioner can prove that the chosen course, in itself, was unreasonable.’” Id. (quoting Chandler,
218 F.3d at 1318).
67
presumptively unreliable [by the circumstances].” Blanco v. Singletary, 943 F.2d
1477, 1496 (11th Cir. 1991) (alterations in original) (citation omitted).
When “‘the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce just
results,’ our confidence is undermined.” Brownlee, 306 F.3d at 1069 (quoting
Strickland, 466 U.S. at 696, 104 S.Ct. at 2069). “The result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined
the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “Actual or
constructive denial of the assistance of counsel altogether is legally presumed to
result in prejudice.” Strickland, 466 U.S. 692, 104 S.Ct. 2067.
“‘The primary purpose of the penalty phase is to insure that the sentence is
individualized by focusing [on] the particularized characteristics of the defendant.
By failing to provide such evidence to the jury, though readily available, trial
counsel’s deficient performance prejudice[s a petitioner’s] ability to receive an
individualized sentence.’” Brownlee, 306 F.3d at 1074 (alterations in original)
(quoting Cunningham v. Zant, 928 F.2d 1006, 1019 (11th Cir. 1991)); see
Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1988) (same); Thomas v.
Kemp, 796 F.2d 1322, 1325 (11th Cir. 1986) (same). “[T]he Eleventh Circuit has
68
enunciated the rule that effective representation, consistent with the sixth
amendment, also involves ‘the independent duty to investigate and prepare.’”
House v. Balkcom, 725 F.2d 608, 618 (11th Cir. 1984) (citations omitted); see
Bolender, 16 F.3d at 1557 (“The failure to conduct a reasonable investigation into
possible mitigating circumstances may render counsel’s assistance ineffective.”).
[C]ounsel’s duty of inquiry in the death penalty sentencing phase is
somewhat unique. First, the preparation and investigation for the
penalty phase are different from the guilt phase. The penalty phase
focuses not on absolving the defendant from guilt, but rather on the
production of evidence to make a case for life. The purpose of
investigation is to find witnesses to help humanize the defendant,
given that a jury has found him guilty of a capital offense. “[C]ounsel
has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691, 104 S.Ct. at 2052.
....
[E]ven where a client is recalcitrant, courts have been ambivalent in
whether counsel is relieved of any further duty of investigation,
particularly where the client exhibits signs of instability.
Marshall v. Hendricks, 307 F.3d 36, 103 (3d Cir. 2002) (citing Johnston v.
Singletary, 162 F.3d 630, 641-42 (11th Cir. 1998)). Trial counsel performs
deficiently by not providing readily available mitigating evidence to the jury at the
penalty phase because he prejudices a convicted defendant’s receiving an
individualized sentence. Cunningham, 928 F.2d at 1019; see Armstrong, 833 F.2d
at 1433, 1434 (concluding that “investigation and preparation for the penalty phase
of [petitioner’s] trial was negligible” and that the “demonstrated availability of
69
undiscovered mitigating evidence clearly met the prejudice requirement”); House,
725 F.2d at 618 (“While we do not require that a lawyer be a private investigator in
order to discern every possible avenue which may hurt or help the client, we do
require that the lawyer make an effort to investigate the obvious.”).
Concomitantly, a tactical or strategic decision is unreasonable if it is based
on a failure to understand the law. Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.
1991). Whether counsel’s decision is tactical is a question of fact, but “whether
this tactic was reasonable is a question of law, and we owe neither the district court
nor the state court any deference on this point.” Id. We have decided that failure
to present mitigating evidence because of misunderstanding the state law as to
presentation of mitigating evidence is unreasonable as a tactical decision:
“Mitigating evidence, when available, is appropriate in every case where the
defendant is placed in jeopardy of receiving the death penalty. To fail to do any
investigation because of the mistaken notion that mitigating evidence is
inappropriate is indisputably below reasonable professional norms.” Id. (emphasis
added). Similarly, “[w]here defense counsel is so ill prepared that he fails to
understand his client’s factual claims or the legal significance of those claims . . .,
we have held that counsel fails to provide service within the range of competency
70
expected of members of the criminal defense bar.” Young v. Zant, 677 F.2d 792,
798 (11th Cir. 1982).
Regarding mental health mitigating evidence, our court has distinguished
between its use during the guilt phase to establish competency to stand trial and
presenting mental health mitigating evidence at the penalty phase:
[T]here is a great difference between failing to present evidence
sufficient to establish incompetency at trial and failing to pursue
mental health mitigating evidence at all. One can be competent to
stand trial and yet suffer from mental health problems that the
sentencing jury and judge should have had an opportunity to consider.
Blanco, 943 F.2d at 1503.147 When mental health mitigating evidence was
available, and “absolutely none was presented [by counsel] to the sentencing body,
and . . . no strategic reason [w]as . . . put forward for this failure,” our court
determined that this omission was “objectively unreasonable.” Id. (citing
Middleton v. Dugger, 849 F.2d 491, 493-95 (11th Cir. 1988) (emphasis added).
Additionally, our court has recognized that “[p]sychiatric mitigating evidence not
only can act in mitigation, it also could significantly weaken the aggravating
factors.” Elledge v. Dugger, 823 F.2d 1439, 1447 (11th Cir.), withdrawn in part on
147
Florida law recognizes that “[a] defendant may be legally answerable for his actions
and legally sane, and even though he may be capable of assisting his counsel at trial, he may still
deserve some mitigation of sentence because of his mental state.” Perri v. State, 441 So. 2d 606,
609 (Fla. 1983).
71
denial of rehearing en banc, 833 F.2d 250 (11th Cir. 1987) (withdrawing only
unrelated Part III of the opinion).
Similarly, we have decided that failure to present mitigation evidence as to a
defendant’s family background or alcohol and drug abuse at the penalty phase of a
capital case constitutes ineffective assistance of counsel, particularly when defense
counsel “was aware of [petitioner’s] past and knew that mitigation was his client’s
sole defense.”148 Elledge, 823 F.2d at 1445 (emphasis added). Concluding that
counsel rendered ineffective assistance for failing to present mitigating background
information at the sentencing phase, we have explained: “[T]he sentencing jury
knew much about the crime, having just convicted [the defendant] of a brutal
murder, but little about the circumstances of the defendant.” Harris, 874 F.2d at
763. In Brownlee, the psychiatric expert at the state proceeding for postconviction
148
See, e.g., Brownlee, 306 F.3d at 1071 (determining that petitioner was entitled to
habeas relief as to his sentence for failing to present mitigating evidence at the sentencing phase,
we noted that, among the mitigating factors not presented at sentencing, was petitioner’s
“extensive drug abuse, particularly on the night in question”); Cave, 971 F.2d at 1519 (affirming
granting habeas relief as to sentencing, we recognized that, despite the willingness of petitioner’s
mother, sister, and three aunts to testify, his counsel’s “failure to present any witnesses at the
sentencing hearing allowed the prosecutor to emphasize [petitioner’s] lack of redeeming
character during the State’s closing argument” and, thus, prejudiced the sentencing proceeding
because there was a reasonable probability that the sentence would have been different if the
available character witnesses had testified); Horton, 941 F.2d at 1463 (deciding that petitioner
had established ineffective assistance of counsel at sentencing because he had “met his burden of
proof on the prejudice prong,” since he “ha[d] gathered the affidavits of ten individuals who
claim they would have testified if they ever were asked to testify”); Elledge, 823 F.2d at 1445
(concluding that defense counsel’s failure to interrogate family members and to obtain an expert
witness for the sentencing phase “was outside the range of competent assistance”).
72
relief diagnosed petitioner as a “‘polypharmacy individual’” and testified that,
based on his “long history of drug and alcohol abuse, . . . dating to his teenage
years,” particularly, his “[d]rug or alcohol use on the day of the crime would have
substantially aggravated [his] pre-existing [intellectual and psychiatric]
limitations,” which, if presented at the sentencing phase, could have assisted in a
finding that the level of intoxication substantially impaired his ability to conform
his conduct to the requirements of law. 306 F.3d at 1056, 1071, 1072.
In Harris, although family members were willing to testify that the
defendant’s life was meaningful to them, the defendant’s attorney “erroneously
told the jury that [defendant’s] family had ‘turned against him.’ Thus, the jury did
not assess ‘the information needed to properly focus on the particularized
characteristics of this petitioner.’” 874 F.2d at 763 (quoting Armstrong, 833 F.2d at
1433). “[I]njecting [defendant’s] character as an issue during sentencing was
fraught with danger”: petitioner “committed the murder while on parole,” which
would have permitted the prosecution to expose his “other felony convictions as
well as his dishonorable discharge from the Army.” Id. at 764. “Nevertheless,” we
determined, “on this record, we cannot conclude that effective counsel would have
made a strategic decision to forego testimony about [defendant’s] good character
merely because its use would have permitted the state to add some prior unlawful
73
acts to the proof already in the case.” Id. We noted that defense counsel
“conceded that he would have used the [background] evidence had he known about
it.” Id. Recognizing that the mitigating background evidence “constituted the only
means of showing that [petitioner] was perhaps less reprehensible than the facts of
the murder indicated,” we concluded that “a reasonable probability exist[ed] that a
jury hearing this evidence would have recommended life,” and that petitioner
“suffered prejudice from counsel’s errors” at the penalty phase. Id.
Of course, “[t]he right to present, and to have the sentencer consider,
any and all mitigating evidence means little if defense counsel fails to
look for mitigating evidence or fails to present a case in mitigation at
the capital sentencing hearing.” Accordingly, counsel’s general duty
to investigate takes on supreme importance to a defendant in the
context of developing mitigating evidence to present to a judge or jury
considering the sentence of death; claims of ineffective assistance in
the performance of that duty should therefore be considered with
commensurate care.
Strickland, 466 U.S. at 706, 104 S.Ct. at 2074 (Brennan, J., concurring in part and
dissenting in part) (alteration in original) (citations omitted) (emphasis added).
"Florida is a weighing State; the death penalty may be imposed only where
specified aggravating circumstances outweigh all mitigating circumstances."149
149
While “Florida’s death penalty statute, section 921.141, limits the aggravating
circumstances on which a sentence of death may be imposed to the circumstances listed in the
statute,” Grossman, 525 So. 2d at 842, the Florida Supreme Court “has repeatedly held that all
mitigating evidence, found anywhere in the record, must be considered and weighed by the trial
court in its determination of whether to impose a sentence of death,” Walker v. State, 707 So. 2d
300, 318 (Fla. 1998) (per curiam) (citing cases) (second and third emphases added).
74
Parker v. Dugger, 498 U.S. 308, 318, 111 S.Ct. 731, 738 (1991) (citing Fla. Stat. §
921.141(3) (1985)) (emphasis added). “[T]he Supreme Court and this Court . . .
have repeatedly emphasized the constitutional right of a defendant facing the death
penalty to present any relevant evidence of mitigating circumstances.” Brownlee,
306 F.3d at 1070. "[T]he question is whether there is a reasonable probability that,
absent the errors, the sentencer—including an appellate court . . . would have
concluded that the balancing of aggravating and mitigating circumstances did not
warrant death."150 Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. “The appropriate
analysis of the prejudice prong of Strickland requires an evaluation of ‘the totality
of the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—in reweighing it against the evidence in
aggravation.’” Bottoson v. Moore, 234 F.3d 526, 534 (11th Cir. 2000) (quoting
Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515); see Clemons v. Mississippi, 494
U.S. 738, 752, 110 S.Ct. 1441, 1450 (1990) (vacating state supreme court’s
upholding death sentence because it was not apparent that the appellate reweighing
of the aggravating and mitigating factors accorded “defendant[] the individualized
150
The Florida Supreme Court has “repeatedly stressed [that] a trial judge’s weighing of
statutory aggravating factors and statutory and nonstatutory mitigating circumstances is the
essential ingredient in the constitutionality of our death penalty statute.” Porter v. State, 723 So.
2d 191, 196 (Fla. 1998) (per curiam); see State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973) (“The most
important safeguard presented in Fla. Stat. § 921.141, F.S.A., is the propounding of aggravating
and mitigating circumstances which must be determinative of the sentence imposed.”).
75
treatment that would result from actual reweighing of the mix of mitigating factors
and aggravating circumstances” or “that the [state appellate] court fully heeded our
cases emphasizing the importance of the sentencer’s consideration of a defendant’s
mitigating evidence” required in a weighing state).
The Supreme Court has been clear that both statutory and nonstatutory
mitigating factors must be considered in a capital sentencing proceeding:
"[W]e conclude that the Eighth and Fourteenth
Amendments require that the sentencer . . . not be
precluded from considering, as a mitigating factor, any
aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers
as a basis for a sentence less than death."
....
Just as the State may not by statute preclude the sentencer
from considering any mitigating factor, neither may the
sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence.
Eddings v. Oklahoma, 455 U.S. 104, 110, 113-14, 102 S.Ct. 869, 874, 876-77
(1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964 (1978)
(plurality opinion)) (alteration, first ellipsis, and emphasis in original).151 When a
151
The Florida Supreme Court has been explicit that “[a]ll evidence of mitigating
circumstances may be considered by the judge or jury.” Dixon, 283 So. 2d at 9 (emphasis
added). “[T]he jury is not limited, in its evaluation of the question of sentencing, to
consideration of the statutory mitigating circumstances. It is allowed to draw on any
considerations reasonably relevant to the question of mitigation of punishment.” Lewis, 398 So.
2d at 439 (emphasis added).
“While all judicial proceedings require fair and deliberate
76
petitioner contends that the presentation of additional mitigating evidence would
have changed the weighing process so that death is not warranted, "we look at the
mitigating circumstance evidence that was not presented, along with that which
was, and consider the totality of it against the aggravating circumstances that were
found."152 Tompkins v. Moore, 193 F.3d 1327, 1336 (11th Cir. 1999).
consideration by a trial judge, this is particularly important in a
capital case because, as we have said, death is different.”
Since the ultimate penalty of death cannot be remedied if erroneously imposed,
trial courts have the undelegable duty and solemn obligation to not only consider
any and all mitigating evidence, but also to “expressly evaluate in [their] written
order[s] each mitigating circumstance proposed by the defendant to determine
whether it is supported by the evidence.”
This bedrock requirement cannot be met by treating mitigating evidence as an
academic exercise which may be summarily addressed and disposed of.
Walker, 707 So. 2d at 319 (citations omitted) (emphasis and alterations in original). “It is within
the sentencing judge’s discretion to determine the relative weight given to each established
mitigator; however, some weight must be given to all established mitigators.” Ferrell v. State,
653 So. 2d 367, 371 (Fla. 1995) (per curiam) (reaffirming Campbell v. State, 571 So. 2d 415(Fla. 1990), which clarified evaluating and weighing mitigating evidence) (emphasis added).
152
The Florida Supreme Court similarly has stressed the great significance of the
sentencing-phase weighing process by the trial judge and jury in determining whether a sentence
is death or life imprisonment:
It must be emphasized that the procedure to be followed by the trial judges
and juries is not a mere counting process of X number of aggravating
circumstances and Y number of mitigating circumstances, but rather a reasoned
judgment as to what factual situations require the imposition of death and which
can be satisfied by life imprisonment in light of the totality of the circumstances
present.
Dixon, 283 So. 2d at 10.
77
Tassone presented no mitigating evidence at the sentencing proceeding.
