RODERICK MICHAEL ORME, Appellant, vs. STATE OF FLORIDA, Appellee. RODERICK MICHAEL ORME, Petitioner, vs. JULIE L. JONES, etc., Respondent.
No. SC13-819; No. SC14-22
Supreme Court of Florida
[March 30, 2017]
REVISED OPINION
Roderick Michael Orme appeals an order of the circuit court denying his motion to vacate his sentence of death, filed under
FACTS AND PROCEDURAL HISTORY
A full description of the facts of the instant case can be found in our opinion from Orme‘s direct appeal. Orme v. State (Orme I), 677 So. 2d 258, 260-61 (Fla. 1996). The facts relevant here are as follows. In March 1992, Orme was charged with premeditated or felony murder, robbery, and sexual battery in connection with the death of Lisa Redd, whose body was found in Orme‘s motel room. Id. at 260. A jury convicted Orme on all three counts and recommended the death penalty by a vote of seven to five. Id. at 261. The trial judge followed the recommendation and sentenced Orme to death, finding three aggravating factors—committed during the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed for pecuniary gain. Id. In mitigation, the judge found both statutory mental health mitigators (substantial impairment and extreme emotional disturbance), giving them “some weight.” Id. We have previously described the procedural history of this case as follows:
On direct appeal, Orme raised eight issues. [n.1] This Court affirmed Orme‘s conviction of first-degree murder and the sentence of death. [Orme I, 677 So. 2d at 261-64.] Orme filed a petition for writ of certiorari with the United States Supreme Court. That Court denied review on January 13, 1997. Orme v. Florida, 519 U.S. 1079 (1997).
[N.1] The following issuеs were raised: (1) the trial court should have directed a judgment of acquittal on grounds the case against him was circumstantial and the State had failed to disprove all reasonable hypotheses of innocence; (2) Orme‘s statements to officers should have been suppressed on grounds he was too intoxicated with drugs to knowingly and voluntarily waive his right to silence; (3) death is not a proportionate penalty because Orme‘s will was overborne by drug abuse, and because any fight between the victim and him was a “lover‘s quarrel“; (4) Orme‘s mental state at the time of the murder was such that he could not form a “design” to inflict a high degree of suffering on the victim; (5) the trial court erred by failing to weigh in mitigation the fact that Orme had no significant prior criminal history; (6) the trial court erred in declining to give a special instruction that acts perpetrated on the victim after her death are not relevant to [the HAC aggravato]r; (7) the instruction on [HAC] violated the dictates of Espinosa v. Florida, 505 U.S. 1079 (1992); and (8) Orme was incapable of forming the specific intent necessary for first-degree murder and this fact bars his death sentence under Enmund v. Florida, 458 U.S. 782 (1982).
Subsequently, Orme filed an amended motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.851 , raising twenty-five claims. After an evidentiary hearing on four claims of ineffective assistance of trial counsel, the trial court denied relief. Orme appealed the denial of postconviction relief to this Court, raising three claims. [n.2] He also petitioned the Court fora writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State (Orme II), 896 So. 2d 725, 737 (Fla. 2005)]. This Court found defense counsel ineffective for failing to further investigate Orme‘s diagnosis of bipolar disorder with respеct to the penalty phase. As a result, a new penalty phase was ordered. Id. [at 740-41]. [N.2] Orme argued that (1) the trial court erred in denying his ineffective assistance of counsel claim for trial counsel‘s failure to present evidence of Orme‘s diagnosis of bipolar disorder; (2) his death sentence is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002), and its progeny; and (3) the general jury qualifications procedure in Bay County, where he was tried, was unconstitutional. [Orme II], 896 So. 2d 725 (Fla. 2005).
[N.3] Three of the claims Orme raised were: (1) appellate counsel was ineffective for failing to raise on appeal the fact that Orme was involuntarily absent from two bench cоnferences, which he claims were critical stages of his trial; (2) appellate counsel was ineffective for failing to raise on appeal the claim that the prosecutor engaged in misconduct rendering the conviction and sentence fundamentally unfair; and (3) appellate counsеl was ineffective for failing to raise on appeal the claim that the trial court erroneously allowed forty-three gruesome photographs to be shown to the jury. Orme raised five additional claims, all of which were found not to be properly raised in a habeas proceeding becausе they were either raised on direct appeal or in postconviction or should have been raised and were therefore procedurally barred. [Orme II, 896 So. 2d at 740].
