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Hannon v. State

Supreme Court of Florida

November 1, 2017


         An Appeal from the Circuit Court in and for Hillsborough County, Michelle Sisco, Judge - Case No. 291991CF001927000AHC

          Neal Dupree, Capital Collateral Regional Counsel, Suzanne Myers Keffer, Chief Assistant, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Timothy A. Freeland, Senior Assistant Attorney General, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, Florida, for Appellee

          PER CURIAM.

         Patrick Hannon, a prisoner under sentences of death with an active death warrant, appeals the circuit court's orders denying his third and fourth successive motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the circuit court's denial of both motions and deny his motions for stay of execution.


         On direct appeal, this Court fully set forth the underlying facts. Hannon v. State (Hannon I), 638 So.2d 39, 41 (Fla. 1994). Relevant to the instant proceeding, Hannon was found guilty of two counts of first-degree murder for the killings of Brandon Snider and Robert Carter. Id. After a penalty phase, the jury returned two unanimous death sentences. Id. Hannon appealed, and we affirmed the convictions and sentences. Id. at 41-44. On February 21, 1995, the United States Supreme Court denied certiorari, Hannon v. Florida, 513 U.S. 1158 (1995), thus, Hannon's case became final on that date.

         We affirmed the denial of Hannon's initial motion for postconviction relief and denied his petition for writ of habeas corpus. Hannon v. State (Hannon II), 941 So.2d 1109, 1150 (Fla. 2006). During the pendency of his initial postconviction motion, Hannon filed an interlocutory appeal after the circuit court denied his motion to prohibit DNA testing, which this Court dismissed. Hannon v. State (Hannon III), 817 So.2d 847 (Fla. 2002) (Table).

         Additionally, Hannon sought federal relief pursuant to a writ of habeas corpus, which was denied. Hannon v. Sec'y, Dep't of Corr. (Hannon IV), 622 F.Supp.2d 1169 (M.D. Fla. 2007). The Eleventh Circuit Court of Appeals granted Hannon's request for a certificate of appealability on one issue, but it denied relief. Hannon v. Sec'y, Dep't of Corr. (Hannon V), 562 F.3d 1146 (11th Cir. 2009). [1]

         The postconviction court denied Hannon's first successive motion for postconviction relief, which we affirmed. Hannon v. State (Hannon VI), 94 So.3d 502 (Fla. 2012). Again, the postconviction court denied Hannon's second motion for postconviction relief, and we affirmed. Hannon v. State (Hannon VII), SC15-2363, 2016 WL 3352780 (Fla. June 16, 2016).

         Hannon filed his third successive motion for postconviction relief-while the second motion was pending appeal-raising various Hurst claims. The circuit court held the third successive motion in abeyance pending the outcome of Hannon's appeal in this Court on his second successive motion, which was decided on June 16, 2016. On August 4, 2016, the circuit court entered a stay on Hannon's third successive motion, pending our decision on the retroactivity of Hurst v. Florida, 136 S.Ct. 616 (2016). Following our various opinions, the circuit court denied Hannon's third successive motion without an evidentiary hearing. Hannon appealed, and we stayed the proceedings pending the resolution of Hitchcock v. State, 42 Fla.L.Weekly S753 (Fla. Aug. 10, 2017), petition for cert. filed, No. 17-6180 (U.S. Sept. 29, 2017). When Hitchcock became final, we lifted the stay and issued an order to show cause why the denial of Hannon's third successive motion for postconviction relief should not be affirmed.

         On October 6, 2017, Governor Rick Scott signed a death warrant for Hannon and set his execution for November 8, 2017. Hannon filed his fourth successive postconviction motion in the circuit court, raising three claims: (1) the lethal injection protocol is unconstitutional; (2) the Governor's warrant signing procedure is unconstitutional; and (3) Hannon's death sentences are disproportionate compared to his codefendants' sentences. The circuit court denied Hannon's claims without an evidentiary hearing.[2]

         These appeals follow.


         Constitutionality of Lethal Injection Protocol

         Hannon presents various challenges that he asserts amount to a violation of his Florida constitutional and Eighth Amendment rights when considered together. The circuit court found that we recently approved the current injection protocol in Asay v. State (Asay VI), 224 So.3d 695, 700-02 (Fla. 2017); thus, the court correctly rejected that portion of Hannon's claim. Further, the circuit court found that Hannon failed to establish his additional assertion that the three-drug protocol evaluated in conjunction with the Florida Department of Corrections' (DOC) "veil of secrecy" demonstrates that the DOC is inconsistent with its protocol and concealing signs of consciousness.

         Hannon presented no new evidence that would require us to reconsider our recent approval of the three-drug protocol, therefore, no discussion of that portion of the claim is necessary. See id.

         As to Hannon's "veil of secrecy" claim, the circuit court properly denied his challenge. The DOC is entitled to a presumption that it will properly perform its duties while carrying out an execution. Lightbourne v. McCollum, 969 So.2d 326, 343 (Fla. 2007); Provenzano v. State, 761 So.2d 1097, 1099 (Fla. 2000). Moreover, we have noted that our "role is not to micromanage the executive branch in fulfilling its own duties relating to executions." Troy v. State, 57 So.3d 828, 840 (Fla. 2011) (quoting Lightbourne, 969 So.2d at 351). There is nothing before us sufficient to overcome the presumption that the DOC will comply with the protocol that we have approved regarding the necessary consciousness check. See Howell v. State, 133 So.3d 511, 522 (Fla. 2014); Valle v. State, 70 So.3d 530, 545 (Fla. 2011) (rejecting a similar claim of "substitution of the drug, coupled with inadequate procedural safeguards and a cavalier attitude toward lethal injection" (emphasis in original)); Lightbourne, 969 So.2d at 352. In fact, one of the affidavits submitted by Hannon indicates that as recently as a few weeks ago, during Lambrix's execution, the DOC officials conducted a proper consciousness check. See Correll v. State, 184 So.3d 478, 484 n.8 (Fla. 2015) (detailing the consciousness check when the execution team members "yell the prisoner's name, lift the prisoner by the shoulders and shake him or her, flick the subject's eyelids, and pinch the trapezius muscle"). The burden was on Hannon to overcome the presumption afforded to the DOC, and he failed to carry his burden. See Muhammad v. State, 132 So.3d 176, 203 (Fla. 2013). Thus, this portion of his claim fails.

