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Supreme Court of Florida




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No. SC05-1687


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GERHARD HOJAN,


Appellant,



vs.




STATE OF FLORIDA,


Appellee.



[February 27, 2009]



PER CURIAM.



This case is before the Court on appeal from convictions of first-degree murder and other crimes and two sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.


FACTS


Gerhard Hojan was charged with armed robbery, armed kidnapping, attempted murder, and murder arising out of the events of Monday, March 11,




2002. The evidence presented at Hojan's trial established that at approximately 4




a.m., Hojan and Jimmy Mickel entered the Waffle House where the victims, Barbara Nunn, Christina De La Rosa, and Willy Absolu worked. Hojan and Mickel had eaten at that Waffle House on several prior occasions, and the victims

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recognized and knew Hojan and Mickel. Mickel had also previously worked at that Waffle House. Additionally, Nunn knew Mickel and Hojan from attending a club where Mickel and Hojan worked and where they had previously admitted Nunn for free.



After eating breakfast, Mickel exited the Waffle House. He returned with a pair of bolt cutters and went toward the employee section of the restaurant. Hojan produced a handgun and ordered Nunn, De La Rosa, and Absolu into the back of the kitchen, where he directed them into a small freezer and shut them inside.


While Mickel cut the locks to various cash stores, Hojan returned to the freezer a total of three times. First, Hojan returned and demanded that the victims give him any cell phones they had. Next, he returned and demanded their money. Finally, he returned and ordered the victims to turn around and kneel on the floor. Nunn protested and tried to persuade Hojan not to kill them, but Hojan nevertheless shot each of the victims. Nunn was shot in the back of the head as she attempted to move away from the weapon. Absolu was shot twice, once through the arm and neck, in what appeared to be a defensive wound, and a second time in the head.


De La Rosa was shot twice as she tried to hide under a rack in the freezer. One of the bullets pierced her spine, and the other gunshot to her neck caused massive blood loss. Hojan then left the victims for dead.







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Nunn survived and awoke later with Absolu's legs on top of her body. She crawled out of the freezer and went next door to a gas station. There, with the help of the night attendant, she called 911 and subsequently her mother and sister. Law enforcement officers arrived and arranged for Nunn to be taken by ambulance and then helicopter for treatment of her head wound. Prior to her helicopter flight, Nunn gave law enforcement officers a taped statement, in which she identified Mickel and Hojan as being involved. She described Mickel by name and as a former Waffle House employee, and referred to Mickel's friend as "a big Mexican" and also as "[t]he Mexican." Hojan was soon apprehended at his parents' house and he subsequently confessed.


Hojan was convicted of two counts of first-degree murder for the death of Absolu and De La Rosa; one count of attempted first-degree premeditated murder as to Nunn; one count of attempted first-degree felony murder as to Nunn; three counts of armed kidnapping; and two counts of armed robbery. State v. Hojan, No. 02-5900CF10B (Fla. 17th Cir. Ct. sentencing order filed Aug. 2, 2005) at 1 (Sentencing Order). The jury recommended death by a vote of nine to three, and the trial court followed that recommendation and imposed two death sentences for the murders of Absolu and De La Rosa.1 In sentencing Hojan to death, the trial












1. Hojan was also sentenced to consecutive life sentences on all other counts except for the attempted felony murder of Nunn, upon which sentence was







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court found six aggravators, one statutory mitigator, and two nonstatutory mitigators. The aggravators found were: (1) Hojan committed a prior capital felony--the contemporaneous murders and attempted murder; (2) Hojan committed the murders in the course of an armed kidnapping; (3) the murders were committed to avoid arrest; (4) the murders were committed for financial gain; (5) the murders were heinous, atrocious, or cruel (HAC); and (6) the murders were cold, calculated, and premeditated (CCP). The statutory mitigator found was that Hojan had no significant prior history of criminal activity; however, the trial court found that this mitigator was undercut by Hojan's crimes that were contemporaneous to the murders. The two nonstatutory mitigators found were: (1) the defendant was a good son, parent, and provider; and (2) the defendant showed good behavior while incarcerated and during the proceedings. The trial court gave each aggravator great weight individually and gave each mitigator little weight individually. The court found that the "aggravating circumstances in this case far outweigh the mitigating circumstances," and that this finding would not change even if the avoid arrest and CCP aggravators were not found to exist. Sentencing Order at 16-17.


On appeal, Hojan raises five claims. He argues that (1) the surviving victim's statement to an officer at the scene was not an excited utterance; (2) the


withheld because Hojan was sentenced on the attempted premeditated murder count.







