IN THE SUPREME COURT OF FLORIDA
EDWARD J. ZAKRZEWSKI,
Appellant,
v.
Case No. SC11-1896
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR OKALOOSA COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
PAMELA JO BONDI
ATTORNEY GENERAL
STEPHEN R. WHITE
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 159089
Office of the Attorney General
PL-01, The Capitol
Tallahassee, Fl 32399-1050
(850) 414-3300 Ext. 4579
(850) 487-0997 (FAX)
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGE#
TABLE OF CONTENTS ............................................ ii
TABLE OF CITATIONS .......................................... iii
PRELIMINARY STATEMENT ......................................... 1
RESPONSE TO REQUEST FOR ORAL ARGUMENT ......................... 1
STATEMENT OF THE CASE AND FACTS ............................... 2
Case Timeline................................................ 2
Additional Background........................................ 5
SUMMARY OF ARGUMENT .......................................... 16
ARGUMENT ..................................................... 17
OVERARCHING STANDARD OF APPELLATE REVIEW. .................... 17
ISSUE I: DOES PORTER REQUIRE THAT IAC BE RE-LITIGATED? (IB 2262, RESTATED) ................................................ 18
A. Standard of Review....................................... 18
B. Applying the Law, the Trial Court's Correct Ruling. ..... 19
ISSUE II: DOES LETHAL INJECTION USING ANOTHER CHEMICAL PRIMA
FACIE MAKE THE FLORIDA PROCESS UNCONSTITUTIONAL AND REQUIRE THAT
THE TRIAL COURT PROVIDE ZAKRZEWSKI AN EVIDENTIARY HEARING?(IB
63-75, RESTATED) ............................................. 33
CONCLUSION ................................................... 41
CERTIFICATE OF SERVICE ....................................... 41
CERTIFICATE OF COMPLIANCE .................................... 42
ii
TABLE OF CITATIONS
CASES
PAGE#
Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)
................................................... 36, 38, 39, 40
Brewer v. Landrigan, ––– U.S. ––––, 131 S.Ct. 445 , 178 L.Ed.2d 346
(2010)
..................................................... 38
Butler v. Yusem, 44 So.3d 102 (Fla. 2010) ........................ 17
Caso v. State, 524 So.2d 422 (Fla. 1988) ......................... 17
Chandler v. State, 848 So.2d 1031 (Fla. 2003).................... 11
Davis v. State, 928 So.2d 1089 (Fla. 2005) ....................... 29
Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309
(1992)
............................................. 14, 29, 30
DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011)................. 40
Diaz v. State, 945 So.2d 1136 (Fla. 2006) .................... 16, 36
Dougan v. State, 595 So.2d 1 (Fla.1992) .......................... 10
Farmer v. Brennan, 511 U.S. 825 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994)
................................................. 38
Ferguson v. State, 593 So.2d 508 (Fla. 1992)..................... 11
Florida Dep't of Transp. v. Juliano, 801 So.2d 101 (Fla. 2001) .. 27
Franqui v. State, 59 So.3d 82 (Fla. 2011) ..................... 30-31
Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976)
..................................................... 39
Hartley v. State, 686 So.2d 1316 (Fla. 1996)...................... 9
iii
Helling v. McKinney, 509 U.S. 25 –35, 113 S.Ct. 2475, 125 L.Ed.2d
22 (1993) ...................................................... 38
Henyard v. State, 992 So.2d 120 (Fla. 2008).................. 16, 36
Hill v. State, 688 So.2d 901(Fla. 1996), ......................... 10
Jackson v. State, 648 So.2d 85 (Fla. 1994) ....................... 10
Jaworski v. State, 804 So.2d 415 (Fla. 4th DCA 2001) ............ 17
Johnson v. State, 904 So.2d 400 (Fla.2005) ....................... 18
Johnston v. Moore, 789 So.2d 262 (Fla. 2001)..................... 24
Jones v. State, 966 So.2d 319 (Fla. 2007) ........................ 30
Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999)............... 27
Kokal v. State, 2012 WL 181648, (Fla. Jan. 20, 2012) ............ 40
