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can be harmless. See, e.g., Hutchinson, 882 So. 2d at 952-53 (finding the introduction of statements harmless where the statements were not the only evidence on the issue); Henyard, 689 So. 2d at 251 (finding any error harmless in introduction of victim's excited utterances by officer where victim also testified at trial to same information).



In this case, there was substantial testimony by other witnesses that duplicated Nunn's statement from the ambulance that "[t]he Mexican" was the shooter. Gas station attendant Kahn testified that Nunn told her that he should not open the door to the gas station because "two guys . . . want to kill me. . . . One Mexican and one White." Paramedic Steven Cacciola testified that Nunn told him in the gas station that a Mexican who was with Jimmy had shot her. Officer Donnelly testified that Nunn stated in the gas station--prior to and separate from Nunn's statements to him in the ambulance--that an ex-employee and a Mexican had robbed the Waffle House. Nunn herself also testified in court that Hojan shot her and the two other victims. Nunn stated that she previously identified Hojan as the shooter in a photo lineup, and JoAnn Carter, a Davie police detective, also testified that Nunn identified Hojan as the shooter in a photo lineup at the hospital.


Finally, Hojan confessed in his taped statement that he shot the victims, and that confession was played for the jury. Based on this other extensive evidence, we conclude that even if admission of the statement was error, it was harmless error.







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Waiver of Motions




Next, Hojan argues that the trial court improperly concluded that his waiver of the right to present mitigation evidence during his penalty phase was also a waiver of presentation of post-trial motions. At his trial, Hojan waived his right to present mitigating evidence and instructed his friends and family members not to assist in any investigation into his background. Hojan also instructed his attorneys and the court to withdraw from consideration several motions filed challenging various aspects of the death penalty and of the penalty phase proceedings. Hojan appears to argue both that it was error for the trial court to permit Hojan to withdraw the penalty-phase motions and that the trial court confused Hojan by conflating waiver of the penalty phase motions with waiver of presentation of mitigating evidence. We deny this claim.


Competent defendants who are represented by counsel maintain the right to make choices in respect to their attorneys' handling of their cases. This includes the right to either waive presentation of mitigation evidence or to choose what mitigation evidence is introduced by counsel. See, e.g., Boyd v. State, 910 So. 2d 167, 189-90 (Fla. 2005) ("Whether a defendant is represented by counsel or is proceeding pro se, the defendant has the right to choose what evidence, if any, the defense will present during the penalty phase."). Defendants also have the right to proceed pro se in capital trial proceedings. See, e.g., Durocher v. Singletary, 623







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So. 2d 482, 483 (Fla. 1993) ("Competent defendants have the constitutional right to refuse professional counsel and to represent themselves, or not, if they so choose.") (citing Faretta v. California, 422 U.S. 806 (1975); Hamblen v. State, 527 So. 2d 800 (Fla. 1988)). We have also held that a capital defendant has the right to withdraw Florida Rule of Criminal Procedure 3.850 motions filed on the defendant's behalf. See Sanchez-Velasco v. State, 702 So. 2d 224 (Fla. 1997) (affirming postconviction court's allowing defendant to withdraw his rule 3.850 motion and affirming postconviction court's dismissal of collateral counsel).


"[T]he defendant, not the attorney, is the captain of the ship." Nixon v. Singletary, 758 So. 2d 618, 625 (Fla. 2000) ("Although the attorney can make some tactical decisions, the ultimate choice as to which direction to sail is left up to the defendant.").



Hojan expressly and repeatedly waived his right to present mitigating evidence on numerous occasions. Additionally and separately, Hojan expressly informed his attorneys and the trial court that he did not want any motions filed on his behalf during the penalty phase or afterwards. Hojan also expressly informed his attorneys and the court that he wanted the motions that had been filed withdrawn. The trial court specifically asked Hojan about each motion that had been filed and whether Hojan wanted to withdraw it. During this colloquy, which filled twenty-four pages of transcript, the trial court explained each motion to







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Hojan to make certain he understood what he was withdrawing and then expressly asked Hojan if he wanted to withdraw the motion. Hojan answered affirmatively for every motion, every time he was asked. Hojan did not waver in his decision not to present mitigation or post-trial motions. Instead, he consistently refused to allow his attorneys to participate in any capacity on his behalf in the penalty phase.


