Hilton v. State

326 So.3d 640

Gary Michael HILTON, Appellant,

v.STATE of Florida, Appellee.

Gary Michael Hilton, Petitioner,

v.Mark S. Inch, etc., Respondent.

No. SC19-373

No. SC19-1766

Supreme Court of Florida.

August 26, 2021

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

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 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 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 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.

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 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 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.

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 [104 S.Ct. 2052, 80 L.Ed.2d 674] (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 ,

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