Gary Michael Hilton v. State of Florida & Gary Michael Hilton v. Mark S. Inch, etc.

Supreme Court of Florida
____________
No. SC19-373
____________
GARY MICHAEL HILTON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC19-1766
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GARY MICHAEL HILTON,
Petitioner,
vs.
MARK S. INCH, etc.,
Respondent.
August 26, 2021
PER CURIAM.
Gary Michael Hilton appeals an order of the circuit court
denying his motion to vacate his conviction of first-degree murder
and sentence of death filed under Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas
corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
For the reasons expressed below, we affirm the order of the
postconviction court and deny the habeas petition.
FACTS AND PROCEDURAL BACKGROUND
Hilton was convicted of the December 2007 kidnapping and
murder of Cheryl Dunlap and sentenced to death. Hilton v. State,
117 So. 3d 742, 746 (Fla. 2013). On direct appeal, this Court
summarized the relevant facts as follows:
Cheryl Dunlap, 46, was last seen alive on
December 1, 2007. That morning, Dunlap called a
friend, Kiona Hill, and made arrangements to have
dinner with her that evening. That afternoon, Dunlap
went to Leon Sinks to read, where she was seen by
Michael and Vikki Shirley at approximately 1:30 p.m. . . .
Dunlap did not arrive for dinner that evening and was
missed at church the following morning by Tanya Land.
Land went to Dunlap’s residence and found her dog, but
noticed that her car was missing so she called the police.
Steven Ganey of the Wakulla County Sheriff’s Office took
the missing person report on December 3, 2007.
Dunlap’s car, a white Toyota Camry, was found on
December 3, 2007, on the side of Crawfordville Highway
parked near the woods. The car had deliberate tire
punctures in the sidewall that was [sic] later identified as
a bayonet piercing. On December 1, the car had received
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a disabled vehicle ticket from Florida Highway Patrol
Trooper Brian Speigner. Ganey testified that it appeared
that someone had driven into the woods with all four
tires intact and punctured the tire after the car had been
parked. Dunlap’s purse was recovered in her car, but no
money was found.
Dunlap’s Ameris Bank account records revealed
that Dunlap cashed a check with a drive-through teller at
11:17 a.m. on December 1. The records further revealed
that three cash withdrawals were made at the ATM at
Hancock Bank on West Tennessee Street on December 2,
3, and 4, 2007, totaling $700. In addition, two attempted
withdrawals were declined because they exceeded the
daily limit. The video from the security camera at the
bank showed that the person making the transactions
was wearing a blue and white patterned, long-sleeved
shirt, glasses, a hat, and a make-shift mask made from
tape.
Dunlap’s body was discovered on December 15 by [a
hunter] in the Apalachicola National Forest. Dunlap’s
body was near a forest road and had been covered with
some brush and limbs. Additionally, her head and hands
had been removed. Dunlap’s body was identified using a
sample of thigh muscle. Dr. Anthony Clarke, an
associate medical examiner, performed the autopsy.
Dr. Clarke opined that Dunlap’s head and hands had
been removed by an instrument with a sharp blade and
that the dismemberment occurred postmortem. The
cause of death was not able to be determined, but
Dr. Clarke opined that it was likely to have been a violent
homicide. Additionally, Dr. Clarke noted that there was a
significant pre-mortem bruise located on Dunlap’s middle
to lower back and that the bruise was not consistent with
a normal fall injury. Dr. Clarke estimated that Dunlap’s
body could have been in the woods for seven to fifteen
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days. Dr. Clarke testified that his best estimate was that
Dunlap died between December 5 and December 8, 2007.
On January 9, 2008, investigators found what they
believed to be the remains of Dunlap’s head and hands in
a fire pit at Joe Thomas campsite—approximately seven
miles from where her body had been found. The bone
fragments were charred. Because of the burn damage,
no DNA was recoverable from the fragments. Dr.
Anthony Falsetti, a forensic anthropologist, opined that
there were two hands represented, that the bones were
from an adult, and that the bones were from a person
with small hands.
Id. at 746-47.
Several witnesses testified to seeing or encountering Hilton
during the time of Dunlap’s disappearance. One saw Hilton
rummaging through a white Toyota Camry on the side of the road.
Another spoke to him in a convenience store while Hilton was
wearing a blue and white patterned shirt matching the shirt seen
on the ATM surveillance video. When Hilton was later arrested in
Georgia for a different murder, he pointed Georgia officials to a
bayonet he had left on a hiking trail in Georgia. An FDLE tool mark
expert matched the bayonet to the puncture marks in Dunlap’s tire.
