Hardwick v. Crosby

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

_______________ January 31, 2003

THOMAS K. KAHN

CLERK

No. 97-2319

_______________

D. C. Docket No. 95-00250-CIV-J-10

JOHN GARY HARDWICK, JR.,

Petitioner-Appellant,

versus

JAMES CROSBY, Secretary,

Florida Department of Corrections,

Respondent-Appellee.

______________________________

Appeal from the United States District Court

for the Middle District of Florida

______________________________

(January 31, 2003)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

BIRCH, Circuit Judge:

In this habeas corpus, death penalty appeal, we must determine whether an

attorney who provided no defense at the guilt or penalty phase was ineffective in

defending a young drug dealer, who was an alcohol and drug abuser. When relief

was denied in district court, the petitioner appealed on the bases of ineffective

assistance of counsel at the guilt and penalty phases as well as conflict of interests

with counsel. While we AFFIRM denial of habeas relief as to the conviction, we

VACATE the denial of habeas relief as to the death sentence and REMAND to the

district court for an evidentiary hearing to determine if petitioner is entitled to

habeas relief because of ineffective assistance of counsel at the sentencing phase.

I. BACKGROUND

A. Factual Chronology

During the long Christmas weekend in 1984, petitioner-appellant, John Gary

Hardwick, Jr., and various friends consistently consumed alcohol and quaaludes

and smoked marijuana.1 Hardwick, who was unemployed but a drug dealer and

1

For factual completeness to address the issues on appeal in our independent review, we

relate the record facts from witness testimony in pretrial depositions taken by Hardwick's

counsel, the trial, and the state Rule 3.850 proceeding. Additionally, we include facts from

affidavits and expert reports that were exhibits at the 3.850 proceeding but were not part of the

record before the district court. From the significant references to these exhibits in the transcript

of the 3.850 proceeding, it was evident that we needed to review them. After repeated requests

by our court, the exhibits were filed as "Requested Exhibits." The absence of these exhibits from

the district-court record is part of the reason that we remand this case for an evidentiary hearing.

2

user, and his wife Darlene, who was fifteen and seven months pregnant at the time,

had moved into the apartment of Dan Dimaggio in Jacksonville, Florida, two

weeks before Christmas.2 Most of the young men in the neighborhood that

Hardwick had met were teenagers and either involved in drug trade or were drug

purchasers/consumers. Hardwick's brother acknowledged that Hardwick "has

always done a lot of drugs and drank a great deal" and that, in the latter months of

1984, he "was doing even more than usual" such that "[h]e would be so high that

he wouldn't know whether he was coming or going and all of his friends were

druggies."3

Connie Wright, a friend of Hardwick's wife and daily visitor, stated:

From the first time I met John [November or December, 1984]

he was doing drugs and selling drugs, including quaaludes and pot.

He was messed up almost all the time; he was only straight in the

morning when he got up. He took so many drugs that he would pop

Because the dissent accepts the 3.850 factual findings by the state trial judge, who, in turn,

adopted the testimony of Hardwick’s trial counsel, Frank Tassone, we are specific in stating

record facts that directly contradict Tassone’s testimony with particular relevance to the penalty

phase.

2

Dimaggio testified at trial that there were six people living in his apartment at the

relevant time: Dimaggio, Hardwick and his wife, Pete McCoy and some of his family. Trial

Transcript at 431.

3

Affidavit of Jeff Hardwick ¶ 4 (Feb. 7, 1990). Although they had relevant testimony

concerning Hardwick’s drug and alcohol consumption at times proximate to the murder at issue,

Tassone testified that the drug use of Hardwick’s teenaged friends and acquaintances “was

clearly an aspect” in his decision not to call them to testify. 3.850 Proceeding at 117-18.

3

pills in his mouth and swallow them without drinking water. It

seemed like he had problems and he took the drugs to get rid of his

problems.4

Jeff Bartley, a neighborhood friend, described Hardwick's drug and alcohol

consumption the weekend before Christmas:

The weekend before Hardwick was arrested for murder, Pete

McCoy [Hardwick's brother-in-law], Hardwick and myself part[i]ed

together. Friday night we bought three fifths of vodka. Hardwick had

a bunch of quaaludes and quite a bit of pot. All weekend we were

drinking and smoking. Hardwick was eating quaaludes all weekend.

It was not unusual for Hardwick to be high.5

4

Affidavit of Connie Wright ¶ 2 (Jan. 8, 1990) (emphasis added). Dr. Henry L. Dee, a

psychologist, testified at the 3.850 proceeding that Hardwick’s childhood of neglect and

abandonment by his parents was “a model” for creating an “anti-social personality,” which was

manifested by “act[ing] out against authority” in his adolescence and, combined with his being

“emotionally sensitive,” caused him to have “a lot of anxiety and distress,” for which Hardwick

used “psychoactive substances” as a “self cure.” 3.850 Proceeding at 924, 925. We note that we

have not included any testimony from Erika Johnson, since she testified that she was biased

against Hardwick and recanted her affidavit. 3.850 Proceeding at 1044, 1047-1101.

5

Affidavit of Jeff Bartley ¶ 2 (Feb. 8, 1990) (emphasis added). Bartley, who partied with

Hardwick during the Christmas weekend, consumed alcohol and smoked marijuana with him,

and was arrested with Hardwick for his participation in the murder, stated that, at their arrest,

“Hardwick and I were pretty high.” Id. at ¶ 3. Because Bartley passed out from this alcohol and

drug consumption during the night of the murder, Tassone testified that “I didn’t feel [Bartley]

could give any useful information around a twenty- or twelve-hour period, either side of the

homicide.” 3.850 Proceeding at 94. Tassone also testified that he knew from depositions that

there was constant partying during the Christmas weekend and that all involved said that

Hardwick was present. Id. at 95.

[M]y recollection is there was a good bit of testimony about the people who had

gotten together within the two or three days immediately prior to or succeeding

the homicide.

....

I know there was testimony concerning the use of drugs or alcohol by

Hardwick and others at, from December 22 to say 26 or 27.

Id. at 135 (emphasis added).

Dr. Clifford A. Levin, a psychologist who specializes in addictions, prepared a report for

4

Michael Hyzer, a neighbor formerly convicted of possession of marijuana, testified

at trial that, on Saturday, December 22nd, Hardwick came to his house at 10:00

A.M. and asked if Hyzer knew where he could get some marijuana to sell to make

money.6 When Hyzer told Hardwick that he did not know where he could get

marijuana, Hardwick left and returned within an hour and asked to use Hyzer's

telephone. Telling Hyzer that he was going to buy quaaludes, Hardwick left

Hyzer's house and returned at 3:00 P.M. with 100 quaaludes.7 He sold Hyzer

twenty-five for $70.8 That Saturday night before Christmas, Hardwick and others

attended a party at Hyzer’s house, where quaaludes and alcohol were consumed.

On Sunday morning, December 23rd, Dimaggio was awakened at 10:00 or

11:00 A.M. by Hardwick's "running around the house looking for his . . .

the 3.850 proceeding after talking with Hardwick, who told Dr. Levin that he had purchased 150

quaaludes on Thursday, December 20th and 100 quaaludes on Sunday, December 23rd. Levin

Report at 2. Hardwick also reported to Dr. Levin "that during the five days leading to his

offense that he ingested forty or fifty of the Quaaludes, continually smoked marijuana, drank a

fifth of vodka and shared 'a couple of cases of beer' with friends." Id. Mary Braddy, a

correctional officer with the Duval County Sheriff's Department and chaplain's assistant for the

Duval County Jail, averred that Hardwick told her "that he had been doing drugs and drinking

steadily over the whole weekend prior to his arrest" and that "[h]e looked as if he had been on a

binge." Affidavit of Mary Braddy ¶ 3 (Feb. 7, 1990).

6

Trial Transcript at 512.

7

Id. at 511-13.

8

Id. at 513.

5

Quaaludes and his money."9 Subsequently, Hardwick told Dimaggio "that he

would take care of the mother fucker that took his Quaaludes," and "he accused a

couple of people," including Keith Pullum, who sold marijuana for Hardwick.10

Dimaggio testified that Hardwick told him that he would use his .357 Magnum to

"stop" whoever took his quaaludes.11 Darlene Hardwick related that, "when she

got up Sunday [Hardwick] was still drunk and doing Quaaludes."12

In the early afternoon that Sunday, Connie Wright testified that she went to

see Darlene Hardwick and found Hardwick lying on the floor and that "[h]e looked

pretty intoxicated to [her]."13 At approximately 3:00 P.M., Hardwick went to his

9

Id. at 431, 423. After interviewing Hardwick for his report for the 3.850 proceeding,

Dr. Levin explained that, in 1984, Hardwick's "chronic pattern of drug addiction" manifested

itself by a daily pattern of alcohol and drugs. Levin Report at 2. Hardwick's anger at

discovering that his quaaludes were missing was his "inability to 'get high.'" Id. Describing his

dependency on drugs, Hardwick reported to Dr. Levin: "'If I woke up in the morning without

drugs, I couldn't handle the day. . . . I had to stay high to feel right.'" Id. at 4.

10

Trial Transcript at 423, 424; Pretrial Deposition of Jeff Showalter at 8. Dr. Dee

testified that Hardwick’s threats were bravado instead of genuine intentions to kill and that the

reason he shot Pullum was because he made Hardwick angry. 3.850 Proceeding at 1016.

11

Trial Transcript at 424. Neighbor Jeff Showalter testified at trial that Hardwick had the

.357 Magnum in his waistband "[e]verywhere he went." Trial Transcript at 309.

12

3.850 Proceeding at 286. Although Hardwick's wife did not testify at any court

proceeding and was unavailable, she was interviewed by the psychological experts who testified

at the 3.850 proceeding from their notes made while talking with Darlene Hardwick. Id. at 264-

65. This information was related to Dr. George W. Barnard, the court-appointed psychiatrist.

Although Hardwick's recently acquired quaaludes were missing and, consequently, his

opportunity to sell them, he kept a supply in the refrigerator for personal consumption.

13

3.850 Proceeding at 589 (confirming her pretrial deposition testimony at the 3.850

proceeding).

6

mother, Nell Lawrence's trailer home in Jacksonville. At the 3.850 proceeding, she

testified:

[H]e was just totally out of his mind. He couldn't walk. He was

stumbling. His words were slurred. You couldn't understand him,

and my husband was at home and I had asked [Hardwick]

to leave in that condition so that my husband wouldn't ask him to

leave.

....

It was around 3:00 o'clock, and he was—his words were so slurred

you really [could] not understand either what he was saying but he

was trying to tell me that he had come to wish me a merry Christmas.

....

I had just told him—he knew that I didn't want any arguments or

anything. Of course Johnny never argued with my husband but I

always asked him not to, and I had asked him to—if he would leave

. . . before Allen came out and . . . said something to him, and he said,

yeah, . . . and he stumbled on out the driveway.14

14

Id. at 528, 529. Similarly, Nell Lawrence's affidavit describes Hardwick's visit that

Sunday afternoon and states that he was "so high that he could not walk and his speech was

slurred. He was talking crazy. There were a couple of people in the car with him. I had to ask

him to leave so my husband would not see him in that condition." Affidavit of Nell Lawrence ¶

20 (Jan. 7, 1990). Hardwick's brother Jeff, who had a trailer on his mother's lot, witnessed

Hardwick's visit to his mother and described Hardwick as "so stoned that mom asked him to

leave. He could barely walk up the steps and when he spoke, he didn't make sense." Affidavit of

Jeff Hardwick ¶ 5. In contrast to this 3.850 and affidavit testimony, Tassone testified that he did

not recall that Hardwick’s mother had seen him “within any of the timeframe of this homicide.”

3.850 Proceeding at 118. Similarly, his recollection was that Jeff Hardwick had not seen his

brother “in a long time.” Id. at 191. Tassone admitted that, if he had known the condition of

Hardwick witnessed by his mother and brother at 3:00 P.M. prior to the murder early the next

morning, then he would have used them at trial. Id. at 181, 184.

In her affidavit, Hardwick's mother describes Hardwick's deprived and abusive

childhood. Her father had been an alcoholic: "His life centered one hundred percent on

drinking." Affidavit of Nell Lawrence ¶ 2. After she left her first husband and left their five

children with her mother, Hardwick's mother married his father, who was an alcoholic. Id. at ¶

6. Hardwick, the oldest of the three boys from this union, witnessed his father beat his mother,

and he was abusive to Hardwick, once pulling his shoulder out of its socket. Id. ¶¶ 7, 9; see

Levin Report at 3 (Hardwick "described his father as an alcoholic and reported receiving

7

Thereafter, Darlene Hardwick saw Hardwick take eight to ten quaaludes between

3:00 and 6:00 P.M. on that Sunday afternoon.15

'whippings' from his father that left him black and blue from being hit with a belt buckle."). Her

third husband, with whom she had three more children, was jealous of her other children, and

Hardwick did not get along with the children in that family; as a small boy, Hardwick twice

hitchhiked back to South Carolina to be with his father. Id. ¶¶ 13-14.

Florrie Benton, Hardwick’s aunt, sister of Hardwick’s father, stated that Hardwick’s

father s his wife Nell and their children because of his drinking.” Affidavit of Florrie Benton ¶ 3

(Jan. 22, 1990). She explained that Hardwick “grew up on his own, with no one to tell him right

from wrong. He grew up feeling unloved and unwanted.” Id. at ¶ 7. Grady Hardwick,

Hardwick’s uncle, brother of Hardwick’s father, stated that his father, Hardwick’s paternal

grandfather, was “an alcoholic” and that Hardwick’s father “was drinking heavily by the time he

was a teenager.” Affidavit of Grady Hardwick ¶¶ 2,3 (Jan. 22, 1990). Hardwick spent “a few

months” with this uncle when he was “about 19 or 20 years old.” Id. at ¶ 7. The uncle knew that

Hardwick was taking drugs because he had left some pills on a counter, and the uncle could tell

“when he was high” because Hardwick “would talk crazy and do stupid things. He would go

through a complete personality change when he was doing drugs.” Id. at ¶ 8.

Dr. Barnard recognized that some people can be “genetically at risk for becoming

alcohoics” and that circumstances cause them to be “more endangered” than a low-risk

individual. 3.850 Proceeding at 293. Hardwick’s father was “a role model in terms of the

people for him to see and to imitate.” Id. Additionally, Hardwick’s childhood environment

would cause him to “lack the ability to feel good about himself,” which would make him “more

prone then to use these other drugs to . . . bolster his own self-esteem.” Id. Dr. Levin testified

that “it’s well documented that a person whose father is addicted is nine times more likely to

become addicted themselves, and so [Hardwick] had a physical tendency to become alcoholic or

drug addicted.” Id. at 770. Yet, as to Hardwick’s father, Tassone testified: “I am almost certain

that I did not know where Mr. Hardwick’s father was at the time of the trial or whether he was

alive or dead.” Id. at 128.

When Hardwick was seven, his mother put him in a boy's home in Jacksonville because

she "had no money to take care of him." Affidavit of Nell Lawrence ¶ 15. Hardwick' s mother

knew that he "was smoking pot and doing drugs when he was a young teenager. . . . because

some of the other kids told [her] and also because he acted differently when he was high.

Additionally, when he was about 13 years old he called and told [his mother] that he had just

gotten out of the hospital after having hepatitis" from intravenous drug use. Id. ¶ 18; see Levin

Report at 3.

15

3.850 Proceeding at 284 (testimony of Dr. Barnard, the court-appointed psychiatrist

based on notes from his interview of Darlene Hardwick). Hardwick’s wife told Dr. Barnard that

Hardwick’s behavior “that whole weekend” through his arrest was “very scary” and that his

argumentative and aggressive conduct had caused her to tell “him she was going to leave him.”

