Hitchcock v. Wainwright Brief for Respondent

    > •vV

No. 85-6756
IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM 1985

JAMES ERNEST HITCHCOCK, 
Petitioner,

V.
LOUIE L. WAINWRIGHT, Secretary, 

Florida Department of Corrections,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh ci^uit

BRIEF FOR RESPONDENT

JIM SMITH 
ATTORNEY GENERAL

RICHARD PROSPECT 
ASSISTANT ATTORNEY GENERAL, 
BUREAU CHIEF

SEAN DALY*
ASSISTANT ATTORNEY GENERA.L 
125 N. Ridgewood Avenue 
Fourth Floor
Daytona Beach, Florida, 32014 
(904) 252-1067
Counsel for Respondent 
*Attorney of Record

A



QUESTIONS PRESENTED
1. Whether the court of appeals erred 

in applying its case-by-case analysis to 
determine that upon the record presented 
the petitioner's claim of a 
constitutionally deficient _ capital 
sentencing proceeding due to his trial 
attorney's belief that the presentation of 
non—statutory mitigating circumstance 
evidence was precluded by Florida law, was 
without legal basis and insufficient to 
demonstrate that petitioner was denied an 
individualized sentencing hearing.

2. Whether the Florida death penalty 
statute approved in Proffitt against
claims that it was arbitary and capricious 
can be challenged on those same grounds 
upon a limited statistical analysis
proffered to demonstrate a race of victim 
based disparity systemwide in
imposition of death sentences where 
allegation or proof of 
intent was presented.

the 
no

discriminatory

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▲



table of contents
PAGE(S)

QUESTIONS PRESENTED i

TABLE OF CITATIONS iv-ix

SUMMARY OF ARGUMENT 1-4

STATEMENT OF THE CASE 5-20

POINT I
THE COURT OF APPEALS 
PROPERLY APPLIED ITS CASE- 
BY-CASE ANALYSIS IN 
REJECTING, AS INSUFFICIENT 
TO OVERCOME RECORD 
EVIDENCE, THE PETITIONER’S 
CLAIM THAT HIS TRIAL 
ATORNEY WAS PRECLUDED BY 
OPERATION OF FLORIDA LAW 
FROM PRESENTING NON- 
STATUTORY MITIGATING 
CIRCUMSTANCAE EVIDENCE 
SUCH THAT PETITIONER WAS 
DENIED AN INDIVIDUALIZED 
'CAPITAL SENTENCING 
HEARING. 20-48

POINT II
THE COURT OF APPEALS 
PROPERLY UPHELD THE 
DISTRICT COURT'S SUMMARY 
DISMISSAL OF PETITIONER’S 
CLAIM THAT FLORIDA’S DEATH 
PEALTY WAS BEING 
ARBITRARILY AND 
CAPRICIOUSLY APPLIED 
BECAUSE OF RACE OF THE 
VICTIM BASED SYSTEMWIDE 
DISCRIMINATION ON 
STATISTICAL EVIDENCE 
LEGALLY INSUFFICIENT TO 
SUPPORT SUCH A CLAIM. 49-81

- ii - .



TABLE OF CONTENTS CONT'D

CONCLUSION

PAGE(S) 

82

- i i i -
X



TABLE OF CITATIONS
PAGE(S)

Adams v. State,
380 So.2d 423 (Fla. 1980) 52

Adams v. Wainwright, 
709 F .2d 1443 
(11th Cir. 1983)

Blackledge v. Allison, 
431 U.S. 63 (1977)

B uckrem v. State,
3 55 So.2d 111 (Fla. 1978) 25

Chambers v. State,
339 So.2d 204 (Fla. 1976) 25

Cooper v. State,336 So.2d 1133 (Fla. 1976) 16,21,22
23,24,27
31,32,38

Eddinqs v. Oklahoma,
445 U.S. 104 (1982)

Funchess v. Wainwright,
788 F .2d 1443 
(11th Cir. 1986), cert. 
denied and stay of 
execution denied, 106 S.Ct. 
1668 (1986)

Furman v. Georgia,
---- 408 U.S. 2387 92 S.Ct.

33 L.Ed.346 (1972)
2726 .

20,60,75
79

Griffin v. Wainwright, 
760 F .2d 1505 
(11th Cir. 1985) 58



»■

TABLE OF CITATIONS CONT'D
PAGE(S)

Halliwell v. State,
323 So.2d 557 (Fla. 1975) 25

Harvard v. State,
486 So.2d 537 (Fla. 1986) 33

Henry v.. State, 52377 So.2d 692 (Fla. 1979)

Henry v Wainwr iqht
743 F . 2d 761
m  th Cir . 1984) , stav of 
execution denied,
105 S.Ct. 54 (1984) 58

Hitchcock v. Florida, 
459 U.S. 960 (1982) 17

Hitchcock v. State,
413 So.2d 741 (Fla. 1982) 16

Hitchcock v. State,
432 So.2d 42 (Fla. 1983) 17,34,54

Hitchcock v. Wainwr iqht, 
745 F .2d 1332 
(11th Cir. 1984) 18,22

Hitchcock v. Wainwriqht, 
770 F .2d 1514 
(11th Cir. 1985) 19,33,34

35,40

Hitchcock v. Wainwriqht, 
777 F .2d 628 
(11th Cir. 1985) 19

- v



TABLE OF CITATIONS CONT'D
PAGE(S)

Lockett v. Ohio,
438 U.S. 586 (1978) 1,16,21

27,28,30
31,32,33
34

McCask ill v. State,
344 So.2d 1276 (Fla. 1977) 26

McCleskev v. Kemp, 
(No. 84-6811) 50,58 ,60 

67

McCleskev v. Kemp, 
753 F.2d 877 
(11th Cir. 1985) 68,70,72

Meeks v. State,
336 So.2d 1142 (Fla. 1976) 25

Meeks v*. State,
382 So.2d 673 (Fla. 1980) 52

Messer v. State,
330 So.2d 137 (Fla. 1976) 26

Mitchell v. Kemp,
762 F .2d 886 
(11th Cir. 1985) 72

Proffit v. Florida,
428 U.S. 242 (1976) 31,32,63

Pn1 lev v . Harris,
465 U.S. 37 (1984) 66 ,

Rilev v. State,
---- 43 3 So.2d 976 (Fla. 1983) 52

Roberts v. Louisiana,
428 U.S. 325 (1976) 75

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JL



V

TABLE OF CITATIONS CONT'D
PAGE(S )

Rook v. Rice,
783 F . 2d 401 
(4th Cir. 1986)

Ross v. Kemp,
756 F.2d. 1483 
(11th Cir. 1985)

Skipper v. South Carolina,
--- 106 S.Ct. 1669 (1986)

Slater v. State,
316 So.2d 539 (Fla. 1975)

Smith v. Balkcom,
660 F .2d 573 
(5th Cir. Unit B 1981), 
modified, 671 F.2d 858 
(5th Cir. Unit B), cert. 
denied, 459 U.S. 882
(1982)

Songer v. State,
365 So.2d 696 (Fla. 1978), 
cert. denied, 441 U.S.
956 (1979)

72

72

21

26

55

20,24,25 
31,32

Songer v. Wainwright,
___  U.S. ___ ,
105 S.Ct. 817 (1985)

Songer v. Wainwright,
769 F .2d 1448 
(11th Cir. 1985)

Spencer v. Kemp,
781 F .2d 1458 
(11th Cir. 1986)

▲vii



TABLE OF CITATIONS CONT'D
PAGE(S)

Spinkellink v. Wainwriqht, 
578 F .2d 582 
(5th Cir. 1978) , cert._ 
den ied, 440 U.S. 976 
(1979) 51,53,54

55,57,62

State v. Dixon,
283 So.2d 1 (Fla. 1983)

State v. Zeiqler,
488 So.2d 820 (Fla. 1986)

Stephens v. Kemp,
464 U.S. 1027 (1984)

Sullivan v. Wainwriqht,
---- 464 U.S. 109 (1983)

Sullivan v. Wainwriqht,
721 T .2d 316
(11th Cir. 1983), stay, of 
execution denied 
464 U.S. 109 (1983)

24

33

59

59,60,62

58

Thomas v. State,
421 So.2d 160 (Fla. 1982)

Thomas v. Wainwriqht,
767 F .2d 738 
(11th Cir. 1985), cert. 
denied, 106 S.Ct. 1242 
(1986), stay of 
execution denied,
106 S.Ct. 1623 (1986)

Village of Arlington Heights 
v. Metropolitan Housing 
Development Corp.,

429 U.S. 252 (1977)

52,53

57,58

64,65



TABLE OF CITATIONS CONT'D
PAGE(S)

Wainwriqht v. Adams,
466 U.S. 964 (1984) 59,62

Wainwriqht v. Ford,
467 U.S. 1220 (1984) 59,63

Wainwriqht v. Stone, 
414 U.S. 21 (1973) 27

Washinqton v. Davis,
426 U.S. 229 (1976) 64

Washinqton v. Wainwriqht 
737 F.2d. 922 
111th Cir. 1984), stay 
execution denied,
105 S.Ct. 16 (1984)

of
58

Woodson v. North Carolina, 
428 -U.S. 280 (1976) 75

OTHER AUTHORITIES CITED

S921.141, Fla. Stat. (1972)
Fla. R. Crim. P. 3.850 
Rule 4, Rules Governing Section 

2254 in the United States 
Distict Courts

26
17

18,50

IX



SUMMARY OF ARGUMENT

The court of appeals properly applied 

its case-by-case analysis test in 

rejecting Hitchcock's claim that Florida's 

capital sentencing law as applied prior to 

this Court's decision in Lockett v. Ohio, 

precluded the' presentation of mitigating 

evidence other than that relating to 

statutorily enumerated mitigating factors 

and by operation of law in fact deprived 

him of an individualized capital 
sentencing proceeding. As correctly

determined by the ..district court in the 

summary dismissal affirmed by the court of 

appeals, the record evidence adduced 

demonstrated the presentation of non- 

statutory mitigating evidence throughout 

the trial and sentencing proceedings 
sufficient to undermine Hitchcock's claim 

that his trial counsel believed himself 
limited in the presentation of such 
evidence. A wealth of testimony

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statutorily enumeratedirrelevant to
factors was presented to the judge and 

jury and argued by defense counsel as a 

basis for sparing the petitioner's life. 