On June 6, 2008, several officers transported Hilton from
Georgia, where he had been in custody for a prior murder, to
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Florida. Id. at 748. Hilton spoke for nearly the entire drive, but
was not questioned. Id. At trial, the State played portions of
Hilton’s recorded statements made during the drive. Id. Hilton
stated:
I’m not all bad. I mean, you got to understand, I mean,
I’m sure you can see. I mean, I’m a [expletive] genius,
man. I’m not a—I’m not all bad. I just, you know, lost
my mind for a little bit. Lost a grip on myself, man.
What can I tell you? FBI and everybody else is trying to
scratch their head, hey, guys don’t get started doing my
shit at 61 years old. It just don’t happen, you know.
Like there’s a retired FBI (indecipherable) named Cliff
Van, Clifford Van Zandt, that keeps getting himself in the
news, talking about me. And he said, this guy didn’t just
fall off the turnip truck, he said. You know, in other
words, he’s been doing this. But like I told you before,
you know, when I saw you before, I said, remember, I
said I’d give you one for free. Nothing before September,
okay? I mean, I’m not joking, okay? I just, I got old and
sick and couldn’t make a living and just lost, flat lost my
[expletive] mind for a while, man. I couldn’t get a grip on
it.
Id. Additionally, Hilton made incriminating statements to a fellow
inmate that were overheard by a correctional officer (Officer Wynn).
Id. at 748-49. During the penalty phase, the state presented
testimony regarding Hilton’s prior murder in Georgia to which he
pleaded guilty. Id. at 749.
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On February 21, 2011, the jury unanimously recommended
that Hilton be sentenced to death and the trial court found six
aggravating factors beyond a reasonable doubt, one statutory
mitigating factor, and eight nonstatutory mitigating factors. Id. at
746. Assigning the noted weight to each aggravator, the trial court
found (1) the defendant was previously convicted of a violent felony
(great weight); (2) the murder was committed in the course of a
kidnapping (great weight); (3) the murder was committed to avoid
arrest (moderate weight); (4) the murder was committed for
pecuniary gain (some weight); (5) the murder was especially
heinous, atrocious, or cruel (HAC) (great weight); and (6) the murder
was cold, calculated, and premeditated (CCP) (great weight). Id. at
749.
The court also considered and weighed each mitigating
circumstance proposed by Hilton and found one statutory mental
mitigating factor—at the time of the murder Hilton was under
extreme emotional distress (some weight). Id. Under the catch-all
provision, the trial court considered ten mitigating factors, finding
that Hilton established eight of them and rejecting two. Id. The
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court found (1) Hilton grew up in an abusive household (some
weight); (2) Hilton abused drugs, specifically Ritalin (some weight);
(3) Hilton was deprived of a relationship with his biological father
(moderate weight); (4) Hilton is already serving a life sentence so
society is protected (some weight); (5) Hilton served his country in
the U.S. military (very little weight); (6) Hilton suffered maternal
deprivation and lack of bonding between mother and child (some
weight); (7) Hilton was removed from his home and put into foster
care when he was a child (some weight); (8) Hilton grew up in a
financially poor family (not proven); (9) Hilton suffered a traumatic
brain injury as a child (some weight); and (10) Hilton suffers from
severe mental defects (not proven). Id. at 749-50. The court found
beyond a reasonable doubt that the aggravators outweighed the
mitigators. Id. at 750.
We affirmed Hilton’s conviction and sentence on direct appeal.
Id. at 750-66. 1 Hilton timely filed his initial rule 3.851 motion for
1. Hilton raised six claims on direct appeal: (1) the trial court
erred in allowing Hilton’s statements to law enforcement made
during his transport from Georgia to Florida to be introduced at
trial because they constitute inadmissible evidence under Williams
v. State, 110 S. 2d 654 (Fla. 1959); (2) the trial court erred in
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postconviction relief on November 26, 2014. On April 20, 2017,
Hilton filed his Second Motion for Leave to Amend Initial
Postconviction Motion and Incorporated Memorandum of Law,
raising seven claims. On June 14, 2017, claim 6 was dismissed
without prejudice with leave to amend due to legal insufficiency.
Hilton filed an Amended Claim 6 on July 21, 2017. An evidentiary
hearing was conducted, after which the trial court entered an order
denying Hilton’s motion for postconviction relief on February 12,
2019.