In May 2007, a new penalty phase was conducted before a new jury, but before the original trial judge. By a vote of eleven to one, the new jury rеcommended a death sentence. The trial court followed the jury‘s recommendation and sentenced Orme to death. The trial court found the following three statutory aggravating factors: (1) the capital felony was committed for pecuniary gain; (2) the capital felony was committed while the defеndant was engaged in the commission
Orme v. State (Orme III), 25 So. 3d 536, 542-43 (Fla. 2009).
At resentencing, Orme was initially represented by Russell Ramey, who was appointed after the Public Defender‘s Office certified to the court a conflict of interest and moved for appointment оf separate counsel. Subsequently, attorneys Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of appearance as co-counsel to Ramey. However, at a September 7, 2005, hearing, the trial court informed Butters and Schulz that their pro bono representation of Orme as cо-counsel to Ramey could prompt Ramey‘s withdrawal from the case, as the Justice Administrative Commission (JAC) would not pay for court-appointed counsel when private counsel had been obtained. Thus, on November 2, 2005, Butters and Schulz filed a motion for appointment of Michel Stone as co-counsel
Orme appealed the death sentence he received at resentencing to this Court, raising nine claims.3 Orme III, 25 So. 3d at 540, 543. We affirmed his sentence, finding no reversible error. Id. at 543-53. Orme then filed a petition for writ of certiorari with the United States Supreme Court, which that Court denied on June 7, 2010. Orme v. Florida, 560 U.S. 956 (2010).
Orme now appeals the denial of his motion, raising four claims of ineffective assistance of resentencing phase counsel4 and one claim of ineffective assistance of
ANALYSIS
Because Orme‘s claims all relate to his resentencing and we determine that Orme is entitled to relief pursuant to Hurst, we do not address his other postconviction claims or the issues raised in his petition for a writ of habeas corpus.
Hurst v. Florida and Hurst
In Hurst v. Florida, the United States Supreme Court declared our capital sentencing scheme unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to imposе a sentence of death. A jury‘s mere recommendation is not enough.” Hurst v. Florida, 136 S. Ct. at 619. Pursuant to the Supreme Court‘s decision in Hurst v. Florida, Orme filed a motion
Thereafter, in Mosley v. State, 41 Fla. L. Weekly S629, 2016 WL 7406506 (Fla. Dec. 22, 2016), we determined that Hurst v. Florida and Hurst apply retroactively to defendants, like Orme, whose sentences wеre not yet final when the Supreme Court issued Ring. See Mosley, 2016 WL 7406506 at *25.
Because we conclude that Hurst applies to Orme, we next examine whether any Hurst error was harmless beyond a reasonable doubt. On remand from the United States Supreme Court, in Hurst we explained the appropriate standard for harmless error review:
Where the error concerns sentencing, the error is harmless only if there is no reasonablе possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy burden in cases involving constitutionаl error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the
jury‘s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst‘s death sentence in this case. We reiterate: The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.
Hurst, 202 So. 3d at 68 (alteration in original). As applied to the right to a jury trial with regard to the facts nеcessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found all facts necessary to impose death and that death was the appropriate sentence.
Given the jury vote of eleven to one, it is impossible for this Court to determine which, if any, of the aggravators5 the jury would have found unanimously if properly instructed. Moreover, we cannot determine whether the jury would have found “that there were sufficient aggravating factors to outweigh
CONCLUSION
Based on the foregoing, we grant Orme‘s supplemental claim for relief under Hurst and vacate his death sentence and remand this case for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY and POLSTON, JJ., dissent. LAWSON, J., did not participate.
NO MOTION FOR REHEARING WILL BE ALLOWED.
An Appeal from the Circuit Court in and for Bay County, Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX And an Original Proceeding — Habeas Corpus
Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistаnt Attorney General, Tallahassee, Florida, for Appellee/Respondent