No limitation by objection or motion of 

the prosecutor or ruling by the trial 

judge in any way limited the presentation 
of non-statutory mitigating evidence at 
sentencing. The testimony and argument 

which was in fact presented related to the 
jury the gist of the non-statutory 

mitigating evidence which Hitchcock now 

claims might have been presented and would 

not have affected the outcome of his

sentencing proceeding.
Hitchcock's claim that Florida's 

capital sentencing law is being 

discriminatorily applied in violation of 
the Eighth and Fourteenth Amendments based 

upon an invidious race of victim based 

societal prejudice was properly rejected 

by the district court without evidentiary

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hearing and that rejection was correctly 

affirmed by the circuit court of appeals 

based upon this Court's specific 

validation of Florida's death penalty 

statute as a proper and adequate vehicle 

for controlling the potential for 

arbitrary, capricious or discriminatory 
sentencing that caused the invalidation of 

Florida's prior capital sentencing law. 

Mere statistical data cannot serve in and 

of itself as a sufficient basis for 

invalidating Florida's presumptively

correct capital sentencing scheme absent 

independent evidence of an intentional 

discriminatory purpose which mere

statistical data cannot supply. Simple 

numerical tabulations of data which may or 

may not have been accurately compiled and 

interpreted and which cannot control for 

the multitude of variables necessarily 
involved in the investigation,

prosecution, conviction and sentencing in

A
3



the capital penalty context cannot provide
a legally sufficient basis for 

invalidating Florida's death penalty 

statute and all convictions and sentences 

thereunder (sixteen of which have already 

been executed) which have been based, in 

part, on this Court’s prior assurance that 

the law if applied as written would pass 

constitutional muster.

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A



STATEMENT OF THE CASE

On January 21, 1977, Hitchcock was

found guilty of the first degree murder of 

Cynthia Ann Driggers. The evidence

presented at trial showed that 

approximately two weeks prior to the 
murder, Hitchcock, unemployed, ill, and 

with no place to live, came to Winter 

Garden, Florida, to stay with his brother, 

Richard. Hitchcock knew that coming to 
Florida was in violation of his Arkansas 
parole.' (TR 779) 1

Cynthia Ann Driggers, thirteen years 

old, was Richard Hitchcock's step­

-̂The following symbols will be used to 
refer to the record in the court below: 
(TR ) refers to the transcript of
petitioner's January 1977 state trial 
included in the appellate record; (ASR ) 
refers to the transcript of the advising 
sentencing hearing before the jury on 
February 4, 1977 ; (SR ) refers to the
transcript of sentencing before the trial 
judge on February 11, 1977; (JA ) refers 
to the joint appendix herein.

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▲



daughter. On the night of the murder,

James Hitchcock went out with some 

friends, drank some beer, and smoked some 

marijuana. In a statement given to the 

police, Hitchcock revealed that upon

returning to his brother's house, he went

into Cynthia’s bedroom at about 2:30 a.m.

(TR 691) He had sex with Cynthia, and

afterwards she stated that she was hurt

and was going to tell her mother.

Hitchcock told her that she could not, and

she began hollering. Hitchcock grabbed

her by' the neck,., and in an effort to

silence her, picked her up and carried her 

outside to the yard. He told her that she 

could not tell her mother, and she began 

to scream. He grabbed her by the throat 

and began choking her, and when he 

released his grip, she again began to 

scream and cry out. Even though he hit 

her twice, she continued to scream; so 

Hitchcock choked her and "just kept

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chokin' and chokin’" and after she was

still, he pushed her over in the bushes 

and went back in the house, took a shower, 

washed his shirt and went back into his 

bedroom and lay down. (TR 691—692) 

Medical evidence showed that Cynthia Ann 

Driggers was, before the incident, a 

virgin.
Hitchcock testified at trial and 

admitted going into Cynthia's room but 

stated that the sex was voluntary on her 

part. He stated that he was sitting on 

the bed 'putting his- pants back on when his 

brother Richard came in, grabbed Cynthia, 

and pulled her out of the house. He 

followed and tried to prevent Richard from

choking his own step daughter. (TR 765) 

According to James Hitchcock, he could not 

break his brother's grip and after a time, 

it was determined that Cynthia was dead. 

Again, according to James, he told his 

brother Richard to go into the house and

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▲



that he would take care of the matter

and then took Cynthia's body and put it 

in the bushes. (TR 766)
During the defense case

petitioner's trial counsel introduced 

the testimony of a number of individuals 

including Hitchcock's siblings and his 

mother relating to the petitioner's non­

violent character. (TR 732,734,737,739- 
740,741,747) In addition, despite the 

fact that the prosecutor's relevancy 

objections were in many cases sustained 

by the court, defense counsel persisted 
in questioning those who knew Hitchcock 

as to his family background including: 

the fact that the petitioner was one of 
seven children (TR 735,750);his young 

age at which he left home (TR 735,750); 
whether the petitioner's natural father 

was alive (TR 735—736,741,747,748); the 

petitioner's age when his natural father 

died (TR 737); the lack of violence

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X



previously exhibited by Hitchcock 

towards children (TR 742-743,745); as 

well as the fact that his "attitude" 

toward his mother and family were good 

and that he always "minded" his mother 

and did what he was told. (TR 750)
The petitioner's trial testimony 

likewise related numerous aspects of his 

family background for the jury's 

edification including: his poverty as a 

child; the fact that he left home at the 

early age of thirteen because he could 
not stand his step-father striking and 

verbally abusing his mother; that he had 

been "drifting" from place to place 

since then; that his natural father had 

died when the petitioner was only six 

and that his mother had had to work to 
support the family's many children. (TR 

733-735) Furthermore, Hitchcock 

asserted that his confession was 

motivated by his desire to protect his

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"crippled" brother Richard 

helped him and had been like 

him and because he felt he 

else to live for and nowhere

who had

a father to 

had nothing 

else to go.

(TR 776-777)

After a verdict of guilty was 

returned the advisory sentencing phase 

of the proceeding was held. Defense 

counsel again elicited family background 

information on the petitioner, similar 

and in addition to that already 

submitted at trial, through the 

testimony of one of the petitioner's 

brothers who noted, inter alia, that: 

the petitioner's father had died in 1963 

after having been bedridden with cancer 

for eight months; petitioner's natural 

father and mother had worked as farm 

laborers in Arkansas in attempting to 

raise a family of seven children; and 

that the petitioner on various occasions 

when he was five to six years old (and

- 10 -
▲



after his natural father's death) had

"sucked gas" which had seemingly caused 

his mind to wander at times. (ASR 7-10)

In conjunction with this testimony 

and the other evidence as to Hitchcock's 

family background adduced during the 

trial defense counsel argued to the jury 
in the advisory sentencing proceeding 

that they should consider "anything you 

feel is relevant" in their determination 

and evaluate "the whole picture, the 

whole ball of wax" in deciding whether 

to impose the death penalty. (ASR 

13,52) Defense counsel then

specifically recounted the various 

aspects of Hitchcock's family background 

presented to them at trial and in the 

advisory sentencing proceeding in 

arguing that death was not the 

appropriate punishment. (ASR 13-16) 

Specifically defense counsel recounted 

the fact that Hitchcock was one of seven

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children belonging to a farm laborer

mother and father whose natural father 

died in 1963 when the petitioner was 

only 6 or 7 years old. The large size 

of petitioner's family and their 

economic situation along with his step­

father's mistreatment of his mother 

forced the petitioner to leave home at

the tender age of thirteen and make his

own way in the world for the seven years

between then and the trial. (ASR 14-

15) The gas sucking incidents were

recounted as was the testimony that

petitioner 's mind would "wander" and

that he had no previous history of 

violence. The fact that the petitioner 

was a "good child" who "minded" his

mother was likewise interjected as was 
petitioner’s alleged truthfulness before 

the jury (in pointing out his parole 

violation) and the fact that he had 

turned himself in despite ample

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opportunity to flee. (ASR 15-17,25-26)

In addition defense counsel asserted the

potent ial for pet i t ioner1s

rehabilitat ion as well as an assertion

that the defense was a "crime of

passion, an emotional situation"

sufficient to distinguish it from more

grievous murders. (ASR 24-25) The

evidence and argument relating to

Hitchcock's family background and other 

clearly non-statutory mitgating factors 

was presented to the jury without 

objection or limitation by the 

prosecutor or trial judge and at the 

conclusion of the hearing the jury 

recommended that Hitchcock be sentenced 

to death. (ASR 63)
In a separate sentencing proceeding 

a week later the trial judge considered 

argument by defense counsel who urged 

the sentencing judge to take into 
consideration the testimony concerning

- 13 -



the defendant's background and

soecifically focused upon the turmoil in 

his family history. (SR 4-5) Defense 

counsel asserted that the petitioner was 

an intelligent individual although 

"emotionally immature at times" who 

would be capable of rehabilitation if 

given the time to mature. (SR 4-5) 