Therefore, we first consider the record evidence of statutory mitigating factors.153
Because of Hardwick's alcohol and drug consumption before Pullum's murder, the
most significant statutory factor was Hardwick's cognitive ability to conform his
conduct to the requirements of law. Tassone failed to present the record evidence
at the sentencing phase of Hardwick's drunk and drugged condition resulting from
the well-documented, long Christmas weekend binge of drugs and alcohol as well
153
At the time of Hardwick's sentencing proceeding, Florida law provided the following
mitigating factors:
Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior
criminal activity.
(b) The capital felony was committed while the
defendant was under the influence of extreme
mental or emotional disturbance.
(c) The victim was a participant in the defendant's
conduct or consented to the act.
(d) The defendant was an accomplice in the capital
felony committed by another person and his
participation was relatively minor.
(e) The defendant acted under extreme duress or
under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct
to the requirements of law was substantially
impaired.
(g) The age of the defendant at the time of the
crime.
Fla. Stat. § 921.141(6) (1985).
78
as expert testimony, like that given at the 3.850 proceeding.154 This omission kept
from the judge and jury knowledge that, at the time of the murder, Hardwick could
have lacked the judgment to conform his conduct to the requirements of law. In
his report for the 3.850 proceeding, Dr. Levin considered "that during the five days
leading to his offense that [Hardwick] ingested forty or fifty of the Quaaludes,
continually smoked marijuana, drank a fifth of vodka and shared 'a couple of cases
of beer' with friends."155 Dr. George W. Barnard, who was court-
154
Even the dissent recognizes that “[n]umerous witnesses who were clearly available to
Tassone at the time testified during the 3.850 proceedings about Hardwick’s extensive use of
drugs and alcohol during the relevant weekend,” Dissent at 10, and that “Tassone’s own
testimony at the 3.850 hearing acknowledged awareness of such use in the days leading up to the
murder,” id. at 10 n.3. An expert witness could have provided mitigating testimony that
Hardwick was “‘significantly impaired’ . . . at the time of the crime,” which would have caused
him to have “‘difficulty conforming his behavior’” to law. Brownlee, 306 F.3d at 1071.
Tassone’s awareness of Hardwick’s drunk and drugged state and his failure to present this
mitigating evidence during the sentencing phase demonstrates his misunderstanding of
mitigation law.
155
Levin Report at 2. Darlene Hardwick told Dr. Barnard that, from her observations,
Hardwick was intoxicated during the five-day weekend: "She thought that he was basically
under the influence of it so that it was enough to change him significantly during that whole five-
day period of 20 to 25 December." 3.850 Proceeding at 286. She also observed that Hardwick
got "very little" sleep during this period: "he was very restless, in and out a lot, and did not seem
to eat too much, and slept for very short periods of time." Id. Darlene Hardwick further said
that, during the five-day period, Hardwick's drug and alcohol intake was greater than usual. Id.
at 285. She explained to Dr. Barnard the difference in Hardwick's behavior when he was under
the influence of alcohol and drugs:
[W]hen he was not drinking and under the influence of drugs he was quite
different toward her and toward others, and she also felt that he had a behavior
that would indicate changes that she usually did not see in his normal state when
he was not under the influence of alcohol and drugs.
Id. at 285.
79
appointed, testified that Hardwick suffered from multiple substance abuse
disorder.156 Hardwick "denied that he ever had preplanned murdering the victim"
and "indicated that his entire focus was to reobtain his drugs for the primary
purpose of ingesting drugs."157 Thus, "the source of his anger [toward Pullum]
was his loss of drugs and inability to 'get high.'"158
Dr. Levin explained the effect of the combination of quaaludes, alcohol, and
lack of sleep:
While Bartley purports to have passed out from the drugs that he had taken prior to the
murder, he makes clear that Hardwick demonstrated the effects of ingesting considerable
amounts of drugs and alcohol:
The weekend before Hardwick was arrested for murder, Pete McCoy,
Hardwick and myself part[i]ed together. Friday night we bought three fifths of
vodka. Hardwick had a bunch of quaaludes and quite a bit of pot. All weekend
we were drinking and smoking. Hardwick was eating quaaludes all weekend. It
was not unusual for Hardwick to be high. I was partying with Hardwick until a
few hours before Keith was killed. I passed out, only to find out later that Keith
had been killed. Just a few hours before Keith was killed Hardwick and I were
real messed up. As I said before, Hardwick had been doing quaaludes all
weekend. I saw Hardwick take at least one quaalude just a few hours before the
murder. That night Hardwick was acting pretty crazy. He was drinking whiskey,
smoking pot, laughing and running around.
Affidavit of Jeff Bartley ¶ 2 (emphasis added).
156
3.850 Proceeding at 282. Consistent with experts Dr. Barnard and Dr. Dee, Dr. Levin
diagnosed Hardwick "as [being] a poly-substance abuse dependent and [having] an anti-social
personality disorder." Id. at 789.
157
Levin Report at 2.
158
Id.
80
It's well known that alcohol and Methyquaalone has an added
effect of inflated euphoric feelings, intoxication just as one would be
drunk on alcohol. The effects on top of that of quaaludes would
enhance that effect.
....
Lack of sleep exacerbates . . . ability to be coherent, to think
linearly, to be able to be in control of one's thought process.159
Dr. Levin's review of the affidavits of individuals who observed Hardwick
over the weekend prior to the murder typically described "erratic behavior,
sweating, slurring of speech, inconsistent behavior and . . . mood swings."160 In Dr.
Levin's opinion, Hardwick "was intoxicated at the time of the offense."161
159
3.850 Proceeding at 786. In his written report, Dr. Levin further explained the effects
of the drugs and alcohol that Hardwick had consumed prior to the murder:
At the time of the instant offense, Mr. Hardwick was apparently using large
dosages of Methaqualone (Quaaludes), alcohol and marijuana. Methaqualone is a
non-barbiturate sedative-hypnotic that is a general depressant of the central
nervous system depression. The combined use of alcohol with Methaqualone
enhances the absorption, and hence the reaction, to the drug's affect. At low
dosages, the ingestion of Methaqualone results in a sedative affect or a
drowsiness, and at higher dosages, a deep intoxication can result that is similar to
affects from excessive use of alcohol. It can be stated within a reasonable degree
of psychological certainty that mental functioning, in terms of reasoning, becomes
substantially impaired with the ingestion of Methaqualone. As with alcohol
intoxication, Methaqualone's affect is explained by the release of inhibitions that
produces feelings of relaxation, confidence, and euphoria. Addicted individuals
refer to this as a "high," but they are actually undergoing central nervous system
[depression]. It is of note that Mr. Hardwick described his "high" at the time of
the offense similarly to the features of a hypnotic and alcohol "high" described in
the literature.
Levin Report at 6 (emphasis added).
160
3.850 Proceeding at 784.
161
Id. at 787.
81
Regarding Hardwick's cognitive ability to formulate intent, Dr. Levin testified to a
reasonable degree of psychological certainty that Hardwick "had some ability to
think rationally, but . . . he was significantly impaired in his judgment and
reasoning skills" resulting in his inability to have premeditated intent.162 He
concluded that Hardwick's capacity to conform his conduct to the requirements of
law was substantially impaired at the time of the offense, which constitutes a
mitigating factor under the Florida death penalty statute.163
In response to cross-examination questions suggesting that Hardwick's
description of the killing indicated his mental clarity at the time of the murder, Dr.
Levin explained that Hardwick's manner of killing Pullum exemplified his
diminished cognitive functioning in terms of his "somewhat cloudy" memory of
the events, his thought process, and his "very erratic" behavior:
[M]y understanding that it took him a great deal of effort and different
means to strike the victim in terms of striking him with a jack from a
car, with a tire iron, with a knife, trying to stab him with a tire iron,
trying to drown him, trying to—and shoot him.
This showed to me behavior that was something that reflected
some erratic intent or erratic direction in his behavior in terms of—if
you will getting the job done. He seemed to be ineffective and that
was where the erratic—his thinking in terms of talking about—talking
over shall I complete this, not being sure of what he was doing or
162
Id. at 791.
163
Id. at 792.
82
whether he should complete the task in conferring with another person
there.164
Similarly, Dr. Dee, who also interviewed and examined Hardwick as well as
reviewed the record of the 3.850 proceeding and concluded that Hardwick was
"acutely intoxicated" at the time of the offense,165 found the manner of death was
consistent with drug and alcohol influence, despite the impression created by the
164
Id. at 853-54 (emphasis added). Dr. Levin's report states that "[a]lthough [Hardwick]
admitted culpability in the murder, his descriptions of the events imply impulsivity and lack of
foresight in his execution of the crime." Levin Report at 7. These explanations should have
been weighed by the advisory jury and judge against the aggravating factor that the murder was
“especially heinous, atrocious, or cruel,” because Hardwick seemed unknowing as to how to
proceed when his efforts to cause Pullum to produce the missing quaaludes were unsuccessful,
and he showed remorse following the killing. Fla. Stat. § 921.141(5)(h). Describing the
characteristics of the “ heinous, atrocious, or cruel” aggravator, the Florida Supreme Court
stated: “What is intended to be included are those capital crimes where the actual commission of
the capital felony was accompanied by such additional acts as to set the crime apart from the
norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous
to the victim.” Dixon, 283 So. 2d at 9 (emphasis added).
Similarly, the “cold, calculated, and premeditated” aggravator seems inapplicable to
Hardwick, who, in a drunk and drugged state, made threats upon the discovery that his quaaludes
were missing, and witnesses testified that he generally had his gun with him; it was not procured
to kill Pullum. Fla. Stat. § 921.141(5)(i); cf. Walker, 707 So. 2d at 317 (concluding that the
record supported “the trial court’s finding that ‘the defendant carefully, calmly and with
reflection, planned to lure [the female victim] to a place where she could be abducted, enlisted
the assistance of his brothers to kill her, and then proceeded according to plan’” and citing cases
involving advance procurement of the murder weapon). Additionally, the reference to Bartley,
who advised and urged Hardwick, who was in a drunk and drugged condition, to kill Pullum,
implicates the statutory mitigating factor that Hardwick acted “under the substantial domination
of another person.” Fla. Stat. § 921.141(6)(e). It is also noteworthy that, during the weekend
prior to Pullum’s murder, Hardwick’s pregnant wife had told him that she planned to leave him,
which relates to the statutory mitigator of committing the capital felony “while the defendant
was under the influence of extreme mental or emotional disturbance.” Id. § 921.141(6)(b).
165
3.850 Proceeding at 976.
83
medical examiner's report.166 To a reasonable degree of psychological certainty,
166
Id. at 973. Dr. Dee also related Hardwick's description of the murder, which
evidenced obvious, excessive drug and alcohol influence:
Mr. Hardwick told me that he was acutely intoxicated. That's not
his term. It's mine. He said he was so stoned that he had a hard
time moving around. At one point I think I said in the record he
told me that it took him 30 minutes to attempt to get the body in
the trunk of the car when he was going to take [Pullum] to the
hospital. And not sure he ever achieved that.
He said that he had been drinking and using Quaaludes for
days, and had continued during that night and the subsequent days.
And he characterized his behavior—he said that he was so
clumsy from being high that he couldn't bury the body. So, he
threw it in the river. And that he had done it in a sort of
intoxicated fury and afterwards became acutely remorseful and
hysterical that this so-called other person that was with him had to
calm him down and get him quieted again.
....
[P]eople that abuse drugs and alcohol develop a certain tolerance
for them and they can be acutely intoxicated and still carry out
many complex activities.
According to Mr. Hardwick's account of the crime, it
wasn't done particularly gracefully. He was clumsy. He missed
the victim more and he shot at him a second time, et cetera.
Id. at 969-70, 977 (emphasis added). Dr. Dee explained his disagreement with the impression
created by the medical examiner's report:
[F]rom reading the Medical Examiner's report when he goes into
the impression that this was done in a kind of—it was a
particularly brutal crime and it was done in sort of a frenzy.
Because of the numerous blows to the head, the shooting and the
stabbing, it all seemed excessive from what you frequently see
during the events of intoxication or drug abuse induced psychosis,
however you want to describe the mental state.
Id. at 974 (emphasis added).
84
Dr. Dee opined that Hardwick was so intoxicated that his ability to formulate
specific intent was diminished.167
In contrast, Dr. Barnard, the court-appointed psychiatrist, testified at the
3.850 proceeding that Hardwick, whom he examined on April 10, 1985, was not
insane at the time of the offense and that he did know that his actions were
wrong.168 Dr. Barnard testified, however, that he was asked to evaluate Hardwick
for only two purposes: (1) competency to stand trial, and (2) legal sanity at the time
167
Id. at 975. Dr. Dee also addressed the effect that extreme intoxication would have had
on Hardwick specifically:
I said that he was skill poor on the MMPI. That was only on the
elevated scale. These people are impulsive and overactive and the
use of psychoactive substances makes them more so and they are
less likely to be able to control their actions in conformity with the
dictates of the law.
....
Less likely to be able to plan anything with any kind of
deliberation. . . . . both because intoxicants render them just
incredibly impulsive.
Id. at 962 (emphasis added). Hardwick's history of alcohol and drug abuse is clearly established
as well as the binge during the weekend of the murder. Thus, this case is distinguished from
other death-penalty cases where the petitioner's use of drugs and/or alcohol at the time of the
murder was either exaggerated, Brown v. Jones, 255 F.3d 1273, 1278-79 (11th Cir. 2001), cert.
denied, __ U.S. __, 122 S.Ct. 823 (2002), or not credible, Duren v. Hopper, 161 F.3d 655, 661-
62 (11th Cir. 1998).
168
3.850 Proceeding at 309. After interviewing Hardwick in 1985, Dr. Barnard
determined that Hardwick was competent to stand trial and that "he did not meet the criteria for
involuntary hospitalization" and further opined "that at the time of the alleged crimes he knew
what he was doing, did know the results from his actions, and did know that they were wrong."
Id. at 261.
85
of the alleged crime.169 Consequently, he did not evaluate Hardwick regarding
specific intent relating to a voluntary intoxication defense or as to statutory or
nonstatutory mitigation.170 Further, Dr. Barnard's notes show that he did not have
any conversations with Tassone.171
Dr. Barnard testified that Hardwick had experienced blackouts from alcohol
since age thirteen and that he had extensive drug use at an early age: "[m]ultiple
drug usage, including pot, LSD, uppers, downers, MDA, cocaine, Quaaludes, glue
sniffing."172 When the offense occurred, Hardwick told Dr. Barnard that "he had
taken Quaaludes and drunk part of a couple of fifths of vodka with four or five
other people and smoked six to eight joints of pot," which "he had been more or
less doing . . . since December 20th."173 Stating that Hardwick had a history of
poor impulse control, Dr. Barnard explained that the alcohol and drugs lifted his
169
Id. at 252-53.
170
Id. at 261.
171
Id. at 261-62, 309. This fact from Dr. Barnard’s notes blatantly conflicts with the state
judge’s factual finding in his supplemental order that not only states that Tassone interviewed
Dr. Barnard, Transcript of Record, Vol. IV at 596, but also that he “had a very clear and vivid
recollection of having numerous conversations and discussions with Dr. Barnard regarding
possible mitigation testimony and evidence,” id. at 597. In making this credibility choice, the
state judge chose Tassone’s 3.850 testimony, which was determined to be problematic by the
Florida Supreme Court and occurred in a protracted court session, over Dr. Barnard’s notes made
at the time of his consultation/evaluation.
