Opposition Brief — Hill v. Florida

Case No. 96-1957

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1996

PAUL JENNINGS HILL, Petitioner,

v.

STATE OF FLORIDA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

RICHARD B. MARTELL

Chief, Capital Appeals

OFFICE OF ATTORNEY GENERAL

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

The petition for writ of certiorari presents the following

question:

Whether Hill’s Sixth and_ Fourteenth

Amendment rights to counsel were violated

when the judge knew Hill’s only defense on two

counts of premeditated murder was_ the

affirmative defense of justification, but failed to

inquire if Hill had any knowledge of how to

present that justification defense which required

extensive, legal research in order to proffer

evidence sufficient to establish the factual

predicate, by the skillful use of compulsory

process, to prove that complex intricate defense,

and whether that failure to inquire violated

Faretta_v, California, 422 U.S. 806 (1978),

which requires a waiver of the right to counsel

must be “voluntarily and intelligently” made,

Id. at 807; “an intelligent and knowing”,

waiver, Id. at 809; a “knowing and intelligent”

waiver, Id. at 812; the defendant must

“competently and intelligently waive his

constitutional right to the assistance of counsel”,

Id. at 814; he must “knowingly and

intelligently” waive that right to counsel, Id. at

835, and in addition, the judge failed to follow

the more stringent Florida Rule 3.111(d), which

requires that:

(2) a defendant shall not be

deemed to have waived the

assistance of counsel until... . a

thorough inquiry has been made

into both _ the accused’s

and:

(3) No waiver shall be accepted

if it appears that the defendant is

unable to make an intelligent and

understanding choice because of

. . . the nature or complexity of

the case . . . [Emphasis added],

particularly where the State filed its motion in

limine to preclude the necessity/justification

defense on October 14, 1994, which, on

October 24, 1994 when set for oral argument,

the following occurred within minutes of each

other: 1) the State handed its brief to the judge

and to Hill in open court, 2) Hill moved for

counsel to orally argue to which the State

objected, and the judge sustained the State’s

objection, 3) the State argued its motion which

Hill was unable to argue, 4) the judge granted

the motion in limine, following which, Hill, at

trial, asked no voir dire questions, objected to

no voir dire questions asked by the State,

waived both of his opening arguments and final

closing argument, failed to cross-examine any

witnesses, offered no witnesses, failed to offer

any exhibits, failed to object to any exhibits,

made no requests to charge, took no exceptions

to the charge, and finally made a meaningless 67

word comment which resulted in a verdict of

two death sentences against Hill, amount to a

violation of Hill’s Sixth and Fourteenth

Amendment rights?

Respondent, State of Florida, restates this question as

follows:

I. Whether this Court, assuming _ that

jurisdiction exists, should grant certiorari to

review the decision of the Supreme Court of

Florida below, in that the court resolved the

claim asserted in regard to self-representation in

accordance with this Court’s precedents?

II. Whether this Court, assuming that

jurisdiction exists, should grant certiorari to

review the decision of the Supreme Court of

Florida below, in that the court resolved the

claim asserted in regard to the defenses of

“necessity” or “justification” in accordance with

the precedents of this Court, as well as all other

courts to consider the matter?

iil

TABLE OF CONTENTS

Page(s)

eS REY PORE 5 68's. Sec eee coeseenen 1-iii

pro ye ge errr eran ei iv-v

py Be Fg) A Vi-Vii

eo Gee LA a a ee 1

FE 5 PERSE ETRE A on 1-2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED........... 2

SIAL ENTE Gr See Gee eT. 2-13

(4) SI GP ec ie eee es 2-3

(B) How Any Federal Question Was

Raised And Decided Below........... 6 eee

ip RE go cA it pee teense nat 3-10

(ii) The “N ‘ty/Justification”

