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Date: 03-18-2017

Case Style:

WILLIE JAMES HODGES vs. STATE OF FLORIDA

Case Number: SC14-878

Judge: Jorge Labarga

Court: Supreme Court of Florida

Plaintiff's Attorney:

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General

Defendant's Attorney:



Bob Norgard


Description:

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Hodges was convicted of first-degree murder and sentenced to death. On
appeal, we affirmed the conviction and the death sentence. Hodges v. State, 55 So.
3d 515, 519 (Fla. 2010). The evidence showed that the victim was bludgeoned and
stabbed in her home. Id. Her relatives came to the home while the intruder was
still inside. Id. The relatives heard window glass breaking, and one of them saw
the intruder run away and scale a fence into a neighbor’s yard. Id. A claw hammer
and a braided brown leather belt were found by the body. Id. at 520. The victim’s
purse was missing. Id. at 519. Some photographs and a knife with a black plastic
handle were found on the ground outside the broken window. Id. at 520. The
hammer and the knife were the probable murder weapons. Id. Police used a
canine to track the suspect’s path of escape. Id. at 519. Along the path they found
a jacket, two shoes, and two white socks. Id. The victim’s daughter testified that
the jacket looked like the one she had seen on the fleeing intruder. Id. at 520. A
witness who was married to Hodges’s niece testified that he had previously seen
Hodges wearing the jacket and shoes that were admitted into evidence. Id.
Another witness testified that Hodges owned a braided leather belt and carried a
knife with a black handle and identified the items in evidence as similar. Id.
Another witness testified that some of the photographs found outside the victim’s
window were photographs that she had mailed to Hodges, and she identified her
handwriting on the back of one of the photos. Id. The parties also stipulated that
Hodges’s writing was on another one of the photos, and Hodges’s fingerprints
were on two of the photos. Id.


- 3 -
A DNA profile developed from blood on one of the socks was compared to
Hodges’s DNA profile and was found to match on all thirteen available markers,
with a random match probability of one in 990 quadrillion. Id at 521. Analysis
conducted on mitochondrial DNA collected from a hair found on the victim’s
clothing and a hair found on the jacket did not exclude Hodges as the donor but
would exclude 99.88 percent of randomly selected individuals. Id. Male DNA
detected in material from an anal swab of the victim matched Hodges’s DNA
profile on the six available markers and would exclude 96 percent of the male
population. Id. Material from the other sock yielded two separate partial DNA
profiles that were consistent with Hodges’s DNA but would exclude 99.92 and
99.9 percent of the male population, respectively, and all of the female population.
Id. There was also testimony that Hodges admitted his guilt to a cellmate and to
the daughter of a woman he had dated. Id. at 522.
Evidence of a collateral murder was admitted under the Williams1 rule. Id.
at 521. The evidence included DNA from sperm cells detected on a vaginal swab,
which matched Hodges’s DNA profile on five markers. Id. A separate sample of
epithelial cells from the swab matched his profile on seven markers. Id. at 521-22.
There was also evidence that a bruise on the body of the victim of the collateral

1. See Williams v. State, 110 So. 2d 654 (Fla. 1959).


- 4 -
murder was probably a bite mark, and a forensic dentist testified that the mark was
consistent with Hodges’s teeth. Id. at 522.
The jury recommended a sentence of death by a vote of ten to two. Id. at
525. The trial court found five aggravating circumstances were proven beyond a
reasonable doubt: (1) the defendant was under sentence of imprisonment at the
time of the murder; (2) the defendant had previously been convicted of a felony
involving violence; (3) the murder was committed while the defendant was
engaged in the commission of or an attempt to commit sexual battery; (4) the
murder was committed for pecuniary gain; and (5) the murder was especially
heinous, atrocious, or cruel. Id. at 542. The court found the following statutory
mitigating circumstances: (1) at the time of the murder the defendant was under the
influence of an extreme mental or emotional disturbance; (2) the capacity of the
defendant to conform his conduct to the requirements of the law was substantially
impaired; and (3) the age of the defendant at the time of the crime. Id. The court
also found numerous nonstatutory mitigating circumstances having to do with
Hodges’s low intelligence, difficult upbringing and background, mental and
emotional problems, and similar or related matters. Id.
In his direct appeal to this Court, Hodges argued: (1) that the trial court
should have allowed the jury to determine the issue of mental retardation; (2) that
the trial court erred in finding he was not mentally retarded; (3) that the trial court


- 5 -
erred in ruling that the State could discuss the collateral crime evidence in its
rebuttal argument; (4) that the trial court allowed the collateral crime evidence to
become a feature of the trial; (5) that the trial court erred in refusing to allow
Hodges to waive a penalty-phase jury; and (6) that the death sentence was
impermissible under Ring v. Arizona, 536 U.S. 584 (2002). Id. at 526. We
rejected all of Hodges’s arguments, concluded that the evidence was sufficient to
support the verdict and the death sentence was proportionate, and we affirmed the
conviction and sentence. Hodges filed a petition for certiorari in the United States
Supreme Court, which was denied. Hodges v. Florida, 565 U.S. 846 (2011).
In his motion for postconviction relief, Hodges raised the following claims:
(1) trial counsel was ineffective in failing to retain a DNA and statistics expert to
help counsel challenge the admissibility of the State’s DNA and statistics evidence
and cross-examine the State’s experts; (2) counsel was ineffective in cross
examining the State’s scientific experts regarding their statistical calculations and
in failing to present expert testimony to rebut the State’s scientific evidence; (3)
counsel was ineffective in failing to consult an expert and to object to testimony
about DNA from the body of the collateral crime victim on the ground that the
testing and analysis did not comply with applicable standards for accuracy and
reliability; (4) counsel was ineffective in failing to present the testimony of
Hodges, who would have testified that the personal belongings linking him to the