172
Id. at 281.
173
Id. at 275-76.
86
inhibitions, thereby releasing his impulsive behavior and causing him to become "a
lot more aggressive when he was under the influence of alcohol and drugs."174 Dr.
Barnard stated that quaaludes gave Hardwick "a sense of power and a feeling of
importance" and explained how they affected Hardwick's cognitive functioning:
"specifically . . . his judgment . . . more than anything," "his reaction time," "his
level of alertness," "his ability to . . . project ahead to the consequences of what he
was doing," and "he would make more errors in judgment."175 Based upon his
understanding of the amount of drugs and alcohol that Hardwick had ingested near
the time of the offense, Dr. Barnard testified that Hardwick's judgment and impulse
control were substantially impaired and that his ability to reason was affected.176 If
174
Id. at 295 (emphasis added). See Brownlee, 306 F.3d at 1072 (recognizing that
psychiatric expert testified that “[d]rug or alcohol use on the day of the crime would have
substantially aggravated these pre-existing [psychiatric] limitations” and “substantially
impaired” capital defendant’s ability to conform his conduct to law).
175
Id.176
Id. at 297. The only reason that Dr. Barnard would not commit to diminished
cognitive ability was that he believed that a mental status evaluation would have had to have
been conducted at the relevant time for that determination. Id. Pursuant to his psychiatric
examination of Hardwick, we note that Dr. Barnard wrote the judge and requested relevant
information concerning Hardwick's behavior on the day of the offense, which had not been
provided to him. While the state provided him with some additional evidence, Tassone did not.
Id. at 253-55. Significantly, Tassone testified that he never reviewed with Dr. Barnard or even
saw the information subsequently produced by the state attorney’s office. Id. at 185. The time
that Dr. Barnard expended obtaining background information on Hardwick would have been
better spent on his diagnostic evaluation of Hardwick, which would have been more
comprehensive if Tassone had provided the background information to Dr. Barnard prior to his
evaluation and report, used as the basis of his trial testimony.
87
he had been asked to evaluate mitigation evidence, such as Hardwick's poor and
abusive family life and its effect on his life, or his ability to conform his conduct to
the requirements of law, Dr. Barnard testified that he would have been willing to
do so.177 At the 3.850 proceeding, Dr. Barnard testified that Hardwick's capacity to
conform his conduct to the requirements of law was substantially impaired within
the meaning of the Florida statute, that Hardwick did not have a normal life as
child or young man, that his multiple substance abuse disorder was longstanding,
and that such abuse of drugs can damage the brain.178 He testified that he could
have provided statutory mitigating circumstances if Tassone had given him an idea
of what he was seeking.179
Based upon his review of the entire record, Dr. Dee testified at the 3.850
proceeding concerning Hardwick's intoxication at the time of the murder:
[B]ased on the affidavit[s] and the testimony that I have reviewed
[Hardwick] appears to have been extremely intoxicated at the time he
committed this crime.
....
[I]t sort of brackets in time when you consider all the statements
together. We have people saying that [Hardwick] was high
177
Id. at 296.
178
Id. at 299.
179
Id. at 300-01.
88
beforehand and that he was high afterwards. It probably strains
credulity to believe that he was sober in between.180
Although the conclusions as to mitigation factors under the Florida statute were
essentially the same among the psychiatrists who testified at the 3.850 proceeding,
the judge and jury heard none of this testimony at either the guilt or penalty
phase.181
180
3.850 Proceeding at 961, 968 (emphasis added).
181
In Hudson v. State, 708 So. 2d 256 (Fla. 1998) (per curiam), the Florida Supreme
Court vacated the second death sentence pursuant to a second penalty-phase proceeding before a
jury. Although Hudson’s conviction and death sentence had been affirmed on direct appeal,
Hudson v. State, 538 So. 2d 829 (Fla. 1989) (per curiam), the trial court concluded after the post-
conviction proceedings that “Hudson’s penalty-phase counsel had provided ineffective
representation in that he had failed to adequately investigate and present extensive mitigation
evidence,” Hudson, 708 So. 2d at 257, and the Florida Supreme Court affirmed, Hudson v. State,
614 So. 2d 482 (Fla. 1993) (per curiam). Critical to this determination was the failure of
penalty-phase counsel to provide the mental-health expert with available evidence of Hudson’s
cocaine addiction and its effect on his mental state at the time of the armed burglary and murder,
which would have affected the weighing or proportionality in the penalty phase. 708 So. 2d at
258. At resentencing, however, the trial judge assigned little weight to mitigation evidence of
the examining psychiatrist that Hudson, “at the time of the murder, was suffering from an
extreme mental or emotional disturbance because of cocaine addiction and ingestion, a
personality disorder and a deprived background.” Id. at 258-59 (emphasis added). In vacating
the death sentence for the second time and remanding the case for a new and detailed sentencing
order, the Florida Supreme Court explicitly directed that the sentencing order fully address all
mitigating evidence:
Our reading of the record shows that the trial court must consider, address, and
weigh in detail the testimony of defense expert [psychiatrist] (on direct and cross-
examination) and other witnesses concerning Hudson’s drug use, including the
following considerations: whether Hudson was intoxicated by crack cocaine at the
time of the murder; how Hudson reacted to crack cocaine ingestion; whether the
murder was related to crack cocaine intoxication; and whether the prior violent
felonies were related to drug use. The trial court also must consider, address, and
weigh resentencing testimony concerning a domestic dispute . . . as well as
testimony about Hudson’s family history; Hudson’s degree of cooperation with
law enforcement officers; Hudson’s character traits as demonstrated by various
89
Regarding nonstatutory mitigating factors, Tassone failed to recognize
Hardwick's dysfunctional family life and the mental and physical abuse that he
endured during his childhood and teen years.182 “[U]nder the Florida procedure for
trying capital cases, an advisory jury may not be prohibited from considering
relevant nonstatutory mitigating circumstances in making its sentencing
recommendation, and . . . the judge must consider such mitigating evidence in
determining an appropriate sentence.” Bolender, 16 F.3d at 1562 (citing Hitchcock
v. Dugger, 481 U.S. 393, 107 S.Ct. 1821 (1987)). Hardwick's family background
was a mitigating factor because it was formative in Hardwick's development as a
young man; yet Tassone failed to present this evidence to the judge and jury at the
sentencing phase.
He also did not obtain social services and juvenile records that showed that
Hardwick's father was an abusive alcoholic who had dislocated Hardwick's
activities; and Hudson’s potential for adapting to a structured life in prison. In
considering and weighing this evidence, the court shall consider cases from this
Court which have evaluated the presentation of mitigation evidence in sentencing
orders.
Hudson , 708 So. 2d at 260 (collecting cases) (emphasis added). The drugged state of the
defendant in Hudson at the time of the killing as well as his drug addiction is analogous to
Hardwick’s condition when Pullum was killed.
182
The Florida Supreme Court “has repeatedly acknowledged that evidence of abuse of
the defendant is mitigating in nature,” and, “[a]s to the nonstatutory mitigator of [defendant’s]
abusive childhood . . . agree[d] with [defendant] that the trial court erred in rejecting this factor
and giving it no weight in the sentencing process.” Walker, 707 So. 2d at 318.
90
shoulder when he was a child, among other physical and emotional abuses.183
Hardwick's mother testified at the 3.850 proceeding that his father would take his
rage out on Hardwick and that she had seen her husband "take his shoe and kick
[Hardwick] with it."184 These records further showed that Hardwick had witnessed
his father having sex with another man and that the father routinely would get the
children out of bed, expose himself, and urinate on the floor in front of them.
When he was seven years old, Hardwick was placed in a boys’ home in
Jacksonville because his mother was pregnant again and could not support any
more children. Hardwick repeatedly ran away from the institution to return to his
183
Florrie Benton, Hardwick's aunt and sister of his father averred concerning the
physical abuse that she witnessed from Hardwick's father:
I never saw Johnny [the father] play with Little Johnny
[Hardwick]. Once when Little Johnny was about 12 or 13 years
old, Johnny beat his son with a belt so badly that the blood came
up to the skin. I saw 4 belt marks on Little Johnny's back. I told
Johnny that if he ever did that again I'd go to the police. Once
during this time my husband told me that he had seen Johnny kick
Little Johnny, after Johnny had been drinking.
Affidavit of Florrie Benton ¶ 5.
184
3.850 Proceeding at 498.
91
abusive father in South Carolina.185 His father gave him drugs and alcohol to keep
him occupied.
When he was thirteen, Hardwick was having drug and alcohol-induced
blackouts and contracted hepatitis from dirty intravenous needles. Eventually,
social services found the father's home unfit and placed Hardwick in a foster home.
Social services records show that, at fourteen, Hardwick was found to possess dirty
syringes and that he had spent most of his fourteen years in and out of institutions.
In 1974, Hardwick attempted suicide twice: first by drug overdose and then by
slashing his wrists. In 1975, Hardwick was accepted into the South Carolina
Youth Services Intensive Care Unit as an emotionally disturbed child. Hardwick's
mother testified that he "felt like he was abandoned" and that he needed
psychological help.186 Even Dr. Barnard, the court-appointed psychiatrist, found
Hardwick's dysfunctional upbringing to be significant.187
185
Dr. Levin testified that Hardwick had “a classic love hate relationship” with his father.
3.850 Proceeding at 766. He had “some very deep seeded positive feelings towards his father as
a father figure,” who had “rescued him from residential treatment and taken him into his home”
combined with “some underlying rage towards his father” resulting from “physical abuse and
inconsistency he received at his father’s hand.” Id. Dr. Levin further testified that “typically this
type of environment leads to a very insecure and untrusting individual and someone who has a
great deal of difficulty forming intimate relationships and has a great deal of anger that can
emerge as an adult.” Id. at 766-67.
186
Id. at 499, 517.
187
With no assistance from Tassone and doing his own research into Hardwick's
background, Dr. Barnard testified at the 3.850 proceeding as follows:
92
The story was that he had come from a family that was
disunited;
His parents got a divorce when he was about four, and he
was . . . in a boy's home for a year and a half, I think, when he was
about seven.
But most of the time after the divorce he was with one
parent and then the other.
At times he was—or for a brief period he was with an aunt
or an uncle.
There was a story of heavy alcoholism on both sides of his
family, mother and father, especially on the father's side, with . . .
his father being an alcoholic. I think an aunt and uncle and also
his maternal grandmother had problems with alcohol.
There was a history of physical abuse shown . . . . [b]y his
father toward his mother and toward [Hardwick].
....
There was a history that there was a lack of parenting
support or structure by either parent [] in the opinion of the other
relatives.
And that during brief periods of time before he was in his
mid-teens when he was with them he seemed somewhat amenable
to the influence of others, but later on after he had been in and out
of correctional facilities for youths he had hardened and it did not
seem to affect him as much.
There was the internal consistency of several people saying
that he changed when he was under the influence of drugs and
alcohol in terms of behavior.
....
He went from someone who was quiet and nontalkative to
someone who was very talkative, argumentative or pushy.
....
[This background information] gave some insight or
understanding about the environment in which he was raised and
the kind of stresses he may have been exposed to as a child, and
the support system or lack thereof that he had during his childhood
and formative years.
....
I think the message from it is that pretty early in his life he
was out on his own and not receiving the parental influence that he
may have had in a more—I can't say normal, but—less
dysfunctional family.
93
In Williams, the Supreme Court recognized that "[t]he Virginia Supreme
Court ignored or overlooked the evidence of Williams' difficult childhood and
abuse." 529 U.S. at 373 n.5, 120 S.Ct. at 1502 n.5. In that case, where Williams
had a background analogous to that of Hardwick, the Court clarified that "errors
that undermine confidence in the fundamental fairness of the state adjudication
certainly justify the issuance of the federal writ."188 Id. at 375, 120 S.Ct. at 1503.
Id. at 278-80 (emphasis added). Dr. Barnard also testified that Hardwick began his alcohol and
drug use by age 12 and that he had "[m]ultiple drug usage, including pot, LSD, uppers, downers,
MDA, cocaine, Quaaludes, glue sniffing" and PCP at an early age. Id. at 281.
188
In a Florida death-penalty case concerning the rape and murder of a seven-year-old
girl, where twice the trial judge had overridden the jury’s life imprisonment recommendation and
imposed the death sentence, the Florida Supreme Court quashed the death sentence and
remanded “with directions that the trial court impose a sentence of life imprisonment without
parole for twenty-five years from the date of the original sentencing” based on nonstatutory,
background mitigation evidence similar to Hardwick’s background. Buford v. State, 570 So. 2d
923, 925 (Fla. 1990) (per curiam). “Upon rehearing before a different judge (the original judge
having recused himself), Buford presented testimony concerning his abused, neglected, and
impoverished childhood, his history of drug and alcohol abuse, and his intoxication on the night
of the offense.” Id. at 924. When the trial judge again imposed the death penalty, the Florida
Supreme Court explained its reasoning in quashing the death sentence because of this mitigating
background evidence:
Many witnesses testified concerning Buford's background. A Lakeland
policeman who had patrolled the neighborhood described the squalor and
conditions of parental neglect in which Buford had been raised. Both parents beat
the children periodically, and neither worked steadily enough to keep the family
above the poverty level. Because of his father's alcoholism and his mother's
penchant for spending months at a time away from home, Buford was given the
responsibility, at an early age, of caring for his five younger siblings. Buford was
shown to be an alcoholic who had been drinking heavily and taking drugs since
his early teens. Two cousins said they almost never saw him when he wasn't
obviously under the influence of alcohol or drugs. There was also testimony that
94
Confirming that the Strickland test is analyzed on a case-by-case basis, the Court
determined that "it is undisputed that Williams had a right—indeed, a
constitutionally protected right—to provide the jury with the mitigating evidence
that his trial counsel either failed to discover or failed to offer."189 Id. at 391, 392,
120 S.Ct. at 1512, 1513.
The reasons given by Tassone and the state for not calling family members
and other individuals as mitigating witnesses are not substantiated by the record in
our plenary review.190 As we reveal, notable examples show the opposite of
Buford was intoxicated at the time of the killing. A psychiatrist expressed the
opinion that Buford's ability to appreciate the criminality of his conduct and his
ability to conform his conduct to the requirements of law were substantially
impaired. He further testified that Buford was under mental and emotional
disturbance throughout his entire life after the first six or seven years. The
medical evidence introduced at the original trial corroborated Buford's serious
alcohol problem. Despite the heinous nature of the crime, we conclude that there
was sufficient mitigating evidence to provide a reasonable basis for a life
recommendation.
Id. at 925 (emphasis added).
189
The dissent omits any reference to Williams and its requirements for presentation of
mitigating factors at sentencing, which we specifically asked counsel to brief.
190
With respect to witnesses that a capital defendant wants to call on his behalf, although
his counsel may not believe their testimony would be in his “best interests,” the Florida Supreme
Court has held that “[t]he ultimate decision [regarding defense witnesses in a capital case] is the
defendant’s.” Blanco, 452 So. 2d at 524. Although the dissent states that “[t]he state judge
expressly found: ‘Mr. Hardwick was allowed to call all desired witnesses,’” this reference in the
state judge’s supplemental order is to the 3.850 proceeding, and not to Hardwick’s trial. Dissent
at 3 (quoting Transcript of Record, Vol. IV at 592). Clearly, Hardwick was not permitted to call
the witnesses he desired at his trial, and the record shows that he repeatedly so informed the trial
judge. Indeed, Hardwick was so disheartened regarding his trial representation that he refused to
95
counsel's representations to be true. Significantly, "[t]he key aspect of the penalty
trial is that the sentence be individualized, focusing on the particularized
characteristics of the individual."191 Thomas v. Kemp, 796 F.2d at 1325 (citing
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976)).
