Kenneth Hartley v. State of Florida , 40 Fla. L. Weekly Supp. 345 ( 2015 )

Supreme Court of Florida
____________
No. SC13-1470
____________
KENNETH HARTLEY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 18, 2015]
PER CURIAM.
This case is before the Court on appeal from an order denying Kenneth
Hartley’s second successive postconviction motion under Florida Rule of Criminal
Procedure 3.851. Because the order concerns postconviction relief from a sentence
of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1),
Florida Constitution. For the reasons that follow, we affirm the postconviction
court’s denial of relief.
FACTS AND PROCEDURAL HISTORY
We described the facts of this case in greater detail on direct appeal. Hartley
v. State (Hartley I), 686 So. 2d 1316, 1318-19 (Fla. 1996), cert. denied, 522 U.S.
825 (1997). The facts relevant here are that Hartley and his codefendants—Ronnie
Ferrell and Sylvester Johnson—were separately tried and “convicted of the first-
degree murder, robbery, and kidnapping of seventeen-year-old Gino Mayhew (the
victim).” Id. at 1318. Ferrell was sentenced to death for the first-degree murder
conviction, and Johnson received a life sentence. Id. The record evidence
established that “[o]n April 22, 1991, the victim was selling crack from his
Chevrolet Blazer at an apartment complex.” Id. The three codefendants
approached the Blazer, and Hartley held a gun to the victim’s head, forcing him
into the driver’s seat. Id. Hartley then sat in the back seat behind the victim—with
Ferrell in the front passenger seat—and forced the victim to drive to a remote
location. Id. at 1318, 1323. Johnson followed them in another vehicle. Id. at
1318. The next day, the police found the Blazer parked in the remote location,
containing the victim’s body slumped over in the driver’s seat with four bullet
wounds to the head and one in the shoulder. Id. During his incarceration, Hartley
provided details of the murder to several of his cellmates and admitted committing
the murder. Id. at 1318-19.
Hartley’s trial resulted in a jury recommendation of death by a nine-to-three
vote, and the trial court sentenced Hartley to death. Id. at 1319. The trial court
-2-
found six aggravators1 and “minimal mitigation.” Id.; see also Hartley v. State
(Hartley II), 990 So. 2d 1008, 1010 (Fla. 2008) (“The court assigned great weight
to each aggravator and found that each, standing alone, outweighed the little
mitigation the court found and to which it assigned only slight weight.”). On direct
appeal,2 we found that the trial court erred in finding the HAC aggravator, but
affirmed Hartley’s conviction and sentence, finding any error harmless. Id. at
1323-24. Thereafter, Hartley’s first postconviction motion3 was denied by the trial
1. These were prior violent felony; committed during a kidnapping;
committed to prevent lawful arrest; committed for pecuniary gain; heinous,
atrocious, or cruel (HAC); and cold, calculated, and premeditated (CCP).
2. On appeal, Hartley claimed that the trial judge: (1) erred in admitting a
police officer’s statement regarding a robbery committed against the victim two
days before the victim was murdered; (2) improperly excluded the testimony of a
witness regarding a letter purportedly containing a confession by another
individual as to this crime; (3) improperly denied Hartley’s motion for mistrial,
which was based on improper prosecutorial statements during opening; (4)
improperly excluded testimony from Sidney Jones concerning the name of the
police officer to whom he reported; (5) erred in finding that the State had a race-
neutral reason for excluding a prospective juror; (6) erred in excusing a prospective
juror for cause because the juror was against imposition of the death penalty; (7)
erroneously instructed the jury on the aggravating circumstance of CCP; (8) erred
in finding the murder to be CCP; (9) erroneously doubled the aggravating factors
of committed for pecuniary gain and committed during the course of a kidnapping;
(10) erroneously instructed the jury on the aggravating circumstance of HAC; and
(11) erred in finding the murder to be HAC. Hartley I, 686 So. 2d at 1319.