- 6 -
crime scene were stolen from him prior to the murder; (5) counsel was ineffective
in failing to cross-examine the State’s witnesses who identified the jacket and
shoes linking Hodges to the crime scene on their inability to identify the items as
the specific items they had seen before; (6) counsel was ineffective in failing to
obtain telephone service records to impeach the testimony of a witness who
testified that Hodges confessed to her in a telephone conversation; (7) counsel was
ineffective in calling a witness whose testimony had the effect of identifying
Hodges as the likely perpetrator; (8) counsel was ineffective in failing to rebut the
testimony of a forensic dentist who testified about the identification of Hodges
from the bite-mark evidence in the collateral crime case; (9) counsel was
ineffective in cross-examining a crime scene investigator because the questioning
brought out improper and unfavorable opinion testimony about possible or likely
events relative to the murder; (10) counsel was ineffective in advising Hodges
regarding the impeachment he would face if he testified; (11) counsel was
ineffective in failing to object to the trial court’s failure to state reasons for denying
Hodges’s request to waive a penalty-phase jury; and (12) Florida’s death penalty
statute is unconstitutional.
The trial court held evidentiary hearings on claims 1 through 10, Hodges
abandoned claim 11, and the trial court denied claim 12. As to the remaining
claims of ineffective assistance of counsel, the trial court ruled that Hodges failed


- 7 -
to establish that counsel’s performance was deficient and even if it was, there is no
reasonable probability that but for counsel’s deficiency, the result of the
proceeding would have been different.
II. ANALYSIS
On appeal from the denial of his motion for postconviction relief, Hodges
raises the following claims: (1) trial counsel was ineffective in failing to consult
experts to assist him to prepare to challenge the State’s DNA and bite-mark
evidence, cross-examine the State’s experts, and present evidence to rebut the
State’s scientific evidence; (2) trial counsel rendered ineffective assistance by
failing to present Hodges as a witness at trial; (3) trial counsel provided ineffective
assistance by calling a witness who gave testimony that incriminated Hodges; (4)
trial counsel rendered ineffective assistance in failing to obtain telephone records
to impeach the testimony of a witness who testified that Hodges confessed his guilt
in a telephone conversation; (5) trial counsel was ineffective in failing to cross
examine witnesses who identified articles of clothing linked to Hodges; and (6)
trial counsel was ineffective in cross-examining a crime scene technician in a way
that brought out testimony that was harmful to the defense.
A defendant challenging a conviction on the ground of ineffective assistance
of counsel has the burden of showing that counsel was deficient and that the
deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,


- 8 -
687 (1984); Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010). To establish
deficiency, the claimant must show a specific act or omission that falls below an
objective standard of reasonableness under prevailing professional norms. See
Foster v. State, 132 So. 3d 40, 52 (Fla. 2013); Maxwell v. Wainwright, 490 So. 2d
927, 932 (Fla. 1986). To establish prejudice under Strickland, “the defendant must
demonstrate that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ”
Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011) (quoting Strickland, 466 U.S. at
694). This standard does not require that a defendant show “ ‘that counsel’s
deficient conduct more likely than not altered the outcome’ of his penalty
proceeding, but rather that he establish ‘a probability sufficient to undermine
confidence in [that] outcome.’ ” Porter v. McCollum, 558 U.S. 30, 44 (2009)
(alteration in original) (quoting Strickland, 466 U.S. at 693-94).
“Because both prongs of the Strickland test present mixed questions of law
and fact, this Court employs a mixed standard of review, deferring to the trial
court’s factual findings that are supported by competent, substantial evidence, but
reviewing the trial court’s legal conclusions de novo.” Pagan v. State, 29 So. 3d
938, 949 (Fla. 2009); see also Johnston v. State, 63 So. 3d 730, 737 (Fla. 2011);
Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). “[W]hen a defendant fails to
make a showing as to one prong, it is not necessary to delve into whether he has


- 9 -
made a showing as to the other prong.” Mungin v. State, 932 So. 2d 986, 996 (Fla.
2006) (alteration in original) (quoting Waterhouse v. State, 792 So. 2d 1176, 1182
(Fla. 2001)).
“There is a strong presumption that trial counsel’s performance was not
ineffective.” Pagan, 29 So. 3d at 949. “A fair assessment of attorney performance
requires” that courts “evaluate the conduct from counsel’s perspective at the time”
and “indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Claim 1
Hodges asserts that trial counsel was ineffective in failing to consult experts
and present expert testimony regarding the State’s scientific evidence of DNA and
bite-mark analysis. He argues that such experts could have helped him to prepare
to challenge the State’s evidence, cross-examine the State’s experts, and develop
and present rebuttal evidence and argument.
At the evidentiary hearing, Hodges presented the testimony of Dr. Kevin
Noppinger, an expert in DNA analysis. Dr. Noppinger testified that in their
analyses, the State’s experts arrived at random match probabilities using the
“inclusion principle,” but at trial, Dr. Martin Tracey, a population geneticist
testifying as an expert witness for the State, improperly relied upon the “exclusion
principle” in his random match probability testimony. The “inclusion principle”