Se a ve ea es cee es 11-13

REASONS FOR DENYING THE WRIT.......... 13-19

I. IN THAT JURISDICTION DOES NOT

EXIST, THIS COURT SHOULD DISMISS

THE INSTANT PETITION FOR WRIT OF

Bo Ree Waren res ear ee 13-14

II. ASSUMING THAT JURISDICTION

EXISTS, THIS COURT SHOULD DENY

CERTIORARI TO REVIEW THE DECISION

OF THE SUPREME COURT OF FLORIDA

BELOW, IN THAT THE COURT RESOLVED

THE CLAIM ASSERTED IN REGARD TO

SELF-REPRESENTATION IN

ACCORDANCE WITH THIS COURT’S

| a rer neren oa iy 14-16

Ill. ASSUMING THAT JURISDICTION

EXISTS, THIS COURT SHOULD DENY

CERTIORARI TO REVIEW THE DECISION

OF THE SPUREME COURT OF FLORIDA

BELOW, IN THAT THE COURT RESOLVED

THE CLAIM ASSERTED IN REGARD TO

THE DEFENSES OF “NECESSITY” OR

“JUSTIFICATION” IN ACCORD WITH THE

PRECEDENTS OF THIS COURT, AS WELL

AS ALL OTHER COURTS TO CONSIDER

Pee RRO 6 kas 6s we es le 17-19

Aa sh oo bo hh ie SER TS eet ieee 20

TABLE OF AUTHORITIES

Mew of Wichitn vy. Tilson.

253 Kan. 285, 855 P.2d 911

510 U.S. 976,

114 S. Ct. 468,

ee E . | eerr iZ,i2

Commonwealth v. Wall,

372 Pa.Sup. 534, 539 A.2d 1325

appeal denied,

ie, Be Be ..T BE eh. | ee ee 13

Dougan v. State,

595 So. 2d 1 (Fla.),

Se Eo, a nw toketateld avd dd Ucthere able hk « 2 19

gs 6 oe ws oe a we elae 1,1,4,15

Fisher v. United § |

a on ee we Oe 15

Godinez v. Moran,

re 10,15

Hammett v. Texas,

a as dee eile ce alana af 14

Hill v. State,

688 So.2d 901 (Fla. 1996) ....... 1,3,8-10,13,15,17-19

Lenhiard v. Wolff,

hg ive, os assis. o:apsig, oe Oe eee 14

Vv b

RE Ee. :, | i a re a a rs 15

Roe v, Wade,

410 U.S. 113,

93 S. Ct. 705,

SE ee ae ar 13

United States v. Bailey > |

A i 11,18

893 F. Supp. 1048 (N.D. Fla. 1994) ............. 18

FEDERAL STATUTES

We Rs OE go a os ck 66k oe ae

STATE CONSTITUTIONS, STATUTES AND RULES

Florida Rule of Criminal Procedure 3.111(d) .. . 1,2,8

Article I, §16(a), Florida Constitution ............. 2

§390.001, Florida Statutes (1993) ............... 13

§776.012, Florida Statutes (1993) ........... 2,11,17

§921.141(5)(i), Florida Statutes (1993) .......... 2,19

Vii

Case No. 96-1957

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1996

PAUL JENNINGS HILL, Petitioner

V.

STATE OF FLORIDA, Respondent

OPINION BELOW

The opinion below is reported at 688 So.2d 90)

copy of the opinion is included in the Appendix to the |

for Writ of Certiorari [Pet. App. at Al-A24a]. Petit

counsel has utilized the “Decisions Below” section

petition (Petition at 2-4), as a vehicle for criticisn

various rulings of the Florida courts. Respondent cor

such is inappropriate, and that all argumentative port

section must be disregarded.

JURISDICTION

Petitioner’s counsel has likewise utilized this por

the petition to improperly present argument, and Responde:

accepts Only the statement that jurisdiction has been s

fully infra, Respondent contends that no jurisdiction lies

entertain this petition, in that it has not been authorized t

Petitioner Paul Hill, and Hill’s counsel lacks authority or

standing to maintain this action in the absence of his client’s

consent.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Petitioner’s counsel contends that the Sixth and

Fourteenth Amendments to the Constitution of the United States

are implicated, as is Article I, §16(a) of the Florida

Constitution. Hill’s counsel likewise maintains that two Florida

Statutes, §§776.012, Fla.Stat. (1993), and 924.141(5)(i),

Fla.Stat. (1993), are implicated, as is Florida Rule of Criminal

Procedure 3.111(d).