8

Regarding Hardwick's condition on that Sunday night, Connie Wright

averred: "I saw John a few hours before Keith Pull[u]m was killed, somewhere

around 8:00 p.m. I saw him eat some quaaludes. He was really high, even before

he ate the quaaludes."16 At the 3.850 proceeding, Wright testified concerning the

effects of Hardwick's taking the quaaludes: ""He was acting real weird. He was

laying on the floor and sweating and walking and pacing around."17 She also

witnessed an argument between Hardwick and his wife "[o]ver him taking too

many quaaludes"; there was no doubt in her mind that Hardwick "was high."18

In the early evening, Jeff Showalter came over, listened to the radio, and

watched television with Hardwick's wife. At approximately 7:00 P.M., Hardwick,

Jeff Bartley, and Keith Pullum arrived with 160 quaaludes.19 Showalter left

Id. at 288.

16

Affidavit of Connie Wright ¶ 5. Wright also averred that Hardwick called her from jail

after he was arrested for murder "and he said he had done 10 quaaludes the night of the offense."

Id. ¶ 7.

17

3.850 Proceeding at 580. Darlene Hardwick also told Dr. Barnard that she noticed that

Hardwick was sweating profusely that weekend. Id. at 289.

18

Id. at 580. The state trial judge in his factual findings subsequent to the 3.850

proceeding describes Wright’s testimony as “equivocal on the issue of intoxication.” Transcript

of Record, Vol. IV at 594. Wright was 14 at the time of the murder. Hardwick’s wife told Dr.

Barnard that, in addition to the quaaludes that she saw Hardwick consume that Sunday

afternoon, she had seen him drink “some of the whiskey straight on the rocks and then some in a

mixed amount. The best of her recollection he had maybe four small glasses on the rocks prior

to the mixed stuff.” Id. at 317.

19

Trial Transcript at 310-12, 322-23.

9

between 10:00 and 10:30 P.M. and rode his bicycle home, which was five minutes

away.20 Showalter's father went to bed, and Showalter lay down on the couch in the

front room of the house to watch television. Between 10:30 and 11:00 P.M.,

Showalter heard his dog barking, looked out the window, and saw Pullum at the

gate and Hardwick's car parked on the other side.21

Showalter went outside, where Pullum informed him that Hardwick wanted

to talk to him to ask if he had seen Hardwick's quaaludes. Showalter went over to

Hardwick's car; Hardwick, accompanied by Jeff Bartley, told him that his

quaaludes were missing and that Showalter and Pullum were his two suspects.

Hardwick, who was driving, Bartley, and Pullum drove away, and Showalter went

back inside and lay on the couch.

Between 11:00 and 11:30 P.M., Showalter heard his dog bark again, and,

when he went outside, saw only Pullum, who said that he was going home to eat

and then return to Hardwick's.22 Pullum said that Hardwick "was driving around

mad looking for his Quaaludes."23 Showalter went inside his home. Between 11:30

P.M. and midnight, Hardwick, Bartley, and Pullum returned a third time, and

20

Id. at 312, 323.

21

Id. at 312.

22

Id. at 314-15.

23

Id. at 315.

10

Pullum informed Showalter that Hardwick, who was driving, wanted to talk to

him.24 When Showalter walked over to Hardwick's window, he cocked and aimed

his .357 Magnum at Showalter and accused him of stealing his quaaludes, which

Showalter denied. Hardwick threatened that, if he did not have his quaaludes in an

hour, then he would kill either Showalter or Pullum.25 When Showalter offered to

help Hardwick look for the quaaludes in the morning, Hardwick informed

Showalter that he wanted him at his house in an hour, and Hardwick and Bartley,

who had a .22 automatic rifle, drove away.26 Hardwick was driving "pretty

slow."27

Showalter urged Pullum to go into his house, talk to his father, and call the

police. Asserting that Hardwick and Bartley would not "'mess'" with him, Pullum

24

The murder did not occur till some six hours after Showalter last saw Hardwick.

Bartley was with Hardwick and Pullum after they left Showalter’s house. Bartley averred:

Just a few hours before Keith was killed Hardwick and I were real messed up. As

I said before, Hardwick had been doing quaaludes all weekend. I saw Hardwick

take at least one quaalude just a few hours before the murder. That night

Hardwick was acting pretty crazy. He was drinking whiskey, smoking pot,

laughing and running around.

Affidavit of Jeff Bartley ¶ 2 (Feb. 8, 1990). Characterizing Bartley as “a criminal associate,”

3.850 Proceeding at 988, Dr. Levin concluded that Showalter’s testimony regarding Hardwick’s

condition “cancel[led] out” because “Jeff Showalter[, who was 14 at the time] was a potential

victim, and I would assume he was fairly angry with Mr. Hardwick. He is a friend of Keith

Pullum,” id. at 987.

25

Id. at 316.

26

Id. at 326.

27

Id. at 317.

11

started walking toward his house down the same road on which Hardwick and

Bartley had driven away.28 As he watched, Showalter saw the car in which

Hardwick and Bartley were riding stop, turn around, go back to where Pullum was

walking, and stop beside Pullum, but he neither saw Pullum get into the car nor the

interior light illuminate.29 Showalter ran into his house, looked out the window,

and saw the car drive in front of his house. He could not see who was inside

Hardwick's car because it was "too dark."30

The description of the events that transpired after Hardwick, Bartley, and

Pullum drove away from Showalter's house occurs in Dr. Clifford A. Levin's

testimony at the 3.850 proceeding and his report. Dr. Levin not only interviewed

Hardwick, but also he reviewed the pretrial depositions, the trial testimony, and the

affidavits of the witnesses and found internal consistency. While Hardwick told

Dr. Levin that he had killed Pullum, he described his state of mind at the time of

the homicide "as foggy, implying that he didn't have complete knowledge of

28

Id.

29

Id. at 317-18, 331.

30

Id. at 319, 332.

12

all the details that took place."31 Dr. Levin related Hardwick's description to him

of how the murder evolved from his notes from his interview with Hardwick:32

Mr. Hardwick reported that he was with the victim after driving

the victim to a secluded area for the purpose of holding the victim

ransom to obtain his—return of his drugs, quaaludes, and he

alternately said that he took the victim as a way to influence him to

return his drugs. He stated that he became angered when the victim

would not return the drugs. . . .

....

31

3.850 Proceeding at 781. Dr. Levin also related Hardwick's description of his alcohol

and drug use at the relevant time and, specifically, the Christmas weekend during which Pullum's

murder occurred:

[Hardwick] described a period of time in 1984 wherein he was extensively

using alcohol and drugs, a daily usage to the point of intoxication. He described

it in increased usage during the weekend prior to the death of the victim and he

reported being concerned that he had a quantity of quaaludes stolen from his

possession and became very incensed about the absence of these quaaludes

mostly for his personal usage but he also had been reportedly selling these

quaaludes.

From the description of the record and the affidavits provided to me it was

a period surrounding the incident of extensive usage where Mr. Hardwick was

often characterized as looking highly intoxicated and appearing very emotional

and very erratic in his behaviors.

....

He reported using multiple dosages of quaaludes, smoking marijuana,

drinking alcohol and beer.

Id. at 780 (emphasis added). Dr. Levin explained that "whenever an individual . . . who is

addicted to chemicals finds one's self in a stressful circumstance one tends to use to excess in

order to cope with the stress in the fears or whatever feelings that are being felt, and there is a

tendency to indulge to a greater extent than is even typical." Id. at 788-89. Specifically as to

Hardwick, Dr. Levin determined that the apparent drug ingestion, intoxication, and behavior

under the circumstances that resulted in the murder of Pullum exemplified the "characteristic

profile" of the way Hardwick had "dealt with stressful circumstances in the past with the use and

extensive abuse of alcohol or drugs." Id. at 792.

32

Regarding Hardwick's willingness to discuss the murder, Dr. Levin testified that "[h]e

didn't seem hesitant in terms of willingness. He seemed unsure at times about the specifics." Id.

at 782.

13

He reported that he became very angered at the victim's denial

that he had the stolen drugs, and he reported reacting to the victim in

anger and shooting the victim twice with his head turned so he could

not see the victim get shot.

....

He said that he was having difficulty focusing on what he was

doing. He described himself as intoxicated, and he described himself

as confused and unable to clearly think out what he was doing. That

was a verbal report.

He reported that he felt that after shooting the victim he felt

sorry for him and he thought about . . . aiding the person in getting

hospitalized and help and also reported checking with a person who

was with him, who he did not state who it was, for assistance on what

he should do and he was—he reported that he was advised to go ahead

and kill the person.

....

He reported that he was confused as to what he should do at

that point, was wondering if he should take the victim to the hospital

and conferred with apparently someone who was there with him who

encouraged him to in quotes finish the job.

....

At that point, [Hardwick commenced his attempts to kill

Pullum.]

....

Tried to stab him with a crowbar was the next thing. Was

unsuccessful. Was unable to stab him with a crowbar. Got a knife.

Stabbed him twice. The victim passed out, put him in the truck, drove

him to the river[, thinking that Pullum was dead].

....

He thought he was dead and he was going to put him in the

river.

....

He also characterized his thinking at the time saying he wasn't

sure what he was doing—he wasn't sure exactly what he should do,

statements to that effect and talked about stumbling, talked about

being unclear and took a while to get out the information. He was not

sure exactly the sequence of events. He was trying to reconstruct that.

....

14

He did not seem to be holding back information in the sense of

I am not going to tell you that I killed this guy or I am not going to tell

you the gory details. He seemed to be struggling with what exactly

my thoughts were and what exactly was the sequence of events, and

that was of concern to me in terms of it seemed to give credence to

this was not a clear-thinking individual and not a clear memory of the

events that transpired.

....

He put him in the water. He thought he was dead. The victim

got up, stood up and . . . he stated that he went back down to the

victim . . . .

....

And hit him on the head with a car jack and held him under water

until the air bubbles were gone.

....

He said he went back home is the information I got and started

crying and a friend calmed him down.33

At trial, a resident in the Haulover Creek area testified that she heard two

shots between 6:00 and 6:30 A.M. on Christmas Eve, December 24th.34 At 9:40

that morning, a man fishing from a dock at the point where Haulover Creek

empties into the St. Johns River discovered a body floating in the water and called

33

Id. at 781-82, 783, 863, 864, 865-66, 867 (direct and cross examination) (emphasis

added). Dr. Barnard, the court-appointed psychiatrist, also interviewed Hardwick regarding the

killing of Pullum. Dr. Barnard agreed that he had noted that Hardwick told him that he drew his

.357 Magnum on Pullum "to scare him" but instead shot him in the hip. Id. at 327-28. When

Pullum fell down and asked Hardwick to take him to the hospital, Hardwick was "too scared"

and shot Pullum again. Id. at 328. Hardwick could not look at Pullum, "and the bullet hit him in

the arm." Id. Pullum was still alive, and Hardwick "stabbed him with a knife, put him in the car,

took him to the water[;] [Pullum] was still alive and asked to be taken to the hospital." Id.

34

Trial Transcript at 343-44.

15

the police and rescue unit.35 The medical examiner, who performed the autopsy on

Pullum on Christmas Day, testified that Pullum's body evidenced head injuries as

well as knife, and gunshot wounds; he fixed the time of death as being between

5:40 A.M. and 7:40 A.M.36

On Christmas Eve morning, approximately 10:00 or 11:00 A.M., Dave

Tanner and William Bavar, walking down a road, encountered Hardwick, who also

was walking.37 Hardwick told them that two people had stolen his quaaludes, that

he had taken care of one and fed him to the sharks, and that he was looking for the

other.38 At his deposition, Tanner described Hardwick as being "half wiped out,"

which he clarified as meaning almost "passed out."39 He also testified that

Hardwick was intoxicated, upset over his missing quaaludes, and "[l]ook[ed] like

he had been out partying all night" and "smoking a little pot that night."40 Tanner

further noticed that Hardwick had a pistol in his pants.41

35

Id. at 349-50.

36

Id. at 392, 393.

37

3.850 Proceeding at 721, 726.

38

Id. at 726-27.

39

Id. at 721, 723.

40

Id. at 718, 728-29, 730, 733.

41

Id. at 729.

16

Between 10:00 A.M. and noon on Christmas Eve, Connie Wright went to the

apartment where Hardwick and his wife were staying. She testified: "Darlene was

yelling at Johnny. She was really very mad because he didn't come in the whole

night before and they didn't get to go where they wanted to go."42 At the 3.850

proceeding, Wright testified that Hardwick's clothes were dirty, he looked like he

had been up for days, and "he was just real high."43 Her affidavit details

Hardwick's demeanor:

The next day, the day before Christmas, 1984, John and Jeff

[Bartley] were acting weird. I knew that they had been messed up on

drugs for days. They were dirty, their clothes were messy and they

looked like they had been up for days. John looked worse than usual.

He kept walking down the road and coming back. He would lay on

the floor a few minutes and then get up and pace. He didn't say much

but when he did talk he didn't make any sense. He was shaking,

sweating a lot and his moods kept changing quickly.44

42

Trial Transcript at 465.

43

3.850 Proceeding at 581.

44

Affidavit of Connie Wright ¶ 6 (emphasis added). In his supplemental order following

the 3.850 proceeding, the trial judge concluded that Wright would not be a good witness for the

defense at trial because Hardwick confessed to her that he killed Pullum. The trial judge’s

discussion of Wright, however, related only to the guilt phase. Transcript of Record, Vol. IV at

594. Her testimony concerning Hardwick’s condition that evidenced his consumption of drugs

and alcohol was relevant to the sentencing phase, irrespective of Hardwick’s confession to her

and others. Additionally, Wright substantiated the same description of Hardwick’s condition

given by his wife to the experts who testified at the 3.850 proceeding. As opposed to testimony

showing guilt, Wright’s testimony at the penalty phase, when guilt was no longer an issue, would

have been significant.

17

Wright also testified that she saw Hardwick take ten quaaludes that day.45 Wright

reaffirmed her deposition testimony that, on Christmas Eve afternoon, Hardwick

said that he had taken care of "the mother fucker that stole his drugs, and if Keith

Pullum walked in the door he would believe in ghosts."46 Hardwick's mother

averred that, when he called her on Christmas Eve, "his speech was still slurred and

he was not making sense."47 Additionally, on Christmas Eve, Hardwick robbed a

Marine.48

Between 10:00 P.M. and midnight on Monday, Christmas Eve night, Joseph

Delgross was going home in his pickup truck, when Hardwick came out on the

road and waved to him to stop.49 Hardwick asked Delgross if he had heard that

150 of Hardwick's quaaludes had been stolen. Learning that Delgross did not

45

3.850 Proceeding at 583.

46

Id. at 593. Dimaggio also heard Hardwick's comments. Between 2:00 and 3:00 P.M.,

on Christmas Eve afternoon, Dimaggio returned from Gainesville, where he had gone with Pete

McCoy and his family, Jasper Davis, and others the previous afternoon. Trial Transcript at 436.

Later, Hardwick "walked in the door [and] told [Dimaggio] he took care of the mother fucker

that got his shit." Id. at 426. When Dimaggio asked him what he was talking about, Hardwick

responded: "well, I will put it this way: If Keith Pullum walks through that door he's got a

ghost." Id. Concerning Dimaggio’s testimony following his return from Gainesville on the

afternoon of December 24th, Dr. Levin testified Dimaggio’s testimony that Hardwick was

“jumpy,” “[r]eal nervous,” and “[s]weating” are characteristics of drug ingestion. 3.850

Proceeding at 883-84.

47

Affidavit of Nell Lawrence ¶ 21.

48

3.850 Proceeding at 328.

49

Trial Transcript at 493-94.