Lawrence v. State, 831 So.2d 121 (Fla. 2002)..................... 30
Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007)........... passim
Marek v. State, 8 So.3d 1123 (Fla. 2009) ..................... 25, 26
McCrae v. State, 510 So.2d 874 (Fla. 1987) ....................... 11
Ochran v. U.S., 273 F.3d 1315 (11th Cir. 2001)................... 17
Porter v. McCollum, 130 S.Ct. 447 (2009) ..................... passim
Powell v. Thomas, 641 F.3d 1255 .................................. 41
Reed v. Secretary, Florida Dept. of Corrections, 593 F.3d 1217 n.16
(11th Cir. 2010)
........................................... 23
Richardson v. State, 604 So.2d 1107 (Fla.1992).................... 9
Robertson v. State, 829 So.2d 901 (Fla. 2002).................... 17
Rogers v. State, 511 So.2d 526 (Fla. 1987) ....................... 10
iv
Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360
(2005) ......................................................... 25
Rutherford v. State, 940 So.2d 1112 (Fla.2006)............... 16, 36
Schwab v. State, 969 So.2d 318 (Fla. 2007) ........... 16, 35, 36, 37
Schwab v. State, 995 So.2d 922 (Fla. 2008) ....................... 39
State v. Hankerson, 65 So.3d 502 (Fla. 2011)..................... 17
State v. McBride, 848 So.2d 287 (Fla. 2003)...................... 27
Stephens v. State, 748 So.2d 1028 (Fla. 1999).................... 25
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984)
.............................................. passim
Suggs v. McNeil, 609 F.3d 1218 (11th Cir. 2010).............. 24, 33
Tompkins v. State, 994 So.2d 1072 (Fla.2008)................. 16, 36
Topps v. State, 865 So.2d 1253 (Fla. 2004) ....................... 27
Valle v. Singer, 655 F.3d 1223 (11th Cir. 2011).................. 40
Valle v. State, 70 So.3d 530 (Fla. 2011) ..................... 36, 37
Ventura v. State, 34 Fla. L. Weekly S71 (Fla. Jan. 29, 2009) passim
Walls v. State, 641 So.2d 381 (Fla. 1994) ........................ 10
Walton v. State, 77 So.3d 639 (Fla. 2011) ................ 18, 19, 20
Waterhouse v. State, 792 So.2d 1176 (Fla. 2001).................. 21
Whitfield v. State, 923 So.2d 375 (Fla. 2005).................... 30
Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 , 156 L.Ed.2d 471
(2003) ..................................................... 12, 25
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000)
..................................................... 25
v
Witt v. State, 387 So.2d 922 (Fla. 1980) ................. 20, 21, 25
Zakrzewski v. Florida, 525 U.S. 1126 (1999)....................... 2
Zakrzewski v. McDonough, 2008 WL 150050 (N.D.Fla. Jan. 14, 2008) 15
Zakrzewski v. McDonough, 455 F.3d 1254 (11th Cir. 2006)
................................................ 3, 12, 15, 29
Zakrzewski v. McDonough, 490 F.3d 1264 (11th Cir.2007) ....... 3, 15
Zakrzewski v. McDonough, 549 U.S. 1349 (2007)..................... 3
Zakrzewski v. McNeil, __U.S.__, 130 S.Ct. 3390 (2010) ............ 3
Zakrzewski v. McNeil, 573 F.3d 1210 (11th Cir. 2009) ......... 3, 15
Zakrzewski v. State, 13 So.3d 1057, 2009 WL 400661 (Fla. 2009)
....................................................... passim
Zakrzewski v. State, 717 So.2d 488 (Fla. 1998)............... passim
Zakrzewski v. State, 866 So.2d 688 (Fla. 2003)............... passim
Other Authorities
Fla.R.App.P. 9.210(c) ............................................. 2
Florida Rule of Criminal Procedure 3.851 ..................... passim
vi
PRELIMINARY STATEMENT
This brief will refer to Appellant as such, Defendant, or by
proper name, e.g., "Zakrzewski." Appellee, the State of Florida,
was the prosecution below; the brief will refer to Appellee as
such, the prosecution, or the State. The following are examples of
other references:
II 310-20
Direct appeal record, volume II, pages 310 to
320;
1PCR/II 192
Record of 1st batch of postconviction
proceedings, volume II, at p. 192;
2PCR/I 1-50
Record of 2d batch of postconviction
proceedings, volume I, at pp. 1-50;
3PCR/I 1-35
Record of third batch of postconviction
proceedings, volume I, at pp. 1-35 (the
record on appeal in this Florida Supreme
Court case).