This appeal follows. Hilton has also filed a petition for writ of
habeas corpus.
permitting Dr. Prichard’s testimony about allegations of Hilton’s
past criminal conduct during the penalty phase; (3) the trial court
erred in permitting Dr. Prichard to remain in the courtroom despite
the sequestration rule; (4) the trial court erred in finding that HAC
and CCP aggravators applied; (5) the trial court erred in rejecting
the lack of capacity mitigating factor and failing to provide reasons
why there was substantial, competent evidence in the record to
support the rejection of the mitigating circumstance; (6) and that
this Court should reexamine its holdings in Bottoson v. Moore, 833
So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla.
2002).
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MOTION FOR POSTCONVICTION RELIEF
The majority of the claims presented in Hilton’s appeal allege
ineffective assistance of trial counsel. To demonstrate entitlement
to relief on such a claim, a defendant must meet the following
requirements:
First, counsel’s performance must be shown to be
deficient. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient performance in this context means that
counsel’s performance fell below the standard guaranteed
by the Sixth Amendment. Id. When examining counsel’s
performance, an objective standard of reasonableness
applies, id. at 688, and great deference is given to
counsel’s performance. Id. at 689. The defendant bears
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). This Court has
made clear that “[s]trategic decisions do not constitute
ineffective assistance of counsel.” See Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000). There is a strong
presumption that trial counsel’s performance was not
ineffective. See Strickland, 466 U.S. at 669.
Second, the deficient performance must have
prejudiced the defendant, ultimately depriving the
defendant of a fair trial with a reliable result. Strickland,
466 U.S. at 689. A defendant must do more than
speculate that an error affected the outcome. Id. at 693.
Prejudice is met only if there is a reasonable probability
that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Both deficient
performance and prejudice must be shown. Id. Because
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both prongs of the Strickland test present mixed
questions of law and fact, this Court employs a mixed
standard of review, deferring to the circuit court’s factual
findings that are supported by competent, substantial
evidence, but reviewing the circuit court’s legal
conclusions de novo.
Bradley v. State, 33 So. 3d 664, 671-72 (Fla. 2010). Because
Strickland requires a defendant to establish both prongs, if one
prong is not met, “the court is not required to analyze whether the
defendant has established the other prong.” Frances v. State, 143
So. 3d 340, 347 (Fla. 2014).
Failure to Present Available Mitigation
In his first claim, Hilton argues that trial counsel was
ineffective during the penalty phase by not presenting available
mitigation evidence. Although mitigation evidence existed that was
not presented to the jury, the lack of such a presentation is not
dispositive of ineffective assistance under Strickland v. Washington,
466 U.S. 668 (1984).
To satisfy the first prong of Strickland, a defendant must
identify specific acts or omissions “of the lawyer that are shown to
be outside the broad range of reasonably competent performance
under prevailing professional standards.” Allen v. State, 261 So. 3d
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1255, 1269 (Fla. 2019) (quoting Peterson v. State, 221 So. 3d 571,
583 (Fla. 2017)). Accordingly, “strategic decisions do not constitute
ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable
under the norms of professional conduct.” Occhicone v. State, 768
So. 2d 1037, 1048 (Fla. 2000). “Counsel cannot be deemed
ineffective merely because current counsel disagrees with trial
counsel’s strategic decisions.” Id.In Hilton’s case, the finding of one statutory mitigator and
eight nonstatutory mitigators undermines the argument that
presentation of further mitigation would have altered Hilton’s
resulting sentence or that trial counsel was deficient. For example,
where this Court has concluded that performance was deficient, the
failure to present mitigation was significant to the extent that either
minimal, or no, mitigating factors were established. See, e.g.,
Parker v. State, 3 So. 3d 974, 984 (Fla. 2009) (concluding that, as a
direct result of counsel’s deficient performance, “the evidence
presented at the penalty phase was not enough to support the
establishment of any nonstatutory mitigators”). Moreover, even
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though the trial court rejected two of the ten mitigators presented—
that Hilton grew up in a financially poor family and that Hilton
suffers from severe mental defects, Hilton fails to demonstrate how
testimony from the evidentiary hearing supports these unproven
mitigators to the extent that the outcome would have been different.
Hilton, 117 So. 3d at 749.
Ineffective assistance may occur if counsel was placed on
notice as to mitigation leads but did not pursue them. State v.
Bright, 200 So. 3d 710, 732 (Fla. 2016). However, that is not what
occurred here. In Hilton’s case, trial counsel knew of further
mitigation evidence but made a strategic decision not to present it
to the jury because it could have bolstered a negative view of Hilton.
This distinction is significant because, in evaluating prejudice, a
court must consider all the relevant evidence that would have come
in had counsel pursued a different path, including evidence that
would have opened the door to more damaging evidence. Douglas v.