- 10 -
expresses the probability of a random match in positive or inclusionary terms,
while the “exclusion principle” gives the probability of excluding the random
match. Dr. Noppinger testified that under prevailing scientific standards,
expressing the random match probability statistics using the exclusion principle is
not scientifically accepted and the inclusion principle is the preferred method of
presenting match probability statistics. In Dr. Noppinger’s opinion, expressing
random match probability statistics using the exclusion principle can be misleading
because it can make the probability of a random match seem smaller than it
actually is. Hodges argues that trial counsel’s failure to object or cross-examine
Dr. Tracey when he testified about random match probabilities using the exclusion
principle can be attributed to counsel’s failure to retain a DNA expert to help him
prepare for trial. Dr. Noppinger also testified that the other DNA testimony
presented at trial did not conform to the applicable standards and on this basis,
Hodges argues that counsel should have used available scientific expertise to
challenge the accuracy and reliability of the State’s testing, lab reports, and expert
testimony.
There are two components of DNA analysis and both must be provided to
the trier of fact in order for DNA evidence to have probative value: (1) an
examination of the biological material in evidence in comparison with a known
DNA sample; and (2) statistical analysis to determine the probability of matching


- 11 -
the tested material to random individuals in the general population or specified
subgroups. “The first step uses principles of molecular biology and chemistry to
determine that two DNA samples look alike. The second step uses statistics to
estimate the frequency of the profile in the population.” Butler v. State, 842 So. 2d
817, 827 (Fla. 2003); see also Brim v. State, 695 So. 2d 268, 271 (Fla. 1997) (“It is
important to recognize, though, that DNA testing is a two-step process. The fact
that a match is found in the first step of the DNA testing process may be
‘meaningless’ without qualitative or quantitative estimates demonstrating the
significance of the match.”). Hodges contends that the State’s expert witnesses
testified that their analyses discovered “matches” with Hodges’s DNA without
providing the necessary random match probability statistics and that trial counsel
failed to object because he had not consulted his own DNA expert and therefore
had not informed himself about the applicable standards for presenting DNA
evidence. However, at Hodges’s trial, the State chose to have its laboratory
analysts present the biological features of their test results first and then present Dr.
Tracey to testify as to the statistical analyses applicable to all the DNA testing. All
the DNA tests presented at trial were accompanied by statistical analyses provided
separately by Dr. Tracey.2

2. The only exception was the DNA test of the swab from the bite mark on the victim of the collateral murder. The expert only found one marker, which did not exclude Hodges, but the analyst considered the finding to be of little


- 12 -
In the order denying postconviction relief, the trial court discussed Dr.
Noppinger’s criticisms of the State’s scientific experts who testified at trial. The
court found that State expert Melton, who performed the mitochondrial DNA
analysis on the cuttings from one of the socks as well as the hairs from the jacket
and the victim’s jeans, had statistical calculations on some but not all of the tested
samples in her written report but did not testify about statistics. Melton testified
that the mixed DNA sample obtained from the sock was difficult to analyze and
she could say only that Hodges could not be excluded as the source. Dr.
Noppinger acknowledged that Melton had valid statistical calculations in her report
for the samples derived from the hairs.
State expert Hatler performed DNA analysis on other sock cuttings. Based
on three markers from the top of the sock and four markers from the heel and toe,
she developed partial profiles that were consistent with Hodges’s DNA. Dr.
Noppinger found fault with the fact that Hatler provided no statistical calculations
in her testimony, but he conceded that her written report included the calculations.

significance and therefore did not include the test result in her written report, and the testing was apparently not reviewed by another analyst in accordance with standard procedures. However, as we discuss below, there is no reasonable probability that an objection by trial counsel on this basis would have made a difference to the outcome.


- 13 -
State expert Johnson performed DNA testing on the anal swab from the
body of the victim of the instant murder, the vaginal swab from the victim of the
collateral murder, and the swab from the bite mark on the collateral murder victim.
Dr. Noppinger said that Johnson’s testing of the bite-mark swab was not properly
reported in writing and was not reviewed by a second analyst as required by
national standards. The trial court found that the anal swab sample was analyzed
on six markers, all of which matched Hodges. As for the vaginal swab from the
collateral crime victim, the sperm fraction matched Hodges on five markers and
the epithelial cells on seven markers. Johnson’s written report included frequency
calculations for these test results.
State expert Zuleger tested the blood found on one of the socks and
developed a profile consisting of thirteen markers, all of which matched Hodges.
Dr. Noppinger did not say there were any errors, fallacies, or miscalculations
in any of the experts’ laboratory testing or statistical calculations. As the trial court
found, Dr. Noppinger could not say that the experts’ descriptions of their results as
“matching” Hodges was improper. The analysts who conducted the laboratory
tests did not testify about their frequency calculations—even though they included
such calculations in their written reports for some of their tests—because the State
chose to have all of the probability statistics presented by its statistical expert, Dr.
Tracey.