18

know about the theft, Hardwick told him that the quaaludes were stolen by two

people, that he had taken "care of one of them and fed him to the sharks and he was

looking for the other."50

At approximately 2:30 A.M. Christmas morning, Michael Marchbanks was

walking along a road when Hardwick drove by in his car, and Marchbanks asked

for a ride home.51 On the way home, Hardwick said "that he had been ripped off"

and that he had taken "care of one guy and he was looking for another guy."52 At

8:00 A.M. Christmas morning, Michael Hyzer and his family were opening

Christmas gifts when he heard his dogs bark.53 Hyzer looked out his window and

saw Hardwick walking toward his driveway; he met him at the road. Hardwick

wanted Hyzer to assist him in getting his stuck truck out of the woods. When

Hyzer told Hardwick that he could not help him, Hardwick said that Pullum had

stolen some quaaludes and that he had shot, stabbed, and thrown him into the

jetties for the sharks.54 Although Hardwick told Hyzer that "we took care of him,"

50

Id. at 494.

51

Trial Transcript at 504.

52

Id. at 505.

53

Id. at 514.

54

Id. at 514. Hyzer was taken aback at Hardwick's description of killing Pullum:

He said Keith ripped me off of some Quaaludes and I shot

19

he did not disclose the identity of the other person.55 After sending Hardwick to

his neighbor to assist with the car, Hyzer called the police homicide division and

talked with Detectives Pruett and Kesinger. He also agreed to go to the morgue

that Christmas morning to identify Pullum.56

Christmas afternoon, police officers arrived in the neighborhood to search

for Hardwick. The neighborhood residents joined in the search and one located

Hardwick in the woods and detained him until the police arrived.57 In performing a

body search of Hardwick, the arresting officer recovered a knife that did not show

blood or any other bodily fluid.58 A .22 revolver also was located in the palmetto

bushes, but Hardwick's .357 Magnum was never located.59

him and stabbed him and threw him into the jetties, and he said

nobody would find him but the sharks. But I kind of thought about

that hard. You know, I'm not around, that kind of thing every day.

I asked him, I said, what did you say. And he said yeah, he ripped

me off and I blew his shit away.

Id. at 514-15.

55

Id. at 515.

56

Id. at 516.

57

Trial Transcript at 541.

58

Id. at 535, 537. Hardwick was arrested at 2:45 P.M. on Christmas day. Id. at 620.

59

Id. at 543.

20

At 5:30 P.M. on Christmas day, Detectives Robinson, Hill, and Officer

Register photographed Hardwick as part of the booking process.60 Hardwick asked

three times "what was happening," and Detective Robinson told him to be quiet

and that the pictures and other vital information would only take a few moments.61

At the third inquiry, Officer Register told Hardwick that officers from homicide

would talk with him, whereupon Hardwick, who had not yet received his Miranda

rights, voluntarily stated: "[A] man can't go around robbing dope dealers and not

expect to get killed. He kept doing that and he got what was coming to him."62

Detective Robinson wrote down Hardwick's statement, which became a state

exhibit at trial. While Detective Robinson testified that Hardwick appeared

"disheveled," no sobriety test was conducted.63 Both he and Detective Hill testified

that Hardwick did not seem to be intoxicated or under the influence of drugs and

that he was "rational," "calm," and "coherent."64

60

Id. at 575. Detectives Robinson and Hill of the Robbery Division were investigating

Hardwick on the robbery charge and were assisting the Homicide Division by taking the booking

photographs and obtaining preliminary information. Id. at 598.

61

Id. at 576.

62

Id. at 576-77.

63

Id. at 579.

64

Id. at 578, 596-97.

21

At 5:40 P.M. on that Christmas day, Detective Kesinger of the Homicide

Division interviewed Hardwick, who was not represented by counsel.65 Detective

Kesinger testified that he did not record Hardwick's statements or have a court

reporter present to transcribe them; he relied on his memory and the "notes on the

back of the constitutional waiver form" that he made.66 He advised Hardwick that

he had been arrested for the murder of Keith Randall Pullum and read him his

constitutional rights for the first time.67 Detective Kesinger then proceeded with

the interview whereupon Hardwick "made a spontaneous statement. He out of the

blue said I'm missing some Quaaludes, but it's not a big deal."68 Detective

Kesinger testified at trial that he did not ask Hardwick anything about quaaludes.69

Shortly after the termination of the interview, Detective Kesinger testified that

Hardwick became incoherent and aggressive:

That was about 15 minutes after the interview had ended

and we had him in the room, and the only thing I can

think of is he apparently had been in possession of some

drugs and had ingested them at some point and totally

65

Id. at 610. In his interview of Hardwick, Detective Kesinger was accompanied by

Detective Pruett of the Homicide Division. Id.

66

Id. at 681, 705.

67

Id. at 610-11.

68

Id. at 614.

69

Id.

22

went out of it and started kicking the door, kicking the

walls inside. I opened the door. He attempted to kick

me. I grabbed him by the throat and tried to go to the

wall with him to pin him against the wall, but there was a

chair and we went over the chair. He was completely

incoherent after that. We had to physically carry him

from the building.

I saw him later that night once I got the search

warrant and he didn't know where he was, who I was. I

read it. They had him in a strip cell. Totally

incoherent.70

After his arrest, Hardwick called his mother and asked her to retrieve some

of his possessions from Dimaggio's apartment.71 She and her son Jeff went to

Dimaggio's apartment and found a number of passed-out individuals from the

partying that had involved drugs and alcohol.72 Jeff Hardwick described the scene

70

Id. at 622 (emphasis added). Dr. Levin testified at the 3.850 proceeding that the

testimony of the robbery detectives who said that Hardwick was coherent at his booking was

inconsistent with the "psychotic episode" that shortly followed. 3.850 Proceeding at 1011-12.

He also noted that, while Detective Kesinger testified that Hardwick was coherent during his

interview concerning the murder, "[h]e also reported that fifteen minutes after his interrogation

of Mr. Hardwick ended that he displayed an unprovoked violent outburst and became 'totally

incoherent.'" Report of Dr. Levin at 3. Consequently, Dr. Levin's view that Hardwick was

intoxicated at the time of the murder or had diminished capacity is not necessarily challenged.

3.850 Proceeding at 1011-12.

71

Affidavit of Nell Lawrence ¶ 21.

72

Nell Lawrence described the scene when she arrived:

I went in the house and there were beer bottles all over the place.

There were a bunch of people there, drunk and passed out. I

remember seeing Darlene's brother [Pete McCoy] and Daniel

Dimaggio and a bunch of other people. I tried to wake some of

them but I could only wake up one person.

23

similarly: "After Johnny's arrest, I went with mother to where Johnny lived, to get

his belongings. The place was a wreck, with beer bottles all over and everyone

passed out. It was hard to even wake someone up."73

During the day on December 26th, Mary Braddy, who then was employed

by the Sheriff's Office as a chaplain's assistant, visited Hardwick.74 She found him

"not responsive at all when spoken to," apparently unaware of her presence, and

"his eyes were very glassy and glazed," and "never seemed to focus."75 Braddy

clarified that her affidavit description of Hardwick looking "as if he had been on a

binge" meant "an alcoholic that would come in the back door that hadn't slept or

eaten in a week and had just been drinking or doing drugs and [had] not bother[ed]

to take care of [himself]."76 In her subsequent conversations with Hardwick, Jeff

Bartley, and Jasper Davis, who also had been arrested for his participation in the

homicide, they consistently related that "there had been a lot of drinking and drugs

Id.

73

Affidavit of Jeff Hardwick ¶ 6.

74

3.850 Proceeding at 600, 601.

75

Id. at 603, 604, 606. She also testified that Hardwick's long hair was "matty and

stringy" and that "he looked dirty." Id. at 604.

76

Id. at 608. Braddy further testified that Hardwick appeared to be intoxicated when she

first saw him. Id. at 623.

24

through their partying over the weekend," and she specifically remembered

Hardwick's "talking about quaaludes."77

Braddy, who had worked as a booking officer, testified that Hardwick's

booking document was dated December 25th at 6:35 P.M., but that it was not

processed until December 26th.78 That document showed "unable" on the line for

Hardwick's signature, which Braddy explained to mean that the inmate was

"physically unable" to sign, which included intoxication, as opposed to refusal to

sign.79 In her affidavit, Braddy noted that Hardwick's intoxicated state should have

been mentioned by the arresting officers: "It would be hard to believe arresting

officers didn't report that Mr. Hardwick was intoxicated when he was brought to

jail. Mr. Hardwick definitely appeared to be under the influence of drugs when he

was brought in. Mr. Hardwick was not even coherent when I saw him [the day

after his arrest]."80

77

Id. at 607, 642. In her affidavit, Braddy stated: "Mr. Hardwick related to me that he

had been doing drugs and drinking steadily over the whole weekend prior to his arrest."

Affidavit of Mary Braddy ¶ 3. Braddy developed a counseling relationship with Hardwick,

arranged special visits in her office for his mother to see him, and became fond of Hardwick

through her professional, counseling relationship with him. 3.850 Proceeding at 617-18, 625-26.

78

Id. at 634, 637, 640.

79

Id. at 612, 614, 615, 616.

80

Affidavit of Mary Braddy ¶ 4. Despite her description of Hardwick’s condition in

custody the day after his arrest with his having no ability to consume drugs or alcohol, the state

trial judge made a factual finding following the 3.850 proceeding in his supplemental order that

Braddy “had no relevant contact with the Petitioner.” Transcript of Record, Vol. IV at 597.

25

On December 27th, Detective Kesinger and a patrolman went to a fire pit on

Alvin Road, where Hardwick shot bullets from his .357 Magnum into concrete

blocks.81 The officers collected copper jackets, shell casings, and lead fragments.82

These items were sent to the Florida Department of Law Enforcement and then to

the FBI laboratory in Washington, D.C., where they ultimately were found to

match the .357 casings found in Hardwick's car and the bullet in Pullum's body.83

B. Procedural History

1. Pretrial Proceedings

Hardwick was indicted for first-degree murder and pled not guilty. In

response to discovery, his court-appointed attorney, Frank Tassone,84 filed a list of

fifty-two witnesses that Hardwick "expect[ed] to call as witnesses at the trial."85

81

Trial Transcript at 637.

82

Id. at 645.

83

Id. at 646, 731-32, 739. A firearms examiner from the Florida Department of Law

Enforcement testified that he could state with a reasonable degree of scientific certainty that the

recovered shells were fired from the same weapon and matched the bullet found in Pullum, and

an FBI agent testified: "It is my opinion that the bullet taken from the victim came from the same

box of ammunition as the four lead fragments found at the fire pit, or from another box of

ammunition which contained bullets of that exact same composition." Id. at 741, 749-50, 761.

84

Originally, the Public Defender for the Fourth Judicial Circuit of Florida was appointed

to represent Hardwick. Because of his prior representation of one of the state's listed witnesses

and a possible conflict of interest, he was permitted to withdraw, and Tassone was appointed to

be Hardwick's counsel.

85

Transcript of Record, Vol. I at 124.

26

Although he took the depositions of the majority of the prospective witnesses, most

of whom were involved in the law enforcement investigation of the murder,

Tassone called none of them at trial.86

On February 13, 1986, Tassone moved to withdraw as Hardwick's counsel

or, alternatively, to appoint Hardwick as co-counsel so that he could participate in

his defense.87 The impetus for this motion was because Hardwick had informed

Tassone that he wanted to represent himself but that he wanted Tassone's advice

and needed him to perform other tasks, such as taking depositions and having

subpoenas issued.88 The trial judge conducted a hearing on this motion on

February 25, 1986. At this hearing, Hardwick explained his reasons for wanting

another attorney appointed to represent him, which he also stated in handwriting

that the judge made it part of the record:

Incompetency of Counsel

86

Notably, the state trial judge’s findings regarding Tassone’s strategic reasons for not

calling Nell Lawrence, Jeff Hardwick, Connie Wright, and Jeff Bartley relate to the guilt-

innocence portion of the trial, concerning Counts II and IV, failing to prepare and present a

voluntary intoxication defense. Transcript of Record, Vol. IV at 593-95. The sentencing phase,

however, involves a more expansive analysis of mitigation factors, such as family background

and inability to conform conduct to the requirements of law, than the guilt-innocence phase.

These witnesses could have provided significant mitigation evidence for the different analysis

required at the sentencing phase.

87

Transcript of Record, Vol. I at 129-30.

88

Id.

27

Counsel has repeatedly told me I should plead guilty to

first degree murder for life with a mandatory 25 years.

He has refused to subpoena people I want subpoenaed to

trial for witnesses, and to get addresses.

I told counsel I wanted motions filed so I could be

present during depositions that were never filed.

I also don't have any confidence he will fight the case for

me, because he has already told me several things that are

not true.

I know more about [the] case than he does, and I have

only saw him twice until I fired him.

I ask the court to appoint me another attorney, because I

cannot adequately represent myself.89

Regarding his impasse with Tassone, Hardwick informed the judge that, without

dismissal of Tassone, he would be forced to represent himself, which he did not

believe that he was qualified to do:

MR. HARDWICK: . . . .

You know, if the Court so forces me to do so I will

represent my own self. But it's not my choice I want to

represent myself. Because I don't feel I'm adequate to

represent my own self in this trial. But if the Court so

forces me to do so I will represent myself rather than

have Mr. Tassone as my counsel.

89

Id. at 131 (emphasis added); Hearing Transcript at 64. Hardwick’s statement in his

motion requesting another attorney that he had only seen Tassone twice is in stark contrast to

Tassone’s 3.850 testimony that he had “a minimum of thirty or forty meetings prior to trial” with

Hardwick. 3.850 Proceeding at 36.

28

THE COURT: Well, the law is pretty clear that you

either have the right to represent yourself, if you are

qualified,—

MR. HARDWICK: I'm not choosing to represent myself.

THE COURT: — or to have Court-appointed counsel.

You are not allowed to fire Court-appointed counsel.

....

I don't hear anything in what you have said that would

cause me to think that [Tassone's] handling of the case

has not been proper.

MR. HARDWICK: Would you like me to read it again?

THE COURT: No. I heard it.

....

Filing a motion to have you moved all around to attend

depositions would have been a waste of his time and

mine and yours because I wouldn't grant it.

MR. HARDWICK: Well, Your Honor, I don't feel that

that's a waste of time because I know Florida Statutes

states it's my right, you know, and—I mean, my life is at

stake in this case. I believe I should be able to exercise

all my rights. I feel like the reasons I have stated—you

know, we have got irreconcilable differences . . . .90

The trial judge denied Tassone's motion to withdraw as counsel91 and

proceeded to examine Hardwick as to his competency to conduct his defense. The

judge determined that Hardwick was not competent to represent himself, which

90

Hearing Transcript at 66-67, 68 (emphasis added).

91

Id. at 69; Transcript of Record, Vol. I at 132.

29

resulted in Tassone's continuing as his counsel.92 Tassone also asked for

clarification of the judge's ruling:

MR. TASSONE: . . . I find myself in a quandary. I have

received messages, my office has received messages,

from Mr. Hardwick that regardless of what the Court's

ruling is today that I was fired.

....

I don't want to get into a quandary or a box of being

between an order of the Court and the instructions by my

client not to proceed further.

92

The exchange between Hardwick and the judge regarding this ruling is as follows:

MR. HARDWICK: If the Court doesn't relieve Mr. Tassone and is

forcing me to represent myself because I do not want Mr. Tassone

as my counsel, I will represent myself before I accept Mr. Tassone

as my counsel.

THE COURT: Let the record show that I find Mr. Hardwick is not

permitted to represent himself and I will deny such request.

....

MR. HARDWICK: So, basically what the Court is saying is that

Mr. Tassone is still going to represent me?

THE COURT: That's correct.

MR. HARDWICK: And that I'm being denied the right to another

attorney?

THE COURT: Yes, sir.

....

The law does not give you the right to choose what attorney

represents you. If you convince me that I have appointed an

attorney that is incompetent, that is not representing you

adequately, or that because of some personality conflict he is out to

see you lose the case, then I could do it. But I'm not convinced of

that at all.