The state has made much of the alleged fact that, of the eleven children born
to Nell Lawrence, Hardwick is the only one who has drug problems, a criminal
record, and who has committed murder. The state's representation of the record
evidence is inaccurate. Lawrence testified that a son from her first marriage, Roger
Britt, is a drug addict and that she has several children who have been on drugs.192
She also testified that her son Jerry, Hardwick's brother by the same father, had a
drug and alcohol problem as well as serious problems with the law.193 Hardwick's
half brother James Britt testified concerning his brothers that Terry has "a real bad
leave his cell to be in the courtroom for closing arguments. The record is unclear as to whether
Hardwick wanted witnesses at his sentencing proceeding. The record does reveal that, by the
sentencing phase, Tassone and Hardwick were not getting along and that Tassone did not
understand mitigation law or the benefit to Hardwick at sentencing of having witnesses testify
concerning mitigating evidence that could have resulted in a life sentence rather than death.
191
Our court has continued to emphasize that “‘[t]he purpose of a sentencing hearing is to
provide the [sentencer] with the information necessary for it to render an individualized
sentencing determination . . . [based upon] the character and record of the individualized
offender and the circumstances of the particular offense.’” Fortenberry, 297 F.3d at 1232(quoting Collier v. Turpin, 177 F.3d 1184, 1202 (11th Cir. 1999)) (alterations and omission in
original).
192
3.850 Proceeding at 560-61, 565.
193
Id. at 570-71.
96
temper" and has "never been able to hold a job," Roger "had a real bad problem
with drugs" and "was really heavy into pot and shooting up speed," Jerry "had a
pretty good drug problem," which has moderated into a "pretty heavy" drinking
problem, and that James also had a drug problem when he was younger.194 James
further testified that half or more of the eleven children have had drug and alcohol
problems and that Jerry has been in and out of prison almost as many times as
Hardwick for the same type of Hardwick's previous crimes, such as robbery, and
that "Roger has been in and out of jail quite a bit" for "selling stolen goods and
drunk driving."195
Moreover, James testified that Hardwick "is not the worst of the lot."196 He
recounted a time, when his brother Terry, who had been drinking and fighting
Roger almost shot and would have killed James when he tried to stop the fight:
Terry pointed a shotgun at James's face, pulled the trigger, and would have killed
him had his brother Roger not "hit the gun right as the trigger went off."197
Regarding Terry's additional violent behavior, James testified that Terry threw "an
axe at [his] stepfather one time, and he broke [his] grandfather's nose with a paint
194
Id. at 650, 651.
195
Id. at 660, 661.
196
Id. at 661.
197
Id. 668, 669.
97
brush, and that he used to beat Roger a lot" so severely that on several occasions
"[h]e knocked out teeth and everything else."198 Additionally, Terry "pulled a knife
on [their mother] on several occasions, and threatened to kill her," and "a majority"
of those instances involved drugs or alcohol.199 This testimony prompted the trial
judge to comment: "I think [the testimony] does relate to his characterization this
sibling is not the worst of the lot because obviously one issue here is whether or
not there . . . are factors in the background of this sibling that should be brought
out."200 When the prosecutor pressed James as to his testimony that Hardwick was
not the worst of the lot after killing Pullum for stealing quaaludes, Hardwick's
brother James testified: "I still don't know was he high on drugs when he did it or
what, did he know what he was doing[?]"201 This testimony concerning the drug,
alcohol, violent, and criminal behavior that infected many of Nell Lawrence’s
children was not presented to the jurors, which withheld from their consideration
the significant mitigating evidence of Hardwick's unstable, dysfunctional, and
physically and emotionally abusive background.
198
Id. at 669-70.
199
Id. at 670.
200
Id. at 672.
201
Id. at 677.
98
Furthermore, rather than being absent, unavailable, or unwilling to cooperate
in Hardwick's defense as Tassone has represented, his mother and brother Jeff
attended the trial each day and repeatedly offered to testify. At the 3.850
proceeding, Hardwick's mother testified that Tassone had been incorrect in
testifying that she was unwilling to testify for her son or that she thought that he
deserved the death penalty:
Q Did you ever refuse to cooperate with Mr. Tassone?
A No, sir.
Q Did he ever ask you questions?
A Very few questions.
....
Q Did [Tassone] ever talk to you about the actual trial
and what was going to happen at the trial, specifics?
A Specifics, no, sir.
Q Did he ever ask you about some of the things that we
have talked about here in court today?
A No, sir.
Q Mr. Tassone has testified previously that you refused
to testify on behalf of your son.
A That's not true.
Q Did he ever ask you to testify?
99
A No. He never asked me to testify, but I asked him
about testifying and Mr. Tassone told me that if I—did I
have anything to say that would help Johnny, and I said
well what kind of things do you mean. He says well can
you say that Johnny was a real good boy, that he was a
Christian boy, that he was a Boy Scout, that he did good
deeds for people, and I said, no, sir, I can't say he was a
Christian boy but Johnny has always been good to
people. He said, you know, if you can't say things like
that then you cannot do anything to help him. Whatever
you might say would only harm him.
Q But you never refused to testify?
A No, sir.
Q Mr. Tassone also testified that your son Jeff refused to
cooperate or to testify on behalf of Johnny.
A That's not true. Neither one of us has ever refused to
testify or to cooperate.
Q Mr. Tassone testified that prior to trial you expressed
to him your personal opinion that perhaps it would be
best that your son Johnny receive the death penalty. Did
you ever say that to Mr. Tassone?
A No, sir, not in any type of words.202
202
Throughout this case, the state has represented that Tassone did not call Hardwick's
mother as a witness because she had told him that she believed that her son deserved the death
penalty. See, e.g., Appellee's Brief at 4. The district judge also makes this representation and
accords it a presumption of correctness. R4-54-15 & n.8. Yet, the sworn testimony of
Hardwick's mother at the 3.850 proceeding is contrary. Counsel for the state reiterated this
alleged fact to this panel at oral argument as the reason that Hardwick's mother was not called as
a witness. Lawrence's testimony at the 3.850 proceeding belies this representation and explains
that she and her son Jeff were present at trial and willing to testify on Hardwick's behalf.
Interestingly, Hardwick's counsel did not and has not challenged this apparently false
representation by the state, which Lawrence contradicts. We are left with the impression that
100
neither side has reviewed the record in this capital case and are troubled that counsel, as officers
of the court, have perpetuated this misrepresentation of the facts to the district court and this
court, when a man's life is at stake.
The dissent also accepts as a fact that Tassone did not call Hardwick’s mother as a
witness at sentencing because she refused to testify and that she believed that Hardwick deserved
the death penalty, based on the trial judge’s finding in the guilt-innocence portion of his
supplemental order. Our plenary review of the record in this capital case has revealed that the
actions of Hardwick’s mother speak louder than Tassone’s representation of her hearsay
statements, to which he testified at the 3.850 proceeding outside of her presence. The record
shows that, when Hardwick was charged with a misdemeanor in North Carolina in 1978 for
throwing his hardhat at a prison guard who had thrown hot tar in Hardwick’s face, his mother,
contacted by fellow inmates regarding this incident, obtained and paid an attorney to represent
Hardwick. Affidavit of Nell Lawrence ¶ 17. The bond that Hardwick had with his mother is
further evidenced by the fact that the purpose of his visit to see his mother, even in his drunk and
drugged state on December 23rd, the afternoon before the killing of Pullum, was to wish her a
Merry Christmas. 3.850 Proceeding at 528. Not only did Lawrence testify that she attended
Hardwick’s trial, 3.850 Proceeding at 536, but also Tassone testified that she attended, id. at 163.
Mary Braddy, the Sheriff’s Office chaplain’s assistant who developed a counseling relationship
with Hardwick, testified that she had telephone conversations with Hardwick’s mother and
arranged special visits in her office for Lawrence to see Hardwick. Id. at 617-18. Despite
Lawrence’s admitted failings in her maternal responsibilities, these are the actions of a
concerned and caring mother and not the callous, vengeful mother that Tassone portrays to
substantiate his not calling her to testify at Hardwick’s sentencing because he misunderstood
mitigating factors. Moreover, the cumulative testimony relating to Hardwick’s mother’s actions
supporting Hardwick, in the past and at the time of the trial, substantiate her testimony that she
was willing to testify on her son’s behalf in a reasonable credibility choice between Tassone and
Lawrence’s testimony.
The dissent adopts the trial judge’s acceptance of Tassone’s reasons for not calling
Lawrence, although the trial judge admits that “[t]his testimony is the clearest conflicting
evidence in this case.” Transcript of Record, Vol. IV at 594. Rather than supporting his
credibility choice of the court-appointed attorney, Tassone, with record citations or
documentation, the trial judge speculates and states his conclusory opinion. As the trial judge
recognizes, this discrepancy in the testimony of these two witnesses regarding Lawrence’s
potential testimony is a direct conflict in testimony. This conflict, which would have presented
significant mitigating background evidence to the sentencing jury, should have been resolved at
the 3.850 proceeding as opposed to the state judge’s speculation in favor of Tassone to
substantiate his findings and decision. Instead of the trial judge’s undocumented speculation,
accepted by the dissent, that Lawrence “succumbed to internal pressure to save her son’s life by
testifying at this late date” making her credibility “certainly suspect,” the cumulative record
evidence, such as her hiring an attorney to represent Hardwick on the North Carolina
misdemeanor charge in 1978, shows to the contrary that she has been supportive of Hardwick,
particularly, in his adult life. Id. (emphasis added). We reiterate that the state judge’s findings
101
Q Were you concerned for your son at that time?
A Very much so.
Q Did you go to his trial?
A Yes, sir.
Q Did anyone go with you?
A. Yes, sir. My son Jeff went.
Q Did Jeff ever talk with Mr. Tassone?
A The only time that Jeff ever talked to Mr. Tassone was
sitting right outside the courtroom.
Q Did you ever hear Jeff saying that he would not testify
on behalf of his brother Johnny?
A No, sir. He told Mr. Tassone that he would be more
happy if there was anything at all that he could—that
concerning Hardwick’s mother, accepted by the dissent, occur in the guilt-innocence portion of
his supplemental order, his only discussion of this testimony, which is merely referenced in the
penalty-phase portion of the order. Information concerning Hardwick’s childhood and
adolescence, including his alcohol and drug dependencies, about which Lawrence could have
testified would have been relevant to the sentencing phase of his trial as Williams instructs.
Tassone’s telling Lawrence that her testimony would be unhelpful unless she could state that
Hardwick was a Christian, Boy Scout, or good person and that Hardwick’s substance addiction
would have no bearing on the case manifests Tassone’s misunderstanding of mitigating factors at
sentencing and his incorrect knowledge of sentencing law. Id. at 535, 536-37. This material
conflict in the evidence and others relating to Tassone’s reasons for not calling certain witnesses
as well as his deficient knowledge of sentencing, mitigation law confirm the need for an
evidentiary hearing to resolve these conflicts concerning the constitutionality of the sentencing
phase of Hardwick’s trial.
102
would help Johnny that he could—that he would be glad
to.
Q Did he ever ask you about Johnny's past history, his
background?
A No, sir.
Q Did he ever ask you about any drug or alcohol problem
that Johnny may have had?
A I—Mr. Tassone was aware that Johnny had an alcohol
and a drug problem because I told him.
Q Did he ask you any questions specifically about that?
A No, sir. I especially made it a point to talk with Mr.
Tassone about the drug problem because I was under the
understanding that if someone was, you know, extremely
out of their minds and he was on drugs that . . . they
wouldn't give him the death penalty, and he said—Mr.
Tassone told me that the laws had changed on that and
that had no bearing whatsoever on the case, and so I
actually thought that was true.
Q Mr. Tassone ever ask you about other family members
that may have some information concerning Johnny's
background?
A No, sir.
Q Had he done that would you have provided him with
that information?
A Certainly.
Q Had he asked you to testify, ma'am, would you have
testified as you have testified here today?
103
A Yes, sir.203
Jeff Hardwick testified similarly:
Q Did you go to your brother's trial?
A Yes, sir. I was there.
Q Did you ever talk to his lawyer?
A Yes, sir.
Q Do you remember his lawyer's name?
A Mr. Tassone.
Q Mr. Tassone testified that he asked you to speak on
behalf of your brother Johnny and that you refused to do
so. Is that true?
A No, sir.
Q Would you have testified for your brother if Mr.
Tassone had asked you?
A Yes, sir. I told him I would.
Q Did Mr. Tassone ever ask you about your knowledge
of Johnny's drug and alcohol problem?
A No, sir.
Q Did he ever ask you . . . about seeing [Hardwick] on
the 23rd?
203
Id. at 534-37 (emphasis added).
.
104
A No. He was pretty short. It was a pretty short
conversation. He asked if I would help and I said I
would, and basically only thing he did ask me—he asked
me what kind of brother is Johnny, and I said he was a
good brother, . . . and I said, . . . when we was kids and
stuff and—he was our older brother. He used to take up
for us when we was kids.
We was all kids in school and stuff, and when I
mentioned fighting, . . . as kids and stuff he said that was
no good. All I would do was hurt him and he didn't want
me up there.
Q And that's all he asked you about?
A That was it. That was the end of the whole meeting.
....
Q If he had asked you about your observations of Johnny
on the 23rd of December would you have told him what
you have told us here?
A Yes, sir.
Q If he had asked you about your background, Johnny's
background, your upbringing, would you [have] sat down
with Mr. Tassone and discussed that with him?
A Right. Anything he asked.
Q You were willing to cooperate?
A Yes.
Q In fact, you would—
A Like I said I would help, whatever it took.
Q In fact you were there at the trial?
105
A Yes, sir.
Q To support your brother?
....
A Yes, sir.204
The only potential witnesses that Tassone interviewed were Hardwick's
mother, brother Jeff, and his wife, who would have been privileged not to testify at
her husband's murder trial. Based on Hardwick's mother and brother's testimony at
the 3.850 hearing, Tassone did not understand the mitigating testimony that these
two willing family members, who also saw Hardwick drunk and drugged at 3:00
P.M. the afternoon before the murder, would have given, despite his experience
with capital cases. He also did not appear to understand the value of mitigating
testimony from other family members. Yet, the most essential purpose of the
sentencing proceeding was for defense counsel to present the jury with background
mitigating information to enable the jurors to render an individualized sentence
based on the particular circumstances of Hardwick’s life and the murder.
Brownlee, 306 F.3d at 1070.
204
Id. at 693-95 (emphasis added). Interestingly, Jeff Hardwick’s testimony at the 3.850
proceeding substantiates his mother, Nell Lawrence’s testimony, which the trial judge as well as
the dissent chose to disregard and not attempt to explain or reconcile. It also makes clear that,
not only Tassone but also the trial judge, apparently failed to appreciate the constitutional
significance of immediate family members’ testimony concerning Hardwick’s dysfunctional
family life and upbringing as mitigating evidence at the penalty phase.