- 14 -
Dr. Noppinger found fault with Dr. Tracey’s testimony because Dr. Tracey
expressed the statistical calculations in terms of exclusion rather than inclusion,
which, in Dr. Noppinger’s view, can be misleading. However, Dr. Noppinger
conceded that neither method is more accurate than the other. Hodges has not
directed us to any authority that directly supports the argument that testimony such
as Dr. Tracey’s is considered misleading according to a consensus of scientific
opinion.
Even though the State’s DNA analysts did not initially testify about random
match probability statistics, trial counsel cross-examined them based on the
statistics in their written reports. And although Dr. Tracey testified in terms of
exclusion on direct examination, he acknowledged several of the random match
probabilities in inclusive terms on cross-examination.
At the evidentiary hearing, trial counsel admitted that his understanding of
DNA evidence principles was crude. Nevertheless, the trial court found that the
DNA evidence did not go unchallenged and that counsel’s performance was not
deficient.
Hodges presented Dr. Daniel Spitz, a forensic pathologist, to testify at the
evidentiary hearing regarding the bite mark. Dr. Spitz testified that the bite-mark
identification evidence presented at trial did not provide a definitive match to
Hodges and that bite-mark identification evidence in general is regarded as highly


- 15 -
questionable by the scientific community. On this basis, Hodges argues that trial
counsel should have retained a bite-mark expert, learned about the current status of
bite-mark evidence, and been prepared to challenge the admissibility and reliability
of the bite-mark evidence. The trial court found that while trial counsel did not
challenge the admissibility of the bite-mark identification testimony, he did not
allow the testimony to go unchallenged. On cross-examination, trial counsel
brought out that the witness had prepared no written report, that the number of
marks available for comparison was limited, and that diffusion had affected all the
points of comparison. The trial court found that trial counsel’s performance was
not deficient because at the time of the trial, bite-mark identification evidence was
considered admissible, see, e.g., Mitchell v. State, 527 So. 2d 179, 181 (Fla. 1988),
and that even if the law has changed based on current scientific opinion, an
attorney’s performance cannot be found deficient for failing to anticipate a change
in the law. Walton v. State, 847 So. 2d 438, 445 (Fla. 2003).
As authority for his claim that trial counsel was deficient in failing to consult
experts to challenge the State’s DNA evidence, Hodges cites State v. Fitzpatrick,
118 So. 3d 737 (Fla. 2013). In Fitzpatrick, trial counsel failed to prepare any
challenge to the State’s scientific evidence as to the timing of sexual activity in
relation to the time of the victim’s death, which allowed the State to present an
unsound but unrebutted theory of the defendant’s guilt of murder. The present


- 16 -
case is different because if counsel had raised the kinds of challenges Hodges
claims he should have raised, it would not have undermined the State’s case to any
significant extent. Counsel admitted that his understanding of DNA evidence was
rudimentary, but based on his experience in criminal trials, he thought there was
little to be gained by challenging the DNA evidence. He made a strategic decision
based on consideration of alternative courses of action. See, e.g., Crain v. State, 78
So. 3d 1025, 1037 (Fla. 2011). Where consulting an expert “would not have
changed the statistical numbers in any way,” trial counsel’s tactic of bringing out
the limitations of the expert testimony through cross-examination is reasonably
effective representation. Reed v. State, 875 So. 2d 415, 425 (Fla. 2004).
The trial court found that while trial counsel could have done more to
challenge the DNA evidence, in light of the defense strategy to concede that the
tested items belonged to Hodges, trial counsel’s actions were reasonable. Where
the defense strategy is such that identification by DNA evidence is not of central
importance, a trial court’s conclusion that such a tactical decision by counsel was
not deficient performance has been upheld. See McDonald v. State, 952 So. 2d
484, 495 (Fla. 2006).
The DNA from the swab of the bite mark did not play a significant role in
the trial. The analyst testified that she was able to extract only one marker, which
was of extremely limited use in comparison to the known sample. The witness


- 17 -
said only that Hodges could not be excluded as the contributor. Thus, there is no
reasonable probability that trial counsel’s failure to cross-examine the witness on
the lack of probability statistics or the lack of peer review in the laboratory testing
process affected the outcome of the trial. Even if trial counsel could have done
more to challenge the testimony concerning DNA testing on the swab from the site
of the bite mark on the collateral crime victim, we affirm the denial of relief on this
point because Hodges failed to establish that he was prejudiced by any deficiency.
The DNA profile from blood found on a sock recovered from the
perpetrator’s path of escape from the victim’s home matched Hodges’s DNA, and
the statistical frequency of the profile was one in 990 quadrillion. The DNA
testing on the anal swab matched Hodges’s profile to the exclusion of 96 percent of
the male population. As the trial court found, the DNA evidence and statistics
presented at trial did not go unchallenged. However, because Hodges told his
lawyer that his clothes and other personal items had been in a suitcase that was
stolen weeks before the murder, counsel did not focus on the DNA evidence but
planned a defense that would account for Hodges’s DNA being on the items.
Hodges’s own expert, testifying at the evidentiary hearing, conceded that all of the
State’s statistical data was sound. Therefore, Hodges has failed to show that there
is any reasonable probability that more thorough preparation on trial counsel’s


- 18 -
part, with a view to challenging Dr. Tracey’s testimony or cross-examining him on
his calculations, would have affected the outcome.
The trial court found that trial counsel did cross-examine the State’s experts
about their DNA findings, bringing out admissions that other than the blood on one
of the socks, the other tests, including mitochondrial DNA analysis of hairs from
the jacket and the victim’s clothing, merely concluded that Hodges could not be
excluded as the contributor of the sample and that the probabilities of matching
persons other than Hodges were not infinitesimally small as the probability was
with the blood on the sock.
When a defense attorney does not have a strong understanding of the science
of DNA evidence, effective representation in a criminal case may call for
consultation with experts. However, to prevail on a claim of ineffective assistance
of counsel, in addition to showing a deficiency in performance falling below an
objective standard of reasonableness, the defendant has the burden of showing that
absent the deficiency, there is a reasonable probability that the outcome would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694. “In making
this determination, a court . . . must consider the totality of the evidence before the
judge or jury.” Downs v. State, 453 So. 2d 1102, 1108 (Fla. 1984) (quoting
Strickland, 466 U.S. at 695).