Furthermore, defense counsel asked the 

court to consider the possibility of 

doubt as to the sufficiency of the 
evidence to demonstrate murder in the 
first degree. (SR 3-4) However, the 

trial court in agreement with the jury's 
recommendation, sentenced Hitchcock to 

death finding that the capital felony 

was committed while Hitchcock was 

engaged in the commission of sexual 

battery upon Cynthia Ann Driggers; that 

the capital felony was committed for the 

one purpose of avoiding being arrested 

for the involuntary sexual battery; and

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*



that the capital felony was especially
heinous, wicked or cruel. In terms of 

mitigation, the trial court found that 

Hitchcock's age, twenty, was

applicable. Weighing the aggravating 

factors against the sole mitigating 

circumstance, the trial court agreed 

with the recommendation of the jury and 
found that the recommendation was amply 

supported by the evidence. Hitchcock 

appealed his judgment of guilt and 
sentence of death to the Florida Supreme 
Court and in his brief dated August 15,

^The trial court also found that 
Hitchcock had been previously convicted of 
five burglaries and was on parole at the 
time he committed the capital felony. 
Since Hitchcock was not under a sentence 
of imprisonment at the time, the trial 
judge did not find the aggravating factor 
contained in section 921.141(5) (a), 
Florida Statutes to be applicable. 
However, as noted by the Florida Supreme 
Court upon direct review of the conviction 
and sentence, the fact of parole is, under 
Florida law, sufficient to satisfy this 
aggravating factor. See, Hitchcock v. 
State, 413 So.2d 741,747 n. 6 (Fla. 1982).

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A



1979, containing some fourteen separate

issues, contended as a point on appeal

that the decision of the Florida Supreme

Court in Cooper v. State, 336 So.2d 1133 

(Fla. 1976), unconstitutionally limited 

consideration of mitigating evidence in 

violation of this court's decision in 

Lockett v. Ohio, 438 U.S. 586 (1978). On 

February 25, 1982, that court affirmed 

both the conviction and sentence, 

Hitchcock v. State, 413 So.2d 741 (Fla. 

1982), finding on this particular issue, 

that Florida law allowed the presentation 

of all relevant mitigating circumstances 

and that the record failed to reveal that 

the trial judge in any way limited the 
defense's presentation. 413 So.2d at 748.

Hitchcock then petitioned this Court 

for a writ of certiorari raising three 

Questions. None of these questions 

concerned the operation of Florida law in 

terms of presentation of mitigating

- 16 -



evidence. The petition was denied.

Hitchcock v. Florida, 459 U.S. 960 (1982).

On April 21 , 1983, the Governor of
Florida denied clemency and signed 

Hitchcock's death warrant. Hitchcock then 

oromptlv filed a motion to vacate his 

death sentence pursuant to Florida Rule of 

Criminal Procedure 3.850. As one of the 
grounds presented in that motion, 

Hitchcock argued that he received 

ineffective assistance of counsel due to 

the belief of counsel that he was 

restricted by Florida's statute to 

presenting evidence in mitigation relating 

only to enumerated mitigating factors. 

The motion was denied without evidentiary 

hearing. On appeal the denial was

affirmed, the Florida Supreme Court 
finding on the mitigating evidence issue, 

that it was the same claim in a different 

form that was argued and considered on 

direct appeal. Hitchcock v. State, 432

17



So.2d 42,43 (Fla. 1983). In a concurring

opinion, Justice McDonald observed that 

Hitchcock's lawyer presented and argued 

non-statutory mitigating evidence such 

that a claim that counsel was in doubt as 

to the applicability of such evidence was 

belied. Id., at 44. (McDonald, 

concurring) .
Hitchcock then sought federal habeas 

corpus relief in a petition raising some 

fifteen separate challenges to his 

conviction and/or sentence. After 

reviewing the challenges and the state 
trial record, the district court dismissed 

the petition without a’hearing pursuant to 

Rule 4 of the Rules Governing Section 2254 

in the United States District Courts.

An appeal was taken to the Eleventh 
Circuit Court of Appeals and that court 

affirmed the summary dismissal. H i tchcock 

v. Wainwright, 745 F.2d 1332 (11th Cir. 
1984). A suggestion for rehearing en banc

- 18 -



was filed and granted. After briefing and

argument, the _en banc court of the 

Eleventh Circuit affirmed the judgment of 

the district court. Hitchcock v.

Wainwr iqht, 770 F.2d 1514 (11th Cir. 1985) 
(en banc). Rehearing was denied.

Hitchcock v. Wainwriqht, 777 F.2d 628 

(11th Cir. 1985) .

19



I
THE COURT OF APPEALS PROPERLY 
APPLIED ITS CASE-BY-CASE ANALYSIS IN 
REJECTING, AS INSUFFICIENT TO 
OVERCOME RECORD EVIDENCE, THE 
PETITIONER'S CLAIM THAT HIS TRIAL 
ATTORNEY WAS PRECLUDED BY OPERATION 
OF FLORIDA LAW FROM PRESENTING NON- 
STATUTORY MITIGATING CIRCUMSTANCE 
EVIDENCE SUCH THAT PETITIONER WAS 
DENIED AN INDIVIDUALIZED CAPITAL 
SENTENCING DETERMINATION.
The petitioner's argument begins with 

a laborious analysis of the history of 
Florida's post-Furman death penalty 

statute - section 921.141, Florida 

Statutes - and the case law interpreting 

and applying it,.' in support of his 

contention that Florida law prior to the 

Florida Supreme Court's decision in Songer 

v. State, 365 So.2d 696 (Fla. 1978), cert, 

denied, 441 U.S. 956 (1979) clearly 

indicated that evidence of non-statutory 

mitigating circumstances could not be 

introduced in a capital case. 

Accordingly, Hitchcock contends that his 

counsel was precluded "by operation of

- 20 -
A



law" from submitting relevant non-

statutory mitigating evidence as to his 

character, family background, and

potential for rehabilitation, and doubt of 

guilt for the first degree murder offense 

for which he had just been convicted, such 

that he was deprived of the individualized 
sentencing determination required in 

capital cases. Lockett v. Ohio, 438 U.S. 

586 (1978); Eddings v. Oklahoma, 455 U.S.

104 (1982); Skipper v. South

Carolina, ____  U.S. ____ , 106 S.Ct. 1669

(1986) . •
Petitioner's chief contention is that 

the decision of the Florida Supreme Court 

in Cooper v. State, 336 So.2d 1133 (Fla. 

1976) , limited evidence of mitigation to 

the statutorily enumerated circumstances 

and because of the belief of his attorney 

to that effect, relevant non-statutory 

evidence in mitigation was not presented 

at his trial. Thus, he reasons, his

- 21 -



sentence was imposed in violation of the 

Eighth and Fourteenth Amendments.

Of the many judicial considerations 

of the decision in Cooper, petitioner 

understandably relies upon those most 

favorable to him to support his 

fundamental premise that Cooper flatly 

limited the scope of mitigating evidence 

which could be considered in a capital 

proceeding. While respondent acknowledges 

the existence of these pronouncements, he 

nevertheless questions the ease with which 

legal commentators and judges have 
extended an interpretation of .Cooper past 

that found in the original panel opinion, 

i.e., as containing language"... which 

some contend should be interpreted as 

limiting the introduction of mitigating 

circumstances to those enumerated in the 

statutes." Hitchcock v. Wainwriqht, 745 

F .2d 1332,1335 (11th Cir. 1984). That

there is language which can be so

▲
22



interpreted is conceded; however, that the

language is the holding of the Cooper 

court is seriously disputed.
STATUS OF FLORIDA LAW 

An examination of the decision in 

Cooper v. State, supra, reveals a mere 

four paragraphs of judicial expression. 

Pertinent language is directed only to a 

claim raising alleged error surrounding 

the trial court's refusal, on grounds of 

relevance, of certain testimony proffered 

during the penalty phase of Cooper's trial

relating to his employment history, the

v ictim's reputation' for violence, and

Cooper's attempt to avoid his co-

perpetrator on prior occasions. The

defense sought to have this test imony

admitted to show that the co-perpetrator 

(killed during the incident) had probably 

fired the fatal shots, and that Cooper was 

not beyond rehabilitation. Importantly, 

while the trial court rejected these

- 23 -



proffers of evidence, other questionably

probative or relevant evidence regarding 

general character and reputation for 

truthfulness and non-violence was admitted 

into evidence. 336 So.2d at 1139.

In holding that the refusal to admit 

the proffered evidence was not error, the 

Florida Supreme Court predicated its 

judgment on its previous decision in State 

v, Dixon, 283 So.2d 1 (Fla. 1983), stating 

that only evidence bearing relevance to 

the issues was to be admitted during the 

sentencing phases of a capital 

proceeding. Although the .factors in 

mitigation listed in the statute were 
mentioned, the holding was nonetheless 

bottomed only on a notion of relevance. 

This is precisely what was confirmed in 

Sonqer v. State, 365 So.2d 696 (Fla. 