3. Hartley raised the following claims in that motion: 1) that Hartley was
denied an adversarial testing; 2) that all claims in the original motion, filed by
Capital Collateral Regional Counsel-North, warranted relief; 3) that newly
discovered evidence showed that trial witness Sidney Jones had a “testifying
relationship” with the State; 4) that Hartley’s incriminating statements to cellmates
-3-
court, and we affirmed. Hartley II, 990 So. 2d at 1011, 1016. The trial court also
denied Hartley’s first successive postconviction motion, asserting a claim under
should have been suppressed; 5) that there was no reliable transcript; 6) that the
State introduced nonstatutory aggravators; 7) that the State withheld material
evidence; 8) that the HAC aggravator was unsupported by the evidence; 9) that the
HAC instruction was unconstitutionally vague; 10) that the CCP and pecuniary
gain instructions were unconstitutionally vague and the findings unsupported by
the evidence; 11) that the prosecutor misled the jury about its sentencing role; 12)
that the trial court erred by instructing the jury that “no one has the right to violate
the rules that we all share”; 13) that the trial court erred in admitting “gruesome”
photographs; 14) that the trial court erred in giving the expert witness instruction;
15) that the trial court refused to find nonstatutory mitigation; 16) that the standard
jury instructions diminish the jury’s sense of responsibility in violation of Caldwell
v. Mississippi, 472 U.S. 320 (1985); 17) that the jury instructions on aggravating
factors were constitutionally inadequate; 18) that the prosecutor improperly argued
the victim impact evidence; 19) that the prosecutor impermissibly commented on
the credibility of a State witness; 20) that the trial court erred in instructing that a
majority could render a sentence recommendation; 21) that the trial court allowed
the State to argue lack of remorse; 22) that the defendant’s execution is
unconstitutional because he was a juvenile; 23) that the one-year time limit in
Florida Rule of Criminal Procedure 3.851 is unconstitutional; 24) that Rule
Regulating the Florida Bar 4-3.5(d)(4), which precludes juror interviews, is
unconstitutional; 25) that Florida’s capital sentencing scheme is unconstitutional
on its face and as applied; 26) that penalty phase jury instructions
unconstitutionally shifted the burden of proof to Hartley; 27) that Florida’s capital
sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002);
28) that trial counsel provided ineffective assistance by failing to call certain
penalty phase witnesses, failing to call alibi witnesses, failing adequately to
question jurors and remove biased jurors, failing to present mitigation, failing to
use a mental health expert and to establish available mitigation, and failing to
present mitigation evidence that Hartley saved another inmate’s life; and 29) that
postconviction counsel was ineffective for failing to obtain public records. Hartley
II, 990 So. 2d at 1011 n.3. On appeal from the trial court’s denial of that motion,
this Court only addressed the three claims that Hartley did not expressly waive. Id.
at 1011.
-4-
Porter v. McCollum, 558 U.S. 30 (2009), and we affirmed the denial. Hartley v.
State (Hartley III), 91 So. 3d 848 (Fla.), cert. denied, 133 S. Ct. 758 (2012). The
instant motion is Hartley’s second successive postconviction motion and asserts
that Hartley must be resentenced to life based on the newly discovered evidence
that his codefendant, Ronnie Ferrell, subsequently received a life sentence. As
such, the procedural history for Ferrell’s case is also relevant here. On direct
appeal, we affirmed Ferrell’s convictions for first-degree murder, armed robbery,
and armed kidnapping, and his death sentence for the first-degree murder
conviction. Ferrell v. State (Ferrell I), 686 So. 2d 1324, 1326 (Fla. 1996). On
postconviction, however, the postconviction court granted Ferrell a new penalty
phase hearing, and we affirmed. Ferrell v. State (Ferrell II), 29 So. 3d 959, 964-65
(Fla. 2010). On remand, the State agreed to waive the death penalty, and Ferrell
acknowledged under oath that he was not the shooter in this case. Ferrell was
sentenced to life imprisonment.