- 19 -
One of the socks found on the path tracked by the scent-tracking canine had
blood on it. DNA extracted from the blood matched Hodges’s DNA on all thirteen
markers. The probability of the DNA profile matching a randomly selected
individual was inconceivably small. Two DNA samples found on the other sock
also matched Hodges, with the probability of a random match being no more than
one tenth of one percent. DNA from the hairs collected at or near the crime scene
matched Hodges with a random match probability of slightly over one tenth of one
percent. Material from the anal swab matched Hodges and excluded 96 percent of
the male population. Photos that belonged to Hodges were found at the scene.
Two witnesses testified that Hodges told them he committed the crime. In light of
the totality of the evidence, we affirm the trial court’s denial of relief on the ground
that there is no reasonable probability that more thorough preparation by trial
counsel through consultation with experts would have made any difference to the
outcome of the trial.
Claim 2
Hodges argues that trial counsel was deficient in failing to present Hodges as
a witness for the defense because the defense strategy depended on his testimony.
Hodges asserts that the defense strategy, as revealed in counsel’s opening
statement, was based on the claim that the jacket, shoes, and photographs found at
or near the crime scene were stolen from him weeks before the murder, supporting


- 20 -
the inference that whoever stole the items left them at the crime scene and was the
probable perpetrator. In his opening statement, trial counsel told the jury that the
evidence would show that these items were stolen from Hodges weeks before the
murder. However, the defense did not present any evidence to support that
assertion. Hodges argues that after the jury was told in the opening statement that
the evidence would show the items had been stolen, trial counsel’s failure to put
Hodges on the witness stand was an abandonment of the only defense strategy,
which left Hodges with no viable defense.
At the evidentiary hearing, Hodges stated that if he had been called to testify
at trial, he would have stated that the jacket, shoes, and photographs had been in a
suitcase that was stolen shortly before the murder. Hodges also would have
testified that while working on a car at his cousin’s house, which was next door to
the victim’s house, he cut his hand and wiped off the blood on a cloth that he left
there, which he claims would have explained how a sock with his blood on it had
come to be found in the area of the murder.
Hodges argues that his testimony would have created sufficient doubt that
the outcome might have been different. He also said he would have denied making
the incriminating statements testified to by his ex-girlfriend’s daughter and would
have told the jury there was no telephone at the house where the ex-girlfriend and


- 21 -
her daughter lived at the time when the daughter claimed the telephone
conversation had taken place.
Hodges claims that he decided not to testify in his own defense at trial
because of faulty legal advice given to him by trial counsel. Hodges claimed at the
evidentiary hearing that trial counsel advised him that if he testified at trial, the
prosecutor would be allowed on cross-examination to question him about
everything in his past, including pending charges. At the time of the trial, there
were pending murder charges against Hodges in Ohio and in Alabama. The facts
of the Ohio murder were admitted into evidence at trial under the Williams rule.
Trial counsel testified at the evidentiary hearing that he would not have
advised Hodges the State could impeach him through questioning about a pending
murder charge if he testified. Trial counsel said that he would have advised
Hodges that if Hodges testified, the State would be able to ask him if he had ever
been convicted of a felony or a misdemeanor involving an element of fraud and, if
so, how many times. Counsel would have told Hodges that only if Hodges denied
having been convicted would the State be allowed to introduce evidence of his
prior convictions. Counsel said he also advised Hodges that since the facts of the
Ohio murder had been admitted under the Williams rule, the State could question
him about the Ohio murder and his answers might be used against him in Ohio,


- 22 -
since that case was still pending in Ohio. But trial counsel insisted he would not
have advised Hodges that he could be questioned about other pending charges.
The trial court found that counsel provided detailed and thorough advice to
Hodges about the benefits and risks of testifying in his own defense and that
Hodges’s decision, made in consultation with his counsel, was given careful
consideration. The trial court found that trial counsel was an experienced criminal
trial attorney and would not have given legally erroneous advice on such an
elementary question of criminal procedure. The trial court found that Hodges
made the decision not to testify upon receiving advice of counsel based on all the
circumstances, including counsel’s concerns about the effect Hodges’s testimony
might have on the penalty phase.
The trial court found Hodges’s testimony on this point incredible and found
as a matter of fact that trial counsel did not advise Hodges that if he testified he
could be cross-examined about or impeached with information concerning past
misconduct or collateral offenses. This finding was based on the trial court’s
assessment of the credibility of the witnesses. In judging the credibility of
witnesses, the trial court has a superior vantage point. See Moore v. State, 132 So.
3d 718, 727 (Fla. 2013). An appellate court does not substitute its judgment for
that of the trier of fact when the finding of fact is supported by competent,
substantial evidence. See Porter v. State, 788 So. 2d 917, 923 (Fla. 2001). The