Unless
the
contrary
is
indicated,
bold
and
bold-underlined
typeface emphasis is supplied; cases cited in the text of this
brief and not within quotations are underlined; other emphases are
contained
within
the
original
quotations,
unless
otherwise
indicated.
RESPONSE TO REQUEST FOR ORAL ARGUMENT
Zakrzewski
(IB
ii)
has
requested
oral
argument.
The
State
submits that Zakrzewski's appellate claims are so clearly without
merit that oral argument is unnecessary. Further, this is an appeal
from a denial of a successive postconviction motion, on which this
Court commonly does not afford oral argument. Indeed, this appeal
is
from
however,
a
third
the
batch
State
of
defers
postconviction
to
the
motions.
Court's
sound
Ultimately,
discretion
concerning whether the Court believes oral argument would assist it
in resolving the appellate claims.
STATEMENT OF THE CASE AND FACTS
As authorized by Fla.R.App.P. 9.210(c), the State submits its
rendition of the case and facts.
Case Timeline.
This
is
an
appeal
from
Zakrzewski's
third
batch
of
postconviction motions. Some basic events leading up to this appeal
are summarized in the following timeline.
DATE
EVENT
1994
Triple murder of Zakrzewski's wife, son, and
daughter, See, e.g., Zakrzewski v. State, 717
So.2d 488, 490 (Fla. 1998).
1998
Zakrzewski v. State, 717 So.2d 488 (Fla. 1998), on
direct appeal, affirmed the convictions and death
sentences.
1999
United States Supreme Court denied certiorari, at
Zakrzewski v. Florida, 525 U.S. 1126 (1999).
2000
Zakrzewski (through counsel) filed a motion for
postconviction relief (1PCR/I 3-191). [FIRST BATCH
OF STATE-COURT POSTCOVICTION MOTIONS BEGINS]
2001
Zakrzewski filed an amended postconviction motion
(1PCR/II 192-251).
2002
Zakrzewski filed a proposed amended postconviction
motion that added a claim that focused on
arguments related to the case that would become
2
DATE
EVENT
Ring v. Arizona, 536 U.S. 584 (2002) (1PCR/II 293299, 312-20)
2002
Evidentiary hearing on the amended to the amended
postconviction claims, including on the claim that
attacked various arguments the prosecutor made to
the jury in the penalty phase, including argument
pertaining to Nietzsche (See 1PCR/III 385-493);
after the parties submitted memoranda (1PCR/III
494-575), this Court issued an Order that denied
the postconviction claims (1PCR/III 576-83).
2003
Zakrzewski v. State, 866 So.2d 688 (Fla. 2003),
affirmed the trial court's denial of
postconviction relief.
2004
Zakrzewski filed a petition for a writ of habeas
corpus in the United States District Court,
Northern District, in 3:04cv0066-RV (Document #1).
2004
United States District Court denied the federal
habeas petition in 3:04cv0066-RV (Document #30).
2006
Zakrzewski v. McDonough, 455 F.3d 1254 (11th Cir.