ANALYSIS
“Absent an abuse of discretion, a trial court’s decision on a motion based on
newly discovered evidence will not be overturned on appeal.” Mills v. State, 786
So. 2d 547, 549 (Fla. 2001). Where the newly discovered evidence is a
codefendant’s subsequent life sentence, “the defendant must show: ‘1) the life
sentence could not have been known to the parties by the use of due diligence at
-5-
the time of trial; and 2) the codefendant’s life sentence would probably result in a
life sentence for the defendant on retrial.’ ” Ventura v. State, 794 So. 2d 553, 571
(Fla. 2001) (quoting Groover v. State, 703 So. 2d 1035, 1037 (Fla. 1997)). The
parties here agree that Ferrell’s life sentence constitutes newly discovered
evidence, but disagree as to whether it would result in a life sentence for Hartley
on retrial. The postconviction court found that such result is not likely because
Hartley was the more culpable codefendant in that he played a dominant role in the
crime and was the triggerman who actually killed the victim. Therefore, the court
denied Hartley’s motion.
We also reject Hartley’s argument and affirm the postconviction court’s
denial of relief, as Hartley has not shown that Ferrell’s life sentence would
probably result in a life sentence for Hartley on retrial. Hartley was more culpable
as both the triggerman and dominant actor in the crime. See, e.g., Stein v. State,
995 So. 2d 329, 341-42 (Fla. 2008); Blake v. State, 972 So. 2d 839, 849-50 (Fla.
2007); Ventura, 794 So. 2d at 571. Hartley is therefore not entitled to relief.
Hartley argues that he is entitled to a reduced sentence because the trial court
and this Court already found Hartley and Ferrell to be equally culpable, and
equally culpable codefendants must be treated alike. Hartley is correct that at
Ferrell’s first sentencing hearing, Judge Oliff—the original sentencing judge in
both Ferrell’s and Hartley’s cases—found Ferrell to be equally culpable to Hartley.
-6-
However, Ferrell’s original sentence was vacated as a result of his successful
postconviction motion, and he received a new penalty phase. Ferrell II, 29 So. 3d
at 964-65, 984-88. As such, the trial court’s prior findings no longer stand,
especially given that a trial court is not obligated to make the same findings on
resentencing as at the original sentencing. Phillips v. State, 705 So. 2d 1320, 1322
(Fla. 1997) (“Phillips’ resentencing proceeding was a ‘completely new
proceeding,’ and the trial court was therefore under no obligation to make the same
findings as those made in Phillips’ prior sentencing proceeding.” (quoting King v.
Dugger, 555 So. 2d 355, 358-59 (Fla. 1990)).
Additionally, Hartley misconstrues our findings in Ferrell’s direct appeal
case. Specifically, Hartley quotes from our opinion that “[a]lthough not considered
in aggravation, the trial judge noted that Ferrell was just as culpable as the shooter
because he used his friendship with the victim to lure the victim to his death.”
Ferrell I, 686 So. 2d at 1327. Hartley also cites the following passage:
[T]he sentence of death in this case is appropriate even though Ferrell
was not the shooter and even though Johnson received a sentence of
life-imprisonment. First, Ferrell played an integral part in planning
and carrying out the murder. Moreover, Ferrell used his friendship
with the victim to lure him to his death. Johnson merely provided the
getaway vehicle after the crime was committed. We have previously
determined that death is the appropriate sentence under similar
circumstances.
Id. at 1331. However, these passages do not constitute a finding that the trial
court’s finding of equal culpability is supported by competent, substantial
-7-
evidence. Rather, the first quote simply describes the trial court’s findings, and the
second quote discusses proportionality, with no mention of Hartley or his
culpability as compared to Ferrell’s. Hartley’s arguments misconstrue our prior
opinion and rely on trial court findings that were vacated on postconviction.
CONCLUSION
We find that Hartley is not entitled to relief because as the triggerman and
dominant actor, he was the more culpable codefendant. We hereby affirm the
postconviction court’s denial of Hartley’s second successive postconviction
motion.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Lance Manning Day, Judge - Case No. 161991CF008144AXXXMA
Linda McDermott of McClain & McDermott, P.A., Estero, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
-8-