- 23 -
trial court’s finding of fact on this point is supported by competent, substantial
evidence in the record and must be upheld.
Trial counsel testified at the evidentiary hearing that his opening statement
was based on what Hodges told him concerning his personal items being stolen,
and Hodges’s decision not to testify was made later in the trial. Advising a
defendant of the scope and possible consequences of impeachment and cross
examination is reasonable representation. See, e.g., Bell v. State, 965 So. 2d 48,
58-59 (Fla. 2007). Making a reasonable strategic choice after considering possible
alternative courses of action is not ineffective assistance. Occhicone v. State, 768
So. 2d 1037, 1048 (Fla. 2000). Trial counsel’s advice, as the trial court found, was
legally correct and was reasonable advice under the circumstances. We conclude
that competent, substantial evidence supports the trial court’s finding that trial
counsel did not give erroneous advice causing Hodges to decide not to testify when
it would have been more advantageous to him to testify.
But whether trial counsel was deficient for telling the jury in his opening
statement that the evidence would show that Hodges’s personal items were stolen
prior to the murder, knowing that there would be no such evidence presented if
Hodges did not testify, raises a different question. If Hodges had testified that his
personal items had been stolen, this might have explained how these personal items
could have been found at or near the crime scene without him being involved in the


- 24 -
crime. Hodges also emphasizes that he would have testified that prior to the
murder he was working on a car at his cousin’s house next door, cut his hand, and
wiped blood on a cloth that he left at his cousin’s house. The argument is that
Hodges’s testimony on these matters might have raised a doubt in the minds of the
jurors sufficient to have brought about a different outcome at trial.
At the evidentiary hearing, trial counsel testified that when he gave his
opening statement, he believed Hodges might testify, although he knew there was a
possibility he would not, and he told the jury so. Hodges’s decision not to testify
was made later in the trial, after the close of the State’s evidence. Defense co
counsel testified that, based on the evidence presented by the State and the need to
prepare for a likely penalty phase, he did not think Hodges should testify. Trial
counsel testified that even without Hodges’s testimony, he believed his opening
statement was sound trial strategy because it suggested a plausible scenario for the
jury to consider that would constitute a basis for doubt about Hodges’s guilt. The
trial court found that trial counsel did not render ineffective assistance.
We need not determine whether trial counsel’s representation as to the
matter of the opening statement and Hodges not testifying was deficient if there is
no reasonable probability that trial counsel’s course of action, even if deficient,
prejudiced the defense. See, e.g., Maxwell, 490 So. 2d at 932. The totality of the


- 25 -
evidence before the jury must be considered in making this determination. See
Downs, 453 So. 2d at 1108.
In light of the DNA evidence obtained from the bloody sock, the other sock,
the hairs collected from the victim’s body, the jacket found along the path taken by
the murderer, and the anal swab, as well as the photos left at the crime scene with
Hodges’s fingerprints and handwriting on them, the testimony of the two witnesses
that Hodges confessed to the murder, and the fact that witnesses identified the
clothes, knife, and belt as similar to items belonging to or worn by Hodges, we
conclude that no prejudice has been demonstrated.
Claim 3
A neighbor of the victim told police that on the day of the murder, he
confronted a trespasser who came over a fence into his yard. The neighbor’s
description was used to create a sketch, which did not look much like Hodges, and
the neighbor failed to select Hodges from a photo lineup. Trial counsel planned to
call this neighbor as a witness in an attempt to show that the intruder in his yard—
who was also likely the murderer—was not Hodges.
Before presenting the neighbor as a witness, trial counsel went to the
neighbor’s home and displayed a group of photos to him. The neighbor was
unable to identify the photo of Hodges as the man he had seen in his yard. On the
day the man was to testify at trial, trial counsel, with the court’s permission and in


- 26 -
the presence of the prosecutor, had the neighbor look at Hodges in the courtroom,
and the neighbor said Hodges resembled the man he had seen in his yard. The
State and the defense signed a stipulation to this effect, which was read to the jury.
In his testimony, the neighbor said that Hodges looked like the man he had
seen in his yard. Trial counsel then called the neighbor’s wife to testify, and she
confirmed that the neighbor had been unable to choose Hodges’s photo from a
lineup. Hodges argues that for trial counsel to present the neighbor as a witness
knowing that he might identify Hodges as the man he had seen in his yard, was
ineffective assistance because it helped convict Hodges. Hodges argues that trial
counsel should have been accompanied by another person when he went to the
witness’s home so he would have had a third-party witness to testify about what
happened. Had he done so, he could have used the third party’s testimony to
impeach the neighbor by confirming that the neighbor failed to identify Hodges
from the group of photos shown to him by trial counsel.
The trial court found that trial counsel was surprised by the neighbor’s
change of testimony and responded by calling the neighbor’s wife to counter the
effect of her husband’s testimony. The trial court found that calling the neighbor’s
wife was a reasonable effort at impeachment and the neighbor’s wife confirmed
that two nights previously her husband had been unable to select Hodges from the
group of photos shown to him by trial counsel. The trial court found that trial


