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

Citation: Not availableDocket: SC19-373 & SC19-1766

Court: Supreme Court of Florida; August 26, 2021; Florida; State Supreme Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Gary Michael Hilton appeals the denial of his motion to vacate his first-degree murder conviction and death sentence, filed under Florida Rule of Criminal Procedure 3.851, and seeks a writ of habeas corpus. The Supreme Court of Florida has jurisdiction and has affirmed the postconviction court's order while denying Hilton's habeas petition. 

Hilton was convicted for the December 2007 kidnapping and murder of Cheryl Dunlap. Notably, Dunlap was last seen alive on December 1, 2007, when she made plans for dinner. After failing to arrive for dinner and missing church the next day, a missing person report was filed. Her car, found with punctured tires and her purse inside, was discovered on December 3, 2007. Bank records indicated that Dunlap made a check deposit on December 1 and that her account showed multiple cash withdrawals totaling $700 between December 2 and 4, 2007. 

Dunlap's body was located on December 15 in the Apalachicola National Forest, partially covered with brush and dismembered; her head and hands were missing. An autopsy by Dr. Anthony Clarke determined that the dismemberment occurred postmortem, and while the exact cause of death was undetermined, signs indicated a violent homicide. A bruise on Dunlap's back suggested foul play, and she was estimated to have died between December 5 and 8, 2007. On January 9, 2008, remains believed to be her head and hands were found in a fire pit, but DNA could not be recovered due to burn damage.

Dr. Anthony Falsetti, a forensic anthropologist, determined that the bones in question belonged to an adult with small hands. Witnesses reported seeing Hilton during Dunlap’s disappearance, including one who observed him searching a white Toyota Camry and another who interacted with him in a convenience store while he wore a shirt matching one seen on ATM surveillance. Following his arrest in Georgia for a separate murder, Hilton directed authorities to a bayonet he abandoned on a hiking trail, which an FDLE tool mark expert linked to puncture marks on Dunlap’s tire.

On June 6, 2008, Hilton was transported from Georgia to Florida. During the journey, he spoke extensively, making self-incriminating statements that were recorded. He described himself as "not all bad" and expressed feelings of having lost control of his life, referencing his past and a retired FBI agent's comments about him. Additionally, Hilton made incriminating comments to a fellow inmate, overheard by a correctional officer.

During the penalty phase of his trial, the State introduced evidence of Hilton's prior murder in Georgia, to which he had pleaded guilty. On February 21, 2011, the jury unanimously recommended the death penalty. The trial court identified six aggravating factors—including previous violent felony conviction and the murder being committed during a kidnapping—assigning varying weights to each. The court also recognized one statutory mitigating factor relating to Hilton’s extreme emotional distress at the time of the murder and considered ten mitigating circumstances, accepting eight. Among those accepted were Hilton's abusive upbringing and drug abuse, while others, such as his claimed traumatic brain injury and severe mental defects, were not proven.

The court determined that the aggravating factors in Hilton's case outweighed the mitigating factors and upheld his conviction and sentence following direct appeal. Hilton filed his initial postconviction relief motion on November 26, 2014, and subsequently submitted a Second Motion to Amend, including seven claims, on April 20, 2017. Claim 6 was dismissed without prejudice for legal insufficiency and was later amended. An evidentiary hearing took place, leading to the trial court's denial of Hilton’s postconviction relief motion on February 12, 2019, which is currently under appeal alongside a petition for a writ of habeas corpus.

Most claims in Hilton's appeal center on ineffective assistance of trial counsel, which requires demonstrating two main elements under Strickland v. Washington: (1) Counsel’s performance must be deficient, meaning it fell below the Sixth Amendment standard, and (2) Such deficiency must have prejudiced the defendant, undermining the trial's reliability. The burden is on the defendant to show that the alleged errors had a reasonable probability of altering the outcome of the trial. The court employs a mixed standard of review for these claims, deferring to factual findings supported by evidence while reviewing legal conclusions de novo.