STATEMENT OF THE CASE

Respondent cannot accept the Statement of the Case set

forth by Hill’s counsel (Petition at 7-17), which is

argumentative in the extreme and is not a balanced recitation of

Hill’s litigation below, and the manner in which such was

resolved in the state courts. Accordingly, the following is

substituted:

(A) Statement Of The Facts

The instant petition does not contain any formal

Statement of the Facts. Respondent would set forth the

following, from the opinion below:

Early on the morning of July 29, 1994, Hill

went to the Ladies Center in Pensacola, Florida,

where he had been protesting against abortion

for six months, and waited outside. About one

hour later, a pick-up truck driven by James

Herman Barrett, also containing his wife June

Griffith Barrett and Dr. John Bayard Britton,

arrived at the Center. The Barretts volunteered

at the Center on the last Friday of every month.

On those days, they met Dr. Britton at the

airport and escorted him to the Ladies Center,

which he visited every Friday to perform legal

abortions. As the truck entered the parking lot,

Hill was standing in the middle of the driveway.

He moved to the side, allowing the truck to pass

him. As the truck drove by, it came within

several feet of Hill, so that he was able to see

the truck’s occupants.

James Barrett parked the truck near the steps of

the Center. As Barrett got out of the truck, Hill

shot and killed him. Hill also shot and wounded

June Barrett. He then moved closer to the truck

before shooting and killing Dr. Britton. Hill

was arrested shortly thereafter while walking

away from the Center.

Hill, 688 So.2d at 902-3 [Pet. App at A2-A3].

(B) How Any Federal Question Was Raised And

- Decided Below

(i) The Faretta Point

Paul Hill was indicted on August 9, 1994, on two

counts of premeditated murder, one count of attempted murder,

and one count of shooting into an occupied vehicle, and the

Office of the Public Defender was appointed to represent him.

On September 26, 1994, that office filed a motion to withdraw,

contending that Hill had expressed the desire to represent

himself, and further requesting that a hearing be held in

accordance with Faretta v. California, 422 U.S. 806 (1975).

At this time, defense counsel stated that he had advised Hill that

the State would be seeking the death penalty, and also

affirmatively stated that he did not see any basis to challenge

Hill’s mental competency or to have him psychiatrically

examined (R 25-6).

The formal Faretta hearing commenced the next day.

At this time, Hill stated that it was his desire to represent

himself, with or without standby counsel (R 48-9). Hill

affirmed that he understood that the Assistant Public Defender

presently representing him was experienced in capital cases, but

stated that representing himself would be in his best interest (R

52-3). Hill reaffirmed that he understood that he faced the

death penalty as to the murder charges, as well as a possible

life sentence on the charge of attempted murder, and told the

court that, while he knew the legal system to be complex, he

felt that he “understood enough” (R 55-6). Hill also stated that

he understood that there were disadvantages in representing

himself, including the fact that he was presently incarcerated,

but stated that he felt that he understood enough about the rules

of criminal procedure and the rules of substantive law to be

able to represent himself (R 56).

The state circuit judge questioned Hill as to his age,

marital status, education and health, and also inquired as to any

prior instances of self-representation; as to his mental health,

Hill averred that he had never suffered from any mental

problem and was not currently taking any medication (R 64-5).

The state court judge specifically questioned Hill as to his

understanding of the fact that he would be held to the same

standards as an attorney, should he represent himself, and that

he would likewise be subject to the same statutes and rules (R

72-4. The prosecutor also questioned Hill, and the following

exchange took place:

MR. MURRAY: There’s a lot of disadvantages

[to self-representation], the Court has gone

through kind of a laundry list?

THE DEFENDANT: Yes, sir.

MR. MURRAY: One of those disadvantages

might be that you would want to ask a question

or to present a defense. Do you understand that

if you do not know how to lay a foundation, that

is to say, to ask the right series of questions, if

I stand up and object and the Court sustains it,

that you may be essentially thwarted in your

efforts to try to move forward in the particular

area? Do you understand that?

THE DEFENDANT: Yes.

MR. MURRAY: Do you understand -- at least

I understand, I want to be sure that you do, the

trial judge had indicated very clearly to you that

he will treat you the same as he does any other

lawyer that appears in front of him?