Hojan's refusals involved over twenty separate affirmations that occurred over the course of several months and multiple trial dates. Hojan was found to be competent to make these waivers. See, e.g., Sentencing Order at 2. Hojan was evaluated by Dr. Block-Garfield; Hojan's attorneys stated that they never had any reason to doubt Hojan's competency; and the trial court concluded after an extended colloquy with Hojan that he had no trouble concluding that Hojan knew what he was doing and that it was the product of "cool reflection."



Given that (1) the defendant is captain of the ship, (2) Hojan expressly and repeatedly waived presentation of mitigation and withdrew his counsel's various motions, and (3) Hojan was found competent, we conclude that the trial court committed no error in permitting Hojan to withdraw the motions he withdrew. As stated above, "the defendant, not the attorney, is the captain of the ship." Nixon, 758 So. 2d at 625. A defendant can control what mitigation is presented, Boyd, 910 So. 2d at 189-90, or can waive the penalty phase altogether, Koon, 619 So. 2d at 249. We therefore conclude that a defendant can also waive the presentation of







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motions filed by his counsel. "[T]here is no doubt that `death is different,' but, in the final analysis, all competent defendants have a right to control their own destinies." Hamblen, 527 So. 2d at 804. Further, Hojan, like any competent defendant, could have discharged his counsel and proceeded pro se, Durocher, 623 So. 2d at 483, at which point he could have personally withdrawn the motions.


Accordingly, Hojan has not established any basis upon which this Court should conclude that it was error for the trial court to permit Hojan to withdraw motions at Hojan's explicit, on-the-record request, and we deny relief on this issue.


Suppression of Confession




In this issue, Hojan argues that the trial court incorrectly denied his motion to suppress his taped confession. Hojan claims that there is not sufficient evidence in the record indicating that he was ever read Miranda3 warnings or that any such warnings given were proper. We affirm the trial court's denial of Hojan's motion to suppress.



"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Rolling v. State, 695 So. 2d 278, 291 (Fla. 1997) (citing McNamara v. State, 357 So. 2d 410, 412 (Fla. 1978)); see










3.



Miranda v. Arizona, 384 U.S. 436 (1966).







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also Schoenwetter v. State, 931 So. 2d 857, 866 (Fla. 2006) (repeating this quote).


In reviewing a trial court's ruling on a motion to suppress, we have applied a two- step analysis in which courts must determine whether "(1) competent, substantial evidence supports the trial court's findings of historical fact; and (2) [whether] the trial court reached the correct legal conclusion that [a defendant] knowingly, intelligently, and voluntarily waived his [or her] Miranda rights." Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004) (citing Connor v. State, 803 So. 2d 598, 608 (Fla. 2001)). "An invalid waiver, like an involuntary confession, can serve as a basis for suppressing [a defendant's] statements." Sliney v. State, 699 So. 2d 662, 668 (Fla. 1997).




The trial court in this case held an evidentiary hearing to address Hojan's motion to suppress. After hearing the testimony of several law enforcement officers, the trial court denied Hojan's motion. Subsequently, it issued a written order. State v. Hojan, No. 02-5900CF10B (Fla. 17th Cir. Ct. order filed Nov. 14, 2003). The trial court found that (1) Detective Anton read Hojan his Miranda rights and asked Hojan if he understood those rights; (2) Hojan replied that he was read them and understood them; and (3) after Hojan affirmed that he had been read Miranda warnings, "[t]he Defendant was still willing to talk with [Anton]" on the tape. Id. at 3. Ultimately, the trial court held that Hojan was advised of his







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Miranda rights prior to being questioned and that he voluntarily waived those rights.4



We affirm the trial court's ruling denying Hojan's motion to suppress.