In his first claim, Hilton contends that his trial counsel was ineffective for failing to present available mitigation evidence during the penalty phase. However, the mere absence of such evidence does not automatically prove ineffective assistance; the defendant must specifically identify acts or omissions by the counsel that fall outside the range of reasonably competent performance.

Strategic decisions made by counsel do not qualify as ineffective assistance if alternative options were considered and the chosen course was reasonable within professional standards. Disagreement with trial counsel's strategic choices does not automatically imply ineffectiveness. In Hilton's case, the presence of one statutory and eight nonstatutory mitigators weakens claims that further mitigation would have changed his sentence or that trial counsel was deficient. Previous rulings indicate that significant performance deficiencies are linked to the failure to present evidence when minimal mitigating factors exist. Although the trial court dismissed two of Hilton's ten proposed mitigators, he did not adequately demonstrate how evidence from the evidentiary hearing would have influenced the outcome.

Ineffective assistance may apply if counsel ignores known mitigation leads, but in this instance, trial counsel opted not to present additional evidence that could negatively impact Hilton's image. This choice is crucial because evaluating prejudice requires considering all potential evidence, including that which could lead to more harmful implications. Claims of ineffective assistance do not hold if the omitted evidence poses risks of introducing damaging information. The decision to rely on expert witnesses rather than lay witnesses is deemed reasonable, and Hilton has not shown a reasonable probability that the overall balance of aggravating and mitigating circumstances would have altered if additional mitigating evidence had been presented. Given the substantial aggravating factors in his case, Hilton fails to establish a likelihood that he would have received a life sentence with the additional evidence introduced at the evidentiary hearing.

Hannon was unlikely to receive a life sentence given the brutal nature of the murders, leading to the conclusion that Hilton fails to demonstrate ineffective assistance of counsel under the Strickland standard. Hilton's claims regarding disarray among his defense team lack specific acts of deficient performance that could have impacted the case outcome, failing to meet Strickland's requirements. His only concrete allegation involves Officer Wynn's testimony about incriminating statements, but the circuit court attributed trial counsel's surprise to the State's failure to disclose the witness, not to ineffective preparation. Additionally, Hilton's incriminating statements to law enforcement, presented to the jury, further diminish the significance of his claims.

Hilton also contends that his trial counsel's inconsistent reliance on circumstantial evidence during the guilt phase and mental health evidence in the penalty phase constituted ineffective assistance. However, the court notes that a cohesive strategy is not mandatory if the mitigating evidence contradicts the guilt phase theory, as established in previous cases. The trial record indicates that counsel had valid reasons for their strategic choices, and since Hilton supported contesting all aspects of the case, he cannot claim ineffective assistance. Consequently, Hilton's inability to refute the presumption of sound trial strategy precludes him from receiving relief under Strickland.

Hurst Hilton contends that the postconviction court incorrectly denied his claim for relief under the precedents set by Hurst v. Florida and Hurst v. State. The court's ruling came after the applicable legal analysis changed with State v. Poole, where it clarified that the requirement for a jury to unanimously find at least one statutory aggravating circumstance beyond a reasonable doubt mitigates any Hurst error. Hilton's prior Georgia murder conviction and contemporaneous kidnapping conviction fulfill this requirement, as established in Poole and Boyd v. State.

Hilton also argues ineffective assistance of counsel regarding the death penalty's applicability due to his mental health issues. However, Florida courts have consistently ruled that mental illness does not exempt individuals from execution, rejecting claims equating mentally ill inmates with those having intellectual disabilities or juveniles. Thus, counsel's failure to raise this meritless argument cannot be deemed ineffective.

Furthermore, Hilton argues that trial counsel was ineffective for not preserving cause challenges during jury selection. To establish actual bias for a juror, a litigant must demonstrate clear bias preventing impartial service. The standard for postconviction relief is stricter than for direct appeals, requiring timely and specific objections. Failure to lodge a second objection before the jury is sworn signifies abandonment of the initial objection, further weakening Hilton's claims. Consequently, the court correctly denied Hilton's claims for relief.