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trial court improperly treated Hojan's waiver of the opportunity to present mitigating evidence in the penalty phase as a waiver of his opportunity to present motions challenging the death penalty; (3) his confession should have been suppressed; (4) Florida's death penalty statute is unconstitutional;2 and (5) the trial court committed error under Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), and Muhammad v. State, 782 So. 2d 343 (Fla. 2001). We independently assess the











2. We deny Hojan's claims asserting errors under Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Hojan's case also involved convictions for multiple contemporaneous crimes. This Court has held that such facts--found unanimously by a jury--satisfy the requirements of Ring. See, e.g., Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006); Smith v. State, 866 So. 2d 51, 68 (Fla. 2004); Jones v. State, 855 So. 2d 611 ,
619 (Fla. 2003). Accordingly, we deny Hojan's Ring claims. Further, Hojan's Apprendi claims have also been previously rejected by this Court. First, this Court has rejected claims that the State is required to provide notice of the aggravating factors it intends to prove in the penalty phase. See, e.g., Kormondy v. State, 845 So. 2d 41, 54 (Fla. 2003); Lynch v. State, 841 So. 2d 362, 378 (Fla. 2003). Second, this Court has also rejected the claim that the jury must report its findings. See, e.g., Walker v. State, 957 So. 2d 560, 569 (Fla. 2007); Porter v. Crosby, 840 So. 2d 981, 986 (Fla. 2003). Third, this Court has rejected the claim that a nonunanimous jury sentencing recommendation is unconstitutional. See, e.g., Parker v. State, 904 So. 2d 370, 383 (Fla. 2005); Hodges v. State, 885 So. 2d 338, 359 n.9 (Fla. 2004). Fourth, this Court has rejected burden-shifting claims that argue Florida's capital sentencing statute or jury instructions unconstitutionally place the burden on the defendant to prove that sufficient mitigating circumstances exist to outweigh the aggravators. See, e.g., Griffin v. State, 866 So. 2d 1, 14 (Fla. 2003); Sweet v. Moore, 822 So. 2d 1269, 1274 (Fla. 2002). Finally, this Court has also rejected claims that telling a jury that it only recommends a sentence of life or death, while the final decision on the sentence is up to the judge unconstitutionally dilutes the jury's responsibility. See,



e.g., Sochor v. State, 619 So. 2d 285, 291 (Fla. 1993). Accordingly, we deny Hojan's Apprendi claims as well.







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sufficiency of the evidence and the proportionality of Hojan's sentence. We find no error under Hojan's five asserted claims, find that sufficient evidence exists, and conclude that the death sentence is proportional. Accordingly, we affirm the trial court's order sentencing Hojan to death.


ANALYSIS



Excited Utterance Exception




In Hojan's first claim, he argues that a statement made by Nunn identifying "[t]he Mexican" as the shooter was improperly admitted as an excited utterance.


The statement at issue was made after Nunn was put in a medical vehicle once the paramedics arrived and in preparation for her flight by helicopter to receive additional treatment. Nunn gave this statement to Officer Patrick Donnelly while she was in the medical vehicle and while Officer Donnelly was asking Nunn a series of questions, some of which Nunn answered with a simple "yes" or "no" and others which Nunn answered with brief factual statements.



This Court has stated "that to qualify as an excited utterance, [a] statement must be made: (1) `regarding an event startling enough to cause nervous excitement'; (2) `before there was time to contrive or misrepresent'; and (3) `while the person was under the stress or excitement caused by the event.'" Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008) (quoting Henyard v. State, 689 So. 2d 239, 251 (Fla. 1996)), cert. denied, No. 08-7918 (U.S. Feb. 23, 2009); see also §







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90.803(2), Fla. Stat. "While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection." Hutchinson v. State, 882 So. 2d 943, 951 (Fla. 2004); see also Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995). "[This Court] review[s] a trial court's decision to admit evidence under an abuse of discretion standard." Hudson, 992 So. 2d at 107 (citing Williams v. State, 967 So. 2d 735, 747-48 (Fla. 2007); Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003)).


We have previously found statements given in question-and-answer exchanges by officers under similarly stressful situations to be excited utterances.


See, e.g., Henyard, 689 So. 2d at 251 (holding victim's statements made to officer at scene were excited utterances); Pope v. State, 679 So. 2d 710, 713 (Fla. 1996) (holding victim's statement to officer during questioning at scene was an excited utterance). However, we do not here reach the issue of whether the admission of Nunn's statement as an excited utterance was an abuse of discretion because we conclude that any error in admitting her statement would be harmless error.


The test for harmless error is set out in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Under DiGuilio, "[t]he question [for harmless error analysis] is whether there is a reasonable possibility that the error affected the verdict." Id. at



1139. This Court has held that where the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction
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