1978), and, more importantly, specifically 

reiterated in Cooper v. State, surra.
Sonqer contains reference to numerous

- 24 -



decisions where non-enumerated mitigating 

circumstances were presented to the 

sentencer and, as pointed out by the 

district court below, some of those 

decisions were published Prior to 

Hitchcock's trial. (JA 83-84) The Florida 

Supreme Court relied upon the decisions as 

representing its approval of the 
consideration of non-statutory mitigating 

factors. Sonaer v. State, supra, 365 So.2d

at 700.
In Meeks v. State, 336 So.2d 1142 

(Fla. 1976), the trial court considered 

the "dull-normal intelligence" of the 

defendant and found it a mitgating 

factor. In Buckrem v. State, 355 So.2d 

111 (Fla. 1978), and Chambers v. State, 
339 So.2d 204 (Fla. 1976), the court 
recognized voluntary intoxication and drug 

use. In Halliwell v. State, 323 So.2d 

557 (Fla. 1975), the fact that the 
defendant was under an emotional strain

▲25



deceased and his status as a Vietnam 

veteran were mentioned. In McCaskill v. 

State, 344 So.2d 1276 (Fla. 1977), the 
fact that the defendant was not the 

triggerman was utilized as a basis to 

reduce the sentence to life
imprisonment. In Messer v. State, 330 

So.2d 137 (Fla. 1976), the court 

specifically held that the punishment 

received by a co-defendant in a separate 

trial was improperly excluded from the 

jury because it was relevant, citing to 

its earlier decision in Slater v. State, 

316 So.2d 539 (Fla. 1975). Obviously, 

punishment received by a co-defendant in a 

separate trial is not a statutorily 

enumerated circumstance; yet, it was found 

admissible because of relevancy to the 

ultimate issue.
In that vein the legislative history 

of section 921.141, Florida Statutes

over mistreatment of his girlfriend by the

26



What is of(1972) is of no consequence.
sole importance is the law as it was 
passed in 1972, as interpreted by the 

Florida Supreme Court. It is that court 

and only that court which can interpret 

Florida's capital sentencing statute and 

that interpretation, i.e., that neither 

the statute nor any decision of the 

Florida Supreme Court limited

consideration of mitigating circumstances 

to those found in the statute, is 
conclusive and binding on all courts. 
Wainwriq'ht v. Stone, 414 U.S. 21 (1973) .
As a consequence, when the Florida Supreme 

Court in Cooper v. State, supra, stated

that the decision in Lockett v.__Ohio,
supra, did not change the law of Florida 

that statement was at once binding and 

entirely accurate.
Relevance is the operative word in 

the presentation of mitigating evidence, 

whether statutory or otherwise. This was

- 27 -



There the Courtrecognized in Lockett.

was concerned with a record in a murder 

trial which, as the Court seemed to 

emphasize, contained no evidence of guilt, 

and a conviction would not have been 

obtained but for the operation of an 

aiding and abetting statute. The actual 

killer (triggerman) pleaded guilty and 

escaped the penalty of death in return for 

an agreement to testify against Lockett, 

her brother, and another perpetrator. The 

sole participation of Lockett in the 

offense ' was the driving of the getaway 
car. The prosecution offered a plea to a 

considerably lesser included offense and a 

substantially reduced sentence three 

separate times.
Against this backdrop of evidence, 

the Court centered upon the particulars of 

Ohio's capital sentencing statute. Under 

that law, in order to avoid a mandatory 

death sentence upon the proving of at

- 28 -



least one of seven specified aggravating

circumstances, a capital defendant was 

limited to showing by a preponderance of 

the evidence: (1) the victim induced or 

facilitated the offense; (2) it was 

unlikely that the offense would have been 

committed but for the fact that the 
defendant was under duress, coercion, or 

strong provocation; or (3) the offense was 

primarily the product of the offender's 

psychosis or mental deficiency.

Based on the above facts and law, the 

holding of this Court was that the Eighth 

and Fourteenth Amendments required that 

the sentencer not be precluded from 

considering as a mitigating factor any

aspect of the defendant's character and

record or any evidence concerning the

c i rcumstances of the offense that the

defendant proffered as a basis for a

sentence less than death, provided that

the evidence is relevant. As a specific

- 29 -
▲



Lockett court stated:

The limited range of mitigating 
circumstances which may be 
considered by the sentencer under 
the Ohio statute is incompatible 
with the Eighth and Fourteenth 
Amendments. To meet
constitutional requirements, a 
death penalty statute must not 
preclude consideration of relevant 
mitigating factors.

438 U.S. at 608 . Put another way, the 
Ohio statute was simply too restrictive in

refinement of this general notion, the

terms of relevance.
Since Florida's law is hot only more 

expansive in its list of relevant 

mitigating factors but also provides for 

the receipt of all relevant evidence, the 

Florida Supreme Court was correct in 

concluding that Lockett did not affect the 

operation of the state's capital 

sentencing scheme. Florida's law was 

specifically mentioned as an obvious 

example of a non-limiting capital

statute. Id. 438 U.S. at 606 , n. 15 The

source of this notion is, of course,

- 30 -
A



(1976). Hitchcock easily ignores Proffitt 

by focusing on the six-day period elapsing 

between Proffitt and Cooper, thus adopting 

the view of Mr. Justice BRENNAN in the 

dissent from the denial of a petition for 

writ of certiorari in Songer v.

Wainwright, ___ U.S. ____ , 105 S.Ct. 817

Proffitt v. Florida, 428 U.S. 242

(1985). As we understand the thrust of 

the contention, since Proffitt so closely 

preceded Cooper, Cooper was decided 

without knowledge of Proffitt, and thus 

the Florida Supreme Court unwittingly 

reached an interpretation of the statute 

contrary to that of this Court. The 

implicit extension of this position is 

that the Florida Supreme Court, either 

through possible embarrassment or 

stubbornness- refused to mend its error 

and did not do so until and because 

Lockett was decided. In other words, 

Songer was the Florida Supreme Court’s

- 31 -
▲



response to Lockett.
This viewpoint is both incorrect and 

unfair insofar as it suggests or assumes 

an improper motive on behalf of the 

Florida Supreme Court. More importantly, 

it overlooks the fact that the decision in 

Cooper was on rehearing from July 8, 1976, 

until September 30, 1976, an ample period

within which the Florida Supreme Court 

could have become familiar with the 
"...details in Proffitt's footnotes..." 

105 S.Ct. 821, n. 9. That the Florida 

Supreme Court "did nothing" between Cooper 

and Sonqer is due to no other obvious 

reason than the fact that Sonqer was the 

first person to raise the direct

constitutional challenge as a result of 

the decision in Lockett.
While the possibility of confusion in 

the interpretation of Florida law vis-a- 

vis non-statutory mitigating circumstances

effort to save Florida's statute in

- 32 -



recognized, the propriety of post­

conviction collateral review and relief 

upon a claim of limitation in the

presentation or consideration of non- 

statutory mitigating evidence has been 

adequately addressed by the case-by-case 
analysis theory applied by the court of 

appeals and the Florida Supreme Court 

which serves to balance the interest of 

the petitioner in presentation and 

resolution of his Lockett-based claim with 

the state's interest in finality of 

decisions and timely execution of sentence 

without undue interference through the 

collateral review process. Hitchcock v. 

Wainwright, 770 F.2d 1514 (1985) (en

banc); Sonaer v. Wainwright, 769 F.2d 1488 

(11th Cir. 1985) (en banc); Thomas v. 
Wainwright, 767 F.2d 738 (11th Cir. 1985); 

State v. Zeigler , 488 So.2d 820 (Fla. 
1986); Harvard v. State, 486 So.2d 537

at the time in question has been

- 33 -
▲



(Fla. 1986); Hitchcock v. State, 432 So.2d 

42 (Fla. 1983). This case-bv-case 

analysis provides a reasonable and 

workable method of review of the specific 

Lockett-based mitigating circumstance 

issue through evaluation of the 

allegations and demonstrations of the 
petitioner, the status of Florida's law at 

the date of sentencing, the record of the 

trial and sentencing, as well as post­

trial affidavits or testimony of trial 

counsel or other witnesses and the 

proffers' of nop-statutory mitigating 

evidence claimed to have been available at 

the time of sentencing. Hitchcock v. 

Wainwr iqht, supra, 770 F.2d at 1517. 

Furthermore, respondent submits that the 

court of appeals properly applied its 

case-by-case analysis under the particular 

circumstances of this case in affirming 

the decision of the district court (and 

the state courts) that petitioner's claim

- 34 -
*



non-statutory mitigating evidence was 

clearly undermined by the trial record.

that he was limited in the presentation of

THE RECORD REFUTES THE ALLEGATION OF 

RESTRICTION OF MITIGATING EVIDENCE IN 

THIS CASE
As the court of appeals observed, a 

number of Florida capital prisoners have 

raised the concept of restriction in 

mitigation in varying contexts. 770 F.2d 

at 1517. The court of appeals reaffirmed, 

en banc, that it would continue to 

consider such claims on a case-by-case 

basis, evaluating the impact of Florida 

law on each individual capital sentencing 

hearing. The Eleventh Circuit court 

announced:
... that an analysis should be 
made in each case presented to 
evaluate a petitioner’s claim on 
the particular facts of the 
case. A court should consider the 
status of Florida's law on the 
date of sentencing, the record of 
the trial and sentencing, the jury

- 35 -
▲



instructions requested and given, 
post-trial affidavits or testimony 
of trial counsel and other 
witnesses, and proffers of 
nonstatutory mitigating evidence 
claimed to have been available at 
the time of sentencing. In some 
cases, full and fair consideration 
of the claim will necessitate an 
evidentiary hearing. Although an 
evidentiary hearing on the issue 
is preferable, in some cases, such 
as the one before us, the record 
will be sufficient to support a 
decision in the absence of an 
evidentiary hearing.