Hilton's claims of ineffective assistance of counsel are unsubstantiated as he fails to specify any particular cause challenge that should have been preserved, rendering his general allegations insufficient to prove deficient performance. Consequently, a prejudice analysis is unnecessary. The postconviction court correctly denied Hilton's claim of ineffective assistance because he did not establish actual bias from any juror, nor demonstrate how such bias would have prejudiced his case. 

In his habeas petition, Hilton contends that appellate counsel was ineffective for not challenging the denial of a change of venue. To succeed in such a claim, Hilton must show both deficient performance and resulting prejudice, following the Strickland standard. The decision for a change of venue is evaluated under an abuse of discretion standard, requiring proof of the extent of pretrial publicity and difficulties in jury selection. Hilton has not identified any biased jurors or demonstrated that any potential bias was not rehabilitated through voir dire. Additionally, he failed to articulate how the denial of the change of venue impacted the trial's outcome, leading to the conclusion that appellate counsel's performance was adequate.

Hilton further argues that appellate counsel was ineffective for not raising a claim of judicial bias against Judge Hankinson, alleging the judge treated trial counsel unfavorably. However, this claim would have been procedurally barred on direct appeal due to Hilton's failure to file a motion for disqualification after becoming aware of the grounds for such a motion. The absence of a disqualification motion means that any potential bias claims cannot support a claim for postconviction relief.

Hilton's claim of judicial bias is procedurally barred and lacks evidence of actual bias, as his allegations are primarily based on adverse rulings and critical remarks towards trial counsel, which do not substantiate a bias challenge per legal standards set forth in Schwab and Liteky. Furthermore, Hilton's assertions regarding ineffective assistance of appellate counsel for failing to challenge biased jurors are governed by preservation requirements established in Carratelli. To preserve such challenges, a defendant must make a contemporaneous objection and a subsequent objection before the jury is sworn; failure to do so indicates abandonment of the initial objection. Hilton's claim is also procedurally barred as it was previously raised in a postconviction relief motion, where he criticized counsel for not preserving challenges to jurors. He argues that his postconviction and habeas claims are distinct, but this distinction is deemed meritless. Overall, Hilton's failure to demonstrate error or prejudice in the trial court's decisions further undermines his claims.

In Schwab v. State, the court ruled that a habeas claim of judicial bias was procedurally barred since it was addressed in a postconviction relief motion. Schwab's habeas claim was also barred because it was previously rejected during his rule 3.850 appeal. Appellate counsel is not considered ineffective for not raising an issue that was not objected to during the trial. Habeas corpus petitions cannot be used for issues that were or could have been raised in prior appeals or motions. 

Hilton's argument concerning ineffective assistance of appellate counsel for not challenging the denial of a juror panel strike due to exposure to a prejudicial article was found to lack merit. The claim was not preserved properly, as trial counsel's objections were either untimely or too generalized, failing to meet the requirement for a contemporaneous objection and a specific challenge before the jury was sworn. 

Additionally, Hilton argued that appellate counsel was ineffective for not contesting the trial court's denial of a motion to continue the trial. Trial counsel had filed two motions for continuance, citing the case's complexity and the State's discovery noncompliance, with the latter motion filed shortly before the trial began. The standard for reviewing such denials is abuse of discretion. Hilton did not demonstrate how appellate counsel's failure to challenge the denial resulted in any prejudice, thereby failing to establish ineffective assistance.

Hilton's appeal was unsuccessful due to the failure to demonstrate how the trial counsel's inability to secure a continuance affected the cross-examination of witnesses. The court referenced multiple cases, indicating that merely citing a large number of potential witnesses does not substantiate a claim for a continuance. Consequently, Hilton's argument was deemed unlikely to succeed on appeal. Furthermore, the court found that Hilton did not adequately show deficient performance regarding appellate counsel's failure to challenge the admission of charred human bone fragments as evidence. Despite the lack of direct evidence linking the bones to the victim, the presence of substantial circumstantial evidence suggested the contrary. Hilton's claim that the admission of this evidence was prejudicial did not undermine the appellate process or confidence in the outcome. Thus, the court affirmed the postconviction ruling and denied the writ of habeas corpus. The decision was concurred by several justices, with one not participating, and was noted as not final until the time for filing a rehearing motion had expired.