106
Hardwick's sobriety at the time of the murder is based in large part on the
testimony of then fourteen-year-old Showalter, who last saw Hardwick at
approximately midnight on Christmas Eve and testified that Hardwick was driving
his car. Yet, Dr. Levin concluded that Hardwick was severely addicted, which is
characterized by "extensive usage, tolerance, pre-occupation with usage and
multiple harmful consequences associated with drug and alcohol usage." Levin
Report at 6 (emphasis added). Even Dr. Barnard, the court-appointed psychiatrist
who testified at the 3.850 proceeding, acknowledged that it would not be
inconsistent with diminished capacity to have sufficient faculties to be able "to
operate and carry out . . . a lot of different kinds of motor activities, including some
complex ones, like driving." 3.850 Proceeding at 332. Dr. Barnard testified that
Hardwick "may have been able to drive a car but his coordination . . . should have
been off[,]. . . . . especially his reaction time." Id. at 317-18. Additionally,
Showalter may have been comparing the condition of Bartley, who, Showalter
witnessed taking several quaaludes earlier that day, Trial Transcript at 323, and
who "couldn't keep his eyes open," id. at 328, with Hardwick, a seasoned drug user
and addict with a high tolerance for drugs and alcohol.
The explanation for not calling Connie Wright as a witness for the defense
was because she had said that Hardwick had found Pullum in bed with his wife,
107
which would have provided an additional motive for Hardwick's killing Pullum.
Wright, who was fourteen at the time of the murder, was a close friend and daily
visitor of Hardwick's wife, Darlene, who was experiencing a difficult pregnancy.
She also was a friend of Pullum's, so her allegiances were not with Hardwick,
which could have been exposed in questioning.205 Yet, this testimony came only
from Wright, while others living in the youthful drug community testified that
Darlene Hardwick was not having an affair with anyone to their knowledge and
that she was pregnant.206 Since it could have been diffused, this alleged motive
testimony as the reason for not calling Wright as a witness for the defense was not
sufficient. Wright had relevant testimony concerning seeing Hardwick take
quaaludes later in the evening on December 23rd as well as daily observations of
Hardwick from her visits with his wife.
205
Unless a witness is called for the defense, cross examination is limited to the scope of
direct examination and, thus, was controlled by the prosecution in this death-penalty case. See
Fla. Stat. 90.612 (2).
206
See, e.g., Pretrial Deposition of Jeffrey Showalter at 351; Pretrial Deposition of
William Bavar at 40. Tassone testified that he talked to Wright regarding a love letter that she
had written to Hardwick, who informed Tassone that Wright would not testify against him.
3.850 Proceeding at 92. Wright, who purportedly was a friend and daily visitor of Hardwick’s
wife, may have turned on Hardwick and decided to testify for the state when her overtures were
not returned. Significantly, Wright was 14 at the relevant time and subject to the whims and
emotions of adolescence that can influence actions and perceptions. The testimonies of these
two fourteen-year-olds, Showalter and Wright, could have been biased, because both were
longtime friends of Keith Pullum and had known Hardwick only for several weeks.
108
Therefore, Tassone's investigation for the sentencing phase in this capital
case appears deficient. "An attorney has a duty to conduct a reasonable
investigation, including an investigation of the defendant's background, for
possible mitigating evidence." Middletown v. Dugger, 849 F.2d 491, 493 (11th
Cir. 1988). When preparing for the penalty phase in a capital case, trial counsel’s
performance is unreasonable where counsel either fails to investigate possible
mitigating evidence or “makes only a desultory or cursory effort to find mitigating
evidence.” Fortenberry, 297 F.3d at 1229. We have enunciated the proper analysis
for investigation omissions in a death-penalty case:
First, it must be determined whether a reasonable investigation should
have uncovered such mitigating evidence. If so, then a determination
must be made whether the failure to put this evidence before the jury
was a tactical choice by trial counsel. If so, such a choice must be
given a strong presumption of correctness, and the inquiry is generally
at an end. If, however, the failure to present the mitigating evidence
was an oversight, and not a tactical decision, then a harmlessness
review must be made to determine if there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Thus, it must be determined
that defendant suffered actual prejudice due to the ineffectiveness of
his trial counsel before relief will be granted.
Middleton, 849 F.2d at 493 (citation omitted). The petitioner in Middleton, where
we affirmed the district court's determination that a new sentencing proceeding was
required, had strikingly similar circumstances to those of Hardwick, including a
deprived and abusive childhood as well as favorable assistance from psychiatric
109
experts. We recognized that "'psychiatric mitigating evidence not only can act in
mitigation, it also could significantly weaken the aggravating factors.'" Id. at 495(quoting Huckaby v. State, 343 So. 2d 29, 33-34 (Fla. 1977)).
"An attorney is not obligated to present mitigation evidence if, after
reasonable investigation, he or she determines that such evidence may do more
harm than good." Harris, 874 F.2d at 763. For such a decision to be permitted
under Strickland, it "must flow from an informed judgment"; "counsel's failure to
present or investigate mitigation evidence" cannot result from "neglect." Id. On
remand, the district judge will conduct an evidentiary hearing in which he will
determine whether the state jury and judge at the sentencing phase were afforded
the opportunity to weigh fairly and accurately all of the mitigating evidence in this
case against the aggravating evidence, as is constitutionally required.207 We
207
In pre-AEDPA cases, a district court is not required to conduct an evidentiary hearing
on an ineffective-assistance-of-counsel claim “unless the petitioner alleges facts, which, if
proved, would entitle him to federal habeas relief.” Porter v. Wainwright, 805 F.2d 930, 933
(11th Cir. 1986) (citing Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756 (1963)); Meeks
v. Singletary, 963 F.2d 316, 319 (11th Cir. 1992). “The mere occurrence of a full and fair hearing
in the state court, however, does not neutralize petitioner’s right to an evidentiary hearing in
federal court.” Meeks, 963 F.2d at 319. When a district court finds “the state record insufficient
to permit a determination of whether counsel’s decision not to present mitigating evidence was
strategic or negligent, it [i]s proper to hold an evidentiary hearing.” Thomas, 796 F.2d at 1324.
In Porter, we remanded for an evidentiary hearing in district court for a determination of
whether petitioner’s attorneys failed to adequately investigate and present evidence of mitigating
circumstances at sentencing and resentencing because we determined that the material facts were
not adequately developed in state court, and we directed the district court to elicit the facts
required to resolve the issues. 805 F.2d at 936-37. Provided petitioner’s version of the facts
proved to be correct, we stated that petitioner “would have satisfied both the performance and
110
prejudice prongs of the Strickland test for ineffective assistance of counsel.” Id. at 936. If the
district judge on remand determined that petitioner’s attorneys were “constitutionally
ineffective,” then the petitioner “would be entitled to a new sentencing hearing before the [state]
trial judge.” Id. at 937. To the extent that conflicting inferences arose as to whether the
attorney’s decision not to present mitigating character evidence at the sentencing proceeding was
tactical, “without the benefit of an evidentiary hearing, this finding is not entitled to a
presumption of correctness normally afforded state fact findings in federal habeas corpus
proceedings” if the “habeas petitioner ‘did not receive a full, fair and adequate hearing in the
state court proceeding.’” Id. at 938 (quoting 28 U.S.C. § 2254(d)(6)). In an evidentiary hearing
in district court to make such a determination of ineffectiveness at sentencing, the judge “must
consider the totality of the evidence before the [state] judge or jury.” Strickland,466 U.S. at 695,
104 S.Ct. at 2069.
The dissent opposes remand to the district court for an evidentiary hearing concerning
Tassone’s representation of Hardwick during the penalty phase because the dissent credits the
factual findings of the state trial judge following the three-part 3.850 proceedings. The state
judge, in turn, credits Tassone’s sole testimony in the initial segment of the 3.850 proceedings,
which the Florida Supreme Court found to be insufficient and remanded for further proceedings.
In his supplemental order, the state trial judge found “that Mr. Hardwick has failed to establish
the ineffective assistance of trial counsel under Strickland v. Washington,” Transcript of Record,
Vol. IV at 598, that, even with a seven/five jury recommendation for death without any
mitigation evidence, “Mr. Hardwick has failed in his burden to prove a likelihood of a different
guilty phase verdict under these facts,” id. at 599, and “that even if counsel had given cumulative
evidence to Dr. Barnard, nothing in this record supports the idea that either the strategic decision
not to use Dr. Barnard would have changed or that the outcome of the case would have been
different,” id. (emphasis added). The trial judge ultimately concludes: “There is no proof,
therefore, of error or prejudice under Strickland. Having failed to satisfy his burden of proof
under Strickland v. Washington, Mr. Hardwick is not entitled to relief.” Id. at 600 (citation
omitted).
Regarding Tassone’s failure to present mitigation evidence at the penalty phase, the state
trial judge concluded:
Counsel has been proved, by Hardwick’s own witnesses, to have tactically
considered and rejected certain penalty phase evidence. Counsel appears to have
felt that evidence that Hardwick was an illegal drug user and seller was as
damaging as his alleged “addiction” was mitigating. Hardwick’s childhood
neglect was offset by his juvenile record and the fact that his ten siblings did not
follow his path of crime, drugs and murder. Of course, Hardwick was sane and
competent despite any drug problem. Counsel’s strategic decision to rely upon
argument rather than this evidence of mixed value cannot be second guessed. The
court does not find any reasonable probability that a different recommendation
would have come from the advisory jury. The evidence would not, if offered,
have prompted a sentence other than death from this Court.
111
Id. at 599 (emphasis added). As the majority has established, stated facts, such as none of
Hardwick’s siblings were involved in drugs and crime, are factually incorrect, based on the
record evidence. See 28 U.S.C. § 2254(d)(3). While Tassone’s 3.850 testimony reveals that he
misunderstood mitigation law at the sentencing phase, the trial judge’s reference to Hardwick’s
sanity at the time of the crime and his competence to stand trial is inappropriate legally in
penalty-phase analysis, where mitigation evidence was Hardwick’s only defense against the
death penalty.
The state judge found that Dr. Barnard “did not recall any conversations with Mr.
Tassone regarding mitigation testimony”and that “Dr. Barnard’s recollection on this point was
vague.” Id. at 597 (emphasis added). The judge also found that Tassone “had a very clear and
vivid recollection of having numerous conversations and discussions with Dr. Barnard regarding
possible mitigation testimony and evidence.” Id. The trial judge made a credibility
determination “that Mr. Tassone did discuss possible mitigation testimony and evidence with Dr.
Barnard.” Id. at 598. This credibility choice is inconsistent with the trial judge’s finding that
“Dr. Barnard is an experienced, professional doctor who presumptively does his job in a
professional manner.” Id. Dr. Barnard, the psychiatric expert who was court-appointed to
evaluate Hardwick, would have remembered if he had been asked to analyze mitigation evidence
as to the penalty phase, and he so testified at the 3.850 proceeding. Even if the discussion
occurred as “as afterthought,” Dissent at 11, it was ineffective because the only expert who
testified at Hardwick’s trial evaluated and testified about Hardwick’s sanity at the time of the
crime and his competence to stand trial: neither issue is relevant to penalty-phase mitigation
evidence. Rather than being an afterthought, with the considerable inculpatory evidence in
Hardwick’s case, Tassone’s inquiry of Dr. Barnard as to mitigating evidence for the penalty
phase, Hardwick’s only defense at sentencing, should have been a forethought.
Therefore, the dissent misunderstands the majority’s concern with the fact that Dr.
Barnard was not asked to evaluate mitigation evidence relative to the sentencing phase. This is
an example of the record inconsistency and spurious credibility choices exhibited in the state
judge’s supplemental order that show that Hardwick did not receive a full and fair hearing and
that the state judge’s factual findings are not consistent with the record evidence. There was
ample mitigating evidence that could have been presented, demonstrated by Dr. Dee and Dr.
Levin, who testified essentially the same at the 3.850 proceeding regarding the significant and
considerable mitigation evidence of Hardwick’s abusive and deprived upbringing as well as his
alcohol and drug addictions. Dr. Barnard testified that he would have testified similarly if he had
been asked to do so. Thus, the consensus of the 3.850 experts as to the mitigation evidence of
Hardwick’s background was representative of psychological experts’ conclusions concerning
such mitigation evidence, and not the testimony of a specific psychological expert, Dr. Barnard,
who not asked to analyze mitigation evidence. Indeed, it appears that Hardwick’s background
would have rendered a similar analysis from any such expert if the expert had been asked to
evaluate Hardwick’s background in terms of penalty-phase, mitigation evidence.
Similarly, the majority concludes that the state judge’s decision not only to disregard
Hardwick’s mother’s denial of saying that she was unwilling to testify and that she thought that
her son deserved the death penalty but also her entire testimony as to his abusive and deprived
112
childhood is unjustifiable. Just as a psychological expert is the best witness as to the effect of a
dysfunctional background and alcohol and drug dependencies on an individual at a particular
developmental time, Hardwick’s mother was critical to understanding his childhood as to
mitigating evidence. This credibility choice by the state judge regarding Nell Lawrence’s
testimony is inconsistent with the record evidence of Hardwick’s mother’s actions, such as
attending his trial daily, and their care and concern for each other, demonstrated by such
examples as Hardwick’s going to her home to wish her a Merry Christmas, even in a very drunk
and drugged state, and her visiting him regularly in prison. The dissent accepts the state judge’s
finding regarding Lawrence’s testimony and rationalizes it by saying that the evidence was
presented through the testimony of other family members. Such consistent record evidence,
however, serves to bolster, not negate, the testimony of Nell Lawrence.
While the dissent accepts the state trial judge’s disregard of the entirety of Lawrence’s
testimony, although corroborated by other family witnesses, it misunderstands the majority’s
conclusion as to the entirety of the 3.850 proceedings. Dissent at 4. The majority finds
procedural problems only with the first of the three-part proceedings, where solely Tassone
testified in a protracted session that lasted through the night into the early morning with stand-in
counsel for Hardwick. This was the part of the 3.850 proceeding that the Florida Supreme Court
found to be insufficient and remanded for further proceedings. Tassone never testified again.
Thus, the evident concerns with his testimony were never rectified. These problems do not exist
with the second two parts of the extended 3.850 proceedings, which contain mitigation evidence
from family members and others, that serve to emphasize and show the mitigation evidence that
Tassone could have presented at the penalty phase.
The majority does not accept the state judge’s supplemental order insofar as it relates to
the sentencing phase of Hardwick’s trial. The majority, however, does not reject the state
judge’s supplemental order in its entirety, specifically, regarding the guilt phase. The dissent
misunderstands the majority’s determination regarding the state judge’s supplemental order
following the augmented 3.850 proceedings. Based on unreasonable credibility choices and a
myopic view of the lack of mitigation evidence presented at the penalty phase to uphold
Tassone’s conduct of the sentencing proceedings, the state judge’s findings and consequent legal
conclusions relating to the penalty phase are untenable because they are contrary to the evidence.