THE DEFENDANT: That’s been made clear to

me. I understand that.

MR. MURRAY: You recognize that is a

substantial disadvantage?

THE DEFENDANT: Yes, I understand that.

[Pet. App. at A120-1].

The prosecutor also asked Hill if he would abide by the

court’s rulings, insofar as the conduct of the trial was

concerned, and when Hill replied in the affirmative, the

following took place:

MR. MURRAY: In the event that you wanted to

advance a proposition and there was an j

objection to that and the Judge sustained it,

based upon his legal ruling, do you understand

that you would have to abide by that ruling even

though you may feel that it conflicts with your

views of glorifying God?

THE DEFENDANT: Yeah, I understand that.

MR. MURRAY: Are you willing to do that?

THE DEFENDANT: Yes, I am willing to do

that.

[Pet. App. at 135].

The state court judge took the matter under advisement,

and, on September 30, 1994, rendered his order expressly

finding Hill capable of waiving the right to counsel, and further

finding that such waiver had been knowingly and intelligently

made; the Office of the Public Defender was appointed

“standby” counsel. In pertinent part, the order stated:

—E

The Defendant has filed through his attorney a

motion to represent himself at trial. In

determining whether his decision to represent

himself is intelligently and knowingly reached,

the Court has heard testimony from Mr. Hill

first as to his present and past health and

physical condition, his emotional and mental

health, stability, age and education level. This

Court need to reach the merits of the reasons

upon which Mr. Hill wishes to represent

himself. This Court finds the Defendant, Paul

Jennings Hill, to be confident, competent,

articulate and intelligent, well educated and with

appropriate demeanor for the courtroom setting

and a more than adequate ability to express

himself.

This Court has discussed with Mr. Hill the

overwhelming disadvantage of self-

representation, and the complexity of the

discovery process. Mr. Hill has been advised of

his right to private or appointed counsel and

asserts that he wishes absolutely to represent

himself at the trial proceedings.

Although the Defendant has not previously

represented himself in either civil or criminal

proceedings, this Court observes that he has the

ability to understand legal concepts and the

Rules of Criminal Procedure. Mr. Hill advises

the Court that should his motion be granted to

represent himself, he has available a law library

at the Escambia County Jail.

[Pet. App. at A30-1].

On October 13, 1994, the state trial court held a

“supplemental” Faretta hearing, noting that in the interim since

the last hearing, Hill had represented himself in federal court;

Hill stated that he wished to continue to represent himself, and

further stated that he would consult standby counsel for

guidance as necessary (R 100-103). Ata subsequent hearing on

October 24, 1994, Hill again reaffirmed his wish to represent

himself pro se, and the court inquired again, and received a

similar answer, at the commencement of the trial on October

31, 1994 (R 221; T 9-10); at this time, the Assistant Public

Defender who had been serving as standby counsel observed

that he had not seen anything about Hill’s conduct or behavior

which would warrant not allowing him to represent himself (T

11). At the beginning of proceedings the next day, the court

again inquired as to Hill’s intentions, and Hill stated that he

wished to represent himself (T 242-4). Although when the

penalty phase commenced Hill indicated that he wished certain

out-of-state counsel to substitute as his standby counsel (a

request which was denied), Hill still affirmed that he wished to

represent himself (T 662-71); the court continued to inquire as

to Hill’s intentions at the commencement of all subsequent

sentencing proceedings, with Hill likewise continuing to assert

his right to self-representation (R 289-90; 319-20).

On appeal to the Supreme Court of Florida, Hill’s

appellate counsel specifically contended, inter alia, that the trial

court had conducted an insufficient inquiry under Faretta and

Fla.R.Crim.P. 3.111(d), and had failed to advise Hill of the

difficulty and complexity of presenting a defense of

justification, see infra. The state supreme court rejected such

contentions after a detailed analysis. Hill, 688 So.2d at 903-5

[Pet. App. at A5-8]. The court expressly found that the trial

judge had “conducted an exhaustive inquiry before concluding

that Hill’s waiver was valid,” making sure “that Hill knew the

State would seek the death penalty” and “that Hill understood

he would be in jail and therefore unable to prepare as well as

counsel could on his behalf.” Hill], 688 So.2d at 904 [Pet.