State, 141 So. 3d 107, 123 (Fla. 2012); see also Reed v. State, 875
So. 2d 415, 437 (Fla. 2004) (“An ineffective assistance claim does
not arise from the failure to present mitigation evidence where that
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evidence presents a double-edged sword.”). Furthermore, we have
held that a trial counsel’s decision to rely on expert witnesses, as
trial counsel did in the present case, is reasonable. See Bailey v.
State, 151 So. 3d 1142, 1152 (Fla. 2014) (holding that trial counsel
did not render deficient performance by relying on expert witnesses
and choosing not to call lay witnesses).
Regardless, Hilton fails to demonstrate prejudice because he
has not shown that “there is a reasonable probability that the
balance of aggravating and mitigating circumstances would have
been different” had trial counsel presented the additional mitigation
evidence of Hilton’s life history. Occhicone v. State, 768 So. 2d
1037, 1049 (Fla. 2000); see also Matthews v. State, 288 So. 3d
1050, 1059 (Fla. 2019). Where the additional mitigation is minor or
cumulative and the aggravating circumstances substantial, we have
held that confidence in the outcome of the penalty phase is not
undermined. See, e.g., Breedlove v. State, 692 So. 2d 874, 877-78
(Fla. 1997); see also Asay v. State, 769 So. 2d 974, 988 (Fla. 2000)
(“[T]his Court has reasoned that where the trial court found
substantial and compelling aggravation . . . there was no reasonable
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probability that the outcome would have been different had counsel
presented additional mitigation evidence of the defendant’s abused
childhood, history of substance abuse, and brain damage.”).
Because the evidence of aggravation in Hilton’s case is
overwhelming, he has not established a reasonable probability that,
with the additional evidence of mitigation presented at the
evidentiary hearing, he would have received a life sentence. See
Hannon v. State, 941 So. 2d 1109, 1137 (Fla. 2006) (“Based on the
brutal and disturbing nature of these murders, there is no
reasonable probability that Hannon would have received a life
sentence.”).
Therefore, Hilton fails to demonstrate either prong of
Strickland and is not entitled to relief.
Disarray Among Defense Team
Hilton next argues that his trial team was ineffective due to
disarray and division among his lawyers. However, Hilton’s
allegations fail to allege specific deficient acts that present a
reasonable probability of affecting the outcome of his case.
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Therefore, Hilton’s argument does not meet either prong of
Strickland.
Hilton’s generalized claims regarding the trial team’s internal
division fail to satisfy the deficient performance standard under
Strickland because he fails to link that general discord to any
specific acts of deficient performance that occurred during the
thirty-six months his case was pending. See, e.g., Blackwood v.
State, 946 So. 2d 960, 967 (Fla. 2006) (holding that substance
abuse and personal issues attributed to counsel were insufficient to
prove deficient performance because the allegations were not linked
to any specific deficient acts).
Hilton’s only specific allegation of deficient performance
involves testimony from Officer Wynn who overheard incriminating
statements made by Hilton to a fellow inmate. However, the circuit
court recognized that the State’s failure to disclose Officer Wynn on
its witness list was the primary reason that trial counsel was
surprised by Officer Wynn’s testimony. Hilton does not detail
specifically how additional preparation would have enabled trial
counsel to challenge this incriminating testimony in a more effective
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manner. Moreover, Hilton’s statements overheard by Officer Wynn
were not the only incriminating statements made by Hilton. Hilton
also made incriminating statements to law enforcement during his
transport from Georgia to Florida, and those statements were
presented to the jury. Hilton, 117 So. 3d at 748. Therefore, Hilton’s
allegations of deficient performance are insufficient to satisfy
Strickland because Hilton has not linked any of these allegations to
the outcome of the case.
Cohesive Guilt and Penalty Phase Strategy
Hilton next argues that trial counsel was ineffective for
inconsistently relying on circumstantial evidence in the guilt phase
and mental health mitigation in the penalty phase. While trial
counsel should formulate a cohesive strategy for both the guilt and
penalty phases, Hilton’s argument does not meet either prong of
Strickland.
Without more, this Court has rejected ineffective assistance of
counsel claims where a defendant asserted that trial counsel should
have presented mitigating evidence when that mitigating evidence
was inconsistent with the guilt phase theory. See, e.g., Blanco v.
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State, 963 So. 2d 173, 179 (Fla. 2007) (denying an ineffective
assistance of counsel claim where “the mitigators Blanco argue[d]
should have been presented at his penalty phase [were] inconsistent
with his theory of the case: that he is innocent of [the] murder”).