Our responsibility as a federal court conducting habeas review is not to accept carte
blanche the state-court proceedings, if they fail to comply with constitutional due process, or the
state judge’s factual findings are not supported by the record. While the dissent upholds the
state-court factual findings following review of the entire record, the dissent also repeatedly
states reasonable and substantial doubt as to Tassone’s performance at the penalty phase. See,
e.g., Dissent at 7 (“I agree with the strong doubt which the majority opinion expresses with
respect to whether Tassone rendered constitutionally effective assistance of counsel at
sentencing.”); id. at 9 (“My review leaves me with substantial doubt about whether Tassone
rendered effective assistance of counsel at sentencing, and whether there is a reasonable
probability that the result would have been different.”); id. at 9-10 (“[M]y review of the record
leaves me with considerable doubt about: (a) whether counsel’s performance at sentencing
measured up even to that minimum constitutional standard required by Strickland v.
113
Washington, and (b) whether there is a reasonable probability that the result of the penalty phase
would have been different had there been effective counsel.” (citation omitted)). This is the
essence of undermining confidence in the result, which defines ineffectiveness under Strickland
and its progeny. The dissent further acknowledges that “[t]he record is also clear that Tassone
provided Dr. B[a]rnard with no background information on Hardwick which would have focused
the doctor’s attention on Hardwick’s harsh upbringing or his history of alcohol and drug abuse,”
that Dr. Barnard testified at the 3.850 proceeding “that Hardwick’s capacity to conform his
conduct to the requirements of the law was substantially impaired and that his judgment and
impulse control were substantially impaired—indicat[ing] that it would not have been futile to
provide Dr. B[a]rnard with appropriate background information and seek his studied opinion
with respect to mitigating evidence,” and that “the state judge’s finding of fact with respect to
Dr. B[a]rnard does not ultimately excuse Tassone’s failure to investigate and pursue mitigating
evidence either with Dr. B[a]rnard or with some other mental health expert.” Dissent at 11.
Nevertheless, the dissent upholds the state judge’s 3.850 factual findings and dissents to the
remand for an evidentiary hearing, although the dissent “share[s] the majority’s considerable
doubt about whether Tassone rendered effective assistance of counsel at the penalty stage of this
case.” Id. at 12.
While registering considerable doubt regarding Tassone’s conduct of the sentencing
phase of Hardwick’s trial, the dissent nonetheless focuses its analysis on substantiating the
factual findings of the state judge’s supplemental order following the three-part, 3.850
proceeding. Thus, the dissent accepts the state judge’s factual findings that comprise the basis
for his conclusion that Tassone did provide Hardwick effective representation at the penalty
phase under Strickland. Nevertheless, the substantial doubt concerning Tassone’s preparation
for and conduct of Hardwick’s sentencing proceeding is reiterated throughout the dissent, as the
excerpts above show, and evidence the requisite undermining of confidence sufficient to
conclude that Tassone did perform ineffectively at sentencing. See Brownlee, 306 F.3d at 1074(“Quite simply, our confidence is undermined because there is a reasonable probability that the
jury would have recommended a life sentence if it had heard all of the powerful mitigating
evidence that could have been presented.”). This will be the likely result when the district court
conducts an evidentiary hearing, which should reveal the erroneous facts and credibility choices
on which the state judge determined that Tassone performed effectively at Hardwick’s
sentencing proceeding under Strickland.
The dissent cannot have it both ways by stating an undermining of confidence in
Tassone’s conduct of Hardwick’s sentencing proceeding, while inconsistently accepting the state
judge’s factual findings and taking them out of the context of use by the state judge to support
his decision that Tassone was effective at Hardwick’s sentencing. The state judge dealt with the
same evidence that we review and was bound by the same law, Strickland. Yet, the state judge
disregarded Strickland’s mandated analysis to reach his conclusion that Tassone was effective at
Hardwick’s sentencing.
In federal habeas review for a capital case, our task is not to rehabilitate or resurrect a
state judge’s postconviction order that our review reveals is based on erroneous fact findings and
questionable credibility choices. The Supreme Court has stressed that the
114
caution that attorney strategy is not a shield or panacea for failure to investigate all
mitigating evidence in a capital case. "[T]he mere incantation of 'strategy' does not
insulate attorney behavior from review; an attorney must have chosen not to
present mitigating evidence after having investigated the defendant's background,
qualitative difference between death and other penalties calls for a
greater degree of reliability when the death sentence is imposed. . .
. [T]he Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded
from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death.
Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65 (footnote omitted).
Yet, the dissent speculates that “[t]he most plausible explanation for Tassone’s failure to
pursue the significance of the potential mitigating evidence” or “hypothesis” in an attempt to
justify the state judge’s order, which upholds Tassone’s representation at Hardwick’s sentencing
as “either a misunderstanding of how such evidence could be helpful, or a simple lack of
investigation and preparation.” Dissent at 10. Either explanation is not only unacceptable under
Supreme Court and circuit law, particularly, Tassone’s lack of knowledge or misunderstanding
of the governing mitigation law required at sentencing, but also is reprehensible representation in
a death-penalty case with Hardwick’s life weighing in the balance. Although the dissent states
that “I am persuaded that counsel rendered constitutionally ineffective performance at the
penalty phase, and my confidence in the result of that phase is undermined,” Dissent at 12, it also
reinforces the state judge’s errant factual findings, which reach the inconsistent result in the
supplemental order that Tassone’s representation at the penalty phase complied with Strickland’s
requirements for effective assistance of counsel. This reasoning by the state judge in his
supplemental order is outside our presumption of correctness for state-court fact findings.
In contrast, the majority cannot accept the state judge’s factual findings that are
contradicted by the record evidence and, therefore, not entitled to a presumption of correctness.
The district court, which denied habeas relief to Hardwick as to both the guilt and sentencing
phases without an evidentiary hearing, must conduct an evidentiary hearing not only to reconcile
the failure to present mitigating evidence and credibility choices but also other questionable fact
findings resulting in erroneous legal conclusions of the state judge. Additionally, the district
judge must consider the various affidavits that we requested from the state 3.850 proceeding, but
which were not part of the record before the district judge when he made his habeas
determination.
115
and that choice must have been reasonable under the circumstances."208 Stevens,
968 Fd.2d at 1083; Bolender, 16 F.3d at 1558. In Strickland, “the Court
recognized that merely invoking the word strategy to explain errors was
insufficient since ‘particular decision[s] must be directly assessed for
reasonableness [in light of] all the circumstances’”[;] “so called ‘strategic’
decisions that are based on a mistaken understanding of the law, or that are based
on a misunderstanding of the facts are entitled to less deference.”209 Horton, 941
F.2d at 1461& n. 30 (citations omitted) (first and second alterations in original).
208
“[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2066. We have clarified, however, that
ignorance of available mitigation evidence, such as family background, precludes counsel’s
strategic-decision reasoning and constitutes ineffective assistance of counsel. Harris, 874 F.2d at
763; see Armstrong, 833 F.2d at 1433 (determining that omission of background evidence was
not strategic when trial counsel’s testimony at evidentiary hearing revealed negligible
preparation and investigation for penalty phase); Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.
1985) (“It should be beyond cavil that an attorney who fails altogether to make any preparations
for the penalty phase of a capital murder trial deprives his client of reasonably effective
assistance of counsel by any objective standard of reasonableness.”).
209
To the extent that Tassone has attempted to justify his omission of Hardwick’s drug
and alcohol addictions as well as his voluntary use of drugs and alcohol during the relevant time
period encompassing Pullum’s murder as purposeful because of the negative effect this
information would have had on the jury, we have found such alleged strategic rationale to be
unreasonable. We concluded that, when “counsel did not probe [a capital defendant’s] drug
problems because they believed that a [local] jury would not be sympathetic to an account of
voluntary drug use, ” this was insufficient strategic reasoning to justify not presenting the
evidence to the sentencing jury. Brownlee, 306 F.3d at 1054. Such evidence is critical at the
sentencing phase because it is relevant to the mental state of the capital defendant at the time of
the murder and to the legal mitigating factor of conforming conduct to the dictates of law.
Tassone’s ignorance or misunderstanding of this crucial mitigating evidence cannot masquerade
in the guise of strategy.
116
Had Tassone obtained and presented expert testimony, such as the
psychiatric professionals who testified at the 3.850 proceeding,210 as well as
testimony concerning Hardwick's background, he would have had a defense to
210
As guidance to the district judge at the evidentiary hearing on remand, we note that it
is incumbent on Hardwick to “establish a reasonable likelihood that a similar expert could have
been found at the pertinent time by an ordinarily competent attorney using reasonably diligent
effort.” Elledge, 823 F.2d at 1446.
Simply put, the Strickland test requires a habeas petitioner in
[Hardwick’s] position to show: (a) that it was professionally
unreasonable for counsel not to investigate; (b) what kind of, and
how much, investigation an ordinary, reasonable lawyer would
have undertaken; (c) that it is reasonably probable that a
reasonable investigation would have turned up an expert who
would have presented testimony similar to that which was
eventually adduced; and (d) that it is reasonably probable that this
testimony would have affected the sentence eventually imposed.
Failure to meet any of these steps defeats the ineffectiveness claim.
Id. at 1446 n.15.
Additionally, we have explained that a capital petitioner shows “that it was reasonably
probable that an ordinary, reasonable lawyer, operating under the time and monetary constraints
[Hardwick’s] counsel faced and using reasonable diligence, would have discovered a psychiatrist
who would have testified as did [Dr. Levin and Dr. Dee].” Id. at 1446-47.
To prove it is reasonably probable that such an expert could have
been found by a competent lawyer exercising a reasonable amount
of diligence, a petitioner could present testimony from (a)
members of the bar relating to the amount of investigation that is
reasonable in such a situation and the ease or difficulty in finding
such experts at that time, (b) psychiatrists, or other experts in the
field, relating to how widely the proposed theory was accepted at
the time the investigation occurred and the ease an attorney would
have had in getting such experts, and (c) any other relevant
testimony that would tend to demonstrate it was reasonably
probable that reasonable diligence would uncover an expert similar
to the one[s] eventually located.
Id. at 1447 n.17.
117
present.211 Since he did not, there was no mitigating evidence for the jury to
consider.212 We also have concluded that the absence of witnesses at the
sentencing phase coupled with the failure to present “a great deal of mitigating
evidence [that] was available to [a death-penalty defendant’s] attorneys had they
more thoroughly investigated” exposed “a reasonable probability that [the
convicted defendant’s] jury might have recommended a life sentence absent the
errors,” Blanco, 943 F.2d at 1505, and presenting no available mental health
mitigating evidence with no evident strategic reason for this failure, was
“objectively unreasonable,” id. at 1503. Given the considerable quantity of
mitigating evidence that exists in this record that could have rendered a legitimate
211
At the initial 3.850 proceeding, Tassone made the following admissions regarding his
knowledge or lack of knowledge as to mitigating evidence that would have been significant at
Hardwick’s sentencing: Tassone “kn[e]w there was testimony concerning the use of drugs or
alcohol by Hardwick and others . . . from December 22 to say 26 or 27," 3.850 Proceedings at
135; Tassone knew “from Mr. Hardwick and Mrs. Lawrence that [Hardwick] had been
physically abused” and, from his mother, “that he had been sexually abused,” and he testified
concerning a defendant’s physical and sexual abuse at an early age: “I think it’s mitigating
evidence,” id. at 160, 161; Tassone testified that he did not think that he was aware of Mary
Braddy, the chaplain at the local jail where Hardwick was taken when he was arrested, and
recognized that her testimony would have been significant in preparing Hardwick’s case because
“she is indicating that Mr. Hardwick appeared to be either intoxicated or under the influence of
drugs at the time or right after he was arrested for murder and brought to the jail,” id. at 165,
166; when shown Nell Lawrence’s affidavit and asked if he would have used that information at
trial, if he had had it, Tassone answered, “Probably,” id. at 181.
212
When a defense attorney fails to present available mitigating witnesses at the
sentencing phase of a capital case, we have explained that “the jury easily could have concluded
that the defense attorneys could discover nothing positive or mitigating in [the convicted
defendant’s] background.” Blanco, 943 F.2d at 1505.
118
defense for Hardwick at sentencing, Tassone's performance was arguably
unreasonable at the sentencing phase and below the standard established in
Williams. "The consequence of counsel's failure to conduct the requisite, diligent
investigation into his client's troubling background and unique personal
circumstances manifested itself during his generic, unapologetic closing argument,
which provided the jury with no reasons to spare petitioner's life."213 Williams,
213After providing Hardwick with no defense at either the guilt or sentencing phase,
Tassone’s closing argument at the penalty phase consists of portions of 12 double-spaced pages
of transcript, Penalty Phase Transcript at 990-1002, of which 6 pages contain Tassone’s
discussion of the individual aggravating factors and the process of weighing the aggravating
factors with the unnamed mitigating factors. The obvious problem is that Tassone presented no
mitigating evidence; the first time that the jurors learned the statutory mitigating factors was in
the judge’s instructions, and they had no evidence to which to apply them.
Moreover, closing arguments are not evidence for jurors to consider in deciding on a
penalty, and they are so instructed by the trial judge. See Cargill v. Turpin, 120 F.3d 1366,
1380-81 (11th Cir. 1997). At the sentencing phase of this case, the trial judge gave the following
pertinent instructions to the jury following counsel’s closing arguments:
THE COURT: . . . .
As you have been told, the final decision as to what punishment shall be
imposed is the responsibility of the Judge; however, it is your duty to follow the
law that will now be given you by the Court and render to the Court an advisory
sentence based upon your determination as to whether sufficient aggravating
circumstances exist to justify the imposition of the death penalty and whether
sufficient mitigating circumstances exist to outweigh any aggravating
circumstances found to exist.
Your advisory sentence should be based upon the evidence that you have
heard while trying the guilt or innocence of the defendant and evidence that has
been presented to you in these proceedings.
. . . . [listing of statutory aggravating and mitigating circumstances]
Each aggravating circumstance must be established beyond a reasonable
doubt before it may be considered by you in arriving at your decision.
If one or more aggravating circumstances are established, you should
consider all the evidence tending to establish one or more mitigating
circumstances, and give that evidence such weight as you feel it should receive in
119
reaching your conclusion as to the sentence that should be imposed.
A mitigating circumstance need not be proved beyond a reasonable doubt
by the defendant. If you are reasonably convinced that a mitigating circumstance
exists, you may consider it as established.
The sentence that you recommend to the Court must be based upon the
facts as you find them from the evidence and the law. You should weigh the
aggravating circumstances against the mitigating circumstances, and your
advisory sentence must be based on these considerations.
Penalty Phase Transcript at 1002-03, 1005-06 (emphasis added).