App. at A6). The court likewise noted that the judge had

specifically explained to Hill that he should not expect any

special help simply because he was representing himself, that

he “would be treated the same as an attorney,” and the legal

system had its own terms of art and procedure that would be

unfamiliar to a layperson. The court concluded that Hill “was

adequately warned of the dangers and disadvantages of self-

representation as required by Faretta.” Id.

The court likewise held that the trial court had inquired

as to Hill’s age, education and experience, as well as his

physical and mental health; in a footnote, the court found that

any mental health evaluation would have been futile, and stated

that the record demonstrated that Hill’s mental condition did

not effect his ability to make an intelligent and understanding

choice to waive his right to counsel. Hil], 688 So.2d at 904,

n.1 [Pet. App. at A7]. The court likewise held:

As to the nature and complexity of the case,

there is nothing particularly complex about the

defense of justification or necessity that would

lead us to conclude that Hill was unable to make

a fully intelligent and understanding choice to

waive counsel under rule 3.111(d). In any

event, the prosecutor specifically explained to

Hill that he might be thwarted in his efforts to

present a defense if he could not properly lay a

foundation. Nor does the fact that this is a death

penalty case make it so complex that a defendant

cannot make an intelligent choice to represent

him or herself. It was sufficient that the judge

made sure that Hill knew the State would be

seeking the death penalty.

Id. [Pet. App. at A7-8].

Citing to this Court’s decision in Godinez v. Moran, 509 U.S.

389, 399 (1993), the Florida Supreme Court concluded:

In sum, we conclude that the inquiry in this case

complied with both Faretta and rule 3.111(d).

We emphasize that a defendant does not need to

possess the technical legal knowledge of an

attorney before being permitted to proceed pro

se. As the Supreme Court stated in Godinez v.

Moran, 509 U.S. 389, 399, 113 S.Ct. 2680,

2686-87, 125 L.Ed.2d 321 (1993), ‘the

competence that is required of a defendant

seeking to waive his right to counsel is the

competence to waive the right, not the

competence to represent himself.’ Thus, the

judge was not required to give Hill a lesson on

how to try a lawsuit before finding that Hill was

making a knowing waiver of his right to

counsel. It was enough for Hill to be alerted

generally to the difficulties of navigating the

legal system, and in this case the inquiry went

beyond the minimum requirements to warn Hill

of the particular difficulty of laying a predicate

for a defense. (Footnote omitted).

Hill, 688 So.2d at 905 [Pet. App. at A8}.

In the footnote, the state court expressly found, based upon the

record, that the safeguards of Faretta had been extended at

every stage in the proceedings. Hill, 688 So.2d at 905, n.2

[Pet. App. at A8-9].

10

(ii) The “Ni ity/Justification” Poi

Prior to trial, the State filed a motion in limine to

preclude Hill from seeking to raise any defense of “necessity”

or “justification,” based upon his views on abortion, stating

that such defense could not be raised as a defense to the

criminal acts which he had committed to prevent

constitutionally-protected activities; the prosecution filed a

memorandum of law in support of its motion, expressly citing

to this Court’s decision, United States v. Bailey, 444 U.S. 394

(1979) (R 114-16; 201-07). Hill filed a lengthy motion in

opposition to the State’s pleading, contending, inter alia, that

the jury should be allowed to determine not only the facts in

controversy, but also the law to be applied (R 117-200). The

motion was called up for a hearing on October 24, 1994, and

granted on such date. During the course of the trial, Hill

Stated, when the time came for the presentation of the defense

case, that he wished to present the defense “which he had

offered to the court earlier.” The state trial judge indicated that

he would abide by his prior ruling (T 566).

On appeal, Hill’s counsel maintained that it had been

error for the court to have granted the State’s motion, in that

Hill was entitled to present his views on abortion in support of

the statutory defense of “use of force in defense of person,”

pursuant to §776.012, Fla.Stat. (1993). While finding no

Florida precedent to be specifically on point, the state supreme

court found the out-of-state caselaw cited by the State to be

persuasive, holding:

The State cites no Florida appellate court that

has ruled on the subject of whether the defense

of necessity or justification, whether it be

common law or statutory, is available to a

defendant whose crime was committed in

11

opposition to abortion. However, the law

outside this state, of which there is a significant

body, is virtually unanimous on the subject.

