Hojan v. State

3 So. 3d 1204, 34 Fla. L. Weekly Supp. 256, 2009 Fla. LEXIS 272, 2009 WL 485088
CourtSupreme Court of Florida
DecidedFebruary 27, 2009
DocketSC05-1687
StatusPublished
Cited by26 cases

This text of 3 So. 3d 1204 (Hojan v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hojan v. State, 3 So. 3d 1204, 34 Fla. L. Weekly Supp. 256, 2009 Fla. LEXIS 272, 2009 WL 485088 (Fla. 2009).

Opinions

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 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 [1208]*1208small 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.

Nunn survived and awoke later with Ab-solu’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 Abso-lu 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 court found six aggravators, one statutory mitigator, and two nonstatutory mitigators. The aggra-vators 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.

[1209]*1209On 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 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 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, — U.S. -, 129 S.Ct. 1360, — L.Ed.2d -- (2009); see also § 90.803(2), Fla. Stat. “While an excit[1210]*1210ed 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)).

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Bluebook (online)
3 So. 3d 1204, 34 Fla. L. Weekly Supp. 256, 2009 Fla. LEXIS 272, 2009 WL 485088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hojan-v-state-fla-2009.