As we have explained, statutory and nonstatutory mitigating factors existed that Tassone
should have presented to provide Hardwick a defense at sentencing and to make a case for
sparing his life: Hardwick’s deprived and abusive family life, his alcohol and drug dependency
that began in childhood, and his participation in overindulgence of alcohol and drugs during the
binge holiday weekend that encompassed the homicide. Concluding that penalty-phase counsel
provided ineffective assistance to a death-penalty petitioner for not presenting mitigating
background evidence at the penalty phase, our court explained that “when a capital sentencing
proceeding is contemplated by counsel aware of the facts of which appellant’s trial counsel was
aware, professionally reasonable representation requires more of an investigation into the
possibility of introducing evidence of the defendant’s mental history and mental capacity in the
sentencing phase than was conducted by trial counsel in this case.” Stephens v. Kemp, 846 F.2d
642, 653 (11th Cir. 1988). In that case, the petitioner’s mother testified concerning his “mental
history and condition, including bizarre behavior he occasionally exhibited,” and “her testimony
makes clear, many others could have testified concerning his behavior; the fact that others did
not do so undoubtedly diminished the impact on the jury of the facts she described.” Id. at 653-
54. Concluding that the writ of habeas corpus should be granted as to the death sentence, our
court determined “that there is a reasonable probability that, if not for counsel’s omissions in the
representation he provided his client in the penalty phase, the result of the sentencing proceeding
would have been different.” Id. at 652. Rejecting a claim of ineffective assistance, our court
subsequently distinguished Stephens where sentencing counsel “called two mitigation witnesses
who talked about [petitioner’s] childhood, abuse, neglect, illiteracy, and learning difficulties,”
and petitioner’s “father testified to his neglect, abuse at the hands of foster parents, and
enrollment in special education classes.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000). Additionally, sentencing counsel’s closing argument “reminded the jury of [petitioner’s]
manifold problems, including his family circumstances, his abuse and neglect as a child, and his
mental problems,” which contributed to his being tried for committing murder. Id. This
sentencing-phase representation was declared “far superior” to that in Stephens. Id.Hardwick’s case is analogous to Stephens, which our court found to be unconstitutional
representation. Given the seven/five jury vote with none of Hardwick’s background and
substance dependency revealed, there is a strong probability that presentation of a defense at
sentencing that included this information, like that in Holladay approved by our court, would
have resulted in a sentence of life instead of death. There was no need for Tassone to resort to
120
529 U.S. at 415, 120 S.Ct. at 1524-25. The function of the sentencing phase is to
provide the jury with all mitigating evidence concerning the convicted defendant
and the crime so that it can render an individualized sentence. “Under the facts of
this case, we are compelled to conclude that counsel’s failure to investigate, obtain,
or present any mitigating evidence to the jury, let alone the powerful mitigating
evidence,” including Hardwick’s deprived and abusive upbringing and his “history
of drug and alcohol abuse undermines our confidence in [Hardwick’s] death
sentence.” Brownlee, 306 F.3d at 1070.
We also note that, because Tassone and Hardwick were not getting along
and were at odds as to the presentation of witnesses, Tassone appears to have given
up on defending Hardwick and seemingly expended no effort, either in
presentation of mitigating evidence or in understanding mitigation law, to prevent
Hardwick’s receiving the death penalty.214 In a similar Florida death-penalty case,
religious sentiment in his closing argument at sentencing. He should have reviewed for the jury
and judge the mitigating factors, which he should have established at the sentencing proceeding,
to weigh against the aggravating factors, a defense that could have saved Hardwick’s life.
Consequently, the weighing process for the jury at the penalty phase was skewed because the
jurors were not informed of facts applicable to the statutory and nonstatutory mitigating factors.
214
Tassone testified at the 3.850 proceeding that he “believed that a jury would convict
Mr. Hardwick of first-degree murder” and that view appeared to color his defense of Hardwick
from the outset of his representation through sentencing, where it was his apparent belief that
Hardwick would receive the death penalty. 3.850 Proceedings at 133. Indeed, the state judge, in
his supplemental order, found as a fact “that Mr. Hardwick and Mr. Tassone openly disagreed on
trial (defense) strategy.” Transcript of Record, Vol. IV at 593. At trial, Hardwick repeatedly
121
where counsel did not investigate or call trial witnesses that the defendant
suggested or mitigation witnesses allegedly at the defendant’s instruction, we
explained:
[T]his court has held that a defendant’s desires not to present
mitigating evidence do not terminate counsels’ responsibilities during
the sentencing phase of a death penalty trial: “The reason lawyers may
not ‘blindly follow’ such commands is that although the decision
whether to use such evidence is for the client, the lawyer first must
evaluate potential avenues and advise the client of those offering
potential merit.”215
Blanco, 943 F.2d at 1502 (citation omitted). Although a defendant may become
“depressed and unresponsive,” even “morose and irrational” following conviction,
complained to the judge that Tassone refused to call the witnesses that he wanted. The
attorney/client relationship had become unworkable such that Tassone requested to be removed
as counsel. The trial judge required him to remain as Hardwick’s counsel and informed
Hardwick that Tassone’s decisions as to conducting his trial would override any calling of
witnesses or presentation of other trial evidence that Hardwick wanted produced on his behalf.
The attorney/client relationship was completely severed by the time of closing argument, when
Hardwick refused to emerge from his cell to be present in the courtroom. Clearly, at the
sentencing phase, the attorney/client relationship was destroyed, and Tassone’s decision to
provide no defense to Hardwick at sentencing by presenting the jury with no mitigation evidence
was his own decision and could have been influenced consciously or subconsciously by his
ruptured relationship with Hardwick. Tassone’s misunderstanding of mitigation law and the
presentation of mitigating evidence to deter the death penalty only compounds his ineffective
performance at sentencing to Hardwick’s detriment. Any reasoning that Tassone has offered
subsequently for this prejudicial omission appears to be self-serving to counter Hardwick’s
claims of ineffective assistance.
215
Even if Hardwick did ask Tassone not to present mitigating witnesses at the
sentencing proceeding, as Tassone has represented and the district court can determine at the
evidentiary hearing on remand, Tassone had a duty to Hardwick at the sentencing phase to
present available mitigating witnesses as Hardwick’s defense against the death penalty.
122
“[c]ounsel therefore ha[s] a greater obligation to investigate and analyze available
mitigation evidence,” id., rather than”latch[ing] onto [defendant’s] statements that
he did not want any witnesses called,” id. at 1503.216 In this case, Tassone’s
fractured relationship with Hardwick prior to trial, had broken down completely at
trial, which provided no incentive to court-appointed Tassone to assist his contrary
client at the sentencing phase, although he had a constitutional duty to do so.
Confronted with forceful statutory aggravating circumstances concerning
Pullum’s death, the most basic defense that Tassone could have provided Hardwick
at the sentencing phase of his capital case in Florida, a weighing state, would have
been to present any statutory and nonstatutory mitigating factors, which necessarily
would have involved investigation and preparation. In contrast to the guilt phase,
where the Strickland performance-and-prejudice test was not proved, there is an
obvious probability that the presentation of mitigating evidence in the sentencing
phase could have changed the jury's recommended sentence from death to life
imprisonment, which constitutes actual prejudice.217 While Tassone's trial strategy
216
Regarding using Dr. Barnard as a mental health, mitigating witness, Tassone testified
at the 3.850 proceeding: “As to mental health related, it was clear from my conversations with
Dr. Barnard that I could not present Dr. Barnard as a witness in mitigation. . . . [i]f I was even
allowed to call him” because “[m]y client didn’t want me to call anybody.” 3.850 Proceedings at
180-81. Tassone’s testimony shows his misunderstanding of mitigation law and his duty to
Hardwick at the sentencing phase.
217
Although the trial judge "independently weighs the aggravating and mitigating
circumstances and renders the final determination as to life and death," the judge "is required to
123
can substantiate his lack of a defense for Hardwick in the guilt phase, it should
prove insufficient to justify his total lack of a defense at the penalty phase, when
there was significant mitigation testimony available from experts and other
witnesses, of whom Tassone was aware or should have discovered. Consequently,
the jurors might have weighed the mitigating factors against the aggravating
factors differently and decided on a life sentence instead of death.
At the 3.850 proceeding, Tassone admitted that he did not understand the
difference in mitigating and aggravating factors, particularly in relation to drug use
or intoxication and Hardwick's family background. This misunderstanding clearly
influenced Tassone's decision to present no mitigating evidence in Hardwick's
defense at sentencing. The reasons given for not presenting this evidence and
place 'great weight' upon the recommendation by the jury." Glock, 195 F.3d at 627 n.1 (quoting
Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)); see Lewis, 398 So.2d at 438 (“Under the
Florida capital felony sentencing law, the recommendation of the jury is entitled to great weight,
and should not be overruled unless, based on the aggravating circumstances and the lack of
mitigating circumstances, a sentence of death is clearly appropriate.”). The Florida Supreme
Court has explained the significance of the jury’s participation in the sentencing phase of a
capital case through its advisory sentence:
In the penalty phase of a capital proceeding, the jury is instructed, in pertinent
part, that although the final responsibility for sentencing is with the judge, that it
should not act hastily or without due regard to the gravity of the proceedings, that
it should carefully weigh, sift, and consider evidence of mitigation and statutory
aggravation, realizing that human life is at stake, and bring to bear its best
judgment in reaching the advisory sentence.
Grossman, 525 So.2d at 840 (emphasis added).
124
witness testimony reveal Tassone's misapprehension of mitigating evidence or a
misrepresentation of the record, either of which could have been compelling to the
jury and resulted in a vote for life imprisonment instead of death. In a Florida
capital case, where no witnesses were presented in the sentencing phase and the
jury’s recommended death sentence was an eight/four vote, we concluded:
Given that some members of [the convicted defendant’s] jury were
inclined to mercy even without having been presented with any
mitigating evidence and that a great deal of mitigating evidence was
available to [defendant’s] attorneys had they more thoroughly
investigated, we find that there was a reasonable probability that
[defendant’s] jury might have recommended a life sentence absent the
errors.
Blanco, 943 F.2d at 1505 (emphasis added).
Even with investigation omissions and no defense at sentencing, the jury still
was only one vote short of recommending a life sentence instead of death for
Hardwick.218 The entirety of Hardwick's postconviction record under a Strickland
218
In a prior seven/five sentencing vote in a Florida capital case where defense counsel
presented no available mitigating evidence at sentencing, which gave the prosecutor the
opportunity to comment on the lack of witnesses in the state’s closing argument, we found that
there was prejudice sufficient to establish ineffective assistance of counsel at sentencing:
However, despite [the prosecutor’s] statement [in closing argument] and the lack
of preparation on counsel’s part, five jurors voted for a life sentence. In Florida, a
vote of six jurors for life constitutes a recommendation against the death penalty.
Thus, despite the presentation of no mitigating circumstances, [defendant] came
within one vote of being spared execution. There is a reasonable probability that
if [his counsel] had provided adequate representation, her client would not have
received a death sentence.
....
125
analysis at least strongly suggests "'a reasonable probability that the result of the
sentencing proceeding would have been different' if competent counsel had
presented and explained the significance of all the available evidence." Williams,
529 U.S. at 399, 120 S.Ct. at 1516; see Thomas, 796 F.2d at 1325 ("It cannot be
said that there is no reasonable probability that the results of the sentencing phase
of the trial would have been different if mitigating evidence had been presented to
the jury."). Accordingly, we vacate the district judge’s denial of habeas relief as to
the sentencing phase and remand this case to the district court for the limited
purpose of conducting an evidentiary hearing on ineffective assistance of
Hardwick's trial counsel at the sentencing phase and a determination of whether
habeas relief should be granted.219 See Porter v. Wainwright, 805 F.2d 930, 937
Competent counsel would have prepared for sentencing and would have produced
witnesses that the district court found were ready and willing to testify for
[defendant]. Even without this evidence the sentencing jury came within one vote
of recommending life imprisonment. Petitioner has demonstrated prejudice such
that our confidence in the sentence of death is greatly undermined.
Cave, 971 F.2d at 1519, 1520 (emphasis added).
219
Our requiring the district court to conduct an evidentiary hearing to determine whether
Hardwick’s habeas corpus petition should be granted as to ineffective assistance of his counsel at
the sentencing phase of his trial does not contravene Keeney v. Tamayo-Reyes, 540 U.S. 1, 112
S.Ct. 1715 (1992), because we are not asking the district judge to consider issues or evidence
that was not before the state courts. See Footman v. Singletary, 978 F.2d 1207, 1210 (11th Cir.
1992) (recognizing that Keeney “determined the standard a federal court should use when
deciding if a habeas corpus petitioner should get an evidentiary hearing after he failed to develop
a material fact in his state court proceedings”). In our plenary review of the record, we have
126
(11th Cir. 1986) (remanding to district court for an evidentiary hearing on whether
petitioner's "attorneys at his original sentencing were unconstitutionally ineffective
for failing to investigate into and present mitigating character evidence"). We
retain jurisdiction of this appeal and will complete our disposition concerning the
constitutionality of Hardwick’s sentencing phase in this capital case after the
evaluated the same documentary and testimonial evidence that was before the state courts,
particularly, the 3.850 proceeding. As we have explained, the full exposition of Hardwick’s
deprived and abusive childhood and adolescence, including longstanding alcohol and drug
dependency; his binge or extensive and consistent consumption of drugs and alcohol during the
relevant time period of Pullum’s homicide; and the testimony of examining experts as to the
presence of statutory and nonstatutory mitigating factors, especially, his ability to conform his
conduct to the dictates of law, must be evaluated in accordance with the Supreme Court’s
direction in Williams to determine if counsel’s performance at Hardwick’s sentencing
proceeding was reasonable and constitutional.
We do not want to inhibit the district judge in his conduct of an evidentiary hearing to
determine whether Hardwick’s habeas corpus petition should be granted as to ineffective
assistance of his trial counsel at sentencing. While the issue remains the same, to the extent that
evidence at the federal hearing may exceed that presented in state court, we conclude that
Hardwick already has proffered specific facts that overcome the procedural bar: he has shown
cause, Tassone’s failure to call defense witnesses Hardwick desired or to provide Hardwick any
defense at the guilt or sentencing phase, and prejudice, the seven/five jury recommendation for
death, when knowledge and presentation of the applicable statutory and nonstatutory mitigating
factors well may have resulted in one more vote that would have rendered a jury
recommendation of life rather than death, as well as a “‘fundamental miscarriage of justice’” if a
federal evidentiary hearing were not conducted, given the 3.850 proceedings in state court, the
findings from which the district judge accorded a presumption of correctness that could result in
Hardwick’s death. Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (quoting Keeney, 504 U.S.
at 12, 112 S.Ct. at 1721); see Fortenberry, 297 F.3d at 1222 (recognizing that “[a] petitioner can
establish cause by showing that a procedural default was caused by constitutionally ineffective
assistance of counsel under Strickland”); Stephens, 846 F.2d at 652 (determining that cause was
established by habeas petitioner’s trial counsel who failed “to investigate, present and argue to
the jury at sentencing any evidence of [petitioner’s] mental history and condition,” which
violated the Sixth Amendment under Strickland, and the same counsel failed to raise ineffective
assistance in the state habeas proceeding). In view of our disposition, we need not reach
Hardwick's claim of conflict of interests with his counsel at this time.
127
district court’s evidentiary hearing and reconsideration of Hardwick’s habeas
petition relating to his sentencing. See Buenoano v. Singletary, 963 F.2d 1433,
1436 (11th Cir. 1992).
III. CONCLUSION
In this appeal from denial of his habeas corpus petition, Hardwick argues
that his counsel provided ineffective assistance at the guilt and sentencing phases.
While we AFFIRM the denial of habeas relief as to his conviction, we VACATE
the denial of habeas relief as to his death sentence. On remand, the district judge
will conduct an evidentiary hearing on the statutory and nonstatutory mitigating
evidence that Tassone could have been presented at the state sentencing
proceeding. Based on the totality of this mitigating evidence weighed against the
valid aggravating factors and the controlling law that we have explained in this
opinion, the district judge will determine whether Hardwick is entitled to habeas
relief on his claim of ineffective assistance of counsel at his sentencing proceeding.
Therefore, we REMAND this case to the district court for further, limited
proceedings as we have directed, while retaining jurisdiction of this appeal.