2006), affirmed the United States District Court's
denial of federal habeas relief.
2007
Zakrzewski v. McDonough, 549 U.S. 1349 (2007),
denied Zakrzewski's certiorari petition from the
Eleventh Circuit.
2006-2010
Additional federal litigation. See Zakrzewski v.
McDonough, 490 F.3d 1264 (11th Cir.2007);
Zakrzewski v. McNeil, 573 F.3d 1210 (11th Cir.
2009); Zakrzewski v. McNeil, __U.S.__, 130 S.Ct.
3390 (2010)(denying certiorari from 573 F.3d
1210).
2007
Zakrzewski filed a successive postconviction
motion, which attacked Florida's lethal injection
process and which cited to a September 17, 2006,
report of the American Bar Ass'n. (2PCR/I 1-50)
[SECOND BATCH OF STATE POSTCOVICTION MOTIONS
BEGINS]
2009
Zakrzewski v. State, 13 So.3d 1057, 2009 WL 400661
(Fla. 2009)(SC08-59, unpublished), affirmed the
trial court's denial of the 2007 successive
postconviction motion.
3
DATE
EVENT
2010
Zakrzewski filed another successive postconviction
motion, which originated the proceedings resulting
in this appeal; this version raised one claim and
asserted that this Court "denied Mr. Zakrzewski's
previously presented claim of ineffective
assistance of counsel in violation of Porter v.
McCollum, 130 S.Ct. 447 (2009)." (3PCR/I 1-38,
quote at 3PCR/I 2) [THIRD BATCH OF STATE-COURT
POSTCOVICTION MOTIONS BEGINS]
2011
After the State responded in writing (3PCR/I 4670), trial court denied the 2010 postconviction
motion (3PCR/I 71-74).
Zakrzewski moved for rehearing, alleging that the
trial court erred by not conducting a Huff hearing
(3PCR/I 75-78), which the trial court granted
(3PCR/I 84).
Zakrzewski moved for leave to amend his
postconviction motion to add a lethal-injection
claim (3PCR/I 91-98), which the trial court
granted (3PCR/II 100), Zakrzewski filed his
amended postconviction motion (3pCR/I 102-142;
3PCR/II 171-211), and the State again responded in
writing to Zakrzewski's postconviction motion
(3PCR/I 143-69).
May 16, 2011, Zakrzewski moved to supplement his
lethal injection claim with the allegation that
the Department of Corrections has indicated that
it will now use pentobarbital for lethal injection
(3PCR/II 212-18).
On May 23, 2011, the trial court conducted a Huff
hearing (3PCR/III 375-468).
On June 10, 2011, the trial court rendered an
amended order denying the claim alleging Porter
and the claim attacking Florida's lethal injection
procedure (3PCR/II 257-61).
June 15, 2011, Zakrzewski filed "Notice of Filing"
concerning the lethal injection claim (3PCR/II
262-322).
July 5, 2011, Zakrzewski filed a "Motion for
"Rehearing" (3PCR/II 323-28), and on July 15,
2011, the State responded in opposition in writing
(3PCR 333-42).
4
DATE
EVENT
July 5, 2011, Zakrzewski filed a motion to amend
his successive postconviction motion again
(3PCR/II 329-32), and on July 15, 2011, the State
responded in opposition (3PCR/II 343-51).
July 19, 2011, the trial court denied Zakrzewski's
motions for rehearing and to amend (3PCR/II 35253).
August 18, 2011, Zakrzewski filed a "Notice of
Appeal" (3PCR/II 354-55), resulting in this case.
2012
Zakrzewski filed his Initial brief, this Court
issued an order to show cause on Zakrzewski, and
after a number of filings in this Court, including
Zakrzewski moving for an extension, this Court
ordered the rest of the briefing.
Additional Background.
Zakrzewski
v.
State,
717
So.2d
488,
490-91
(Fla.