Id. (JA 123).
Applying the above-quoted analysis, 

the court of appeals determined, as did 

the Florida Supreme Court and the 

federal district court, that the record

of Hitchcock's trial belied the argument 

that the attorney for Hitchcock believed 

himself to be limited. The court went 

on to note examples where the lawyer 

raised matters and intended them to be 
circumstances in mitigation which were 

not listed in the statute.

The court of appeals evaluated the 

affidavit of trial counsel. Considering

- 36 -
▲



it to be "carefully written", the court

failed to find sufficient evidence of 

restrictive belief. The affidavit

states only that counsel had reviewed 

the trial transcript in Hitchcock's case 

and was of the then present opinion that 

his perception was that the 
consideration of mitigating

circumstances was limited to the factors 

enumerated in the statute Counsel

believed that his rev / of the 

transcript indicated that a was acting 

in accord with such a eption. While

he believed that the ' .tute limited the 

consideration j. lie < J not recall when 

his perception ch? ged. In fact, the

import of the ridavit was slightly

Itisp̂ rceiv*-'-' oy the court of appeals.

Cont co the court's understanding,

counsel did not swear that he did not

i nvest’ '-ate relevant mitigating

circu tances. Rather, he swore only

- 37 -



that he was aware of the then current

status of the case in the state court 

and that in that court, a claim had been 

made that available evidence of relevant 

non-statutory mitigating circumstances 

was not investigated or presented. 
Nowhere in the affidavit did counsel 

incorporate, ratify or otherwise adopt 

that allegation; he was not involved in 
the state court action which consisted 

of a motion to vacate filed subsequent

to the signing of the death warrant. (JA

44-45) '
Interestingly , the decision in

Cooper' v. State, supra, is not even

mentioned. Also, any stated belief of

restr iction is not alleged in the

affidavits; the best counsel could

provide was his stated perception of

such a belief. However, that perception 

is rendered worthless by the direct 

statement that counsel had no

38



of whether heindependent recollection

believed himself limited.3
If as petitioner apparently

alleges, no non-statutory mitigating

evidence was produced, what difference 

can it make whether that failure was due 

to counsel believing he was limited or 

counsel's ineffectiveness? If no

3Hitchcock attempted belatedly to 
submit a second affidavit of trial counsel 
attached to his petition for•rehearing _en 
banc in an effort to persuade the court of 
appeals, in light of its holding, that the 
attorney* believed himself limited. Even 
that affidavit did nothing to require the 
need for an evidentiary hearing. Though 
longer than the first, it was no.t 
significantly or materially different. 
The affidavit was still predicated on
counsel's eight-year-old perception and
interestingly, the final paragraph is 
still replete with tentative language: 
"may have been significantly different"; 
"may have developed"; may have included 
evidence." Most importantly, counsel 
still did not swear that he did not 
investigate all possible areas of 
mitigation. Also, he did 
Cooper v. State, supra, and 
identify any source of 
limitation. The second

not mention 
he did not 

perceived 
affidavit was just

as
one

"carefully written" as the previous

- 39 -



evidence was produced for either reason 

then there is clearly a basis for the 

claim. If, on the other hand, non- 

statutory mitigating evidence was 

produced, then there is no basis for 

such a claim. The obvious source of 

answering this question, as noted by the 

court of appeals, is in the record 

itself and it is the record that 
undermines petitioner's claim that his 

counsel believed himself limited in 

presentation of non-statutory mitigating 

evidence'. Respondent, like the court of 

appeals below, rejects the claim that 

counsel believed he was limited in the 

presentation of mitigating evidence, and 

the record supports that rejection. 

Hitchcock v. Wainwriqht, supra, 770 F.2d 

at 1517-1518. (JA 124-126)

Indeed, practically the first thing 

that Hitchcock's lawyer told the jury in 

his summation during the advisory

- 40 -
A



sentencing proceeding was that they 

should consider anvthi na they thought 

relevant and in his closing to that same 

jury, defense counsel exhorted them to 

consider and evaluate "the whole 

picture, the whole ball of wax" in 
deciding whether to impose the death 
penalty. (ASR 13,52) Before the jury 

defense counsel recounted the various 

aspects of Hitchcock's family background 

presented to them at trial4 as well as 

similar- testimony presented through 

Hitchcock's brother at the advisory 

sentencing proceeding in arguing that 

death was not the appropriate 

punishment. (ASR 13-16) These clearly 
non-statutory mitigating factors

included reference to Hitchcock's

^Cf. Harvard v. State, 486 So.2d 537, 
539 (Fla. 1986) - nonstatutory mitigating
factors may arise from evidence presented
in trial phase.

41



impoverished family background; the fact 

that his natural father had died after 

having been bedridden with cancer for 

eight months while the petitioner was 

very young; that petitioner's natural 

father and mother had worked as farm 

laborers in attempting to raise a family 
of seven children; that the petitioner 

had "sucked gas" when he was five or six 

years old and that this had caused his 

mind to "wander" at times; that 

Hitchcock had left home at the early age 

of thirteen because he could not stand 
his stepfather striking and verbally 

abusing his mother; that he had been 

"drifting" from place to place ever 

since; that his "attitude" towards his 

mother and family were good and that he 
always "minded" his mother and did what 

he was told; that he had been truthful 

before the jury in pointing out his 

parole violation; and that he had turned

- 42 -



himself in despite ample opportunity to 
flee. (ASR 13-17) In addition, defense 

counsel asserted the potential for 

petitioner's rehabilitation as well as 

an assertion that the defense was a 

"crime of passion, in an emotional 

situation" sufficient to distinguish it 
from more grievous murders. (ASR 24- 

25) The evidence and argument relating 
to Hitchcock's family background and 

these clearly non-statutory mitigating 
factors were presented to the jury 

without 'objection .or limitation by the 

prosecutor or trial judge in an obvious 

effort to secure a recommendation of 

life imprisonment. Similar argument 

with no relationship to statutorily 

enumerated mitigating circumstances was 

presented at the sentencing hearing 

itself where defense counsel urged the 

sentencing judge to take into 

consideration the testimony concerning

- 43 -
A



the defendant's background and 

specifically focused upon the turmoil in 

his family history. (SR 4-5) Defense 

counsel urged that the petitioner, while 

an intelligent individual, was 

"emotionally immature at times" and 

would be capable of rehabilitation if 

given the time to mature; furthermore 

defense counsel asked the court to 
consider the possibility of doubt as to 

the sufficiency of the evidence to 

demonstrate murder in the first degree. 

(SR 3-5)'
This is the record which Hitchcock 

ignores when making his claim that he 

was denied a constitutionally improper 

individualized sentencing hearing

because of a restricted belief of 

counsel. Indeed, to suggest that

defense counsel would feel limited at 

the sentencing phase in presenting any 
potential mitigating evidence with

- 44 -
X



reference to non-statutory circumstances

is to ignore the dogged determination 

exhibited by that same counsel at the 

trial phase despite repeated

prosecutorial relevency objections and 

presentation of evidence as to 

Hitchcock's family background (e.g., the 
young age at which petitioner left home; 
whether petitioner's natural father was 

alive; the petitioner's age when his 

natural father died; the lack of 
violence previously exhibited towards 

children; the fact, that petitioner was 
one of seven children; as well as the 

fact that his "attitude" towards his 

mother and family were good and that he 

always "minded" her and did what he was 

told). (TR 732-750) To suggest that 
this same counsel felt himself limited 
in the presentation of non-statutory 

mitigating circumstance evidence which 

was otherwise available to him and could

- 45 -



be utilized in argument against the

imposition of the death penalty but for 

this belief is incredible especially in 

light of the total lack of any objection 

or limitation evinced by the prosecutor 

or trial judge at the advisory 

sentencing proceeding as well as the 

fact that such evidence was submitted 

and argued to both the jury and judge by 

counsel. The Florida Supreme Court, the 

federal district court and the court of 

appeals all properly concluded that the 

claim lacked factual support and 

respondent urges this court to leave 

undisturbed that determination inasmuch 

as it is based on a proper and 

reasonable analysis based upon the 

circumstances presented.
Certainly, the petitioner must 

concede that non-statutory mitigating 

evidence was presented and argued by 

counsel. Accordingly, Hitchcock's

- 46 -
&



theargument must necessarily fail for 

cuestion is not, and never has been, how 

thoroughly, completely or satisfactorily 

evidence in mitigation was presented on 

his behalf. This court should not be 

confused with what petitioner would like 

to have been presented and whether non- 

statutory mitigating evidence was 

presented at all. As long as one single 

bit of non-statutory evidence was even 

attempted to have been introduced, the 

basis for his claim totally evaporates.

The respondent cannot emphasize 

enough that the record before this 

Court, as concluded by the court of 
appeals, is the authoritative source 

serving to rebut all the petitioner's 

arguments; that it contains clear 
offerings of non-statutory mitigating 

evidence adequately contradicts the 

claim of limitation that he presents, 

inter alia, through his vague affidavit

47



of counsel.
The record renders the principles 

of Black-ledge v. Allison, 431 U.S. 63 
(1977) inapplicable. The record does 

represent an insurmountable barrier to 

this attack; it is more than adequate to 

conclusively show that petitioner is 

entitled to no relief. Indeed, it 

definitely provides the conclusion that 

the claim, when measured against it, is 

"patently frivolous.