(Footnote omitted). In every appellate court

found to have considered the issue, the

defendants were precluded as a matter of law

from asserting necessity or justification as a

defense to trespass violations committed in

protest of abortion. For example, in City of

Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911,

cert. denied, 510 U.S. 976, 114 S.Ct. 468, 126

L.Ed.2d 420 (1993), one of the more recent

cases on the subject, the Kansas Supreme Court

opined:

Regardless of what name is

attached to the defense (and for

the sake of simplicity we will

refer to it as the necessity

defense) one thing is clear: The

harm or evil which a defendant,

who asserts the necessity

defense, seeks to prevent must be

a legal harm or evil as opposed

to a moral or ethical belief of the

individual defendant.

The courts have invoked several

different rationales in rejecting

application of the defense. The

majority of courts reason that

because abortion is a lawful,

constitutionally protected act, it

12

is not a legally recognized harm

which can justify illegal conduct.

Id. 855 P.2d at 914-16. We agree with Tilson

and other cases holding that, as a matter of law,

legal abortion is not a recognized harm and

cannot be used to invoke the necessity defense.

See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,

35 L.Ed.2d 147 (1973); §390.001, Fla.Stat.

(1993). For the same reason, abortion also

cannot constitute ‘harm’ under section 776.012.

(Footnote omitted).

Hill, 688 So.2d at 905-06 [Pet. App. at Al1-13].

Citing to Commonwealth v. Wal], 372 Pa.Sup. 534, 539 A.2d

1325, appeal denied, 521 Pa. 604, 555 A.2d 114 (1988), the

Florida Supreme Court noted that to accept Hill’s argument

would be tantamount to judicially sanctioning vigilantism, and

concluded that denial of Hill’s motion in limine had not been

error. Hill, 688 So.2d at 906 [Pet. App. at A13-A14].

REASONS FOR DENYING THE WRIT

I. IN THAT JURISDICTION DOES NOT

EXIST, THIS COURT SHOULD DISMISS THE

INSTANT PETITION FOR WRIT OF

CERTIORARI

Before proceeding to the merits of any of the claims

asserted in the instant petition, Respondent initially contends

that this Court lacks jurisdiction. On June 10, 1997, Paul Hill

wrote to this Court and specifically stated that he did not

authorize the filing of any petition for writ of certiorari in this

13

cause, expressly disavowing such; this letter was filed on June

23, 1997, and supplied to the undersigned on June 27, 1997.

Because Paul Hill has not authorized the instant petition,

it would appear that his former appellate counsel, who has filed

the petition, is seeking to proceed as Hill’s “next friend.” This

Court has previously not afforded standing to an attorney who

wishes to pursue relief without his client’s consent. See, ¢.g.,

Hammett v. Texas, 448 U.S. 725 (1980) (petition for writ of

certiorari, filed by petitioner’s attorney, dismissed upon request

of petitioner himself, where inmate sentenced to death

voluntarily waived further relief); Lenhard v. Wolff, 444 U.S.

807 (1979) (application for stay of execution, filed by

petitioner’s attorney without his consent, denied). There has

never been any allegation that Paul Hill is not mentally

competent, and it is his right to decide whether or not to

petition this Court for certiorari. He has chosen no to do so,

and his attorney lacks standing to maintain an action which he

has not authorized. Accordingly, the instant petition should be

dismissed.

II. ASSUMING THAT JURISDICTION EXISTS,

THIS COURT SHOULD DENY CERTIORARI

TO REVIEW THE DECISION OF THE

SUPREME COURT OF FLORIDA BELOW, IN

THAT THE COURT RESOLVED THE CLAIM

ASSERTED IN REGARD TO _ SELF-

REPRESENTATION IN ACCORDANCE WITH

THIS COURT’S PRECEDENTS

Assuming that jurisdiction is perceived, Hill’s counsel

has nevertheless entirely failed to demonstrate any basis for this

Court to review the decision of the Florida Supreme Court.