Hearing Transcript at 75, 76 (emphasis added).

30

....

I don't want to get into the position of perhaps violating

any request by my client as opposed to one of the Court,

and I would ask the Court to perhaps inquire of Mr.

Hardwick as to whether it is his decision that I do or do

not perform certain functions on his behalf?

THE COURT: I don't think he can make that decision.

He didn't hire you and he can't fire you. . . . . as long as I

have heard his request to have you relieved and to have

other counsel and I have denied those. I think at this

point that the thing that is binding on you is my order

appointing you. Until you are relieved of that order you

are to fulfill all the duties as his attorney.93

2. State Trial

The testimony and evidence at Hardwick's trial, March 11-13, 1986, focused

on identifying Hardwick as the murderer through witnesses and ballistics evidence.

At the commencement of the second day of trial, Tassone informed the judge that

Hardwick desired to address him. Hardwick again, orally and in handwriting, filed

by the court, moved to have Tassone dismissed as his counsel:

93

Id. at 80, 81-82 (emphasis added).

31

Motion to Dismiss Counsel

1. Mr. Tassone has refused to ask state witnesses who

took the witness stand questions I wanted asked about

differences in their sworn statements and depositions.

2. He has also refused to call the defense witnesses I want

called to the witness stand to tell my side of this case.

3. For this reason Mr. Tassone is incompetent as counsel

and he is also in collusion with the state, and trial court

has erred by not letting me dismiss Mr. Tassone as

counsel on February 25, 1986 and appoint[]ing substitute

counsel. This deprives me of my constitutional right to

effective assistance of counsel. Because of this I have to

ask to represent myself because the court is forcing me to

do this.94

In a side-bar conference with Hardwick and counsel, Hardwick reiterated his

request for appointment of another counsel, which again was denied.95

94

Transcript of Record, Vol. I at 145 (emphasis added); Trial Transcript at 664.

Apparently, inconsistencies in the state witnesses’ depositions and subsequent testimony were

problematic to Hardwick, who knew the true facts. For example, Connie Wright’s deposition

testimony regarding Hardwick’s intoxicated/drugged condition undermined her subsequent

testimony. If Tassone had called the witnesses in the defense case, then their conflicting

testimony could have been resolved. Obviously, Hardwick believed such testimony would have

helped him.

95

The side-bar conference was as follows:

THE COURT: . . .

Mr. Hardwick, from the request that you just made am I to

understand that you want to fire Mr. Tassone and represent

yourself?

MR. HARDWICK: I would like the Court to appoint me another

counsel.

32

THE COURT: Okay. I can't do that.

MR. HARDWICK: But if not—yeah, the Court is forcing me to

represent myself rather than proceeding with Mr. Tassone.

THE COURT: There are not three choices. There are only two.

You either have to be represented by Mr. Tassone or you will have

to represent yourself.

MR. HARDWICK: Uh-huh (yes).

THE COURT: I can't appoint anybody else.

MR. HARDWICK: Why not?

THE COURT: That is not the law.

MR. HARDWICK: I feel I have valid reasons to fire Mr. Tassone

and dismissing him.

THE COURT: It's not the law. The law is you get one attorney

appointed.

MR. HARDWICK: It says if you have voluntarily—reason to

dismiss this attorney, another one will be appointed for you.

THE COURT: No.

I will do either of those two ways you want to do. You can

represent yourself or you can have Mr. Tassone.

MR. HARDWICK: Is the Court forcing me to represent myself

rather than appointing another attorney?

THE COURT: Well, you need to tell me whether you are—

MR. HARDWICK: I'm not going to say that I want to represent

myself in front of this Court.

THE COURT: Yes.

MR. HARDWICK: That's all there is to it.

33

While cross examining Detective Kesinger, Tassone introduced his other apparent

defense of Hardwick, in addition to sufficiency of the evidence, by asking

Detective Kesinger if Mr. Buettner had confessed to killing Pullum. This resulted

in a discussion among counsel, and the judge sustaining the state's objection with

the ruling that the testimony that Tassone was attempting to place before the jury

was hearsay. Later that day, the state rested, and Tassone moved for a directed

THE COURT: Okay.

MR. HARDWICK: I'm not going to say that. Because I do not—I

want another attorney.

THE COURT: Do you think you are capable of representing

yourself?

MR. HARDWICK: No, sir, I do not.

THE COURT: Well, quite frankly, I'm certain that you are better

off with an attorney than without one. I agree with you on that.

The only point on which we disagree is you are telling me Mr.

Tassone is not competent.

MR. HARDWICK: We have a big disagreement there.

Trial Transcript at 665-67 (emphasis added); Transcript of Record, Vol. I at 146.

34

verdict of acquittal based on the state's failure to prove first-degree murder.96 The

judge denied this motion and asked Tassone to call his first witness.

The only witness that Tassone offered was David Buettner on a proffer

outside the presence of the jury. Buettner, a Navy seaman, testified to participating

in killing, with a Marine and another sailor, an individual in Jacksonville while on

limited duty there between December 12, 1984 and August 1, 1985.97 While that

victim also was beaten, stabbed, and shot in the same vicinity as Pullum, he was

stabbed with a bayonet, not a pocket knife, and shot in the back of the head with a

.38 pistol by another sailor with Buettner.98 Moreover, Buettner testified that he

96

Tassone's motion for directed verdict of acquittal was as follows:

The State has charged Mr. Hardwick with murder in the

first degree and they must prove a number of elements, which we

would submit that the State has not brought out any testimony

under the theory of felony murder, and recognizing Mr. Hardwick

is not charged under that particular statute, but the State has failed

to specify elements involving that the death was caused by the

criminal act or agency of Mr. Hardwick, or that there was a

premeditated killing of Mr. Pullum. The Court has heard the

testimony of the various witnesses. We would submit, Your

Honor, that the testimony fails to establish a prima facie case of

guilt against Mr. Hardwick.

Id. at 771. We note that Tassone failed to present testimony to substantiate the bases for his

motion for directed verdict of acquittal.

97

Id. at 774.

98

Id. at 775-76, 777. The motive for this killing allegedly was because the victim had

seduced Buettner's girlfriend and the wives of the other two men while they were at sea. Id. at

795.

35

was certain that the killing occurred on February 2 or 3, 1985, and that the body

was left on the beach by a seaway and not thrown into the river.99 Buettner even

testified that aspects of the killing were the result of his "very vivid

imagination."100 Notably, "Banana Man" was an individual that Buettner had met

and who had told him a story that became part of the story that Buettner told about

the murder to his leading petty officer, his immediate supervisor on his ship.101

The judge sustained the state's objection to Buettner's testimony because it was

either fabrication or another murder, since the facts were different.102 Tassone then

informed the judge that "the Defense will present no witnesses to the jury and will

rest."103

While the jury was absent, the judge addressed Hardwick concerning

witnesses on his behalf and his not testifying:

THE COURT: . . . .

Let me make one inquiry of Mr. Hardwick. . . . I want to state

for the record that we are in the part of the trial where you can present

99

Id. at 776, 778, 791.

100

Id. at 777. This imagination extended to identifying the victim as Keith Kennedy, a

man who had drowned. Id. at 791.

101

Id. at 773, 777.

102

Id. at 778-79, 796-97. The judge also ascertained that Tassone did not want to offer

the hearsay statements of Banana Man. Id. at 796.

103

Id. at 798.

36

evidence. Mr. Tassone has indicated that you do not wish to present

any other evidence other than which you have tried to present.

MR. HARDWICK: I would like to present a bunch of evidence, Your

Honor.

THE COURT: I understand. I understand there are things that you

want to present that he has told you you can't or that he thought you

ought not.

MR. HARDWICK: That's correct.

THE COURT: . . . .

Specifically with regard to you taking the stand,—

MR. HARDWICK: Yes.

THE COURT: —it is my understanding that you and he have

discussed that, is that correct; whether or not you should take the

stand?

MR. HARDWICK: I'm the defendant. I'm the defendant. I wouldn't.

....

THE COURT: . . . .

But, for the record, I do understand there are other witnesses

and things that you want to call and that Mr. Tassone has advised you

not to do that.

MR. HARDWICK: Yes, sir, about 20 of them to be exact.

THE COURT: But none of them are yourself?

MR. HARDWICK: No, sir, none of them are myself.

....

MR. HARDWICK: What I want to know is how Counsel can deny me

the right to call witnesses into this trial?

37

THE COURT: Because your Counsel has to call the witnesses.104

Following the close of the evidence in the case, the judge ordered dinner for

the jurors and resumed the trial for closing arguments at 7:30 P.M. on March 12,

1986. A bailiff advised the judge that Hardwick would not leave his cell, and the

judge recalled that Hardwick had said that he wanted to do his closing argument.105

104

Id. at 798, 799, 800-01, 804 (emphasis added). Prior to trial, the state judge conducted

a hearing on Hardwick’s motion to dismiss Tassone. In the course of that proceeding, Hardwick

informed the state judge that the witnesses that he wanted called on his behalf were all of the

state witnesses:

[W]hen it’s time for trial if all my witnesses aren’t called that I want called and

they aren’t on the record—I want it to reflect that I have requested that these

witnesses be called. All State witnesses that are testifying against me, I want

them called on my behalf too because there are so many different statements. I

want them. You know, some of them are disappearing and all this. I don’t want

to—they are talking about they can’t find them and stuff. I would like the record

to reflect I want all State witnesses called so far that have given depositions and

sworn statements in this matter.

Pretrial Hearing (Feb. 25, 1986) at 77 (emphasis added). Because cross examination is restricted

to the scope of direct examination, it is insufficient for eliciting testimony beyond the scope of

direct examination. Thus, the state witnesses who gave depositions and sworn statements were

identifiable and calling them in the defense case would have resolved conflicts in their

testimony.

105

The account of Hardwick's refusal to leave his cell is as follows:

THE COURT: . . . .

Mr. Tassone, your client has indicated to the bailiffs that he

doesn't want to come out.

MR. TASSONE: Yes, Your Honor, he has indicated the same to

me.

THE COURT: I don't mind. He doesn't have to hear closing

arguments.

MR. TASSONE: Your Honor, I agree.

....

38

The judge, counsel, and the court reporter went to Hardwick's cell for the judge to

conduct an inquiry as to the voluntariness of Hardwick's absence from closing

arguments:

MR. TASSONE: Judge, the Judge, court reporter and [the prosecutor]

are here.

I have advised Judge Haddock that it was your decision not to

come out, and the bailiffs have advised him of the same;

Is that your decision?

MR. HARDWICK: Yes. That's my decision because my witnesses

wasn't called and I don't feel that justice is being done and achieved in

this trial. This is a mockery of justice.

MR. TASSONE: Okay.

Mr. Hardwick, I was advised by the bailiff—he indicated

that—you had advised me of that, but one of the bailiffs indicated to

me and to the Court that it was your desire to proceed and do your

own closing argument.

MR. HARDWICK: You may as well do it. You done did everything

else.

MR. TASSONE: Okay.

THE COURT: Prior to my leaving I heard him say something

about him wanting to do his own closing argument.

MR. TASSONE: No, Your Honor.

BAILIFF MONIES: He said that to me.

THE COURT: I would just as soon avoid that. I am not going to

let him do that.

Id. at 810 (emphasis added).

39

THE COURT: Do you understand you have the right to be present

during this stage of the trial?

MR. HARDWICK: Yeah. I understand it.

THE COURT: And you are waiving that right?

MR. HARDWICK: I reckon. I don't know. I'm just not coming in

there.106

In his closing argument, Tassone argued insufficiency of the circumstantial

evidence with no mention of how Hardwick's drugged and intoxicated condition

during the subject weekend could have affected his ability to formulate

premeditated intent. The prosecutor argued the incriminating testimony and

evidence presented through the state's eighteen witnesses and emphasized

Hardwick's premeditated murder of Pullum. Following closing arguments, the

judge conducted the charge conference with the attorneys late into the night.

The next morning, March 13th, the third and last day of trial, Tassone

tendered two jury instructions, the first of which dealt with the effect of drugs

and/or alcohol on formulating specific intent.107 The prosecutor objected to this

106

Id. at 811-12 (emphasis added). In this exchange, in layman’s terms, Hardwick

actually is complaining that he has been denied his Sixth Amendment right to confront the

witnesses against him, and, therefore, he believes that his trial has been unjust and

unconstitutional.

107

Defendant's first Requested Jury Instruction provides:

The crime of First Degree Murder is a specific intent crime.

In order to find the Defendant guilty, you must find that he had the

40

instruction and stated: "I don't recall a scintilla of evidence that this defendant was

intoxicated. As a matter of fact, the evidence was quite to the contrary; that he

seemed very sober the night of the offense."108 The trial judge agreed: "With

regard to number 1, I recall no evidence of intoxication of any sort on the night of

the alleged killing. Therefore, I don't think it's an appropriate charge with this

evidence. I will deny defendant's requested jury instruction number 1."109 After

the instructions and the jury retired to deliberate the verdict, the judge asked

counsel if there were any exceptions or objections to the instructions. Tassone

stated that the defense had none.110 At 4:05 P.M., the jury signaled that it had a

specific intention to kill.

Intoxication from ingesting drugs and/or alcohol may

render an individual incapable of formulating the specific intent

required.

Therefore, if you find the Defendant was intoxicated to the

extent that he was unable to formulate a specific intent to kill, you

must find the Defendant not guilty of Murder in the First Degree.

Transcript of Record, Vol. I at 147 (emphasis added).

108

Trial Transcript at 918 (emphasis added).

109

Id. at 919 (emphasis added). At the 3.850 proceeding, Tassone testified that, because

of the “very, very valuable forensic evidence that tied Mr. Hardwick to the homicide,” the jury

did not need to know about Hardwick’s drug use or possession “to convict Mr. Hardwick”: “I

think they could prove premeditation without ever having mentioned a drug.” 3.850 Proceeding

at 141. Tassone’s statement demonstrates his lack of understanding of the voluntary intoxication

defense and his failure to comprehend the mitigation groundwork/foundation this evidence

would have been for the penalty phase.

110

Id. at 935-36.

41

verdict.111 The jury found Hardwick guilty of murder in the first degree; the judge

set sentencing for March 27, 1986.112

3. Sentencing Proceeding

At sentencing, the judge informed the jurors that it was their duty to render

an advisory opinion as to whether Hardwick's punishment for first-degree murder

should be death or life imprisonment by evaluating the aggravating and mitigating

circumstances.113 The prosecutor presented the judgments and sentences from

Hardwick's previous convictions.114 Tassone presented no mitigating evidence.115

111

Id. at 944. The jury began its deliberations at 10:53 A.M., went to lunch from 12:45

P.M. till 1:45 P.M., when it continued deliberations, and announced a verdict at 4:05 P.M. Id. at

935, 944.

112

Id. at 949-50.

113

Sentencing Transcript at 963-64.

114

Id. at 964. In his argument to the jury at sentencing, Tassone did attempt to moderate

the effect of Hardwick's other convictions by explaining them:

[The prosecutor] argues [these convictions] show[] that

[Hardwick] has a lengthy prior criminal history record. I ask you

to look at the judgment and sentences that were introduced. One in

1978. The other in June of 1985. The 1985 conviction occurring

for robbery and kidnapping which occurred the day after Keith

Pullum's death, December 25th, 1984. The other one occurred in

1978. The offense in the State of North Carolina where it occurred

is a misdemeanor. And the method of this heinous crime, of this

horrible thing the State says, was attempting to hit someone with, I

believe, a steel hardhat. So, look at those. Look at what

circumstances are that are in those judgments and sentences.