48



II
THE COURT OF APPEALS PROPERLY 
UPHELD THE DISTRICT COURT'S 
SUMMARY DISMISSAL OF PETITIONER’S 
CLAIM THAT FLORIDA'S DEATH PENALTY 
WAS BEING ARBITRARILY AND 
CAPRICIOUSLY APPLIED BECAUSE OF 
RACE OF THE VICTIM BASED 
SYSTEMWIDE DISCRIMINATION ON 
STATISTICAL EVIDENCE LEGALLY 
INSUFFICIENT TO SUPPORT SUCH A 
CLAIM.
The petitioner, a white male who raped 

and brutally murdered his brother's white 

thirteen-year-old virgin step-daughter, 

argues that statistical evidence

profferred to the district court

demonstrated a statistically "significant"

disparity in the ultimate imposition of

the death penalty based upon the race of

the victim of the offense. As noted by

the petitioner , similar legal questions as

to the propriety and disposition of Eighth 
and Fourteenth Amendment challenges to the
application of otherwise facially valid 

death penalty statutes are also directly

- 49 -

▲



presented in McCleskey v. Kemp, (No. 84-

6811) pending before this Court. However, 

respondent submits that the instant case 

presents a more limited question as to the 

propriety of the district court's summary 

dismissal of his statistics-based race of 

victim discrimination claim as legally 

insufficient to demonstrate a basis upon 

which relief could be granted. The 

petitioner's claim that the statistical 

data submitted in conjunction with his 

assertion that the Florida death penalty 

statute’ was arbitrarily and capriciously 

applied was sufficient to require an 

evidentiary hearing and to ultimately 

prevail in his constitutional challenge to 

the statute as applied is without legal 

basis.
The district court determined that

under Rule 4 of the Rules Governing

Section 2254 Cases in the United States

_ 50 -

▲



District Court, the petitioner's claim of

arbitrary application of the Florida death 

penalty statute was without arguable merit

as determined in Spinkellink____

Wainwright, 578 F.2d 582 (5th Cir. 1978), 

cert. denied, 440 U.S. 976 (1979) (JA 87-

88) . The district court judge further 

noted that any statutory scheme devised by 
a legislative body cannot insure 

completely uniform results but that given 

previous determinations, Florida s death 

penalty law contains adequate safeguards 

against capricious -imposition of the death 

penalty and that given adherence to that 

statutory procedure, disparate sentencing 

results do not present a problem of 

constitutional implications absent an 

allegation and showing of "intentional 

discrimination" not made by Hitchcock. 

(JA 88) .
The district court's summary denial

- 51 -



of Hitchcock's claim comports with 
virtually every other ruling on the 

subject by Florida and federal courts. 

As correctly noted by the petitioner, 

Florida's courts have consistently 

rejected similar bare statistical 

compilations, and specifically the 

particular studies presented in support 

of his race of discrimination claim in 

this case, as insufficient to state even 

a preliminary basis to sustain a claim 
for relief. Henry v. State, 377 So.2d 

692 (Fla. 1979); Adams v. State, 380 

So.2d 423 , 425 (Fla. 1980); Meeks v. 

State, 382 So.2d 673, 676 (Fla. 1980); 

Thomas v. State, 421 So.2d 160, 162-63 

(Fla. 1982); Riley v. State, 433 So.2d 

976 , 979 (Fla. 1983). The Florida 
Supreme Court followed that precedent in 

rejecting the petitioner's claim that an 

evidentiary hearing should have been

- 52 -

▲



held on his motion for post-conviction 

relief at the state trial court level 

upon the limited statistical data 

presented.5 The court noted that it had 

peviously determined the same data 

insufficient to justify a hearing citing 

to Thomas, supra, at 163, where the same 
figures and methodology presented here 

were rejected under the test announced 
in Spinkellink as "hypothetical"; 

"inadequately supported"; and

^Respondent notes that the Gross and 
Mauro study upon which the petitioner's 
argument principally focuses was never 
presented to the state trial court judge 
in Hitchcock's motion for post-conviction 
relief and stay of execution or to the 
Florida Supreme Court in its review 
thereof. However, as properly determined 
by the federal courts, the statistical 
data of the Gross and Mauro study was no 
more compelling than the other data 
presented in terms of its constitutional 
implications and the same data has, as 
noted, been previously rejected as 
insufficient by Florida courts to justify 
relief.

- 53 -

*



insufficient to explain away "possible 

innocent explanations for the 

disparity." Hitchcock v. State, 432 

So.2d 42 , 43-44 (Fla. 1983) .
The Spinkelli nk decision relied 

upon by the Florida courts and the 

federal district court below to 

summarily deny the petitioner’s claim, 

rejected the same argument raised by 

Hitchcock, i.e., that statistical 

evidence submitted was sufficient to 

show a disparity in the application of 

capital ’ sentencing, based upon the race 

of the victim. The court opined that 

under its review of this Court's 

decisions establishing the boundaries 

for a properly drawn non-arbitrary death 

penalty statute, a state could rest 
assured that its death penalty law would 

not be later invalidated and otherwise 

proper death sentences vacated upon

- 54 -

▲



claims of arbitrary or racially

discriminatory application absent 

allegation and proof of some specific 

act or acts evincing intentional or 

purposeful discrimination against the 

petitioner, and that mere statistical 

evidence of an alleged racially 

disparate impact without further proof 

of intentional or purposeful

discrimination was insufficient to state 

a claim for relief under either the 

Eighth or Fourteenth Amendments. 578 

F . 2d at' 613-16; Smith v. Balkcom, 660 

F . 2d 573 (5th Cir. Unit B 1981), 

mod i f ied, 671 F.2d 858 (5th Cir. Unit

B), cert. denied, 459 U.S. 882 (1982).

The Spinkellink court further noted that 

even assuming a racially
disproportionate impact based upon race 

of victim statistical data, the 

admission (also contained within the

- 55 -

JL



studies relied upon by Hitchcock)6 that 

all non-racial factors cannot be

®The study evidence submitted to the 
state court (i.e. the testimony of Bowers 
and Pierce as to their statistical 
findings for the Henry case and the Foley 
study) clearly did not control for the 
numerous variables inherent in any 
potential capital sentencing case. 
Obviously, differences in the collection 
of evidence, production of witnesses and 
ease of prosecution, as well as the 
experience and effectiveness of counsel, 
the nature of the evidence submitted vis- 
a-vis the various statutory and mitigating 
circumstances, as well as the universe of 
non-statutory and mitigating factors that 
are inherent in an individualized

determination make it
to isolate race of victim 

as the cause for the alleged- 
Indeed, the Gross and Mauro 

principally argued by Hitchcock 
that omitted data and 

which are "endemic" 
mere statistical

sentencing 
impossible 
prejudice 
disparity, 
study now 
concedes
unconsidered variables 
and "inevitable" in 
compilation studies could well explain the 
perceived race of victim disparity 
although they consider the possibility of 
substantial change in the figures 
"remote". Gross and Mauro, Patterns of 
Death: An Analysis of Racial Disparities
in Capital Sentencing and Homicide
Victimization, 37 Stan. L. 
105-110 (Nov. 1984) .

Rev. 27, 45-49

- 56 -

▲



controlled for or all potential non-race 

related explanations for their disparity 

rejected, undermined their utility.

The Spinkellink rationale has been 

repeatedly invoked by the Eleventh 

Circuit in addressing various claims of 

discriminatory racial impact in the 

Florida capital sentencing context. 
Upon that decisional cornerstone the 

court of appeals has repeatedly 
rejected, as it did in this case, the 

assertion that the particular 
statistical surveys presented to 

challenge the application of Florida’s 

death penalty law were sufficient to 

state a cause for relief or adequate to 

justify an evidentiary hearing. 

Funchess v. Wainwright, 788 F.2d 1443, 

1446 (11th Cir. 1986), cert. denied and 

stay of execution denied, 106 S.Ct. 1668 

(1986); Thomas v. Wainwright, 767 F.2d

- 57 -

A.



1985) , cert.738, 747-748 (11th Cir.

denied 106 S.Ct. 1242 (1986),

execution denied, 106 S.Ct. 1623

Henry v. Wainwright, 743 F.2d

stay of 

(1986) ; 

761, 762

(11th Cir. 1984), stay of execution 

denied, 105 S.Ct. 54 (1984); Washington v. 

Wainwright, 737 F.2d 922 , 923 (11th Cir.
1984), stay of execution denied, 105 S.Ct. 

16 (1984); Sullivan v. Wainwright, 721

F . 2d 316 (11th Cir. 1983), stay of

execution denied, 464 U.S.- 109 (1983);

Adams v. Wainwright, 709 F.2d 1443, 1449

(11th Cir. 1983), cert. denied, 464 U.S. 

1063 (1984); compare; Gr.iffin v.

Wainwr ight, 760 F.2d 1505 (11th Cir.