Moreover, failing to investigate and present mental health
mitigation is not dispositive of ineffective assistance of counsel. The
record reflects that Hilton’s trial counsel had specific reasons for
the strategy adopted. Further, counsel cannot be deemed
ineffective for pursuing a strategy which the defendant agrees with,
as is true in the present case given that Hilton wanted to contest
everything. See Hannon v. State, 941 So. 2d 1109, 1126 (Fla.
2006). Accordingly, Hilton is not entitled to relief because he has
not overcome the presumption that trial counsel’s performance
“might be considered sound trial strategy.” Strickland, 466 U.S. at
687 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Hurst
Hilton next argues that the postconviction court erred in
denying his claim that he is entitled to relief under Hurst v. Florida,
577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016),
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receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020).
Since the postconviction court ruled on this claim, this Court has
changed the applicable analysis. Specifically, in State v. Poole, 297
So. 3d 487, 507 (Fla. 2020), this Court “recede[d] from Hurst v.
State except to the extent it requires a jury unanimously to find the
existence of a statutory aggravating circumstance beyond a
reasonable doubt.”
Hilton had both prior (Georgia murder) and contemporaneous
(kidnapping) felony convictions. Hilton, 117 So. 3d at 749.
Pursuant to Poole, there is no Hurst error in Hilton’s case because a
unanimous jury finding establishes the existence of at least one
statutory aggravating circumstance beyond a reasonable doubt.
Poole, 297 So. 3d at 508 (contemporaneous felony convictions
“satisfied the requirement that a jury unanimously find a statutory
aggravating circumstance beyond a reasonable doubt”); see also,
e.g., Boyd v. State, 291 So. 3d 900, 901 (Fla. 2020) (holding that a
contemporaneous kidnapping foreclosed Hurst relief).
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Eligibility for the Death Penalty
Hilton next argues that trial counsel was ineffective for failing
to challenge the applicability of the death penalty to him in light of
his severe mental health issues. However, we have consistently
rejected the argument that mentally ill inmates can never be
executed. See, e.g., Simmons v. State, 105 So. 3d 475, 511 (Fla.
2012) (holding to be without merit the claim that persons with
mental illness must be treated similarly to those with an intellectual
disability due to reduced culpability); Johnston v. State, 27 So. 3d
11, 26 (Fla. 2010) (finding no merit in the claim that mentally ill
persons are similar to and should be treated the same as juveniles
who are exempt from execution); Lawrence v. State, 969 So. 2d 294,
300 n.9 (Fla. 2007) (rejecting assertion that the Equal Protection
Clause requires extension of Atkins 2 to the mentally ill).
Because counsel cannot be considered ineffective for failing to
raise a meritless argument, the postconviction court correctly
denied the claim. See Matthews v. State, 288 So. 3d 1050, 1065
(Fla. 2019) (citing Raleigh v. State, 932 So. 2d 1054, 1064 (Fla.
2. Atkins v. Virginia, 536 U.S. 304 (2002).
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2006)). Moreover, because a showing of deficient performance is
not possible for a meritless claim, no prejudice analysis is required.
See Hall v. State, 212 So. 3d 1001, 1014, 1033 (Fla. 2017); see also
Allen v. State, 261 So. 3d 1255, 1269 (Fla. 2019). Accordingly,
Hilton is not entitled to relief.
Denial of Cause Challenges
Hilton next argues that trial counsel was ineffective for its
failure to preserve for appeal the denial of cause challenges during
jury selection. In order to establish actual bias, a postconviction
litigant must prove “bias-in-fact that would prevent service as an
impartial juror.” Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007);
see also Smithers v. State, 18 So. 3d 460, 464 (Fla. 2009) (“Without
a showing of such actual bias of the juror, the defendant cannot
establish the prejudice required by Strickland.”). The evidence of
actual bias “must be plain on the face of the record.” Id. With
respect to jury selection claims, the standard for obtaining relief in
postconviction “is much more strict” than the “relatively lenient”
direct appeal standard of establishing preserved error. See
Carratelli, 961 So. 2d at 318, 320.
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To properly preserve an issue for appellate review a litigant
must raise the issue with timeliness and specificity. See
§ 924.051(1)(b), Fla. Stat. (2019); see also Castor v. State, 365 So.
2d 701, 703 (Fla. 1978). This requires two objections: (1) a
contemporaneous objection that puts the trial court on notice; and
(2) a second objection before the jury is sworn. See Carratelli, 961
So. 2d at 318. Failure to lodge the second objection indicates
abandonment of the initial objection. See Zack v. State, 911 So. 2d
1190, 1204 (Fla. 2005) (citing Joiner v. State, 618 So. 2d 174, 176
(Fla. 1993)).