1998),
summarized the basic early procedural history of the case, the
penalty-phase aggravating and mitigating evidence, and the facts of
these three machete/bludgeoning murders:
Zakrzewski was charged with the first-degree murder of his
wife, Sylvia, and his two children, Edward, age seven, and
Anna, age five. Zakrzewski pled guilty to all three charges,
and the case proceeded to the penalty phase.
The evidence presented during the penalty phase established
the following facts. Zakrzewski and his wife had been
experiencing marital problems for some time prior to the
murders. Zakrzewski twice told a neighbor that he would kill
his family rather than let them go through a divorce. On June
9, 1994, the morning of the murders, Edward called Zakrzewski
at work and stated that Sylvia wanted a divorce. During his
lunch break, Zakrzewski purchased a machete. He returned to
work and completed his daily routine. That evening, Zakrzewski
arrived home before his wife and children. He hid the machete
in the bathroom.
After his family arrived home, Zakrzewski approached Sylvia,
who was sitting alone in the living room. He hit her at least
5
twice over the head with a crowbar. The testimony established
that Sylvia may have been rendered unconscious as a result of
these blows, although not dead. Zakrzewski then dragged Sylvia
into the bedroom, where he hit her again and strangled her
with rope.
Zakrzewski then called Edward into the bathroom to come brush
his teeth. As Edward entered the room, Zakrzewski struck the
boy with the machete. Edward realized what his father was
doing and tried to block *491 the blow with his arm, causing a
wound to his wrist. Further blows caused severe head, neck,
and back injuries, and resulted in death.
Zakrzewski then called Anna into the bathroom to brush her
teeth. Zakrzewski testified that he hit the girl with the
machete as soon as she entered the bathroom. The State's
expert testified that the blood spatters from Anna show that
the girl was kneeling over the bathtub when she was struck by
the machete. Cuts were found on Anna's right hand and elbow,
consistent with defensive wounds. The blows from the machete
resulted in Anna's death. The evidence was in conflict as to
whether Anna was aware of her impending death.
Finally, Zakrzewski dragged his wife from the bedroom to the
bathroom. He still was not sure if she was dead, so he hit her
with the machete. Sylvia died from blunt force injuries as
well as sharp force injuries.
Following the murders, Zakrzewski drove to Orlando and boarded
a plane bound for Hawaii. While in Hawaii, Zakrzewski changed
his name and lived with a family who ran a religious commune.
After he had been there four months, the family happened to
watch the television show “Unsolved Mysteries,” which aired
Zakrzewski's picture. Zakrzewski turned himself in to the
local police the next day.
During
the
penalty
phase,
the
State
presented
three
aggravating factors: (1) the defendant was previously
convicted of other capital offenses (the contemporaneous
murders), (2) the murders were committed in a cold,
calculated, and premeditated manner without pretense of legal
or moral justification (CCP), and (3) the murders were
committed in an especially heinous, atrocious, or cruel manner
(HAC). Zakrzewski presented two statutory mitigators: (1) no
significant prior criminal history and (2) the murders were
committed while the defendant was under the influence of
extreme mental or emotional disturbance. Zakrzewski also
presented twenty-four nonstatutory mitigators.[FN1]
6
FN1. Zakrzewski presented the following nonstatutory
mitigating factors: (1) the defendant turned himself in;
(2) the defendant pled guilty; (3) the defendant is an
exceptionally hard worker; (4) the defendant was on the
Dean's List in his third year of college; (5) the defendant
served in an exemplary manner in the United States Air
Force; (6) the defendant showed severe grief and remorse;
(7) the defendant was a loving husband and father until the
offense; (8) the defendant was under great stress due to
work, college, child care, housework, and lack of sleep;
(9) the defendant is a patient and humble man; (10) the
defendant was raised without his natural father in his
home; (11) the defendant had a lack of prior domestic
relationships; (12) the defendant's role in his marriage
was passive in a union dominated by his wife; (13) the
defendant received little religious upbringing; (14) the
defendant has embraced the Christian faith since the
offense; (15) the defendant was a hyperactive child and was
medicated on ritalin; (16) the defendant has a long term
adjustment disorder; (17) the defendant was suffering from
a major depressive episode; (18) the defendant has
potential for rehabilitation; (19) the defendant exhibited
good behavior while hiding for an extended period of time
under an assumed name; (20) the defendant was a loving and
good son; (21) the defendant is intelligent; (22) the
defendant is well thought of by friends, neighbors, and coworkers; (23) the defendant was impaired by alcohol at the
time of the offense; and (24) the defendant is not a
psychopath.