1985).
In the McCleskev case also before 

this Court, the court of appeals again 

voiced its conclusion that the statistical 

studies at issue in attacking Florida's 

death penalty statute are legally

- 58 -

▲



insufficient to merit relief or an 

evidentiary rehearing and noted that that 

determination is "supported and possibly 

even compelled" by this Court's decisions 

in the stay of execution context in 

Sullivan v. Wainwriqht, 464 U.S. 109

(1983) (stay of execution denied); 
Wainwriqht v. Adams, 466 U.S. 964 (1984)

(stay of execution vacated); and 

Wainwriqht v. Ford, 467 U.S. 1220 (1984)

(state's application to vacate stay of 

execution denied on other grounds) . The 

Eleventh Circuit noted that a plurality in 

Ford through Mr. Justice POWELL, found 

that the same statistical evidence at 

issue in this case had been deemed 

insufficient "to raise a substantial 

ground upon which relief might be granted 

in Sullivan and Adams. 104 S.Ct. at

3499. Similarly, in Stephens v. Kemp, 464 
U.S. 1027 (1984), Mr. Justice POWELL

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writing for four dissenters from a stay of

execution based upon the Baldus study

which forms the basis for the McCleskey

case, again noted the facial insufficiency

of statistical studies like those rejected

in Sullivan to demonstrate "intentional" 

discrimination:
If the Baldus study is similar to 
the several studies filed with us 
in Sullivan v. Wainwright, 464 
U.S. 109 , 104 S.Ct. 450 , 78
L .Ed.2d 210 (1983), the statistics 
in studies of this kind, many of 
which date as far back- as 1948 , 
are merely general statistical 
surveys that are hardly
particularized with respect to any 
alleged "intentional" racial 
discrimination. Surely, no
contention can . be made that the 
entire Georgia judicial system, at 
all levels, operates to
discriminate in all cases. 
Arguments to this effect may have 
been directed to the type of 
statutes addressed in Furman v. 
Georg ia, 408 U.S. 238 [92 S.Ct.
2726, 33 L .Ed.2d. 346] (1972). As
our subsequent cases make clear, 
such arguments cannot be taken 
seriously under statutes approved 
in Gregg. Id. at 1030, n. 2.

The lack of constitutional impropriety

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in Florida's statute despite the 

allegations of race of victim disparity is 

thus evinced by this Court's refusal to 

intervene on that basis in Florida cases 

to stay scheduled executions. Although 

Hitchcock predictably attempts to downplay 

the court of appeals' "speculation" as to 

the significance of these decisions, it is 
beyond comprehension to assume that given 

the qualitative difference and need for 

special care in judicial review constantly 
noted and applied by this Court in the 

irreversible context of death penalty 

cases, that executions would be allowed to 

take place if the claim raised was of 

constitutional merit. This Court, as 
correctly noted by the court of appeals 

below, has apparently accepted the 
conclusion of the Florida Supreme Court 

and the Eleventh Circuit that the 
statistical data at issue does not

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sufficiently state a claim for relief as 

made clear by this Court in Su11ivan:
Applicant apparently first 

raised the issue of discriminatory 
application of the statute in a 
supplement to his most recent 
state habeas corpus petition, 
which was filed on November 15,
1983. Counsel for applicant, who 
is white, present voluminous 
statistics that they say support 
the claim of discriminatory 
application of the death
sentence. Although some of the 
statistics are relatively new, 
many of the studies were conducted 
years ago and were available to 
applicant long before he filed his 
most recent state and federal 
habeas petitions. The Florida 
Supreme Court and both the federal 
District Court and the Eleventh 
Circuit have considered this data 
and determined in written opinions 
that it is insufficient to show 
that the Florida system is 
unconstitutionally
discriminatory. On the basis of 
the record before this Court, we 
find there is no basis for 
disagreeing in this case with 
their decisions.

104 S.Ct. at 451 (1983) .
The rationale in Spi nke11i nk and

subsequent decisions like Sullivan, Adams,

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and Ford sent a clear and proper message 

that in validating Florida's death penalty 

statute in Proffitt v. Florida, 428 U.S. 

242 (1976), this Court determined that the 

potential for arbitrary and capricious 

application of the capital sentencing 
procedure had been presumptively 

removed. Therefore mere statistical data 

which did not and could not control for 

all of the myriad variables in 

individualized sentencing determinations 

could properly be rejected on Eighth and 
Fourteenth Amendment grounds absent an 

allegation and proof of intentional and 

purposeful discrimination which cannot be 

shown under applicable equal protection 

standards through the use of simple 

statistical information which does no more 

than allegedly identify disparate impact 

without proof of discriminatory intent or 

motivation. Village of Arlington Heights

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v. Metropolitan Housing Development Corp., 

429 U.S. 252, 264-66 (1977); Washington v.

Davis, 426 U.S. 229 , 238-42 (1976).7

Since the mere statistical data like 

that which forms the basis of 
Hitchcock's discrimination claim is 

sufficient only to show a possible 

disparate impact in sentencing based 
upon race of victim,but does not and 

cannot control for the countless 

variables inherent in the .complicated 

capital sentencing procedures, such 
studies can never' on their own be 

sufficient to prove discriminatory

7Hi tchcock improperly urges the 
standard of review for Title VII cases 
noted in Texas Dept. of Community 
Affairs v. Burdine, 450 U.S. 248 
(1981). As this Court noted in
Washington v. Davis, supra, that more 
rigorous standard for evaluating racial 
impact is not applicable outside the 
Title VII context. Id., 426 U.S. at 
247-48.

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intent or demonstrate that said intent

is the only reasonable inference to be
0

drawn under the circumstances. See,

Arlington Heights, supra at 264-66.
Respondent contends that given the

^Respondent urges this Court to
utilize this decisional vehicle to reject
mere statistical attacks on the 
application of presumptively valid death 
penalty statutes as a matter of law, but
alternatively submits that petitioner
lacks standing to challenge on equal 
protection grounds the propriety of his 
death sentence because of an alleged
discriminatory impact on black victij^. 
See, Britton v. Rogers, 631 F.2d 572 (5th 
Cir. 1980), cert, denied, 451 U.b. yjy 
(1981). As the jury in each of the
Florida and federal courts whichreviewed this case have 

Hitchcock's conduct is 
the ultimate penalty; 
should not be heard to 

his death penalty

orconsidered 
determined, 
deserving of 
accordingly, he
complain that --  -
determination was improper because the 
lives of black victims have allegedly been 
devalued by our society in other, cases. 
Indeed, this Court has not chosen to 
fashion such a remedy in comparable 
situations by abolishing statutes which 
are racially neutral on their face. See, 
Briscoe v. Lahue, 460 U.S. 325 (1983).

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inherently limited nature of statistical 

studies vis-a-v is the amazingly 

complicated nature of capital sentencing 

procedures, it is impossible to prove or 

create an inference of intentional or 

purposeful discrimination against the 

backdrop of a capital sentencing statute 

specifically deemed sufficient by this 

Court to guide sentencing discretion and 

control arbitrary, and discriminatory

sentencing results.
In Pulley v. Harris, 465 U.S. 37

(1984) this Court' rejected the assertion 

that proportionality review was a 

constitutional prerequisite in the death 

penalty process. The Court further opined 

that while a capital sentencing scheme may 

produce occasional "abberational outcomes 

the system could not be expected to be 
perfect. Id., at 881. The Pulley Court's 

rejection of the necessity of comparative

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evaluation of death sentences imposed 

where a properly drafted statute 

controlling for arbitrariness through 

adequate guidelines for the imposition of 

death is involved (e.g., Florida's death 
penalty law) undermines Hitchcock's 

effort to require just such a comparative 
evaluation vis-a-vis sentences in black 

victim capital cases.
The McCleskev case also pending 

before this tribunal presents a 

statistical study of greater magnitude 

than the limited" statistical evidence 

presented to the Florida courts in this 

case or the Gross and Mauro study 

belatedly presented to the federal 

courts. The Baldus study in McCleskev 

attempts to consider far more variables 

than the Florida studies, yet it still did 

not and could not control for all 

conceivable variables under the "extremely

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complicated" Georgia death penalty process 

"in which no single factor or group of 

factors determines the outcome of a given 

case." McCleskev v. Kemp, 753 F.2d, 877, 

896 (11th Cir. 1985). Even under this

more detailed statistical data, the 

McCleskey court properly determined that 

Baldus' statistics alone could still not 
support a finding of an arbitrary or 

discriminatory result in McCleskey's 

case. The conclusion of .the McCleskey 

court is most informative and assists in 

outlining the basic faults in utilizing 

strictly statistical evidence in 
attempting to find fault with the Georgia 

(or Florida) death penalty statutes as 

applied since in requiring that the 

sentencer in death penalty cases be 

afforded a measure of discretion, the 

resultant injection of numerous factors 

which cannot be controlled for necessarily

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undermines the value of the statistical 

data obtained:
The Baldus approach, however, 
would take the cases with 
different results on what are 
contended to be duplicate facts, 
where the differences could not be 
otherwise explained, and conclude 
that the different result was 
based on race alone. From a legal 
perspective, petitioner would 
argue that since the difference is 
not explained by facts which the 
social scientist thinks
satisfactory to explain the 
differences, there is a prima 
facie case that the difference was 
based on unconstitutional factors, 
and the burden would shift to the 
state to prove the difference in 
results from constitutional
considerations. This approach
ignores the realities. It not 
only ignores quantitative
differences in cases: looks, age,
personality, e.ducation,
profession, job, clothes,
demeanor, and remorse, just to 
name a few, but it is incapable of 
measuring qualitative differences 
of such things as aggravating and 
mitigating factors. There are, in 
fact, no exact duplicates in 
capital crimes and capital 
defendants. The type of research 
submitted here tends to show which 
of the directed factors were 
effective, but is of restricted 
use in showing what undirected

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factors control the
constitutionally
discretion.

exercise of 
required

* * *

Viewed broadly, it would seem 
that the statistical evidence 
presented here, assuming its 
validity, confirms rather than 
condemns the system. In a state 
where past discrimination is well 
documented, the study showed no 
discrimination as to the race of 
the defendant. The marginal 
disparity based on the race of the 
victim tends to support the 
state's contention that the system 
is working far differently from 
the one which Furman condemned.
In pre-Furman days, there was no 
rhyme or reason as to who got the 
death penalty and who did not.
But now, in the vast majority of 
cases, the reasons for a 
difference are well documented.
That they are not so clear in a 
small percentage of the cases is 
no reason to declare the entire 
system unconstitutional.