Competent, substantial evidence supports the trial court's finding that Hojan was read his Miranda warnings. Detective Anton of the Davie Police Department testified at the suppression hearing that he read Hojan Miranda warnings from a prepared text. Hojan also expressly stated on the tape-recorded confession that he had been read his Miranda rights and that he understood them. Immediately after stating the case number and parties present, the following exchange occurred on the tape between Detective Anton and Hojan:



Q Prior to going on tape we talked a little bit?

A Yes, sir. Q

Were you advised of your Miranda rights?

A Yes, sir. Q

And those rights that I read to you, did you understand those completely?
A Yes.



Q Having those rights in mind, are you still willing to talk to us?
A Yes.
















4. The trial court stated in its order that Anton read Hojan his Miranda rights in their entirety on the tape recording. However, as Hojan points out, the transcript of the tape in the record indicates that Hojan was not read his rights in full on the tape recording. We find that this apparent misstatement by the trial court does not undermine the remaining evidence supporting the trial court's rejection of the motion to suppress.







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Detective Anton then asked Hojan whether he was taking any medication, whether he was impaired, and whether his "judgment [was] messed up." Hojan answered "no" to each question. Accordingly, we find that competent, substantial evidence supports the trial court's findings, and we affirm the order denying Hojan's motion to suppress. See Sliney, 699 So. 2d at 668-69 (upholding admission of confession where defendant failed to sign bottom portion of written waiver but officers testified that defendant waived his rights); Hogan v. State, 330 So. 2d 557 (Fla. 2d DCA 1976) (upholding a trial court's admission of confession where defendant had not signed a written waiver of his Miranda rights because officer testified at trial that he read defendant his rights and defendant stated he understood them and was still willing to talk).


Koon v. Dugger and Muhammad v. State




In this claim, Hojan argues that (1) the trial court erroneously permitted Hojan to prevent his attorney from giving mitigation evidence to the trial court; (2) the trial court gave the jury's recommendation improper weight since the jury did not hear mitigation evidence; (3) the trial court failed to consider certain mitigating evidence that it could have considered; (4) specially appointed counsel, Hilliard Moldof, did not present sufficient mitigation evidence, and the expert Moldof retained did a poor job; and (5) the trial court did not consider the presentence investigation (PSI) report. We deny relief on all five subclaims.







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First, Hojan alleges that he is entitled to a new penalty phase because the trial court erroneously permitted Hojan to prevent his attorneys from proffering what mitigation evidence they had found. When Hojan's attorneys attempted to proffer the mitigation evidence they had discovered, Hojan objected and insisted that his attorneys not proffer the evidence to the court as is required under Koon.


In Koon, we established a three-part procedure for addressing a defendant's waiver of his or her right to present mitigating evidence. First, "counsel must inform the court on the record of the defendant's decision." 619 So. 2d at 250. Next, "[c]ounsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be." Id. (emphasis added). Finally, "[t]he court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence." Id. Hojan seizes on the last portion of the second step of Koon where counsel must tell the court "what [the mitigating] evidence would be." Id.



This Court's "primary reason for requiring [the Koon] procedure was to ensure that a defendant understood the importance of presenting mitigating testimony, discussed these issues with counsel, and confirmed in open court that he or she wished to waive presentation of mitigating evidence." Chandler v. State,







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702 So. 2d 186, 199 (Fla. 1997). In other words, Koon focuses on ensuring that the defendant understands his or her rights and is waiving them intelligently.



In this case, defense counsel John Cotrone informed the trial court that he had conducted an investigation of mitigation and had presented the information found to Hojan. Cotrone stated, "We have a number of witnesses here, we filed a Defense witness list and we have statements of those individuals as well."


Cocounsel Mitchell Polay then stated:


Mr. Cotrone and myself have spoken to Mr. Hojan countless times. I have spoken to his family, I've spoken to family friends. . . .


