& SC14-22 Roderick Michael Orme v. State of Florida and Roderick Michael Orme v. Julie L. Jones, etc. – Revised Opinion , 214 So. 3d 1269 ( 2017 )

Supreme Court of Florida
____________
No. SC13-819
____________
RODERICK MICHAEL ORME,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC14-22
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RODERICK MICHAEL ORME,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[March 30, 2017]
REVISED OPINION
PER CURIAM.
Roderick Michael Orme appeals an order of the circuit court denying his
motion to vacate his sentence of death, filed under Florida Rule of Criminal
Procedure 3.851, and he petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we
grant Orme a new penalty phase based on the United States Supreme Court’s
decision in Hurst v. Florida, 136 S. Ct. 616 (2016), as interpreted by our decision
in Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998
(U.S. Feb. 13, 2017).1
FACTS AND PROCEDURAL HISTORY
A full description of the facts of the instant case can be found in our opinion
from Orme’s direct appeal. Orme v. State (Orme I), 677 So. 2d 258, 260-61 (Fla.
1996). The facts relevant here are as follows. In March 1992, Orme was charged
with premeditated or felony murder, robbery, and sexual battery in connection with
the death of Lisa Redd, whose body was found in Orme’s motel room. Id. at 260.
A jury convicted Orme on all three counts and recommended the death penalty by
a vote of seven to five. Id. at 261. The trial judge followed the recommendation
and sentenced Orme to death, finding three aggravating factors—committed during
the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed
for pecuniary gain. Id. In mitigation, the judge found both statutory mental health
mitigators (substantial impairment and extreme emotional disturbance), giving
1. We previously issued a decision in this case on December 10, 2015.
While Orme’s rehearing was pending, we granted his motion to permit
supplemental briefing. We withdraw our previous opinion and replace it with this
opinion.
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them “some weight.” Id. We have previously described the procedural history of
this case as follows:
On direct appeal, Orme raised eight issues. [n.1] This Court affirmed
Orme’s conviction of first-degree murder and the sentence of death.
[Orme I, 677 So. 2d at 261-64.] Orme filed a petition for writ of
certiorari with the United States Supreme Court. That Court denied
review on January 13, 1997. Orme v. Florida, 519 U.S. 1079 (1997).
[N.1] The following issues were raised: (1) the trial court
should have directed a judgment of acquittal on grounds
the case against him was circumstantial and the State had
failed to disprove all reasonable hypotheses of innocence;
(2) Orme’s statements to officers should have been
suppressed on grounds he was too intoxicated with drugs
to knowingly and voluntarily waive his right to silence;
(3) death is not a proportionate penalty because Orme’s
will was overborne by drug abuse, and because any fight
between the victim and him was a “lover’s quarrel”; (4)
Orme’s mental state at the time of the murder was such
that he could not form a “design” to inflict a high degree
of suffering on the victim; (5) the trial court erred by
failing to weigh in mitigation the fact that Orme had no
significant prior criminal history; (6) the trial court erred
in declining to give a special instruction that acts
perpetrated on the victim after her death are not relevant
to [the HAC aggravato]r; (7) the instruction on [HAC]
violated the dictates of Espinosa v. Florida, 505 U.S.
1079 (1992); and (8) Orme was incapable of forming the
specific intent necessary for first-degree murder and this
fact bars his death sentence under Enmund v. Florida,
458 U.S. 782 (1982).
Subsequently, Orme filed an amended motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure
3.851, raising twenty-five claims. After an evidentiary hearing on
four claims of ineffective assistance of trial counsel, the trial court
denied relief. Orme appealed the denial of postconviction relief to
this Court, raising three claims. [n.2] He also petitioned the Court for
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a writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State
(Orme II), 896 So. 2d 725, 737 (Fla. 2005)]. This Court found
defense counsel ineffective for failing to further investigate Orme’s
diagnosis of bipolar disorder with respect to the penalty phase. As a
result, a new penalty phase was ordered. Id. [at 740-41].
[N.2] Orme argued that (1) the trial court erred in
denying his ineffective assistance of counsel claim for
trial counsel’s failure to present evidence of Orme’s
diagnosis of bipolar disorder; (2) his death sentence is
unconstitutional pursuant to Ring v. Arizona, 536 U.S.
584 (2002), and its progeny; and (3) the general jury
qualifications procedure in Bay County, where he was
tried, was unconstitutional. [Orme II], 896 So. 2d 725
(Fla. 2005).