Id. at 992-93. Had Tassone provided the details of the 1978 offense, committed while Hardwick

was incarcerated and provoked by a prison guard, as Hardwick's mother explained at the 3.850

proceeding, the effect of that conviction may have been lessened for the jury:

42

Again emphasizing the premeditated and cruel nature of the murder, the prosecutor

told the jury that statutory mitigating factors did not exist to counter the

aggravating circumstances. For example, the prosecutor stated that "there isn't one

shred of evidence that indicates that this defendant was under the influence of any

mental or emotional disturbance" and "[t]here is no evidence that the defendant's

mind was impaired or that he was out of control."116 Rather than giving the jury

any mitigating factors to consider, Tassone's closing and rebuttal arguments

reviewed the evidence in keeping with his sufficiency-of-the-evidence defense.117

When Little Johnny was in a North Carolina road camp some of

the young men in camp with him called me collect. They told me

that a certain guard had been harassing Little Johnny for a while

and had thrown hot tar at Johnny's face. I found out that Little

Johnny was charged with assault because he then threw his hard

hat at the guard. I hired an attorney over the phone to represent

him on that charge.

Affidavit of Nell Lawrence ¶ 17; see 3.850 Proceeding at 523-24 (Lawrence's testimony

concerning this incident).

115

Id. at 965.

116

Sentencing Transcript at 983, 985.

117

Since Hardwick had been convicted under Tassone’s sufficiency-of-the-evidence

defense, sentencing had a different defense purpose: to present mitigating factors to be weighed

against the aggravating factors of the murder to obtain a life sentence instead of death. In

response to questioning about his knowledge of nonstatutory mitigating factors at the 3.850

proceeding, Tassone responded: “I would think anything to try and make a jury to have some

type of sympathy for the defendant I would probably try and get in, or an understanding of the

defendant to lessen his culpability in the crime for which he stood convicted.” 3.850 Proceeding

at 151 (emphasis added). Inconsistent with this testimony was Tassone’s testimony that,

although he knew from either Dr. Barnard or Hardwick’s mother “that when Mr. Hardwick used

alcohol he became violent,” id. at 99, he did not ask Dr. Barnard to evaluate Hardwick for

43

Having presented no defense for Hardwick and following the state's closing

argument graphically describing Pullum's murder, Tassone's last statement to the

jury in his rebuttal argument was notable for its lack of foundation: "I think the

evidence is clear and the lack of evidence even clearer that John Gary Hardwick is

innocent of the crime of first degree murder."118

The judge then instructed the jury that its advisory sentence was to be based

on its

determination as to whether sufficient aggravating circumstances exist

to justify the imposition of the death penalty and whether sufficient

mitigating circumstances exist to outweigh any aggravating

circumstances found to exist.

Your advisory sentence should be based upon the evidence that

you have heard while trying the guilt or innocence of the defendant

and evidence that has been presented to you in these proceedings.

....

Each aggravating circumstance must be established beyond a

reasonable doubt before it may be considered by you in arriving at

your decision.

substance abuse, id. at 113, or statutory mitigating factors in the penalty phase, id. at 180. With

respect to the depositions of witnesses describing Hardwick’s intoxication and use of drugs

during the Christmas weekend, Tassone testified that he did not give those depositions to Dr.

Barnard, and further “that the chance of him receiving the depositions w[as] virtually nil.” Id. at

111. Tassone could have presented to the judge and jury Hardwick’s deprived and abusive

childhood that led to his alcohol and drug addictions that was manifested particularly during the

time period of the murder, when Hardwick participated in the binge, extended holiday weekend

where numerous individuals witnessed his alcohol and drug consumption as well as the effects

on Hardwick of his overindulgence. Instead, Tassone presented no mitigating evidence on

Hardwick’s behalf.

118

Trial Transcript at 892.

44

If one or more aggravating circumstances are established, you

should consider all the evidence tending to establish one or more

mitigating circumstances, and give that evidence such weight as you

feel it should receive in reaching your conclusion as to the sentence

that should be imposed.

A mitigating circumstance need not be proved beyond a

reasonable doubt by the defendant. If you are reasonably convinced

that a mitigating circumstance exists, you may consider it as

established.

....

If a majority of the jury determines that [Hardwick] should be

sentenced to death, your advisory sentence will be: A majority of the

jury, by a vote of blank, you will fill in that blank, advise and

recommend to the Court that it impose the death penalty upon

[Hardwick].

On the other hand, if by six or more votes the jury determines

that [Hardwick] should not be sentenced to death, your advisory

sentence will be: The jury advises and recommends to the Court that it

impose a sentence of life imprisonment upon [Hardwick] without

possibility of parole for 25 years.119

Tassone stated that he had no exceptions or objections to the instructions as

given.120 The jury retired to deliberate its advisory recommendation at 3:17 P.M.

on March 27, 1986, and returned a verdict at 4:18 P.M that afternoon "by a vote of

7 to 5" recommending that Hardwick receive the death penalty.121

119

Id. at 1002-03, 1005-06, 1006-07 (emphasis added).

120

Id. at 1008.

121

Id. at 1008, 1010, 1011.

45

4. Sentencing

At sentencing on April 24, 1986, the judge found that five aggravating

circumstances existed: (1) three prior, violent felony convictions,122 (2) the capital

felony was committed while Hardwick was engaged in a kidnaping, (3) the capital

felony was committed for pecuniary gain, (4) "the murder was especially wicked,

122

The judge stated that the first of these felony convictions was the 1978 North Carolina

incident, and he took "special notice" that the second and third felony convictions "were actually

committed within 24 hours after the defendant committed the murder for which he is now to be

sentenced." Sentencing Hearing at 1029. The Florida Supreme Court has strictly interpreted

prior felony convictions that qualify as an aggravating circumstance at sentencing in a capital

case. See Fla. Stat. § 921.141(5)(b) (1985) (“The defendant was previously convicted of another

capital felony or of a felony involving the use or threat of violence to the person.”). Rejecting

previous felony convictions “involving violence [,] . . . two convictions of breaking and entering

with intent to commit a felony, two convictions of escape, one conviction of grand larceny, and

one conviction of possession of a firearm by a convicted felon,” the Florida Supreme Court held

that none of these crimes falls within the meaning of this aggravating

circumstance as defined by the statute. Only previous conviction of “another

capital felony or of a felony involving the use or threat of violence” will satisfy

section 921.141(5)(b). This subsection refers to life-threatening crimes in which

the perpetrator comes in direct contact with a human victim.

Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981) (per curiam). Hardwick’s misdemeanor in North

Carolina, which arose from his throwing a hard hat at a prison guard who had thrown hot tar in

Hardwick’s face while he was incarcerated, see supra note 114, does not appear to be eligible for

a prior felony conviction, constituting an aggravating circumstance.

Additionally, Hardwick’s second and third felonies were committed subsequent to

Pullum’s killing. Whether these crimes, committed within 24 hours of Pullum’s death, had

resulted in felony convictions prior to Hardwick’s trial for Pullum’s murder is determinative of

whether they qualify as an aggravating circumstance. The Florida Supreme Court has explained

that, under § 921.141 (5)(b), “[i]t is clear that the Legislature referred to ‘previous convictions’

and not ‘previous crimes.’” Elledge v. State, 346 So. 2d 998, 1001 (Fla. 1977). Citing Provence

v. State, 337 So. 2d 783 (Fla. 1976), where two armed robbery charges, and not convictions,

were pending at the time of the defendant’s murder trial, the Florida Supreme Court reiterated

that “[i]t was there emphasized that prior conviction was the essential element of that

aggravating circumstance.” Elledge, 346 So. 2d at 1001.

46

evil, atrocious, or cruel,"123 and (5) the homicide "was committed in a cold,

calculated, and premeditated manner."124 Having found five aggravating

circumstances and "no statutory or non-statutory mitigating circumstances," the

judge sentenced Hardwick to death.125 Following the imposition of the death

penalty, Tassone thanked the judge.126

5. Direct Appeal

On direct appeal, the Florida Supreme Court affirmed Hardwick's conviction

and sentence. Hardwick v. State, 521 So. 2d 1071 (Fla. 1988). The Florida

Supreme Court did determine that two of the aggravating factors found by the trial

court were erroneous: "[T]he trial court erred in finding that the killing was

committed during a kidnapping and was for pecuniary gain. Each of these factors

requires proof beyond a reasonable doubt, not mere speculation derived from

equivocal evidence or testimony." Id. at 1075. That court determined that the

error in weighing the aggravating and mitigating factors was harmless because

"[t]he record before us reflects three aggravating factors and no valid mitigating

123

Id. at 1030.

124

Id. at 1033.

125

Id. at 1034.

126

Id. at 1035.

47

factors."127 Id. at 1076-77. Regarding discounting the mitigation factor of alcohol

and drug addiction, the Florida Supreme Court explained that no supporting

evidence was presented at either the guilt or sentencing phase.128

127

Under Florida law, “[w]here there are one or more valid aggravating factors that

support a death sentence and no mitigating circumstances to weigh against the aggravating

factors, death is presumed to be the appropriate penalty.” Blanco v. State, 452 So. 2d 520, 526

(Fla. 1984) (per curiam).

Florida’s death penalty statute, section 921.141, Florida Statutes (1983), provides

that the jury shall hear the evidence on aggravation and mitigation and render an

advisory sentence based on whether there are sufficient aggravating

circumstances to warrant a death sentence, and, if so, whether there are sufficient

mitigating circumstances to outweigh the aggravating circumstances. The statute

goes on to provide that, notwithstanding the recommendation of the jury, the

judge shall weigh the aggravating and mitigating circumstances and enter a

sentence of life imprisonment or death based on the judge’s weighing process. In

the event the death sentence is imposed, the judge is required to set forth in

writing the findings on which the death sentence is based. . . . [T]he judge is the

sentencing authority and the jury’s role is merely advisory.

....

[The Florida Supreme Court] routinely applies harmless error analysis to, and

affirms, death sentences where the judge has improperly found invalid

aggravating factors provided one or more valid aggravating factors exist which

are not overridden by one or more mitigating factors.

Grossman v. State, 525 So. 2d 833, 839, 844 (Fla. 1988) (per curiam); see Barclay v. Florida,

463 U.S. 939, 103 S.Ct. 3418 (1983) (holding that, when a trial judge has considered an invalid

aggravating circumstance, applying harmless-error analysis does not render the death sentence

unconstitutional). This case is distinguished, however, because our review of the record reveals

that Hardwick’s counsel failed to present statutory and nonstatutory mitigating factors that

should have been weighed against statutory aggravating factors, which we address in our

subsequent discussion of the sentencing phase.

128

The Florida Supreme Court stated:

[T]his record contains nothing beyond a mere implication that

Hardwick suffered from drug or alcohol dependency. Appellant

presented no evidence or testimony from qualified witnesses

during either the guilt or penalty phases of trial. The only

evidence remotely touching on this question was from several lay

48

6. Florida Postconviction, Rule 3.850 Proceeding

Following the signing of a death warrant, Hardwick filed an emergency

motion for stay of execution and a motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850 on February 16, 1990. The trial judge

conducted an evidentiary hearing on the latter motion on February 22, 1990, and

denied it. On appeal, the Florida Supreme Court stayed Hardwick's execution and

remanded his case "for a complete evidentiary hearing on Hardwick's claims under

Florida Rule of Criminal Procedure 3.850."129 The trial judge conducted further

proceedings on Hardwick's 3.850 motion on May 3-4, 1990, and August 15-16,

1990.

The evidence introduced at these proceedings included the testimony of

Tassone,130

witnesses, friends or acquaintances of appellant, who testified that

on certain occasions he had used drugs and alcohol, had Quaaludes

in his possession and sold drugs to others. Nothing suggests that

appellant's use of intoxicants had reached the level of a continuing

impairment to any degree or that he actually was impaired at the

time of the killing. Indeed, there was testimony to the contrary.

We therefore cannot fault the trial court for failing to find this

factor in mitigation, since it was not established by any significant

evidence in the record.

Hardwick, 521 So.2d at 1076 (emphasis added).

129

Hardwick v. Dugger, Nos. 75,556, 75,673, slip op. at 1 (Fla. Mar. 20, 1990).

130

The Florida Supreme Court found the first of the three evidentiary 3.850 proceedings,

which occurred on February 22, 1990, and contains solely Tassone’s testimony, and resulting

49

order of the trial judge to be insufficient. Tassone’s testimony at this initial evidentiary hearing

is significant not only because Tassone is the focus of the ineffective-assistance-of-counsel

claims at issue in this case, but also it implicates the fairness of the state judge’s conduct of the

proceeding. Tassone’s testimony further reveals his misunderstanding of mitigating factors

critical to the penalty phase. Tassone did not testify again at either of the subsequent 3.850

evidentiary hearings on May 3-4, 1990, or August 15-16, 1990, following the remand of the

Florida Supreme Court. While the dissent accepts and adopts the state trial judge’s factual

findings from his supplemental order after conducting additional evidentiary hearings on

remand, we note that any findings concerning Tassone derive from his testimony at the initial,

February 22, 1990, evidentiary hearing, found to be deficient by the Florida Supreme Court.

The portion of the 3.850 proceedings that contains Tassone’s testimony commenced at

2:15 P.M. on February 22, 1990. 3.850 Proceedings at 4. At the outset, counsel appearing for

Hardwick requested a continuance because Hardwick’s primary counsel was litigating a 3.850

motion in another case in another city. Id. at 5. The “stand in” counsel, who had never met

Hardwick or worked on the case, id., further explained that he had been up all the preceding

night preparing a 3.850 motion for filing that day in another city, id. at 6. Therefore, he “had

absolutely no time to familiarize [himself] with [Hardwick’s] records.” Id. The state judge

determined that “there is really no reason for continuance here today. We can take Mr.

Tassone’s testimony.” Id. at 11.

When the state prosecutor asked Tassone if Hardwick admitted to him that he committed

the murder, his attorney objected, and the judge overruled the objection. Before answering,

Tassone asked for time to consult his attorney, and the judge gave him five minutes. Prior to

cross examination, the judge, at 4:28 P.M., granted Hardwick’s counsel’s motion for a recess,

but ordered that the hearing would reconvene at 8:30 P.M. that evening and required the counsel

“to either have an attorney here who is prepared to go forward with the hearing or, [stand-in

counsel] will have to prepare yourself as best you can in the interim.” Id. at 72.

The hearing reconvened at 8:40 P.M. that evening. Id. at 76. As the hearing proceeded

into the night, Hardwick’s stand-in counsel requested a two-minute restroom break. Id. at 130.

Later, after discussing an objection, the stand-in counsel stated: “I am tired, Your Honor, so I

will try again, but I think Your Honor understands,” whereupon the judge overruled the

objection. Id. at 138.

Subsequently, Hardwick’s attorney asked Tassone about statutory mitigating

circumstances in Florida:

Q Sir, do you know what the statutory mitigating circumstances are in the Florida

system?

A Probably.

....

THE WITNESS: I probably remember some of them.

BY [Hardwick’s Attorney]:

Q It’s late and I know you are tired. Can you tell us which ones you can recall

right now, sir?

A Whether the defendant was under the substantial domination of another, an

50

insignificant prior criminal history, whether he was an active participant in the

crime for which he stood convicted or played some lesser role.

I just can’t remember anymore right now.

Q All right.

A His age at the time of the offense is another one. I think there is two more,

maybe three more.

Q Under extreme mental or emotional distress?

A Yes, sir.

Q The defendant’s capacity to conform his conduct to the requirements of the law

were substantially impaired at the time of the offense?

A I think that is one.

Id. at 151, 152 (emphasis added).

As the hearing continued into the night, Tassone asked the judge: “Your Honor, may we

take a five-minute break? All I want to do is walk up and down and splash water on my face.”

Id. at 168. A short recess followed. Id. at 169. Later, Hardwick’s substitute counsel requested a

recess to call to see if his principal attorney had returned from his 3.850 appearance in another

city. Id. at 177. Unsuccessful at reaching that counsel, Hardwick’s stand-in attorney

subsequently showed weariness in his examination:

[Hardwick’s Attorney]: If the court can bear with me for a moment, sir?