- 27 -
counsel did an effective job of addressing the identification testimony in his
closing argument to the jury and made reasonable choices as to how to proceed
after weighing the risks and benefits of different courses of action, which is
reasonable representation under Simmons v. State, 105 So. 3d 475, 487-88 (Fla.
2012). The trial court concluded that counsel’s chosen course of action was a
reasonable response to the situation and that trial counsel handled the matter as
well as possible under the circumstances. The court concluded that there was no
substantial deficiency in the representation and that even if counsel had taken any
of the actions Hodges now argues were required, there is no reasonable probability
that the result would have been different. The trial court’s factual findings are
supported by competent, substantial evidence and its legal conclusions are correct.
An assessment of an attorney’s performance under Strickland requires an
effort “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. The trial court
found trial counsel’s conduct reasonable under the circumstances, and we affirm
the denial of relief on this point.
Claim 4
At trial, a witness for the State testified that Hodges confessed to her in a
telephone conversation that he committed the murder. The witness knew Hodges


- 28 -
through her mother, who had dated Hodges. The witness testified that she received
the telephone call during which Hodges confessed while she was at her mother’s
house in the “May timeframe” of 2003. At the evidentiary hearing, Hodges denied
both the confession and the telephone conversation. He claimed that the residence
where the witness claimed to have received the call did not have a telephone.
Hodges showed that the telephone service provider had no record of the call.
Hodges contends that trial counsel was deficient in failing to obtain telephone
service records to impeach the witness’s testimony by showing that there was no
phone service in her mother’s home in May 2003.
There was testimony at the evidentiary hearing that sometimes the witness’s
mother’s home had telephone service and sometimes it did not. This evidence did
not show that the call could not have taken place; it merely showed that the phone
company had no record of the call having taken place because the records no
longer existed. Hodges’s argument that had trial counsel investigated, he would
have discovered evidence that could have been used to impeach the witness is
speculative.
The trial court found that Hodges did not prove that the residence did not
have phone service at the time the witness said she received the call from Hodges,
only that there are no records of the service in existence now. The trial court
concluded that Hodges failed to show that trial counsel’s performance was


- 29 -
deficient. Further, the trial court concluded that even if counsel had been able to
show that there was no phone in the home in May 2003, the court could not find
that the witness’s testimony would have been significantly diminished. The
witness stated only that the call occurred in the “May timeframe,” and considering
that the trial took place nearly five years after the phone call in question, even if
records could have been obtained and used at trial to show that there was no
telephone service in the home in May 2003, this would not have proven that the
conversation did not take place nor would it have necessarily undermined the
witness’s credibility. Because the jury still could have credited the witness’s
testimony regarding the content of the conversation, the trial court concluded there
is no reasonable probability the jury would have been affected by any
impeachment trial counsel could have achieved by showing the home had no
phone service, especially in light of the fact that another trial witness also offered
testimony that Hodges confessed to him that he committed the murder.
The trial court’s factual determinations concerning this claim are supported
by competent, substantial evidence, and we therefore defer to them. On de novo
review, we hold there is no error in the trial court’s legal conclusion that Hodges
failed to show deficient performance on this point. We therefore affirm the denial
of postconviction relief on this claim.
Claim 5


- 30 -
Hodges claims that trial counsel was ineffective in failing to cross-examine
the State witnesses who identified certain items of clothing, referred to by their
brand names, as having been worn by the fleeing perpetrator and previously seen
in the possession of Hodges. The victim’s daughter testified that when she entered
her mother’s house, she saw through a window someone running away from the
house wearing a blue and gray jacket. She identified a jacket that police found
outside the house as the jacket she saw the fleeing person wearing. The jacket was
described by reference to the designer label, “Members Only.” The husband of
Hodges’s niece testified that the jacket and shoes found near the crime scene and
admitted into evidence were the jacket and shoes he had previously seen Hodges
wearing. The shoes bore the “Timberland” label.
Hodges argues that effective cross-examination of these witnesses would
have forced them to concede that they could not testify with certainty that the items
were the same as those previously seen, only that the items in evidence looked like
or were similar to the items they had previously seen Hodges wearing. There were
no particular identifying marks on the items that would have permitted the
witnesses to know that these mass-produced items were the specific items they had
seen previously.
As previously mentioned, trial counsel testified at the evidentiary hearing
that Hodges told him the personal items found at or near the crime scene had been


- 31 -
in a suitcase that was stolen from him weeks before the murder. Trial counsel
planned the defense around this position and therefore did not focus on the issues
surrounding the identification of the jacket and shoes.
Hodges’s argument is that trial counsel should have cross-examined the
witnesses to get them to admit that the most they could say about the jacket and
shoes in evidence was that they were the same style, size, color, and possibly brand
name as the items the witnesses had seen previously. The trial court observed that
counsel certainly could have cross-examined these witnesses with these questions
but ultimately concluded that the failure to do so was not deficient representation.
The trial court reasoned that jurors are aware that items such as Members Only
jackets and Timberland shoes are mass produced by the tens of thousands and that
identification testimony such as was received in this case is understood to mean
that the items in evidence appeared to be of the same type as the items the
witnesses had seen previously.
To be effective it is not necessary for counsel to present evidence explaining
facts that are common knowledge. See Reed, 875 So. 2d at 423. Moreover, trial
counsel’s strategy, based on information given to him by Hodges, was not to
contest that the items belonged to Hodges. We agree with the trial court that there
was no deficiency and conclude that the trial court did not err in denying relief as
to this claim.