Hilton fails to identify a specific cause challenge that counsel
should have preserved. This general allegation is insufficient to
demonstrate deficient performance. See Jones v. State, 998 So. 2d
573, 584 (Fla. 2008). Because a showing of deficient performance
is not possible, this Court need not conduct a prejudice analysis.
Nevertheless, because Hilton fails to establish actual bias on the
part of any juror and, therefore, fails to demonstrate prejudice, the
postconviction court properly denied the claim of ineffective
assistance.
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Cumulative Error
Because Hilton has not demonstrated any deficiencies,
Hilton’s claim of cumulative error fails.
PETITION FOR WRIT OF HABEAS CORPUS
Change of Venue
In his habeas petition, Hilton argues that appellate counsel
was ineffective for failing to challenge the trial court’s denial of his
motion for a change of venue. The standard for a claim of
ineffective assistance of appellate counsel mirrors the Strickland
standard for ineffective assistance of trial counsel: the petitioner
must demonstrate deficient performance and resulting prejudice.
Frances v. State, 143 So. 3d 340, 358 (Fla. 2014).
Change of venue decisions are subject to an abuse of
discretion standard. State v. Knight, 866 So. 2d 1195, 1209 (Fla.
2003). The movant must demonstrate two prongs: “(1) the extent
and nature of any pretrial publicity; and (2) the difficulty
encountered in actually selecting a jury.” Rolling v. State, 695 So.
2d 278, 285 (Fla. 1997). While “[m]edia coverage and publicity are
only to be expected when murder is committed,” the dispositive
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question is “not whether the prospective jurors possessed any
knowledge of the case, but, rather, whether the knowledge they
possessed created prejudice against [the defendant].” Davis v.
State, 461 So. 2d 67, 69 (Fla. 1984). Moreover, a change of venue is
not necessary if prospective jurors can assure the court during voir
dire that they are impartial despite their extrinsic knowledge. Id.Hilton does not articulate any specific biased juror and,
therefore, does not offer specific allegations of deficient
performance. Furthermore, Hilton has not demonstrated that any
jurors who may have been biased were not properly rehabilitated.
Moreover, Hilton fails to specify how the denial of the change of
venue motion affected the outcome of his case. See Gonzalez v.
State, 253 So. 3d 526, 529 (Fla. 2018) (holding no ineffective
assistance occurred where the defendant did “not point to a specific
biased juror who served, nor . . . specifically allege which juror, if
any, was not properly rehabilitated during voir dire or . . . was
unable to [be struck] either for cause or by using [a] peremptory
strike[].”). Therefore, Hilton is not entitled to relief because his
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argument does not meet either prong of Strickland, and appellate
counsel was not ineffective for failing to raise this claim.
Judicial Bias
Hilton next argues that appellate counsel was ineffective for
failing to raise a judicial bias claim against Judge Hankinson.
Hilton argues that Judge Hankinson denigrated trial counsel and
treated trial counsel differently from counsel for the State.
However, a claim of judicial bias would have been procedurally
barred on direct appeal due to the lack of a motion to disqualify.
See Mungin v. State, 932 So. 2d 986, 994 (Fla. 2006) (“[A] claim of
judicial bias is procedurally barred on direct appeal if the defendant
fails to seek disqualification of the judge after having specific
knowledge of the grounds for disqualification.”); see also Schwab v.
State, 814 So. 2d 402, 407 (Fla. 2002). While trial counsel moved
for a mistrial, the requisite motion to disqualify was never filed. See
Thompson v. State, 990 So. 2d 482, 489 (Fla. 2008) (rejecting claim
that “a defendant is automatically entitled to postconviction relief
simply by demonstrating that the denial of a motion for
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disqualification, if one had been properly filed by counsel, would
have been reversed on appeal”).
Even if this claim would not have been procedurally barred,
Hilton nevertheless fails to demonstrate any clear instance of actual
bias. See Schwab, 814 So. 2d at 414 (concluding that judicial bias
claims based on adverse rulings are legally insufficient to warrant
disqualification). Hilton’s conclusory allegations of deficient
performance remain insufficient to satisfy Strickland. See Bradley
v. State, 33 So. 3d 664, 685 (Fla. 2010); see also Conahan v. State,
118 So. 3d 718, 734-35 (Fla. 2013). Furthermore, Hilton’s judicial
bias argument is related to Judge Hankinson’s actions towards trial
counsel, not himself. “[J]udicial remarks during the course of a
trial that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” Liteky v. United States, 510 U.S. 540, 555
(1994). Therefore, Hilton fails to demonstrate actual judicial bias.