THE COURT: uh-huh.

[Hardwick’s Attorney]: I am losing my train of thought here. I am sorry.

Id. at 179. Following cross examination, the prosecutor requested redirect examination, to which

the state judge responded: “I am not sure you are entitled to a redirect in this kind of hearing.”

Id. at 185. The judge then agreed: “I am indicating he may redirect but with reluctance.” Id.

The hearing proceeded, and the questioning concerned whether Hardwick’s recollection

of the facts of the murder was consistent with someone under the influence of intoxicants, at

which point, Tassone stated: “Your Honor, I—and counsel—I would feel very, very

uncomfortable with the question. I would say I would call my attorney but I would be very

reluctant at this time in the morning. And I think in light of Mr.Hardwick’s counsel asserting the

privileges I probably would decline to answer that question. Id. at 187-88 (emphasis added).

When the prosecutor wanted to question Tassone concerning Bartley’s participation in the

murder, Hardwick’s attorney stated: “Your Honor, I guess I would have to ask at this late time in

the evening what the relevance of all that is? Id. at 190 (emphasis added). At 1:00 A.M.,

Tassone was excused, the prosecutor said that the state had no other witnesses to present, and the

judge asked if the defense had any witnesses to present, to which Tassone’s attorney replied:

[Hardwick’s Attorney]: We have witnesses to present but none that are here at

this time, Your Honor.

THE COURT: Now is the time.

[Hardwick’s Attorney]: It’s 1:00 o’clock in the morning, Your Honor. We have

no witnesses available at this time.

THE COURT: I want you to tell me, for the record, if you had somebody at 1:30

this afternoon who has left. I will send for them.

51

[Hardwick’s Attorney]: No, Your Honor. I indicated on the record this afternoon

that I did not have any witnesses that were available to testify at this time.

I would strenuously argue if we are not allowed to call any witnesses at this time

that we have just wasted everyone’s entire day because, clearly, we have

not resolved any of the issues upon which you indicated we needed

to rule, Rule 3.850, evidentiary hearing.

We have obvious witnesses that need to be called based upon the testimony that has been

presented here and, clearly, which is in conflict, and we would request the court allow us to do

that.

THE COURT: Do I interpret that as a motion for continuance?

[Hardwick’s Attorney]: Yes, sir.

THE COURT: I will deny the motion for continuance and —

[Hardwick’s Attorney]: And, Your Honor, if I could, just for the record proffer at

this time that, clearly, we could call Dr. Barnard, and we would proffer his

testimony which I think would contradict significant aspects of the testimony of

Mr. Tassone.

Clearly, all of the witnesses that were proffered through the affidavits

indicated that that information was never specifically asked of them; that they

would have testified to that.

We definitely would want to proffer the evidence, the testimony from Mr.

Hardwick, himself, concerning discrepancies that he would have with Mr.

Tassone’s testimony.

Additionally, we would ask the court to allow us to present copies of Mr.

Tassone’s files which will contradict things that he said on the record here today.

And, additionally, we would ask the court to allow us to present the

testimony from Dr. Dee and from Dr. Levin which would contradict things that

Mr. Tassone has said and would also be relevant evidence as to the Claim No. XI

[failure to assist defense counsel] which Your Honor indicated we were entitled to

an evidentiary hearing on.

Clearly, all of those witnesses need to be called for Your Honor to make

any kind of factual findings in this case.

The affidavits from Mrs. Lawrence and from Jeff Hardwick are in direct

contradiction of what Mr. Tassone says.

Your Honor cannot make fact findings without hearing from those

witnesses. We would proffer that what Dr. Barnard would say would contradict

that.

Again, Your Honor does not have any of that evidence before him and we

would renew our request for a continuance in order to present that information.

[Prosecutor]: . . .

The State can attach a little credence, perhaps, to the proffer.

....

The fact is they have been allowed to present the affidavit[s] of these

52

psychiatric experts, members of Hardwick's family, and other witnesses, as well as

affidavits and diagnostic reports from the expert witnesses. Tassone's testimony

witnesses and the State has stipulated to what they say they will testify to. I don’t

see how anyone has been prejudiced here today.

....

[Hardwick’s Attorney]: Clearly, Your Honor, affidavits cannot be drafted to

anticipate what may need to be rebutted in the course of cross examination of an

attorney/witness and, clearly, our affidavits couldn’t do that and don’t do that.

And, therefore, calling them as witnesses is obviously necessary, not to

mention the fact that Your Honor did not determine an issue of credibility based

upon a piece of paper.

Additionally, as to Dr. Barnard, we didn’t feel we needed an affidavit

based on a report that Your Honor has before you. And I think the report speaks

pretty clear for itself. There is not one mention of Dr. Barnard ever indicating

that his evaluation of Mr. Hardwick had anything to do with anything but

competency and sanity.

And so, no, Your Honor, we didn’t waste any time trying to get an

affidavit from an expert who clearly in his report indicated what he did for a case.

[Prosecutor]: . . ..

The fact of the matter is the State is prejudiced because we cannot cross

exam affidavits, either and, therefore, you know, the State has been prejudiced

here more than the defense.

....

The issue here is the performance of counsel from his shoes at the time.

And we have already stated that these people would come in, and at least now,

according to affidavits procured from them, they now allege that they would come

in and testify. That has been stipulated to.

....

THE COURT: Okay. I am going to deny the defendant’s motion for a

continuance, and I will declare the evidentiary phase of this hearing closed.

It is 1:00 a. m. Friday morning. I do not propose to start listening to

arguments at this time of night. I will take the case under advisement.

....

I will, while we’re here, enter an order on the application for a stay of

execution. Since we have now held the hearing that was the grounds for that

motion, I will deny the application for stay of execution.

Id. at 192, 193-195,196, 197-99 (emphasis added). The state judge deferred Hardwick’s motion

to compel because “I just don’t want to ask you to argue, mainly because my court reporter is

about to give up on us.” Id. at 200. The hearing ended at 1:05 A.M. Id. at 201.

53

reveals his misunderstanding of aggravating and mitigating factors as they relate to

a voluntary intoxication defense:"I am not too sure an abuse of alcohol or drugs is

a aggravating or a mitigating factor. I mean, I guess what I am saying is I am not

too sure it's mitigating or aggravating."131 This misunderstanding, together with his

belief that Hardwick would be convicted of first-degree murder,132 appeared to

govern his defense of Hardwick at both the guilt and penalty phases. Although

Tassone recognized that voluntary intoxication is "where an individual through

ingesting either alcohol or drugs may be unable to formulate the intent or the

requisite intent required in a specific intent crime,"133 he did not ask the court-

appointed psychiatrist to evaluate Hardwick relative to a voluntary intoxication

defense but to determine his competency to stand trial and his sanity at the time of

131

3.850 Proceeding at 52. Tassone explained his perception of whether voluntary

intoxication was an aggravating or mitigating factor:

I feel that — and my theory is in terms of voluntary intoxication that there

is a difference between an individual say perhaps who is addicted to some

narcotic and steals bologna and cheese from the 7/Eleven and an individual who

is intoxicated on narcotics, who is not only a user, whether occasional or regular,

but who also sells the narcotic for a living.

To me, that is a aggravating factor rather than a mitigating factor.

Id. at 57-58.

132

Id. at 133.

133

Id. at 121. In his supplemental order denying Hardwick post-conviction relief, the

state trial judge concluded that “[o]f course, Hardwick was sane and competent despite any drug

problem.” Transcript of Record, Vol. IV at 599.

54

the offense.134 In contrast, the two other psychiatric experts who were asked to

perform this evaluation opined and testified, based on their review of the record

and interviews with Hardwick, his family, and witnesses, that the degree of

134

Id. at 122. Based upon the state judge’s undocumented assertion that Tassone

discussed mitigating testimony and evidence with Dr. Barnard, the court-appointed psychiatrist,

the dissent accepts as a fact entitled to a presumption of correctness, that Tassone did discuss

mitigating evidence with Dr. Barnard relating to Hardwick’s case. Instead, Dr. Barnard’s 3.850

testimony is clear that he performed a two-part evaluation of Hardwick pursuant to the state

court’s order for him to determine: (1) Hardwick’s competence to stand trial and (2) his sanity at

the time of the homicide. 3.850 Proceeding at 252-53. Both of these inquiries focused on the

guilt-innocence phase of Hardwick’s trial and not on mitigating circumstances relevant to

sentencing. Practically, Tassone wanted a determination of whether Hardwick was capable of

assisting in his defense. As Dr. Barnard explained, a negative finding as to competence to stand

trial would be the basis for involuntary hospitalization. Id. at 261. Tassone also wanted a

determination of whether Hardwick could be considered sane at the time of the murder; if not, an

insanity plea would be appropriate. Id. at 309. Consequently, Dr. Barnard’s conclusion that

Hardwick knew what he was doing at the time of the murder related only to his sanity at the time

of the murder and did not encompass mitigating circumstances. As the trial judge explained:

sanity is not an issue at the penalty phase because it has no purpose at that point in the

proceedings. Id. at 850. Dr. Barnard testified that, if he had been asked to evaluate specific

intent as it related to statutory or nonstatutory mitigating factors relevant to voluntary

intoxication, then this analysis would not only be in his report but also in his notes. Id. at 262,

342. Dr. Barnard specifically testified that he did not provide an opinion concerning Hardwick’s

voluntary intoxication at the time of the homicide or statutory or nonstatutory factors present in

his case. Id. at 262.

In contrast, Dr. Dee and Dr. Levin were asked to evaluate Hardwick as to mitigating

factors. In addition to talking with Hardwick and his wife as well as reviewing the depositions

and trial testimony of witnesses, both doctors independently determined that, to a reasonable

degree of psychological certainty, Hardwick was substantially impaired such that he did not have

the capacity to formulate specific intent or to conform his conduct to the requirements of law at

the time of the homicide. Id. at 787, 975. To the extent that Dr. Barnard talked in these terms at

the 3.850 proceeding, he also made abundantly clear that he simply did not assess statutory or

nonstatutory mitigating factors in his evaluation of Hardwick because he was not asked to do so.

Dr. Barnard, however, testified that he did not recall discussing statutory or nonstatutory

mitigation evidence with Tassone, 3.850 Proceeding at 262, 300, and that he received no

correspondence from Tassone, id. at 253. Moreover, if the judge or Tassone had asked him to

evaluate mitigating factors relating to Hardwick’s case, then Dr. Barnard testified that he would

have done so. Id. at 262.

55

Hardwick's intoxication at the time of the homicide mitigated his ability to

formulate specific or premeditated intent.135

Additionally, Tassone testified that he either discounted or discredited many

of the witnesses at the relevant time because of their age or drug use.136 He did not

recall interviewing Hardwick's mother as to whether she saw her son and his

condition within the relevant time of the homicide.137 Hardwick's family members,

including his siblings, who could have testified concerning Hardwick's alcohol and

drug use from childhood, averred that Tassone did not contact them and that they

would have been willing to testify.138 The trial court denied Hardwick

135

Id. at 791 (Dr. Clifford A. Levin); id. at 975 (Dr. Henry L. Dee).

136

Tassone explained his disinterest in many of the young witnesses in the drug

community who saw Hardwick at the relevant time:

Most of them admitted to being drug users, a lot of them because of their age, a

lot of them because of their or some of them because of their past criminal

history.

Some of them were seventeen and eighteen, were not going to school,

were not working. Their parents were not supporting them but, but they had no

means of support and things like that.

So, all those factors. But, clearly, drug use was one of the factors.

Id. at 118.

137

Id. at 118-19.

138

See, e.g., Affidavit of Nell Lawrence ¶ 23 (mother); Affidavit of Jeff Hardwick ¶ 7

(brother); Affidavit of Jerry Hardwick ¶ 7 (brother); Affidavit of James Britt ¶ 10 (half brother);

Affidavit of Grady Hardwick ¶ 11 (uncle); Affidavit of James Hardwick ¶ 9 (uncle); Affidavit of

Grace Powell ¶ 6 (aunt); Affidavit of Florrie Benton ¶ 8 (aunt).

56

postconviction relief,139 and the Florida Supreme Court affirmed and also denied

his petition for writ of habeas corpus. Hardwick v. Dugger, 648 So. 2d 100 (Fla.

1994) (per curiam).

7. Federal Habeas Corpus Proceeding

Hardwick then filed the subject petition for habeas corpus relief pursuant to

28 U.S.C. § 2254 in the Middle District of Florida, which the district court

dismissed with prejudice. Of the twenty issues raised, only the subject claims of

ineffective assistance of trial counsel at the guilt and penalty phases and a claim of

conflict of interests between Hardwick and his trial attorney remain. Without an

evidentiary hearing, the district judge determined that alleged guilt-phase

ineffective assistance for failure to advance a voluntary intoxication defense was

inconsistent with the evidence, that alleged penalty-phase ineffective assistance

was justified as attorney strategy, and that Hardwick was not entitled to another

appointed counsel.

When Hardwick sought a certificate of appealability/probable cause, the

district judge applied the Antiterrorism and Effective Death Penalty Act of 1996

139

Discounting any potential mitigating evidence that could have been presented at the

penalty phase and approving Tassone’s “strategic decision to rely upon argument rather than this

evidence of mixed value,” the state trial judge stated in his supplemental order: “The court does

not find any reasonable probability that a different recommendation would have come from the

advisory jury. The evidence would not, if offered, have prompted a sentence other than death

from this Court.” Transcript of Record, Vol. IV at 599.

57

(AEDPA), 28 U.S.C. § 2253(c) and issued a certificate of appealability for three of

Hardwick's twenty claims for relief. Pursuant to Hardwick's argument that the

district judge erroneously had applied the AEDPA because his petition was

pending on April 26, 1996, when the AEDPA was enacted, our court remanded for

"reevaluation of Hardwick's application for a certificate of probable cause in light

of pre-AEDPA law." Hardwick v. Singletary 122 F.3d 935, 936 (11th Cir. 1997)

(per curiam). On remand, the district judge again relied on the AEDPA and

granted a certificate of appealability. Following Hardwick's motion for relief from

the order, we construed the district court's certificate of appealability "as a grant of

a certificate of probable cause to appeal all issues presented in the petitioner's

federal habeas petition." Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.

1997) (per curiam). After oral argument, we directed counsel to provide

supplemental briefs discussing the effect of Williams v. Taylor, 529 U.S. 420, 120

S.Ct. 1479 (2000), on this appeal. We now turn to the three issues before us:

Tassone’s neffective assistance of counsel at the guilt and penalty phases and

conflict of interest between Hardwick and his counsel.140

II. DISCUSSION

140

"Issues not clearly raised in the briefs are considered abandoned." Marek v.

Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995).

58

A. Review Standards

Under pre-AEDPA law, we review the denial of a § 2254 petition and a

district court's legal conclusions de novo. Johnson v. Alabama, 256 F.3d 1156,

1169 (11th Cir. 2001). A district court's factual findings are reviewed for clear

error. Id. While factual findings by a state court following a merits hearing on the

claims raised generally are accorded a presumption of correctness, this

presumption does not obtain if any of the eight exceptions in former § 2254(d)

apply.141

141

Regarding the presumption of correctness and the eight exceptions, the applicable

former statute provides:

In any proceeding instituted in a Federal court by an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination after a

hearing on the merits of a factual issue, made by a State court of

competent jurisdiction in a proceeding to which the applicant for

the writ and the State . . . were parties, evidenced by a written

finding, written opinion, or other reliable and adequate written

indicia, shall be presumed to be correct, unless the applicant shall

establish or it shall otherwise appear, or the respondent shall

admit—

(1) that the merits of the factual dispute were not resolved in the

State court hearing;

(2) that the factfinding procedure employed by the State court was

not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the

State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or

over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in

deprivation of his constitutional right, failed to appoint counsel to

represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate

59

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in

the State court proceeding;

(8) or unless that part of the record of the State court proceeding in

which the determination of such factual issue was made, pertinent

to a determination of the sufficiency of the evidence to support

such factual determination, is produced as provided for hereinafter,

and the Federal court on a consideration of such part of the record

as a whole concludes that such factual determination is not fairly

supported by the record . . . .