[N.3] Three of the claims Orme raised were: (1)
appellate counsel was ineffective for failing to raise on
appeal the fact that Orme was involuntarily absent from
two bench conferences, which he claims were critical
stages of his trial; (2) appellate counsel was ineffective
for failing to raise on appeal the claim that the prosecutor
engaged in misconduct rendering the conviction and
sentence fundamentally unfair; and (3) appellate counsel
was ineffective for failing to raise on appeal the claim
that the trial court erroneously allowed forty-three
gruesome photographs to be shown to the jury. Orme
raised five additional claims, all of which were found not
to be properly raised in a habeas proceeding because they
were either raised on direct appeal or in postconviction or
should have been raised and were therefore procedurally
barred. [Orme II, 896 So. 2d at 740].
In May 2007, a new penalty phase was conducted before a new
jury, but before the original trial judge. By a vote of eleven to one,
the new jury recommended a death sentence. The trial court followed
the jury’s recommendation and sentenced Orme to death. The trial
court found the following three statutory aggravating factors: (1) the
capital felony was committed for pecuniary gain; (2) the capital felony
was committed while the defendant was engaged in the commission
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of, or an attempt to commit, or flight after committing or attempting to
commit a sexual battery; and (3) the capital felony was especially
heinous, atrocious, or cruel. The trial court also found three statutory
mitigators: (1) the defendant had no significant criminal history (little
weight); (2) the capital felony was committed while the defendant was
under the influence of extreme mental or emotional disturbance (little
weight); and (3) the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired (little weight).
The trial court also found that the following mitigation was either
irrelevant to the murder or did not exist and, as a result, gave them no
weight: (1) the age of the defendant; (2) a bipolar disorder contributed
significantly to the defendant’s substance abuse; (3) the defendant had
a difficult childhood; (4) the defendant is a model prisoner; (5) the
defendant’s potential for rehabilitation; and (6) the defendant tried to
get the victim help.
Orme v. State (Orme III), 25 So. 3d 536, 542-43 (Fla. 2009).
At resentencing, Orme was initially represented by Russell Ramey, who was
appointed after the Public Defender’s Office certified to the court a conflict of
interest and moved for appointment of separate counsel. Subsequently, attorneys
Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of
appearance as co-counsel to Ramey. However, at a September 7, 2005, hearing,
the trial court informed Butters and Schulz that their pro bono representation of
Orme as co-counsel to Ramey could prompt Ramey’s withdrawal from the case, as
the Justice Administrative Commission (JAC) would not pay for court-appointed
counsel when private counsel had been obtained. Thus, on November 2, 2005,
Butters and Schulz filed a motion for appointment of Michel Stone as co-counsel
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for Orme.2 A hearing was held on the motion on November 7, 2005, and the trial
court conducted a colloquy with Orme, eventually appointing Stone as co-counsel
to Ramey.
Orme appealed the death sentence he received at resentencing to this Court,
raising nine claims.3 Orme III, 25 So. 3d at 540, 543. We affirmed his sentence,
finding no reversible error. Id. at 543-53. Orme then filed a petition for writ of
certiorari with the United States Supreme Court, which that Court denied on June
7, 2010. Orme v. Florida, 560 U.S. 956 (2010).
2. Stone had briefly represented Orme before the start of Orme’s original
trial proceedings, when Stone left the Public Defender’s Office to enter private
practice.
3. The nine claims were that the trial court erred in (1) refusing to allow
Orme to challenge for cause prospective jurors who could not consider remorse as
a mitigator; (2) refusing to allow him to inquire of prospective jurors whether they
could consider recommending a life sentence as a matter of mercy even if the
aggravators outweighed the mitigators; (3) failing to dismiss the venire after one
prospective juror revealed that Orme had a prior conviction; (4) refusing to allow
Orme to waive his right to the sentencing option of life in prison without the
possibility of parole for twenty-five years in favor of a harsher punishment of life
in prison without the possibility of parole; (5) failing to give weight to Orme’s
difficult childhood, the fact that Orme was a model prisoner, Orme’s potential for
rehabilitation, and Orme’s attempt to get the victim help; (6) finding that the
pecuniary gain aggravator applied; (7) finding the HAC aggravator; and (8) finding
that the “murder was committed in the course of a sexual battery” aggravator
applied; and (9) that Orme’s death sentence violated Ring v. Arizona, 536 U.S. 584
(2002). Id. at 543-53.
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On June 1, 2011, Orme filed the instant motion for postconviction relief,
presenting four claims of ineffective assistance of counsel—that resentencing
phase counsel rendered ineffective assistance by (1) violating the Sixth, Eighth,
and Fourteenth Amendments; (2) failing to object to the prosecutor’s improper
arguments at resentencing; (3) failing to preserve the trial court’s error in holding
that a juror’s refusal to consider remorse as a mitigator could only be a basis for a
peremptory challenge; and (4) failing to preserve the issue of the jury’s
consideration of mercy in making its sentencing recommendation. He also raises
two additional claims: that rules prohibiting Orme’s lawyers from interviewing
jurors to discover constitutional error violate Orme’s constitutional rights and that
Orme’s death sentence violates the Eighth Amendment. The State filed its
response on July 26, 2011. The postconviction court granted an evidentiary
hearing on Orme’s first claim only. The hearing began on April 30, 2012. On
March 1, 2013, the court entered an order denying all of Orme’s postconviction
claims.