We've discussed every aspect of what mitigation is. I've explained to Mr. Hojan that he has an absolute right to present mitigating circumstances. We've gone over these mitigating circumstances, we've gone over what each and every witness could say in front of the jury so that they can come back with a recommendation of life; however, he has ordered both myself and Mr. Cotrone . . . not to present any mitigation in any way, shape or form, not to present testimony. That's where we're at, Judge.


Additionally, I just want to point out one thing. As soon as I got wind as soon as Mr. Hojan told me that he does not wish to present any type of mitigation, I had the Court order an evaluation [of his competency].


The trial court then asked if Hojan had reviewed that competency report, and Hojan stated that he did not disagree with the report's finding that he was competent.



Next, the trial court engaged in a lengthy evaluation under Koon of whether Hojan's waiver of mitigation was knowingly, voluntarily, and intelligently made.


The court noted that Hojan had filed a document stating that he waived mitigation







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and that, prior to waiving it, he had been made "aware of my Penalty Phase Lawyer's efforts to properly prepare for any penalty phase proceeding. Such efforts have included, but not limited to, interviews with my mother, and other family members, interviews with childhood friends, interviews with county jail employees, as well as various document searches and relevant records."


The court then asked defense counsel to proffer, pursuant to Koon, what evidence they had discovered, and Hojan stated that if the court made counsel proffer evidence, he would fire his attorneys immediately. Hojan stated that "even if you appoint somebody else, sir, I'm going to ask you to relieve them again."


Defense counsel then stated that they had all of the mitigating evidence in hand at the proceeding, that Hojan had reviewed it and they had discussed mitigating evidence possibilities, and that counsel was ready to file that proffer with the court.


Hojan, however, insisted that the mitigation packet not be filed with the court in any form. Hojan repeatedly affirmed that he had reviewed the packet and did not want it presented in any form--not to the jury, not to the court in camera, and not to this Court in his appeal.



Nevertheless, significant information about the defense's preparation for presenting mitigation exists in the record. Defense counsel stated that they had "discussed every aspect of what mitigation is. . . . We've gone over these mitigating circumstances, we've gone over what each and every witness could say







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in front of the jury so that they can come back with a recommendation of life . . . ."


Hojan also signed a statement that noted defense counsel's efforts "included, but [were] not limited to, interviews with [Hojan's] mother, and other family members, interviews with childhood friends, interviews with county jail employees, as well as various document searches and relevant records." The State also proffered that it had previously provided to the defense a packet addressing Hojan's education records, employment records, financial records, statements to the police, his parents' statements, Hojan's divorce papers, a deposition from his ex-wife, and other documents. The State read into the record the names of the witnesses from the defense's four witness lists that were filed at various points during the proceedings. Hojan stated on the record that he had an opportunity to review all of this information with his attorneys. Attorneys for the State and for Hojan also read into the record the names or identities of nine witnesses who were in court and ready to testify on Hojan's behalf. Defense cocounsel Polay also stated that he had additional individuals--including three expert witnesses--ready to testify on Hojan's behalf if Polay called them and told them that Hojan was no longer refusing to present mitigation. Based on these facts within the record, we find no error in the trial court's determination that the defendant knowingly, intelligently, and voluntarily waived his right to mitigation, and we deny relief on this claim.







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In Hojan's second claim, he argues that the trial court erred by giving the jury's recommendation great weight despite the fact that the jury was not presented with any mitigation evidence. We stated in Muhammad that it was error to give a jury's advisory sentence "great weight" if the jury was not presented with evidence of mitigating circumstances. 782 So. 2d at 361-62. However, contrary to Hojan's claims, there is no evidence that the trial court gave the jury's recommendation great weight in this case. Instead, the State specifically informed the trial court on the record that it could not give the jury's recommendation great weight, and the sentencing order does not state that the trial court gave the recommendation great weight. Finally, the trial court told the jury in the penalty-phase instructions that it would give the jury's recommendation "due consideration," not "great weight."


Because there is no evidence in the record that the trial court gave the jury's recommendation "great weight," as was prohibited in Muhammad, we deny this claim.