128
ANDERSON, Circuit Judge, concurring in part and dissenting in part:
I concur in the court’s disposition of Hardwick’s claim of ineffective
assistance of counsel at the guilt phase of the trial. I also agree with the majority’s
expression of doubt with respect to whether Hardwick’s counsel rendered effective
assistance of counsel at the penalty stage. However, I dissent from the court’s
refusal to honor the state court findings of fact and the court’s remand of the case
to the district court.
The basis for the court’s remand to the district court for an evidentiary
hearing is apparently a conclusion that, under pre-AEDPA law, either
(a) the fact-finding procedure employed by the state 3.850 court was not
adequate to afford a full and fair hearing, 28 U.S.C. § 2254(d)(2); or
(b) its findings of fact were not fairly supported by the record,
§2254(d)(8).
Respectfully, I cannot agree. The most specific reason indicated by the majority
involves the finding of fact of the 3.850 judge relating to whether or not
Hardwick’s trial counsel, Tassone, discussed possible mitigation testimony with
Dr. Barnard. In his 3.850 testimony, Dr. Barnard could not recall such
conversations with Tassone. On the other hand, the 3.850 judge found:
129
Mr. Tassone, on the other hand, had a very clear and vivid recollection
of having numerous conversations and discussions with Dr. Barnard
regarding possible mitigation testimony and evidence.
This court, having heard and observed both Dr. Barnard and Mr.
Tassone testify regarding this matter, finds that Mr. Tassone did
discuss possible mitigation testimony and evidence with Dr. Barnard.
Supplemental Order, Circuit Court of the Fourth Judicial Circuit, Duval County,
Florida, March 21, 1991, at 6-7 (hereafter “3.850 order”).
It is clear from the 3.850 order that the testimony of attorney Tassone was
found to be credible in this regard. The findings of fact of the 3.850 court with
respect to Dr. Barnard and attorney Tassone are supported by the record and
entitled to a presumption of correctness. Indeed, Tassone testified that when he
questioned Dr. Barnard about a diminished capacity, the doctor indicated that “he
could have had diminished capacity ..., but my bottom line is the guy knew exactly
what he was doing.” February 22, 1990 hearing at 116. When asked why Dr.
Barnard’s written report included nothing with respect to mitigating circumstances,
and nothing with respect to diminished capacity, Tassone explained that he thought
the report was prepared prior to his talking to Dr. Barnard about those issues.
The majority suggests that the 3.850 proceedings conducted on February 22,
1990, i.e., the examination of Tassone, failed to provide a full and fair hearing
because it was conducted with an unprepared, stand-in counsel, principal counsel
130
having been engaged in another previously-scheduled trial, and because the
hearing was conducted beginning in the early afternoon and not ending until 1 a.m.
the next morning. Majority opinion at ___, n.130 (M/S at 50-54 n.130), and ____,
n.141 (M/S at 60-61 n.141). I disagree. I need not either condone or condemn the
procedures employed by the 3.850 judge during the February 22, 1990, hearing (a
matter which has not been addressed by the parties), because the Florida Supreme
Court granted a stay of execution and remanded the case for a complete evidentiary
hearing on Hardwick’s claim. On remand, the 3.850 judge conducted hearings on
May 3-4, 1990, and August 15-16, 1990, in order to “fully accommodate Mr.
Hardwick.” 3.850 order at 1. The state judge expressly found: “Mr. Hardwick was
allowed to call all desired witnesses.” Id. Thus, to the extent Hardwick might
have found fault with the examination or cross-examination of Tassone, the record
is clear that there was ample opportunity to recall Tassone either in May or August
1990. Indeed, at the beginning of the evidentiary hearing on remand, on May 3,
1990, the 3.850 judge noted that Tassone’s previous testimony was in the record.
However, he expressly advised the parties that: “I don’t want to preclude anybody
from calling Mr. Tassone that wishes to.” May 3, 1990 hearing at 209. Counsel
for Hardwick entered no objection, and did not recall Tassone. I know of no case
131
holding that a deficient hearing by a lower state court forever taints the state
proceedings, notwithstanding an appellate remand for a full evidentiary hearing.
The foregoing is the only specific reason apparent to me in the majority’s
decision to discount completely the entirety of the 3.850 proceedings, thus
discounting other findings of fact by the 3.850 judge. The majority does not seem
to challenge the fullness or fairness of the proceedings conducted on remand from
the Florida Supreme Court, including the May 1990 and August 1990 evidentiary
hearings. Rather, the majority seems to conclude that remaining findings of fact
are not fairly supported by the record. 28 U.S.C. § 2254(d)(8). I deduce this from
the fact that the majority repeatedly contrasts statements or findings of the 3.850
court with the evidence recited in the majority opinion. Again, I respectfully
disagree. After a careful reading of the forceful and comprehensive majority
opinion and a careful reading of the 3.850 order and the record, I cannot conclude
that there is warrant for disregarding the entirety of the 3.850 proceedings, or for
disregarding other crucial findings of fact of the 3.850 judge. In particular, I
cannot conclude that the 3.850 judge’s findings of fact with respect to Hardwick’s
mother, Nell Lawrence, are not fairly supported by the record. The 3.850 court
noted:
Mr. Tassone stated that he was in regular contact with Ms. Lawrence and
that she refused to testify, did not get along that well with Mr. Hardwick,
132
and that she felt he deserved a death sentence.... Ms. Lawrence agreed with
Mr. Tassone about their regular contact but denied refusing to testify ...
[and] agreeing with the result.... This testimony is the clearest conflicting
evidence in this case and causes the Court to gauge their respective
credibility of these witnesses.
3.850 Order, at 3. The 3.850 court then found as a fact that:
Ms. Lawrence confronted with her child’s execution, has succumbed
to internal pressure to save her son’s life by testifying at this late date.
As such, her credibility is certainly suspect in comparison to Mr.
Tassone. For that reason, the court finds Mr. Tassone’s statement
more credible and concludes that Ms. Lawrence was not a willing
witness in 1985.
Id. My careful review of the transcript of the 3.850 evidentiary hearing persuades
me that the state judge’s fact finding is supported by the record. Tassone testified
that he discussed the case with Ms. Lawrence many times, that she “felt great
sympathy for her son ... [but] did not want to testify at the penalty phase of the
trial.” February 22, 1990, hearing, at 159. The attorney testified that he urged her
repeatedly to testify, but that “she finally told me that if, in fact, she did testify she
would say that death rather than life was a more appropriate penalty for her son.”
Id. Although Ms. Lawrence’s testimony was directly contrary, the state judge
actually heard and saw the testimony of the two witnesses, was in position to
evaluate their demeanor, and gave a plausible explanation for finding that Tassone
133
was credible and that Ms. Lawrence was not. I cannot conclude that this
credibility finding is lacking in record support.1
The majority justifies its disregard of the state court finding by asserting that
the actions of Hardwick’s mother speak louder than Tassone’s recollection of what
she said. It is true that the majority lists a number of actions on the part of
Hardwick’s mother indicating a mother’s love and concern for her son, which
would seem to be inconsistent with a refusal to testify or with an opinion that her
son deserved the death penalty. On the other hand, her son was pretty clearly
guilty of a heinous murder and the record does paint a clear picture of her son as
leading a very degenerate life involving, inter alia, activities as a drug dealer as
well as abuser of alcohol and drugs. Even conceding some considerable probative
value in the mother’s actions indicating sympathy, I very respectfully can see no
warrant for disregarding the finding of fact by the state judge who observed both
Tassone and Nell Lawrence testify, who had an opportunity to observe their
demeanor, who made an express credibility finding, and who gave a plausible
1
I also cannot agree with the majority’s suggestion that the state court’s finding with
respect to the mother applied only to the guilt phase. It is true that the language quoted above
appeared during the judge’s discussion of ineffective assistance of counsel at the guilt phase.
However, in discussing ineffective assistance of counsel at the sentencing phase, the judge
specifically incorporated his previous discussion: “Nell Lawrence’s testimony has already been
discussed.” 3.850 order at 6.
134
reason therefore. Such a change of heart on the part of a mother faced with the
imminent execution of her son is clearly plausible.
For the foregoing reasons, I cannot agree with the majority that this court is
justified in completely disregarding the 3.850 proceedings and the findings of fact
by the state judge. Thus, I doubt our authorty to remand for an evidentiary
hearing. The majority of course finds authority to remand because it concludes
that the state 3.850 proceedings were not full and fair and because it concludes that
significant state court findings of fact were not fairly supported by the record.
Because I disagree with those two conclusions, and see no other basis for
remanding, I must dissent from that decision. However, I agree with the strong
doubt which the majority opinion expresses with respect to whether Tassone
rendered constitutionally effective assistance of counsel at sentencing. Even
accepting the findings of fact of the state judge, my careful review of this record
leaves me in considerable doubt as to whether Tassone did render effective
assistance of counsel at the penalty stage, and considerable doubt as to whether
there is a reasonable probability that effective counsel would have produced a
different result.
Even accepting the state court’s finding of fact that Tassone did in fact
discuss the possibility of mitigation evidence with Dr. Barnard, the record, as so
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forcefully described in the majority opinion, does suggest strongly that Tassone
was ineffective in failing to provide Dr. Barnard with the information which would
have resulted in much different conversations between the doctor and Tassone
about mitigating evidence. As the majority points out, it is pretty clear that
Tassone did not initially ask Dr. Barnard for an evaluation relating to mitigating
evidence, nor did he provide Dr. Barnard with information conducive thereto. My
reading of the state judge’s finding of fact is that it finds only that Tassone did
discuss possible mitigating testimony with Dr. Barnard. Tassone’s testimony,
upon which the finding was based, suggests that this discussion occurred after his
report was rendered; in other words, Tassone’s discussion in this regard was more
of an afterthought, and what Dr. Barnard told him at that time had to have been
influenced by that fact and the fact that Tassone had provided to Dr. Barnard little
or none of the evidence which we now know was available. For these reasons, I do
not regard the state judge’s finding of fact with respect to Dr. Barnard as an
obstacle to a conclusion that Tassone was ineffective.
The other crucial finding of fact by the 3.850 judge involves the testimony
of Hardwick’s mother, Nell Lawrence. For the reasons discussed above, I must
honor the 3.850 judge’s credibility finding, and presume correct his finding of fact
that she refused to testify, and indeed thought at that time that her son deserved the
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death penalty. Thus, I feel compelled to disregard Nell Lawrence’s testimony in
the 3.850 hearing. It is true that Ms. Lawrence was a forceful witness in support of
Hardwick in the 3.850 proceedings. However, my review of the record suggests to
me that most of the evidence she provided was also provided by one or more other
witnesses. In other words, in my review of the record, I discounted the testimony
of Nell Lawrence, and evaluated the totality of the circumstances without her 3.850
testimony. My review leaves me with substantial doubt about whether Tassone
rendered effective assistance of counsel at sentencing, and whether there is a
reasonable probability that the result would have been different.
In other words, after discounting the evidence which we should not consider
because of the state judge’s findings of fact (e.g., after discounting the testimony of
Hardwick’s mother)2, my review of the record leaves me with considerable doubt
about: (a) whether counsel’s performance at sentencing measured up even to that
minimum constitutional standard required by Strickland v. Washington,466 U.S.
2The elimination of the testimony of Hardwick’s mother is clearly the most significant
discount we must make. The other findings of the state judge are much less significant. The
finding with respect to Dr. Barnard has already been discussed. The judge’s credibility finding
with respect to Hardwick’s brother, Jeff Hardwick, related to the guilt phase. Indeed, the 3.850
Order expressly said with respect to the penalty phase: “ Jeff Hardwick discussed his testimony
with Mr. Tassone and the strategic decision was made not to use it.” 3.850 Order at 6.
Similarly, other witnesses discounted by the state judge, including Connie Wright, were
discounted because the state judge honored Tassone’s strategic decision to that effect. Of
course, it is within our purview to exercise appropriate review with respect to the reasonableness
of such strategic decisions.
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668, 698, 104 S.Ct. 2052, 2070 (1984), and (b) whether there is a reasonable
probability that the result of the penalty phase would have been different had there
been effective counsel. The gist of the mother’s testimony – evidence with respect
to Hardwick’s alcohol and drug use over that weekend and evidence about his
upbringing including his history of alcohol and drug abuse – is duplicated in this
record from several sources. Numerous witnesses who were clearly available to
Tassone at the time testified during the 3.850 proceedings about Hardwick’s
extensive use of drugs and alcohol during the relevant weekend.3 With respect to
Hardwick’s harsh upbringing, the other focus of the mother’s testimony, there was
ample other evidence, for example, the completely objective evidence in the social
service and juvenile records.
The most plausible explanation for Tassone’s failure to pursue the
significance of the potential mitigating evidence is either a misunderstanding of
how such evidence could be helpful, or a simple lack of investigation and
preparation. This hypothesis is not only not inconsistent with the state judge’s
finding that Tassone did discuss possible mitigating evidence with Dr. Barnard, it
3
Tassone’s own testimony at the 3.850 hearing acknowledged awareness of such use in
the days leading up to the murder. And strong evidence from wholly disinterested witnesses
establishes the drug, alcohol and emotional influences upon him at the time of his arrest. The
booking clerk at the jail, Braddy, testified that he was intoxicated when booked late Christmas
afternoon. Even the arresting officers testified that shortly after the arrest he became incoherent
and out of control.
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is actually supported by Tassone’s testimony which the judge credited. Tassone
essentially acknowledged that he did not discuss mitigating evidence with Dr.
Barnard until Dr. Barnard’s report was already tendered. Moreover, the record is
clear that Dr. Barnard was not asked in formal fashion to evaluate anything but
competence to stand trial and insanity at the time of the offense. Tassone’s own
testimony thus supports the inference that Tassone’s discussions with Dr. Barnard
about mitigating evidence were an afterthought. The record is also clear that
Tassone provided Dr. Barnard with no background information on Hardwick
which would have focused the doctor’s attention on Hardwick’s harsh upbringing
or his history of alcohol and drug abuse. Dr. Barnard’s testimony at the 3.850
hearing and the opinions he expressed there – that Hardwick’s capacity to conform
his conduct to the requirements of the law was substantially impaired and that his
judgment and impulse control were substantially impaired – indicate that it would
not have been futile to provide Dr. Barnard with appropriate background
information and seek his studied opinion with respect to mitigating evidence.
Thus, the state judge’s finding of fact with respect to Dr. Barnard does not
ultimately excuse Tassone’s failure to investigate and pursue mitigating evidence
either with Dr. Barnard or with some other mental health expert.
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In conclusion, although I part company with the majority’s decision to
disregard the findings of fact of the 3.850 court, and thus must dissent from the
decision to remand, I share the majority’s considerable doubt about whether
Tassone rendered effective assistance of counsel at the penalty stage of this case.
Had the majority concluded on the basis of the current record that counsel was
ineffective at the penalty phase, that confidence in that result had been undermined,
and thus that the writ should issue with respect to the penalty phase, I would
probably have agreed, even though I would rely on only part of the evidence
marshalled so persuasively by the majority opinion. That is, even accepting the
above mentioned findings of fact by the state 3.850 judge, I am persuaded that
counsel rendered constitutionally ineffective performance at the penalty phase, and
my confidence in the result of that phase is undermined. While I disagree with the
grounds upon which the majority relies in remanding for an evidentiary hearing,
and therefore dissent in that regard, I share the concerns of the majority with
respect to the penalty phase and concur in much of what the majority says.
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