Although opposing counsel proclaims that the state supreme

14

court “emasculated” this Court’s decision. Faretta _ v,

California, 422 U.S. 806 (1975), and that the decision below

constitutes “a dramatic, graphic, illegal change in the law.”

which will be cited for the proposition that waiver of a

defendant’s Sixth Amendment rights “is a mechanical act”

(Petition at 17), the simple truth is that the Florida Supreme

Court’s opinion in the Hil] case is entirely consistent with al!

this Court’s precedents. Further, to the extent that Hill's

counsel contends that the decision below is inconsistent w ith

Florida’s own Rules of Criminal Procedure (Petition at 17-27)

such cannot constitute any basis for this Court’s review. See.

¢.g., Michigan v. Long, 463 U.S. 1032, 1041 (1983): Fisher

y. United States, 328 U.S. 463, 476-7 (1946). The instant

petition should be denied in all respects.

The primary contention raised by Hill’s counsel - that

Hill was not sufficiently apprised of the “complexity” of the

case, So as to be able to make a knowing and intelligent waiver

of counsel - is refuted by the record. As the Florida Supreme

Court expressly found, the state trial Judge conducted an

“exhaustive” inquiry into all relevant matters before accepting

Hill’s waiver of counsel; this inquiry, and waiver, was repeated

at every critical stage in the proceedings. Thus, the court noted

that Hill had repeatedly been advised that he faced the death

penalty and, further, that he faced a number of disadvantages

in representing himself. The state supreme court noted that the

prosecutor himself had told Hill that he might be thwarted in

his efforts to present a defense if he could not properly lay a

foundation. Hill, 688 So.2d at 904 [Pet. App. at A7-8]. The

State supreme court was correct in concluding that there was

nothing particular complex about the prosecution at hand, and

that the state trial judge was not required, under Faretta or

Godinez v. Moran, 509 U.S. 389 (1993), to “give Hill a lesson

on how to try a lawsuit” before finding that Hill could waive

counsel. Hill, 688 So.2d at 905 [Pet. App. at A8]. The

15

hyperbole of Hill’s counsel, to the effect that the opinion below

can be read to approve a “mechanical act”, has no support in

the record or in any of this Court’s precedents.

Despite opposing counsel’s reliance upon Faretta, his

primary complaint would not seem to be so much focused upon

the sufficiency of the inquiry conducted, but rather upon the

results of the trial. Thus, opposing counsel posits that Faretta

was violated because, in his view, Hill was wrongfully

precluded from presenting a defense of

“necessity/justification,” and because Hill’s alleged

“nonparticipation” in his case “amounted to a plea of guilty.”

(Petition at 26). As will be argued infra, however, Hill’s pro

se status had nothing to do with his lack of success in

maintaining a “necessity/justification” defense, in that, such

“defense” would not have been recognized by any court of law,

under the circumstances of this case, even had an armada of

attorneys been present. As to Hill’s alleged “nonparticipation”

in the case, such was his choice, just as it was his choice to

waive counsel. While it is unquestionable that an attorney

could have handled the case in a different manner, any such

observation rooted in either hindsight or paternalism is not

properly the focus of a Faretta analysis, either at trial or on

appeal. The record in this case fairly indicates only one

conclusion - that Paul Hill knowingly and intelligently waived

his right to counsel. The instant petition for writ of certiorari

should be denied in all respects.