Based upon the foregoing, this claim is procedurally barred,
and further, does not satisfy Strickland.
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Cause Challenges
Hilton next argues that appellate counsel was ineffective in not
raising the trial court’s denial of cause challenges concerning
biased jurors due to their knowledge of Hilton’s other crimes and
their predisposition to vote for the death penalty.
Similar to Hilton’s argument in his motion for postconviction
relief regarding cause challenges, this claim is governed by the
preservation requirements explained in Carratelli v. State, 961 So.
2d 312, 324 (Fla. 2007). See Salazar v. State, 188 So. 3d 799, 821
(Fla. 2016) (citing Carratelli, 961 So. 2d at 324). Again, under
Carratelli, the preservation of a challenge to a potential juror
requires more than one objection: (1) a contemporaneous objection
that puts the trial court on notice; and (2) a second objection before
the jury is sworn. See Carratelli, 961 So. 2d at 318. Failure to
lodge the second objection indicates abandonment of the initial
objection. See Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005)
(citing Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)); see also,
e.g., Salazar, 188 So. 3d at 821.
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When a defendant preserves a cause challenge, he must
demonstrate on appeal both that the trial court erred in
determining the juror’s competency and that the denial of the
challenge resulted in prejudice. Carratelli, 961 So. 2d at 319 (citing
Conde v. State, 860 So. 2d 930, 941 (Fla. 2003)). Where the record
demonstrates a reasonable doubt about a juror’s ability to be
impartial, the trial court abused its discretion in denying the cause
challenge. Id. (citing Busby v. State, 894 So. 2d 88, 95 (Fla. 2004)).
Having demonstrated error, the defendant must then demonstrate
that the error requires reversal. Id. at 319. The “expenditure of a
peremptory challenge to cure the trial court’s improper denial of a
cause challenge constitutes reversible error if a defendant exhausts
all remaining peremptory challenges and can demonstrate that an
objectionable juror has served on the jury.” Id. (quoting Busby, 894
So. 2d at 96-97). Even where the reviewing court concludes that a
juror who actually served on the jury should have been stricken,
reversal is improper if the error has not been preserved. Id. at 319-
20 (citing Singer v. State, 109 So. 2d 7, 19 (Fla. 1959), (finding
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reasonable doubt as to one juror’s impartiality but refusing relief on
this claim because it was not preserved for review)).
Hilton’s claim is procedurally barred because it was already
raised in his motion for postconviction relief filed under rule 3.851,
in which Hilton faulted counsel for not preserving challenges to
prospective jurors—an alleged deficiency which, of course, would
have precluded a meritorious appeal of those issues. 3 Hilton argues
that his postconviction and habeas claims are different because one
raises concerns over asserting the claim and the other raises
concerns over preserving the claim. However, this distinction is
meritless. For example, in Schwab v. State, this Court held that a
habeas claim of judicial bias was procedurally barred because it
was raised in the motion for postconviction relief even though the
postconviction claim concerned the lack of the claim being asserted
3. Schwab v. State, 814 So. 2d 402, 414 (Fla. 2002)
(“Schwab’s first habeas claim is procedurally barred as it was raised
and rejected in our discussion of Schwab’s rule 3.850 appeal. . . .
Appellate counsel cannot be deemed ineffective for failing to raise
an issue that was not pursued or objected to at trial.”); see also
Parker v. Dugger, 550 So. 2d 459, 460 (Fla. 1989) (“[H]abeas corpus
petitions are not to be used for additional appeals on questions
which could have been . . . or were raised on appeal or in a rule
3.850 motion, or on matters that were not objected to at trial.”).
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by counsel and the habeas claim concerned the failure to preserve
the claim. 814 So. 2d at 409-14. Hilton is not entitled to relief.
Panel Strike
Hilton next argues that appellate counsel was ineffective for
failing to challenge the trial court’s denial of a motion to strike the
entire panel of jurors exposed to a prejudicial newspaper article
read aloud by a potential juror. The article included details about
Hilton’s previous murder conviction in Georgia.
Appellate counsel was not ineffective for failing to raise the
trial court’s denial of striking the panel because this claim has no
merit given that it was not properly preserved. Rutherford v. Moore,
774 So. 2d 637, 643 (Fla. 2000) (“If a legal issue ‘would in all
probability have been found to be without merit’ had counsel raised
the issue on direct appeal, the failure of appellate counsel to raise
the meritless issue will not render appellate counsel’s performance
ineffective.”) (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla.