         Finally, we have consistently rejected Hannon's challenge that the DOC should substitute the current three-drug protocol with a one-drug protocol. See Asay VI, 224 So.3d at 702; Muhammad, 132 So.3d at 196-97.

         Accordingly, even taking these claims together, the circuit court properly denied Hannon's challenge.

         The Governor's Warrant Signing Power

         Hannon challenges the power of the Governor to sign death warrants, which the circuit court properly denied. We have repeatedly and consistently denied these claims. E.g., Bolin v. State, 184 So.3d 492, 502-03 (Fla. 2015), cert. denied, 136 S.Ct. 790 (2016); Mann v. State, 112 So.3d 1158, 1162-63 (Fla. 2013); Ferguson v. State, 101 So.3d 362, 366 (Fla. 2012); Gore v. State, 91 So.3d 769, 780 (Fla. 2012); Valle, 70 So.3d at 551-52. Hannon contends that we must revisit this settled point of law in light of Hurst, however, Hannon is mistaken. The narrowing function required by the Eighth Amendment, which we addressed in Hurst, has already been performed by the time that a defendant is warrant eligible. See Hurst v. State, 202 So.3d 40, 59-63 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017); Silvia v. State, 123 So.3d 1148, 2013 WL 5035694 *1 (Fla. 2013) (Table) (defining warrant eligible).

         Accordingly, the circuit court correctly denied relief to Hannon on this claim.


         Hannon contends that his sentence is disproportionate when compared to his codefendants' sentences. The circuit court found that this claim was procedurally barred because it has been previously addressed on direct appeal and is untimely. We agree.

         We rejected Hannon's proportionality claims on direct appeal and in his initial postconviction motion. Hannon I, 638 So.2d at 44 (finding that "[c]learly, Hannon is the most culpable of the three accomplices in this case, and the two death sentences are justified"); Hannon II, 941 So.2d at 1145 (affirming the postconviction court's denial of a similar claim couched in terms of newly discovered evidence "because the instant case does not involve equally culpable codefendants"). Because we have addressed this claim on direct appeal and postconviction, it is both procedurally barred and without substantive merit. E.g., Lukehart v. State, 70 So.3d 503, 524 (Fla. 2011) ("Lukehart challenges this Court's proportionality determination from the direct appeal, . . . [t]his claim is procedurally barred, as it was raised and rejected on direct appeal."); Allen v. State, 854 So.2d 1255, 1261-62 (Fla. 2003). Also, the claim is untimely. One of Hannon's codefendants, Charles Acker, was retried in 2001. Any claims related to that retrial are well outside the one-year time limitation prescribed by Rule 3.851(d)(1). And the circuit court correctly found that Hannon failed to establish any of the Rule 3.851(d)(2) exceptions to the one-year limit. Because this claim is procedurally barred, we do not reach the merits of Hannon's arguments.

         Likewise, Hannon raised claims regarding the testimony of an FBI analyst and blood spatter expert. We have twice rejected his claim regarding the FBI analyst, Hannon II, 941 So.2d at 1145-46; Hannon VII, 2016 WL 3352780 at *1, and once rejected the claim regarding the blood spatter expert. Hannon II, 941 So.2d at 1121-24. Thus, those claims must fail as well.

         Contrary to the dissent's assertion, the record is actually quite clear that the wound inflicted to one victim's neck by Hannon was the fatal wound. Instead of basing a proportionality determination on Hannon's allegations and assertions, we rely on the record, which refuted the assertions. At Hannon's trial and Acker's retrial, the medical examiner, Dr. Diggs, testified about the neck wound. He opined that the wounds inflicted by Acker could possibly be "potentially lethal"; whereas, the neck wound actually inflicted by Hannon was "certainly a lethal wound." Furthermore, the wounds inflicted by Acker would not have killed Snider for at least some extended time period; whereas, the wound inflicted by Hannon caused Snider to drop immediately and die in less than thirty seconds.[3] This case is distinguishable from McCloud v. State, 208 So.3d 668 (Fla. 2016), where we held that death was disproportionate, noting that "the jury explicitly determined by special interrogatory that McCloud was not the shooter" and that a "less culpable, non-triggerman defendant" cannot be sentenced to death when "the more culpable, triggerman defendant" is sentenced to a lesser sentence. Id. at 687-89. However, McCloud is inapposite because the record here demonstrates that Hannon was more culpable than his codefendants. Not only was Hannon the "triggerman" by shooting Carter, he was also the "buck-knife man" by slashing Snider's throat to the point of near decapitation. Our relative culpability analysis in Hannon I, 638 So.2d at 44, was not dependent on who had the motive to kill Snider; rather, it was based on the facts in record, which demonstrated that Hannon killed Snider and Carter.

         Although Hannon's codefendants were culpable, Hannon was the person who slashed Snider's throat and shot Carter six times; as such, it is as true today as it was twenty-three years ago: Hannon was "the most culpable of the three accomplices in this ...

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