- 32 -
Claim 6
Hodges claims that trial counsel was ineffective in cross-examining a crime
scene technician who testified for the State because counsel’s questioning elicited
testimony that was harmful to the defense. Hodges’s position now is that trial
counsel should have pursued a defense based on the theory that the sock with the
blood on it, which was linked to Hodges by DNA evidence, had either been stolen
from him with the blood already on it before the crime or had been used to wipe
off blood from a cut Hodges sustained while working on a car at the house next
door to the murder scene and was then discarded and left in the area where it was
later found.
At trial, trial counsel asked the technician if there were similar socks found
in the house, and the witness answered yes. Counsel asked the technician whether
she believed the perpetrator covered his hands before entering the home, and she
answered no. Counsel asked the technician whether she thought the perpetrator
covered his hands with the socks after the murder, and she answered yes. Counsel
asked the technician whether the blood could have been deposited on the sock
before the murder, and the witness answered that it was possible but unlikely.
Hodges asserts that the crime scene technician lacked the expertise to
reconstruct the criminal scenario, but that trial counsel’s questioning essentially
allowed her to do so. According to Hodges, eliciting this testimony was deficient


- 33 -
representation because it helped the State’s case by supporting the theory that the
murderer had covered his hands with socks he found in the house and cut himself
while breaking a window to exit the house when the victim’s relatives came to the
front door.
In ruling on the postconviction motion, the trial court discussed trial
counsel’s cross-examination of the crime scene technician in detail and found that,
as a whole, it was thorough and effective. Through cross-examination of the crime
scene technician, trial counsel brought out that the blood could have already been
on the sock for an indefinite period of time before the murder because there is no
way to tell the age of a bloodstain. Counsel also brought out that the bloodstain
was small, that there was no evidence to show how it got on the sock, and that it
might have no connection whatsoever to the case.
The trial court found that the factual inferences that Hodges faults trial
counsel for bringing out were already there for the jury to draw. Trial counsel
testified at the evidentiary hearing that some of his questioning was intended to
lead the witness to overreach, thereby depicting her as a “hired gun” willing to say
anything to help the prosecution. The trial court found that trial counsel’s tactics in
this regard were not unreasonable. Trial counsel made strategic choices from the
available courses of action. The trial court concluded that there was no deficiency
and no possible prejudice from trial counsel’s course of action.


- 34 -
We affirm the denial of relief on the ground that Hodges has failed to show
that there is a reasonable probability that any alleged deficiency in counsel’s
performance affected the outcome.
Cumulative Prejudice Analysis
We have resolved three of Hodges’s claims based on a lack of prejudice,
without resolving whether counsel’s performance was deficient. These three
claims are those relating to: (a) the failure to challenge the admissibility of the
DNA testing on the swab from the site of the bite mark on the victim of the
collateral murder; (b) trial counsel’s comment in his opening statement that
evidence would show that Hodges’s personal effects found at or near the scene of
the murder had been previously stolen; and (c) the cross-examination of the crime
scene technician regarding the blood on the sock.
Even without the DNA evidence from the collateral murder, without trial
counsel’s unsupported opening statement, and without the testimony that the blood
was not likely deposited on the sock before the murder, the evidence established
the following: Hodges’s DNA was on both of the socks found on the path taken by
the murderer from the victim’s home; DNA from the hairs collected at or near the
crime scene matched Hodges with a random match probability of slightly over one
tenth of one percent; material from the anal swab matched Hodges and excluded 96
percent of the male population; photos that belonged to Hodges and contained his


- 35 -
fingerprints and handwriting were found at the crime scene; a belt and a knife
found at the crime scene were identified as similar to a belt and knife owned by
Hodges; a jacket found on the path the murderer took away from the crime scene
was similar to a jacket that Hodges was seen wearing near the time of the murder;
and Hodges confessed that he committed the murder to two witnesses who testified
at trial. As a result, Hodges has not demonstrated that any alleged deficiency in
these three areas would undermine confidence in the outcome.
Hurst
During the pendency of Hodges’s appeal from the denial of his motion for
postconviction relief, the United States Supreme Court issued its decision in Hurst
v. Florida, 136 S. Ct. 616, 619 (2016), in which it held that Florida’s former capital
sentencing scheme violated the Sixth Amendment because it “required the judge to
hold a separate hearing and determine whether sufficient aggravating
circumstances existed to justify imposing the death penalty” even though “[t]he
Sixth Amendment requires a jury, not a judge, to find each fact necessary to
impose a sentence of death.” On remand in Hurst v. State (Hurst), 202 So. 3d 40,
57 (Fla. 2016), we held that
before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the


- 36 -
mitigating circumstances, and unanimously recommend a sentence of death.
Hurst v. Florida and Hurst apply retroactively to defendants in Hodges’s
position who were sentenced under Florida’s former, unconstitutional capital
sentencing scheme after the United States Supreme Court decided Ring in 2002.
Mosley v. State, 41 Fla. L. Weekly S629, S640 (Fla. Dec. 22, 2016). And in light
of the nonunanimous jury recommendation to impose a death sentence, it cannot be
said that the failure to require a unanimous verdict here was harmless. See
Franklin v. State, 41 Fla. L. Weekly S573, S575 (Fla. Nov. 23, 2016) (“In light of
the non-unanimous jury recommendation to impose a death sentence, we reject the
State’s contention that any Ring- or Hurst v. Florida-related error is harmless.”).
We therefore reverse Hodges’s death sentence and remand for a new penalty
phase.

Outcome:

For the reasons stated above, we affirm the denial of postconviction relief as to Hodges’s conviction but reverse Hodges’s death sentence and remand for a new penalty phase.

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