28 U.S.C. § 2254(d) (1994) (emphasis added); see Sumner v. Mata , 449 U.S. 539, 544-47, 101

S.Ct. 764, 769 (1981) (making no distinction between factual determinations of state trial or

appellate courts); Bundy v. Wainwright, 808 F.2d 1410, 1416 (11th Cir. 1987) (“[N]o

presumption arises if any one of the eight numbered conditions is shown to exist.”).

In contrast to the dissent’s acceptance of the factual findings in the trial judge’s

supplemental order following the augmented 3.850 proceeding, the majority views the first part

of the 3.850 proceeding to have failed in providing “a full, fair, and adequate hearing.” 28

U.S.C. § 2254(d)(6). That evidentiary hearing, consisting only of Tassone’s testimony that the

Florida Supreme Court found to be deficient, was conducted with an unprepared, stand-in

counsel because Hardwick’s principal counsel could not be present. Although counsel and the

witness, Tassone, were weary, the trial judge nonetheless forced them to complete the hearing,

which began in the early afternoon and did not end until the following morning. Because

witnesses and Hardwick were unavailable late that night, and the trial judge refused to grant a

continuance, facts material to mitigating circumstances relevant to Hardwick’s sentencing

proceeding were not presented and resolved adequately.

Although the Florida Supreme Court found this proceeding to have been deficient,

Tassone never testified again. In the two subsequent portions of the 3.850 proceeding, the

witnesses presented testified regarding Hardwick’s deprived and abusive childhood as well as

Tassone’s errant advice to them or lack of contact. This testimony exposed issues of Tassone’s

ineffectiveness relating to Hardwick’s sentencing, but Tassone never addressed or responded to

this testimony, which the district court’s evidentiary hearing on remand will reconcile.

Additionally, we conclude that some factual issues decided by the state judge were “not

fairly supported by the record.” 28 U.S.C. § 2254(d)(8); see Fortenberry v. Haley, 297 F.3d

1213, 1220 (11th Cir. 2002) (per curiam). To the extent that the dissent seems to fault the

majority for “repeatedly contrast[ing] statements or findings of the 3.850 court with the [record]

evidence,” Dissent at 4, our review under § 2254(d)(8) requires such evaluation of the state

judge’s 3.850 factual findings before they are accorded a presumption of correctness. See

Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850 (1983) (“This deference requires

that a federal habeas corpus court more than simply disagree with the state court before rejecting

its factual determinations. Instead, it must conclude that the state court’s findings lacked even

‘fair support’ in the record.”). Simply because a state judge’s postconviction order states certain

60

A presumption of correctness usually applies to "basic, primary, or historical

facts." Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S.Ct. 457, 464 (1995).

Questions of law or mixed questions of law and fact, however, are not subject to

the presumption.142 Id. at 109-10 & n.9, 116 S.Ct. at 464-65 & n.9. Accordingly,

our court has recognized that the presumption of correctness generally applicable

to federal habeas review of state-court factual findings is not insurmountable or

irrebuttable. Historical facts found by state courts in evaluating ineffectiveness

claims are not presumed correct if they are clearly erroneous. Bolender v.

Singletary, 16 F.3d 1547, 1558 n.12 (11th Cir. 1994). State-court factual findings

factual findings does not mean that a federal habeas court automatically accepts them if the

record shows that those fact findings are erroneous. That is, a state judge’s factual findings are

not presumed correct for federal habeas review purposes just because the state judge says so,

when the record evidence on federal review shows otherwise.

142

Under pre-AEDPA review standards, a federal habeas court owes no deference to a

state court’s resolution of mixed questions of constitutional law and fact. Williams, 529 U.S. at

400, 120 S.Ct. at 1516 (O’Connor, J., concurring) (citing Miller v. Fenton, 474 U.S. 104, 112,

106 S.Ct. 445, 450 (1985)). A determination by state courts of ineffective assistance of counsel

is a mixed question of law and fact, which is not entitled to a presumption of correctness under

28 U.S.C. § 2254(d), as our court consistently has held. See, e.g., Routly v. Singletary, 33 F.3d

1279, 1284 (11th Cir. 1994) (per curiam); Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir.

1992); Davis v. Kemp, 829 F.2d 1522, 1537 (11th Cir. 1987); Thomas v. Kemp, 796 F.2d 1322,

1324 (11th Cir. 1986). Unless one of the § 2254(d) exemptions applies, we accord a presumption

of correctness to the trial court’s findings of historical facts underlying the claim. The separate

determination of whether counsel’s representation was effective or ineffective is a question of

law. Thus, we generally accept the historical facts found by a state court and then decide

whether counsel’s representation satisfied Sixth Amendment requirements under Strickland.

61

are not entitled to a presumption of correctness where the petitioner “did not

receive a full, fair and adequate hearing in the state court proceeding.” 28 U.S.C. §

2254(d)(6); Porter v. Wainwright, 805 F.2d 930, 938 (11th Cir. 1986). “[T]he

ultimate focus of inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.

Consequently, an evidentiary hearing in district court may be required to resolve

“conflicting inferences.” Porter, 805 F.2d at 938. A federal court

reviewing a state prisoner's petition for habeas relief must make an "independent

federal determination" in deciding questions involving constitutional law and the

application of constitutional law to the facts "under the totality of the

circumstances" of a particular case. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct.

445, 450-51 (1985). Therefore, a trial court's determination as to whether a

petitioner has been denied his Sixth Amendment right to effective counsel is not

entitled to the presumption; we must make that determination anew.143 Strickland

v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070 (1984). “The benchmark

for judging any claim of ineffectiveness must be whether counsel’s conduct so

143

“‘We have always held that federal courts, even on habeas, have an independent

obligation to say what the law is.’” Williams, 529 U.S. at 402, 120 S.Ct. at 1517 (O’Connor, J.,

concurring) (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 2497 (1992)).

62

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064.

B. Guilt Phase

The crux of Hardwick's discontent with his trial counsel was Tassone's

failure to call witnesses that Hardwick wanted to testify on his behalf. Hardwick,

who has a G.E.D. acquired during previous incarceration, has not specified which

witnesses he desired or what their testimony would be. There is no dispute that

Hardwick handed Tassone a list of witnesses that he wanted to testify, but that list

inexplicably has disappeared from the record, while Hardwick's other handwritten

motions are part of the record. Nonetheless, the lack of specificity as to the

identity of the witnesses Hardwick wanted called for his defense or the substance

of their testimony even at this appellate stage in the federal habeas proceedings

makes his unsubstantiated allegation of ineffective assistance of his trial counsel

difficult to analyze.

To be successful in his contention of his trial counsel's ineffective

representation, Hardwick must satisfy well-delineated Supreme Court and circuit

law. In Strickland, the Court established a two-part test to show ineffective

assistance that violates the Sixth Amendment right to counsel: (1) "the defendant

must show that counsel's performance was deficient," defined as "representation

63

[that] fell below an objective standard of reasonableness," and (2) "the defendant

must show that the deficient performance prejudiced the defense" by demonstrating

"that there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different." 466 U.S. at 687, 688, 694,

104 S.Ct. at 2064, 2068. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

“[I]t is sufficient that a petitioner must show only a reasonable probability

that the outcome would have been different; he ‘need not show that counsel’s

deficient conduct more likely than not altered the outcome in the case.’” Brownlee

v. Haley, 306 F.3d 1043, 1059-60 (11th Cir. 2002) (quoting Strickland, 466 U.S. at

693, 104 S.Ct. at 2068); see DeLuca v. Lord, 77 F.3d 578, 590 (2d Cir. 1996)

(“The Strickland test does not require certainty that the result would have been

different.”). “When evaluating this probability, ‘a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge or jury.’”

Brownlee, 306 F.3d at 1060 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at

2069). "The petitioner bears the burden of proof on the 'performance' prong as

well as the 'prejudice' prong of a Strickland claim, and both prongs must be proved

to prevail." Johnson, 256 F.3d at 1176.

64

Our circuit reviews an attorney's performance "with considerable deference."

Id. "[T]he issue is not what is possible or 'what is prudent or appropriate, but only

what is constitutionally compelled.'" Chandler v. United States, 218 F.3d 1305,

1313 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794, 107

S.Ct. 3114, 3126 (1987)), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217 (2001).

"The petitioner must establish that particular and identified acts or omissions of

counsel 'were outside the wide range of professionally competent assistance.'" Id.

at 1314 (quoting Burger, 483 U.S. at 795, 107 S.Ct. at 3126).

In this case, court-appointed Tassone took a number of pretrial depositions,

which he did not use to explain, moderate, or mitigate the direct testimony of the

state's witnesses, many of whom were quite young at the relevant time and

embittered toward Hardwick, a newcomer to their community, for killing Pullum,

their longstanding, neighborhood friend. Convinced of Hardwick's guilt, Tassone

advised him to plead guilty. When the evidence shows that a defendant was so

intoxicated that he could not form specific intent to commit murder, Florida law

recognizes voluntary intoxication as a defense, and an instruction on the defense

should be given to the jury. Gardner v. State, 480 So. 2d 91, 92 (Fla. 1985) (per

curiam). Tassone apparently believed that there was sufficient credible evidence

that Hardwick was sober at the time of the murder to justify not presenting this

65

defense and pursued sufficiency of the evidence as Hardwick's defense.144

Additionally, witnesses had testified that Hardwick threatened to kill Pullum prior

to the murder and boasted of the killing afterward. Together with the multiple

means of inflicting death, a jury could have found premeditation for first-degree

murder.145 There has been no claim of actual innocence in this case.

While other attorneys may have used voluntary intoxication as Hardwick's

primary defense theory, Tassone's decision to forego this defense is not outside the

ambit of strategic choice recognized by Strickland and our circuit law. Because

Hardwick has failed to prove the performance and prejudice prongs of the

Strickland test, we conclude that constitutional ineffective assistance of counsel in

144

As a practical matter, an attorney might decide that he does not want to argue to a jury

that his client did not commit the murder, but, if he did, he was incapable of formulating specific

intent because of voluntary intoxication. While this argument may not be inconsistent legally,

see Pope v. State, 458 So. 2d 327 (Fla. Dist. Ct. App. 1984); Mellins v. State, 395 So. 2d 1207

(Fla. Dist. Ct. App. 1981), it may be so perceived by a jury. Hardwick's refusal to plead guilty

presented this dilemma for Tassone. Consequently, he elected not to develop and present a

voluntary-intoxication defense that might have created reasonable doubt regarding Hardwick's

ability to formulate premeditated intent and may have resulted in an instruction on this defense

to the jury, the jury's consideration of a verdict on second-degree murder rather than first-degree

murder, and foundation information for the sentencing phase.

145

Tassone also determined that some of the witnesses that Hardwick wanted to call

might have been subject to impeachment or have given damaging testimony on other points.

While our review of the record shows otherwise, as we discuss in our sentencing-phase analysis,

Tassone made a defense choice at the guilt phase, and the testimony plus the ballistics evidence

appear to have been insurmountable as to Hardwick's guilt.

66

the guilt phase has not been established and, consequently, affirm the district

court's denial of habeas relief as to the guilt phase.146

C. Sentencing Phase

“The Sixth Amendment guarantees a criminal defendant the right of

effective assistance of counsel during a capital sentencing hearing.” Harris v.

Dugger, 874 F.2d 756, 762 (11th Cir. 1989). The two-part Strickland test also

applies in a capital sentencing proceeding because "counsel's role in the proceeding

is comparable to counsel's role at trial—to ensure that the adversarial testing

process works to produce a just result under the standards governing decision."

466 U.S. at 687, 104 S.Ct. at 2064; Glock v. Moore, 195 F.3d 625, 634-35 (11th

Cir. 1999). “Circumstances which would warrant a presumption of prejudice from

counsel’s ineffectiveness are those where ‘the adversary process itself is [rendered]

146

Even when we have been convinced that the trial attorney misunderstood the

applicable law, which was outside reasonably competent representation in a capital murder case,

the petitioner’s confession “sealed his conviction” and prevented his proving prejudice because

“even a highly competent lawyer could not have won [petitioner] an acquittal.” Cave, 971 F.2d

at 1518. To the extent that Hardwick contends that Tassone should have conducted more

investigation for presentation at trial, we have determined that “‘[s]peculation is insufficient to

carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by

further investigation.’” Brownlee, 306 F.3d at 1060 (alteration in original) (quoting Aldrich v.

Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)). “The decision whether to present a line of

defense or even to investigate it, ‘is a matter of strategy and is not ineffective unless the

petitioner can prove that the chosen course, in itself, was unreasonable.’” Id. (quoting Chandler,

218 F.3d at 1318).

67

presumptively unreliable [by the circumstances].” Blanco v. Singletary, 943 F.2d

1477, 1496 (11th Cir. 1991) (alterations in original) (citation omitted).

When “‘the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to produce just

results,’ our confidence is undermined.” Brownlee, 306 F.3d at 1069 (quoting

Strickland, 466 U.S. at 696, 104 S.Ct. at 2069). “The result of a proceeding can be

rendered unreliable, and hence the proceeding itself unfair, even if the errors of

counsel cannot be shown by a preponderance of the evidence to have determined

the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “Actual or

constructive denial of the assistance of counsel altogether is legally presumed to

result in prejudice.” Strickland, 466 U.S. 692, 104 S.Ct. 2067.

“‘The primary purpose of the penalty phase is to insure that the sentence is

individualized by focusing [on] the particularized characteristics of the defendant.

By failing to provide such evidence to the jury, though readily available, trial

counsel’s deficient performance prejudice[s a petitioner’s] ability to receive an

individualized sentence.’” Brownlee, 306 F.3d at 1074 (alterations in original)

(quoting Cunningham v. Zant, 928 F.2d 1006, 1019 (11th Cir. 1991)); see

Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1988) (same); Thomas v.

Kemp, 796 F.2d 1322, 1325 (11th Cir. 1986) (same). “[T]he Eleventh Circuit has

68

enunciated the rule that effective representation, consistent with the sixth

amendment, also involves ‘the independent duty to investigate and prepare.’”

House v. Balkcom, 725 F.2d 608, 618 (11th Cir. 1984) (citations omitted); see

Bolender, 16 F.3d at 1557 (“The failure to conduct a reasonable investigation into

possible mitigating circumstances may render counsel’s assistance ineffective.”).

[C]ounsel’s duty of inquiry in the death penalty sentencing phase is

somewhat unique. First, the preparation and investigation for the

penalty phase are different from the guilt phase. The penalty phase

focuses not on absolving the defendant from guilt, but rather on the

production of evidence to make a case for life. The purpose of

investigation is to find witnesses to help humanize the defendant,

given that a jury has found him guilty of a capital offense. “[C]ounsel

has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691, 104 S.Ct. at 2052.

....

[E]ven where a client is recalcitrant, courts have been ambivalent in

whether counsel is relieved of any further duty of investigation,

particularly where the client exhibits signs of instability.

Marshall v. Hendricks, 307 F.3d 36, 103 (3d Cir. 2002) (citing Johnston v.

Singletary, 162 F.3d 630, 641-42 (11th Cir. 1998)). Trial counsel performs

deficiently by not providing readily available mitigating evidence to the jury at the

penalty phase because he prejudices a convicted defendant’s receiving an

individualized sentence. Cunningham, 928 F.2d at 1019; see Armstrong, 833 F.2d

at 1433, 1434 (concluding that “investigation and preparation for the penalty phase

of [petitioner’s] trial was negligible” and that the “demonstrated availability of

69

undiscovered mitigating evidence clearly met the prejudice requirement”); House,

725 F.2d at 618 (“While we do not require that a lawyer be a private investigator in

order to discern every possible avenue which may hurt or help the client, we do

require that the lawyer make an effort to investigate the obvious.”).