16

HT. ASSUMING THAT JURISDICTION

EXISTS, THIS COURT SHOULD DENY

CERTIORARI TO REVIEW THE DECISION OF

THE SUPREME COURT OF FLORIDA

BELOW, IN THAT THE COURT RESOLVED

THE CLAIM ASSERTED IN REGARD TO THE

DEFENSES OF “NECESSITY” OR

“JUSTIFICATION” IN ACCORD WITH THE

PRECEDENTS OF THIS COURT, AS WELL AS

ALL OTHER COURTS TO CONSIDER THE

MATTER

Paul Hill murdered two persons in cold blood, and

attempted to kill a third. The victims in this Case were a

physician who performed abortions, and an elderly couple who

volunteered to “escort” those engaged in such activity. In the

trial court below, the state moved to preclude Hill from

asserting any defense of “necessity” or “justification”, under

§776.012, Fla.Stat. (1993), allegedly premised upon Hill’s

views of abortion, and such motion was granted; this ruling

was upheld by the Supreme Court of Florida on appeal. Hill,

688 So.2d at 905-6 [Pet. App. at A9-14]. In the instant petition

for writ of certiorari, Hill’s counsel essentially re-presents the

same argument rejected by the state courts, and also sets forth,

in a six-page footnote (Petition at 19-25), the alleged predicate

steps which would be necessary for the preparation and

presentation of such defense.

No valid basis for certiorari has been presented. The

Florida Supreme Court surveyed the law nationwide, and

concluded, in accordance with all other jurisdictions, that any

defense of “necessity” or “justification” was simply

inapplicable to offenses of this kind. Hill’s counsel presents

absolutely no argument to the contrary, and cites to no court

which has ever authorized such a defense in regard to crimes

17

comparable to those committed by Hill. As the Florida

Supreme Court recognized, courts throughout the nation have

held that legal abortion is not a recognized “harm”, see Hill,

688 So.2d at 906 [Pet. App. at Al2], and that, hence, Hill did

not choose the “lesser” of two evils, when he murdered the

instant victims. Likewise, the Florida Supreme Court joined

other state courts in finding that to permit a defendant to

vindicate his or her criminal activity in such a manner would be

an invitation to lawlessness, and “tantamount to judicially

sanctioning vigilantism.” Jd. [Pet. App. at A1l3]. The Florida

Supreme Court’s resolution of this matter was entirely

consistent with this Court’s precedent, United States v. Bailey,

444 U.S. 394 (1979), and the massive discovery discussed by

Hill’s counsel (Petition at 19-25), would stand no chance of

changing this result. It should be noted that, in his federal

prosecution, Hill in fact was allowed to call witnesses including

the administrator of the abortion clinic, in this case, and the

only testimony that was presented at such time was to the effect

that all abortions performed at the clinic involved those in the

first trimester. See United States v. Hill, 893 F.Supp. 1048,

1049-1050 (N.D. Fla. 1994). Accordingly, no pretense of

justification existed.

To the extent that Hill’s counsel also attacks Hill’s

sentences of death, such attack is likewise fruitless. As the

Florida Supreme Court expressly recognized, the State’s motion

in limine was directed only towards the guilt portion of the

trial, and no prohibition existed in regard to Hill’s ability to

present any matters, including his views on abortion, to the

sentencing jury at the penalty phase. In fact, Hill did present

a closing argument to his sentencing jury, setting forth his

views on abortion, and such is quoted in the opinion below.

Hill, 688 So.2d at 907 [Pet. App. at Al6]. As the state

supreme court found, “There is no question that the jury was

aware that he killed his victims in order to prevent them from

18

performing abortions.” Jd. Hill’s views. however, did not

preclude the sentencing judge from properly finding that the

homicides had been committed in a cold and calculated manner,

under §921.141(5)(i), Fla. Stat. (1993), without a pretense of

moral or legal justification, and the Florida Supreme Court

likewise properly affirmed the finding of this aggravating

circumstance, in accordance with its own prior precedent. See

Dougan v. State, 595 So.2d 1 (Fla.), cert. denied, 506 U.S.

942 (1992). Id. While it is true that one of the seven justices

dissented as to the finding of this aggravating factor, even that

jurist did not contend that the death sentences should be vacated

as a result, and other aggravation existed to support Hill’s two

Capital sentences. No basis for invocation of this Court’s

certiorari jurisdiction has been demonstrated, and the instant

petition should be denied in all respects.

SN EE

CONCLUSION

WHEREFORE, for the aforementioned reasons, the

instant petition for writ of certiorari should be dismissed and/or

denied in all respects.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

RICHARD B. MARTELL

Chief, Capital Appeals

Florida Bar No. 300179

OFFICE OF ATTORNEY GENERAL

The Capitol

Tallahassee, FL 32399-1050

(850) 488-0600

COUNSEL FOR RESPONDENT