Orme now appeals the denial of his motion, raising four claims of ineffective
assistance of resentencing phase counsel4 and one claim of ineffective assistance of
4. These claims are the same as the first four claims presented to the
postconviction court in Orme’s motion below—that resentencing phase counsel
rendered ineffective assistance by (1) violating the Sixth, Eighth, and Fourteenth
Amendments; (2) failing to object to the prosecutor’s improper arguments at
resentencing; (3) failing to preserve the trial court’s error in holding that a juror’s
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postconviction counsel. Orme also petitions this Court for a writ of habeas corpus,
alleging that appellate counsel rendered ineffective assistance by failing to raise the
following issues on appeal from the resentencing: (1) the use of restraints on Orme
during resentencing; (2) the State’s participation in privileged discussions and
communications of defense counsel in violation of the Equal Protection Clause;
and (3) improper arguments by the prosecutor at resentencing.
ANALYSIS
Because Orme’s claims all relate to his resentencing and we determine that
Orme is entitled to relief pursuant to Hurst, we do not address his other
postconviction claims or the issues raised in his petition for a writ of habeas
corpus.
Hurst v. Florida and Hurst
In Hurst v. Florida, the United States Supreme Court declared our capital
sentencing scheme unconstitutional because “[t]he Sixth Amendment requires a
jury, not a judge, to find each fact necessary to impose a sentence of death. A
jury’s mere recommendation is not enough.” Hurst v. Florida, 136 S. Ct. at 619.
Pursuant to the Supreme Court’s decision in Hurst v. Florida, Orme filed a motion
refusal to consider remorse as a mitigator could only be a basis for a peremptory
challenge; and (4) failing to preserve the issue of the jury’s consideration of mercy
in making its sentencing recommendation.
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to permit supplemental briefing. We granted the motion, and Orme now contends
that he is entitled to relief under Hurst v. Florida because of his eleven-to-one jury
vote recommending death. On remand from the United States Supreme Court we
held that the jury must unanimously find the existence of each aggravating factor
beyond a reasonable doubt, must unanimously find the aggravating factors are
sufficient, and must unanimously find that the aggravating factors outweigh the
mitigating circumstances. Hurst, 202 So. 3d at 53-54.
Thereafter, in Mosley v. State, 41 Fla. L. Weekly S629, 2016 WL 7406506
(Fla. Dec. 22, 2016), we determined that Hurst v. Florida and Hurst apply
retroactively to defendants, like Orme, whose sentences were not yet final when
the Supreme Court issued Ring. See Mosley, 2016 WL 7406506 at *25.
Because we conclude that Hurst applies to Orme, we next examine whether
any Hurst error was harmless beyond a reasonable doubt. On remand from the
United States Supreme Court, in Hurst we explained the appropriate standard for
harmless error review:
Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
context of a Hurst v. Florida error, the burden is on the State, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
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jury’s failure to unanimously find all the facts necessary for
imposition of the death penalty did not contribute to Hurst’s death
sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
Hurst, 202 So. 3d at 68 (alteration in original). As applied to the right to a jury
trial with regard to the facts necessary to impose the death penalty, it must be clear
beyond a reasonable doubt that a rational jury would have unanimously found all
facts necessary to impose death and that death was the appropriate sentence.
Given the jury vote of eleven to one, it is impossible for this Court to
determine which, if any, of the aggravators5 the jury would have found
unanimously if properly instructed. Moreover, we cannot determine whether the
jury would have found “that there were sufficient aggravating factors to outweigh
5. The trial court found three aggravating factors: (1) the capital felony was
committed for pecuniary gain; (2) the capital felony was committed while the
defendant was engaged in the commission of, or an attempt to commit, or flight
after committing or attempting to commit a sexual battery; and (3) the capital
felony was especially heinous, atrocious, or cruel. Orme II, 25 So. 3d at 542-43.
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the mitigating circumstances.” Id. Accordingly, we cannot conclude that the Hurst
error in this case was harmless beyond a reasonable doubt.
CONCLUSION
Based on the foregoing, we grant Orme’s supplemental claim for relief
under Hurst and vacate his death sentence and remand this case for a new penalty
phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., dissent.
LAWSON, J., did not participate.
NO MOTION FOR REHEARING WILL BE ALLOWED.
An Appeal from the Circuit Court in and for Bay County,
Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX
And an Original Proceeding – Habeas Corpus
Linda McDermott of McClain & McDermott, P.A., Estero, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
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