Id. 753 F .2d at 899.
Certainly, if as respondent urges the 

McCleskey court properly found the Baldus 

study insufficient to demonstrate 

constitutional invalidity in the

70



application of Georgia's death penalty 

statute, then that court's similar 

rejection of the Florida studies at issue 

here as even less compelling should 

likewise be accepted even if this Court 

ultimately rejects the respondent's basic 

assertion that statistical studies in the 
capital sentencing context must be deemed 

insufficient as a matter of law to 

challenge the application of a death 

penalty statute otherwise . validated by 

this Court. The studies at issue in this 

case clearly do not control for anywhere 

near the number of factors involved in the 

operation of Florida's death penalty law 

from the investigative phase through 

trial, sentencing, and appeal. These 

studies were, therefore even less 

deserving of legal consideration than the 

Baldus statistics which the Eleventh 

Circuit has determined legally

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insufficient to support Eighth or 

Fourteenth Amendment challenges to the 

Georgia statute. Spencer v. Kemp, 781 

F . 2d 1458 (11th Cir. 1986); Mitchell v.

Kemp, 762 F.2d 886 (11th Cir. 1985); Ross

v. Kemp, 756 F.2d 1483 (11th Cir. 1985);

McCleskev v. Kemp, supra. See also, Rook 

v. Rice, 783 F .2d 401,407 (4th Cir. 1986) 

(rejecting argument that North Carolina's 

capital statute was being arbitrarily and 
discriminatorily applied based upon the 

race of the victim since the data and 

testimony submitted by Doctor Gross 

insufficiently demonstrated a pattern of 

discrimination in application or

intentional discrimination).
The individualized sentencing

determination required in the capital 

sentencing context requires consideration 

of all relevant non-statutory mitigating 

factors (see argument Point I) in

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conjunction with various statutory 

aggravating circumstances thus injecting 

numerous non-racial variables into the 

process to be combined with the multitude 

of factors also inherent in pre-trial 

investigation as well as the trial itself 

(e .g. , the ease or difficulty in the 
collection, marshalling, and presentation 

of legally admissible evidence; the weight 

attached to such evidence by the fact 

finder; the skill and experience of the 
prosecutor as well as his perception of 

the case, etc.) . -.How can it be said then 

that statistical data which cannot control 

for such factors can ever be relied upon

to demonstrate a society____ based
discrimination against black victims in 

Florida, Georgia, and virtually

nationwide, when no such society based 

prejudice is demonstrated against black 

defendants in the death penalty context?

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Is it not more reasonable to assume that 

the lack of race of defendant-based 

discrimination evident in the statistics 

demonstrates that the statutes deemed

sufficient to control arbitrariness and 

discrimination by this Court are 

functioning well, than to assume that some 

invidious, deep-seated race of victim- 

based discrimination has nevertheless 

infested our society and is manifesting 

itself throughout the death penalty 

process and skewing the imposition of the 

ultimate penalty? Certainly, if racial

discrimination was the motivating factor

in the alleged disparity in death

sentences for white victims then that bias 

would be expected to reveal itself in the 

more direct form of discrimination based 

upon the race of the killer.
It has become clear that capital 

punishment continues as an accepted and

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necessary component in a majority of this 

country's penal systems as demonstrated by 

the resurrection, by a multitude of 

jurisdictions, of the penalty after Furman 

in various forms hoped to be sufficient to 

satisfy the somewhat unspecific 

requirements of the plurality. Some 

states failed to correctly guess the 
eventual import of Furman and their 

mandatory death penalty statutes were 

rejected, Woodson v. North -Carolina, 428 

U.S. 280 (1976); Roberts v. Louisiana, 428 

U.S. 325 (1976); but others, including

Florida, drafted statutes which guided the 

sentencer's discretion and provided other 

checks on the ultimate sentencing 

determination (e.g., through automatic 

state appellate review proceedings) to 

further assure that the arbitrariness, 
discrimination, and capriciousness

targeted in Furman would be removed. Now

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ten years after Florida's reformed death 

penalty law was specifically validated 

against arbitrariness challenges by this 

Court and a modicum of success achieved 

in carrying out the will of its people in 

punishing with death those who have been 

convicted and sentenced under the 

constitutionally validated system and the 

painstaking review that accompanies such 

sentences at both the state and federal 

court level, the claim is raised that this 

Court should once again allow 

arbitrariness challenges to that statute 

upon mere statistical data which at best 

suggests the possibility of a race of 

victim based disparity in sentencing. 

Would justice be served by invalidating an 
otherwise constitutional expression and 

application of the collective will of the 
people of a sovereign state upon such an 
inexact statistical basis where to do so

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would not alleviate the claimed

prejudice,(i.e., the devaluation of the 

lives of black murder victims) and would 

simply assure that all those sentenced to 

death for murdering whites (even those who 

rape and murder thirteen year olds) would 

not receive the punishment deemed 
necessary and appropriate by the people of 

Florida, the trial jury, the trial judge, 

and the Florida Supreme Court in this case 

because of an alleged societal prejudice 

which appears only when a black is the 

victim of a murder and not when he is in 

fact the murderer? ' If we accept the 

petitioner's premise, would it not then be 

necessary to preclude executions for all 

those who murder black victims to ensure 

consistency and non-discrimination in 

application —  a strange remedy to the 

perceived problem of receiving adequate 

retribution for the murderers of blacks

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the deathand adequate enforcement of 
penalty statute to protect the black 

population.
Furthermore, if such society based 

race of victim discrimination occurs in 

death cases where Florida judges actually 

impose the sentence, is it not reasonable 

to assume that such invidious 
discrimination exists at all levels of 

criminal punishment necessitating the 

invalidation of all "state penal 
statutes? Does "equal protection" in such 

an imperfect society therefore require 

that no one be punished no matter how 

deserving of punishment under their 

peculiar factual circumstances so as to 

assure equality in application, or more 
correctly, non-application, of a facially 

non-discriminatory statute because of 

pervasive subconscious prejudice possibly 

demonstrated by mere statistical data?

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To ultimately accept the petitioner's 

race-of-victim disparity argument would be 

to reject in toto Florida's death penalty 

statute upon a mere statistical 

possibility of a non-governmental societal 

prejudice without apparent hope of 

correction especially since the specific 

perpetrator or perpetrators (be they mere 
citizens, investigators, prosecutors, 

juries, or judges) of this alleged 

disproportionate punishment remain

unidentified. Gross and Mauro, supra, at 

pp. 106-110. Florida like a majority of 

states, has invested its time and energy 

and answered the demands of its people by 

drafting a death penalty statute 

sufficient to address the concerns of 

Furman and that statute has been 

determined by ■ this Court adequate to 

channel discretion and presumptively 
remove arbitrariness and discrimination in

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capital sentencing. Sixteen men have been 

executed in this state and hundreds more 

prosecuted, convicted, and sentenced under 

the implicit assurance that in applying 

the new statute as drafted the state could 

seek to impose the punitive will of its 

people through the ultimate penalty in the 

appropriate situation. Many others have 

been executed under statutes in other 

states which may very well have this same 

form of inherent prejudice lurking in its 

citizens and officials but which have not 

been the subject of studies or adequate 

statistical data. Hitchcock has not 

alleged nor can he demonstrate that he was 

sentenced to death because his victim was 

white. Indeed, the heinousness of his 

crimes speak for themselves. It would be 
utterly preposterous to assert in this 

case that had he raped and murdered a 
thirteen-year-old black girl that the

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death penalty would not have resulted. He 

has neither alleged nor demonstrated an 

intentional governmental effort to 

discriminate against him or others in the 

application of Florida's death penalty 

statute upon any racial factor. To accept 

his argument that no matter how grievous 
his crime he should be absolved of the 
proper and ultimate punishment for its 
commission upon the mere statistical 

conjecture presented will not only serve 

to clearly undermine the continued 

application of any death penalty statue in 

this nation but will also clearly 

■devalue" the life of the young female 

victim brutalized by the petitioner as 

well as the society that depends upon its 

properly enacted death penalty law to 

serve its retribution and deterrence 

f unctions.

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CONCLUSION

Based on the above and foregoing, we 

respectfully request this Court to affirm 

the judgment of the Eleventh Circuit Court 

of Appeals which determined that Hitchcock 

was entitled to no habeas relief.
Respectfully submitted,

JIM SMITH
ATTORNEY GENERAL

Sean Daly
Assistant Attorney General 
125 North Ridgewood Avenue 
Fourth Floor 
Daytona Beach,
Florida 32014 
(904) 252-1067
COUNSEL FOR RESPONDENT

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