1994)).
Again, to preserve a challenge regarding a juror strike, a party
must lodge two objections: (1) a contemporaneous objection that
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puts the trial court on notice; and (2) a second objection before the
jury is sworn. See Carratelli, 961 So. 2d at 318. Hilton’s trial
counsel made an initial objection to strike the entire voir dire panel
after discovering the article exposure. Trial counsel later attempted
to renew the objection, but at that point it was untimely because
the jury had already been sworn. Trial counsel had made a general
objection prior to the jury being sworn by simply stating: “I will
have the prior objections put on the record, Judge.” However, such
a general objection is insufficient to preserve a cause challenge or to
preserve a strike of the entire venire panel. See Young v. State, 141
So. 3d 161, 165 (Fla. 2013) (asserting that a boilerplate objection is
inadequate); see also Gore v. State, 964 So. 2d 1257, 1265 (Fla.
2007) (citing F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003)); State v.
Pacchiana, 289 So. 3d 857, 862 (Fla. 2020), cert. denied, 141 S. Ct.
173 (2020). Therefore, Hilton is not entitled to relief because any
claim raised by appellate counsel would have been meritless given
that trial counsel’s objections on this issue were untimely and too
generalized to properly preserve the argument.
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Motion to Continue
Hilton next argues that appellate counsel was ineffective for
not challenging the trial court’s denial of a motion to continue.
Trial counsel sought a continuance based on the magnitude of the
case and the State’s noncompliance with discovery guidelines.
Hilton mentions two motions for continuance filed by trial counsel,
the latter of which was filed on January 26, 2011—approximately
one week before the commencement of trial on February 2, 2011.
Trial counsel renewed the motion for continuance at the start of
trial on February 4, 2011.
The proper standard for reviewing a denial of a continuance is
abuse of discretion. See Bouie v. State, 559 So. 2d 1113, 1114 (Fla.
1990). Hilton fails to demonstrate how appellate counsel was
ineffective for failing to challenge the trial court’s denial of the
continuance because he fails to establish that he suffered any
prejudice. See Guillen v. State, 189 So. 3d 1004, 1008 (Fla. 3d DCA
2016) (citing Bouie, 559 So. 2d at 1114, and Randolph v. State, 853
So. 2d 1051, 1062 (Fla. 2003)). Specifically, Hilton fails to
demonstrate how the lack of a continuance impacted trial counsel’s
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ability to cross-examine the witnesses referenced in the renewed
motion. See Bouie, 559 So. 2d at 1114; see also Fennie v. State,
648 So. 2d 95, 97-98 (Fla. 1994). Hilton highlights the large
number of potential witnesses that trial counsel would like to have
interviewed and deposed prior to the start of trial. However, an
“undue burden” on counsel remains an insufficient basis to grant a
motion for continuance. See Guillen, 189 So. 3d at 1009.
Therefore, this claim would have been unlikely to succeed on
appeal.
Because Hilton fails to demonstrate deficient performance, this
Court need not conduct a prejudice analysis. Nevertheless, Hilton
only raises a conclusory allegation of ineffectiveness which remains
insufficient to satisfy the prejudice prong of Strickland. See Jones v.
State, 998 So. 2d 573, 584 (Fla. 2008).
Admitting Evidence
Hilton next argues that appellate counsel was ineffective for
failing to raise the trial court’s abuse of discretion in admitting into
evidence charred human bone fragments found at a campsite near
where Hilton was seen. Hilton claims that the prejudicial effect of
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this evidence outweighed the probative value. However, Hilton fails
to demonstrate deficient performance under Strickland because it is
likely that a reasonable juror could fairly infer from the charred
human bones that Hilton murdered the victim. While the State did
not establish that the bones came from the victim’s body, there was
significant other evidence which tied inferences together and
strongly suggested such. Therefore, Hilton fails to establish how
the absence of a challenge to the evidence of charred human bones
compromised the appellate process “to the degree that confidence in
the correctness of the appellate result is undermined,” and is not
entitled to relief. Nixon v. State, 932 So. 2d 1009, 1023 (Fla. 2006).
CONCLUSION
For the foregoing reasons, we affirm the order of the
postconviction court and deny the petition for writ of habeas
corpus.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
GROSSHANS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
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An Appeal from the Circuit Court in and for Leon County,
James C. Hankinson, Judge
Case No. 372008CF000697AXXXXX
And an Original Proceeding – Habeas Corpus
Robert A. Morris of The Law Offices of Robert A. Morris, LLC,
Tallahassee, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
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