Concomitantly, a tactical or strategic decision is unreasonable if it is based

on a failure to understand the law. Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.

1991). Whether counsel’s decision is tactical is a question of fact, but “whether

this tactic was reasonable is a question of law, and we owe neither the district court

nor the state court any deference on this point.” Id. We have decided that failure

to present mitigating evidence because of misunderstanding the state law as to

presentation of mitigating evidence is unreasonable as a tactical decision:

“Mitigating evidence, when available, is appropriate in every case where the

defendant is placed in jeopardy of receiving the death penalty. To fail to do any

investigation because of the mistaken notion that mitigating evidence is

inappropriate is indisputably below reasonable professional norms.” Id. (emphasis

added). Similarly, “[w]here defense counsel is so ill prepared that he fails to

understand his client’s factual claims or the legal significance of those claims . . .,

we have held that counsel fails to provide service within the range of competency

70

expected of members of the criminal defense bar.” Young v. Zant, 677 F.2d 792,

798 (11th Cir. 1982).

Regarding mental health mitigating evidence, our court has distinguished

between its use during the guilt phase to establish competency to stand trial and

presenting mental health mitigating evidence at the penalty phase:

[T]here is a great difference between failing to present evidence

sufficient to establish incompetency at trial and failing to pursue

mental health mitigating evidence at all. One can be competent to

stand trial and yet suffer from mental health problems that the

sentencing jury and judge should have had an opportunity to consider.

Blanco, 943 F.2d at 1503.147 When mental health mitigating evidence was

available, and “absolutely none was presented [by counsel] to the sentencing body,

and . . . no strategic reason [w]as . . . put forward for this failure,” our court

determined that this omission was “objectively unreasonable.” Id. (citing

Middleton v. Dugger, 849 F.2d 491, 493-95 (11th Cir. 1988) (emphasis added).

Additionally, our court has recognized that “[p]sychiatric mitigating evidence not

only can act in mitigation, it also could significantly weaken the aggravating

factors.” Elledge v. Dugger, 823 F.2d 1439, 1447 (11th Cir.), withdrawn in part on

147

Florida law recognizes that “[a] defendant may be legally answerable for his actions

and legally sane, and even though he may be capable of assisting his counsel at trial, he may still

deserve some mitigation of sentence because of his mental state.” Perri v. State, 441 So. 2d 606,

609 (Fla. 1983).

71

denial of rehearing en banc, 833 F.2d 250 (11th Cir. 1987) (withdrawing only

unrelated Part III of the opinion).

Similarly, we have decided that failure to present mitigation evidence as to a

defendant’s family background or alcohol and drug abuse at the penalty phase of a

capital case constitutes ineffective assistance of counsel, particularly when defense

counsel “was aware of [petitioner’s] past and knew that mitigation was his client’s

sole defense.”148 Elledge, 823 F.2d at 1445 (emphasis added). Concluding that

counsel rendered ineffective assistance for failing to present mitigating background

information at the sentencing phase, we have explained: “[T]he sentencing jury

knew much about the crime, having just convicted [the defendant] of a brutal

murder, but little about the circumstances of the defendant.” Harris, 874 F.2d at

763. In Brownlee, the psychiatric expert at the state proceeding for postconviction

148

See, e.g., Brownlee, 306 F.3d at 1071 (determining that petitioner was entitled to

habeas relief as to his sentence for failing to present mitigating evidence at the sentencing phase,

we noted that, among the mitigating factors not presented at sentencing, was petitioner’s

“extensive drug abuse, particularly on the night in question”); Cave, 971 F.2d at 1519 (affirming

granting habeas relief as to sentencing, we recognized that, despite the willingness of petitioner’s

mother, sister, and three aunts to testify, his counsel’s “failure to present any witnesses at the

sentencing hearing allowed the prosecutor to emphasize [petitioner’s] lack of redeeming

character during the State’s closing argument” and, thus, prejudiced the sentencing proceeding

because there was a reasonable probability that the sentence would have been different if the

available character witnesses had testified); Horton, 941 F.2d at 1463 (deciding that petitioner

had established ineffective assistance of counsel at sentencing because he had “met his burden of

proof on the prejudice prong,” since he “ha[d] gathered the affidavits of ten individuals who

claim they would have testified if they ever were asked to testify”); Elledge, 823 F.2d at 1445

(concluding that defense counsel’s failure to interrogate family members and to obtain an expert

witness for the sentencing phase “was outside the range of competent assistance”).

72

relief diagnosed petitioner as a “‘polypharmacy individual’” and testified that,

based on his “long history of drug and alcohol abuse, . . . dating to his teenage

years,” particularly, his “[d]rug or alcohol use on the day of the crime would have

substantially aggravated [his] pre-existing [intellectual and psychiatric]

limitations,” which, if presented at the sentencing phase, could have assisted in a

finding that the level of intoxication substantially impaired his ability to conform

his conduct to the requirements of law. 306 F.3d at 1056, 1071, 1072.

In Harris, although family members were willing to testify that the

defendant’s life was meaningful to them, the defendant’s attorney “erroneously

told the jury that [defendant’s] family had ‘turned against him.’ Thus, the jury did

not assess ‘the information needed to properly focus on the particularized

characteristics of this petitioner.’” 874 F.2d at 763 (quoting Armstrong, 833 F.2d at

1433). “[I]njecting [defendant’s] character as an issue during sentencing was

fraught with danger”: petitioner “committed the murder while on parole,” which

would have permitted the prosecution to expose his “other felony convictions as

well as his dishonorable discharge from the Army.” Id. at 764. “Nevertheless,” we

determined, “on this record, we cannot conclude that effective counsel would have

made a strategic decision to forego testimony about [defendant’s] good character

merely because its use would have permitted the state to add some prior unlawful

73

acts to the proof already in the case.” Id. We noted that defense counsel

“conceded that he would have used the [background] evidence had he known about

it.” Id. Recognizing that the mitigating background evidence “constituted the only

means of showing that [petitioner] was perhaps less reprehensible than the facts of

the murder indicated,” we concluded that “a reasonable probability exist[ed] that a

jury hearing this evidence would have recommended life,” and that petitioner

“suffered prejudice from counsel’s errors” at the penalty phase. Id.

Of course, “[t]he right to present, and to have the sentencer consider,

any and all mitigating evidence means little if defense counsel fails to

look for mitigating evidence or fails to present a case in mitigation at

the capital sentencing hearing.” Accordingly, counsel’s general duty

to investigate takes on supreme importance to a defendant in the

context of developing mitigating evidence to present to a judge or jury

considering the sentence of death; claims of ineffective assistance in

the performance of that duty should therefore be considered with

commensurate care.

Strickland, 466 U.S. at 706, 104 S.Ct. at 2074 (Brennan, J., concurring in part and

dissenting in part) (alteration in original) (citations omitted) (emphasis added).

"Florida is a weighing State; the death penalty may be imposed only where

specified aggravating circumstances outweigh all mitigating circumstances."149

149

While “Florida’s death penalty statute, section 921.141, limits the aggravating

circumstances on which a sentence of death may be imposed to the circumstances listed in the

statute,” Grossman, 525 So. 2d at 842, the Florida Supreme Court “has repeatedly held that all

mitigating evidence, found anywhere in the record, must be considered and weighed by the trial

court in its determination of whether to impose a sentence of death,” Walker v. State, 707 So. 2d

300, 318 (Fla. 1998) (per curiam) (citing cases) (second and third emphases added).

74

Parker v. Dugger, 498 U.S. 308, 318, 111 S.Ct. 731, 738 (1991) (citing Fla. Stat. §

921.141(3) (1985)) (emphasis added). “[T]he Supreme Court and this Court . . .

have repeatedly emphasized the constitutional right of a defendant facing the death

penalty to present any relevant evidence of mitigating circumstances.” Brownlee,

306 F.3d at 1070. "[T]he question is whether there is a reasonable probability that,

absent the errors, the sentencer—including an appellate court . . . would have

concluded that the balancing of aggravating and mitigating circumstances did not

warrant death."150 Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. “The appropriate

analysis of the prejudice prong of Strickland requires an evaluation of ‘the totality

of the available mitigation evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding—in reweighing it against the evidence in

aggravation.’” Bottoson v. Moore, 234 F.3d 526, 534 (11th Cir. 2000) (quoting

Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515); see Clemons v. Mississippi, 494

U.S. 738, 752, 110 S.Ct. 1441, 1450 (1990) (vacating state supreme court’s

upholding death sentence because it was not apparent that the appellate reweighing

of the aggravating and mitigating factors accorded “defendant[] the individualized

150

The Florida Supreme Court has “repeatedly stressed [that] a trial judge’s weighing of

statutory aggravating factors and statutory and nonstatutory mitigating circumstances is the

essential ingredient in the constitutionality of our death penalty statute.” Porter v. State, 723 So.

2d 191, 196 (Fla. 1998) (per curiam); see State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973) (“The most

important safeguard presented in Fla. Stat. § 921.141, F.S.A., is the propounding of aggravating

and mitigating circumstances which must be determinative of the sentence imposed.”).

75

treatment that would result from actual reweighing of the mix of mitigating factors

and aggravating circumstances” or “that the [state appellate] court fully heeded our

cases emphasizing the importance of the sentencer’s consideration of a defendant’s

mitigating evidence” required in a weighing state).

The Supreme Court has been clear that both statutory and nonstatutory

mitigating factors must be considered in a capital sentencing proceeding:

"[W]e conclude that the Eighth and Fourteenth

Amendments require that the sentencer . . . not be

precluded from considering, as a mitigating factor, any

aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffers

as a basis for a sentence less than death."

....

Just as the State may not by statute preclude the sentencer

from considering any mitigating factor, neither may the

sentencer refuse to consider, as a matter of law, any

relevant mitigating evidence.

Eddings v. Oklahoma, 455 U.S. 104, 110, 113-14, 102 S.Ct. 869, 874, 876-77

(1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964 (1978)

(plurality opinion)) (alteration, first ellipsis, and emphasis in original).151 When a

151

The Florida Supreme Court has been explicit that “[a]ll evidence of mitigating

circumstances may be considered by the judge or jury.” Dixon, 283 So. 2d at 9 (emphasis

added). “[T]he jury is not limited, in its evaluation of the question of sentencing, to

consideration of the statutory mitigating circumstances. It is allowed to draw on any

considerations reasonably relevant to the question of mitigation of punishment.” Lewis, 398 So.

2d at 439 (emphasis added).

“While all judicial proceedings require fair and deliberate

76

petitioner contends that the presentation of additional mitigating evidence would

have changed the weighing process so that death is not warranted, "we look at the

mitigating circumstance evidence that was not presented, along with that which

was, and consider the totality of it against the aggravating circumstances that were

found."152 Tompkins v. Moore, 193 F.3d 1327, 1336 (11th Cir. 1999).

consideration by a trial judge, this is particularly important in a

capital case because, as we have said, death is different.”

Since the ultimate penalty of death cannot be remedied if erroneously imposed,

trial courts have the undelegable duty and solemn obligation to not only consider

any and all mitigating evidence, but also to “expressly evaluate in [their] written

order[s] each mitigating circumstance proposed by the defendant to determine

whether it is supported by the evidence.”

This bedrock requirement cannot be met by treating mitigating evidence as an

academic exercise which may be summarily addressed and disposed of.

Walker, 707 So. 2d at 319 (citations omitted) (emphasis and alterations in original). “It is within

the sentencing judge’s discretion to determine the relative weight given to each established

mitigator; however, some weight must be given to all established mitigators.” Ferrell v. State,

653 So. 2d 367, 371 (Fla. 1995) (per curiam) (reaffirming Campbell v. State, 571 So. 2d 415

(Fla. 1990), which clarified evaluating and weighing mitigating evidence) (emphasis added).

152

The Florida Supreme Court similarly has stressed the great significance of the

sentencing-phase weighing process by the trial judge and jury in determining whether a sentence

is death or life imprisonment:

It must be emphasized that the procedure to be followed by the trial judges

and juries is not a mere counting process of X number of aggravating

circumstances and Y number of mitigating circumstances, but rather a reasoned

judgment as to what factual situations require the imposition of death and which

can be satisfied by life imprisonment in light of the totality of the circumstances

present.

Dixon, 283 So. 2d at 10.

77

Tassone presented no mitigating evidence at the sentencing proceeding.

Therefore, we first consider the record evidence of statutory mitigating factors.153

Because of Hardwick's alcohol and drug consumption before Pullum's murder, the

most significant statutory factor was Hardwick's cognitive ability to conform his

conduct to the requirements of law. Tassone failed to present the record evidence

at the sentencing phase of Hardwick's drunk and drugged condition resulting from

the well-documented, long Christmas weekend binge of drugs and alcohol as well

153

At the time of Hardwick's sentencing proceeding, Florida law provided the following

mitigating factors:

Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior

criminal activity.

(b) The capital felony was committed while the

defendant was under the influence of extreme

mental or emotional disturbance.

(c) The victim was a participant in the defendant's

conduct or consented to the act.

(d) The defendant was an accomplice in the capital

felony committed by another person and his

participation was relatively minor.

(e) The defendant acted under extreme duress or

under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct

to the requirements of law was substantially

impaired.

(g) The age of the defendant at the time of the

crime.

Fla. Stat. § 921.141(6) (1985).

78

as expert testimony, like that given at the 3.850 proceeding.154 This omission kept

from the judge and jury knowledge that, at the time of the murder, Hardwick could

have lacked the judgment to conform his conduct to the requirements of law. In

his report for the 3.850 proceeding, Dr. Levin considered "that during the five days

leading to his offense that [Hardwick] ingested forty or fifty of the Quaaludes,

continually smoked marijuana, drank a fifth of vodka and shared 'a couple of cases

of beer' with friends."155 Dr. George W. Barnard, who was court-

154

Even the dissent recognizes that “[n]umerous witnesses who were clearly available to

Tassone at the time testified during the 3.850 proceedings about Hardwick’s extensive use of

drugs and alcohol during the relevant weekend,” Dissent at 10, and that “Tassone’s own

testimony at the 3.850 hearing acknowledged awareness of such use in the days leading up to the

murder,” id. at 10 n.3. An expert witness could have provided mitigating testimony that

Hardwick was “‘significantly impaired’ . . . at the time of the crime,” which would have caused

him to have “‘difficulty conforming his behavior’” to law. Brownlee, 306 F.3d at 1071.

Tassone’s awareness of Hardwick’s drunk and drugged state and his failure to present this

mitigating evidence during the sentencing phase demonstrates his misunderstanding of

mitigation law.

155

Levin Report at 2. Darlene Hardwick told Dr. Barnard that, from her observations,

Hardwick was intoxicated during the five-day weekend: "She thought that he was basically

under the influence of it so that it was enough to change him significantly during that whole five-

day period of 20 to 25 December." 3.850 Proceeding at 286. She also observed that Hardwick

got "very little" sleep during this period: "he was very restless, in and out a lot, and did not seem

to eat too much, and slept for very short periods of time." Id. Darlene Hardwick further said

that, during the five-day period, Hardwick's drug and alcohol intake was greater than usual. Id.

at 285. She explained to Dr. Barnard the difference in Hardwick's behavior when he was under

the influence of alcohol and drugs:

[W]hen he was not drinking and under the influence of drugs he was quite

different toward her and toward others, and she also felt that he had a behavior

that would indicate changes that she usually did not see in his normal state when

he was not under the influence of alcohol and drugs.

Id. at 285.

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appointed, testified that Har

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