In Hojan's third claim, he argues that the trial court should have required the presentation of additional mitigation evidence. Hojan alleges that the court should have used its contempt power to compel Hojan's mother to testify to mitigation. In Muhammad, 782 So. 2d 343, we stated that "the trial court has the discretion to call persons with mitigating evidence as its own witnesses." Id. at 364. We have also stated, however, that a trial court's discretion to call additional mitigation







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witnesses "is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court." Ocha v. State, 826 So. 2d 956, 963 (Fla. 2002) (internal quotation marks omitted) (quoting Trease v. State, 768 So. 2d 1050, 1053 n.2 (Fla. 2000)).



It was reasonable in this case for the trial court not to force Hojan's mother to testify when her son had expressly asked her not to testify. Accordingly, we deny this claim. We also deny this claim because Hojan has not established what evidence his mother could have provided if she had testified. Accordingly, we cannot conclude that the failure of Hojan's mother to testify prejudiced Hojan. We also note that the trial court carefully considered the mitigation evidence present in the record and ordered and reviewed the PSI. Finally, the trial court appointed a special public defender to research and present mitigation to the court. These facts all indicate that the trial court properly conducted its review of mitigation in this case. Hojan has not established what additional mitigation could have been presented; he has not explained how any additional mitigation would alter the balance of aggravators and mitigators in this heavily aggravated case; and he has not established that he is entitled to a new penalty phase even if such mitigation exists because Hojan affirmatively waived his right to present mitigation and







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actively inhibited the trial court's ability to gather mitigating evidence.


Accordingly, we deny relief on this claim.



In Hojan's fourth subclaim, he argues that specially appointed counsel, Hilliard Moldof, and the psychologist Moldof retained, Dr. Michael Brannon, both did an inadequate job in obtaining and presenting mitigation evidence to the trial court. In this case, in light of Hojan's refusal to present mitigating evidence, the trial court appointed special counsel to investigate and present mitigating evidence to assist the trial court in sentencing Hojan. This Court has held that "a defendant [who waived presentation of mitigation evidence] has no basis for claiming that special counsel's presentation of mitigation evidence was ineffective." Grim v. State, 971 So. 2d 85, 102 (Fla. 2007) (citing Muhammad, 782 So. 2d at 364 n.15); see also Muhammad, 782 So. 2d at 364 n.15 (stating that defendant who "knowingly and intelligent[ly] waived the presentation of mitigating evidence . . . [is] barred from subsequently claiming that [special] counsel's performance was ineffective in the presentation of mitigating evidence"). Accordingly, Hojan is not entitled to relief on this claim.



In Hojan's final claim under this issue, he argues that the trial court did not consider the PSI report as it was required to do. However, the sentencing order specifically states that a PSI was ordered, and it notes results of the presentence investigation in its consideration of mitigation. See Sentencing Order at 2 (noting







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PSI was ordered); Sentencing Order at 12 (noting information contained in PSI while considering mitigation evidence). Thus, there is evidence in the record that the trial court considered the contents of the PSI, contrary to Hojan's claims on appeal. Accordingly, this claim does not entitle Hojan to relief.


In summary: (1) Hojan knowingly, intelligently, and voluntarily waived his right to mitigation, and thus Koon was satisfied; (2) there is no evidence in the record that the trial court gave the jury's recommendation "great weight," as was prohibited in Muhammad; (3) it was reasonable for the trial court not to force Hojan's mother to testify when her son had expressly asked her not to testify; (4) Hojan is barred from claiming that Moldof's performance was ineffective in the presentation of mitigating evidence because Hojan waived presentation of mitigation evidence; and (5) there is evidence in the record that the trial court considered the contents of the PSI. Accordingly, we deny all five of Hojan's subclaims in this issue.


Sufficiency of the Evidence



Hojan has not challenged the sufficiency of the evidence supporting his convictions. Nonetheless, this Court independently reviews the entire record to determine whether sufficient evidence exists to support Hojan's murder convictions. See Fla. R. App. P. 9.142(a)(6); see also Jones v. State, 963 So. 2d 180 (Fla.2007). "Generally, an appellate court will not reverse a conviction that is
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