The jury recommended the death penalty for the murders of
Sylvia and Edward, both by a vote of seven to five. The jury
recommended life imprisonment for the murder of Anna.
As to each of the murders, the trial court found that all
three
aggravating
circumstances
were
proven
beyond
a
reasonable doubt. The trial court gave significant weight to
both of Zakrzewski's statutory mitigators. The trial court
also considered and weighed each of Zakrzewski's nonstatutory
mitigators.[FN2]
The
trial
court
concluded
that
the
aggravating
circumstances
outweighed
the
mitigating
circumstances for all three of the murders. The trial court
followed the jury's recommendation of death for the murders of
Sylvia and Edward. The trial court overrode the jury's
recommendation of life for the murder of Anna and imposed
death sentences for all three murders.
FN2. The trial court gave substantial weight to factors 6
and 7; significant weight to factors 3, 4, and 5; little
7
weight to factors 1, 2, 8, 9, 10, 11, 13, and 14; and
slight weight to factor 19. The remaining factors were
given no weight.
In the direct appeal, Zakrzewski, 717 So.2d at 492, denied
relief that Zakrzewski sought based on the following nine appellate
issues:
(1) the trial court erred by finding HAC 1; (2) the trial court
erred by finding CCP; (3) the death sentence is not
proportionately warranted in this case; (4) the trial court
erred in overriding the jury's recommendation of life for
Anna; (5) the trial court allowed prejudicial photographs of
the victims to be admitted into evidence; (6) the trial court
permitted State's mental health expert to testify about
Nietzsche and his views on Christianity; (7) the trial court
permitted the State's mental health expert to testify, when
the testimony did not rebut the testimony of Zakrzewski's
mental health expert; (8) the trial court failed to instruct
the jury that Zakrzewski's ability to understand his conduct
was substantially impaired; and (9) the trial court failed to
instruct the jury on each of Zakrzewski's nonstatutory
mitigating factors. [FN omitted]
ISSUE I
(IB
43-59)
alleges
that
the
prosecution
improperly
inserted references to Nietzsche in the penalty phase. On direct
appeal, Zakrzewski, 717 So.2d at 495, rejected a related claim:
Zakrzewski also claimed as non-statutory mitigation that he
had embraced
the
Christian
faith
since
the
offense.
Zakrzewski's
preoccupation
with
the
German
philosopher
Friedrich Nietzsche, both before and after the murders, was an
issue throughout the trial. In his testimony, Dr. McClaren
addressed Zakrzewski's preoccupation with Nietzsche, and
Nietzsche's views on Christianity. Defense counsel objected to
1
Zakrzewski, 717 So.2d at 493, held that "[a]s for Sylvia's
death, we find that the trial court's finding of HAC was erroneous"
but harmless "in light of the other two aggravators that apply to
Sylvia's murder (CCP and the contemporaneous murders)." The
remaining appellate claims were meritless.
8
this line of questioning, stating that Dr. McClaren was not an
expert in this area. However, the trial judge permitted Dr.
McClaren to testify on the subject after Dr. McClaren stated
that he had familiarized himself with Nietzsche's philosophy.
The trial judge refused to allow defense counsel to voir dire
Dr. McClaren on this issue. Dr. McClaren proceeded to testify
that Nietzsche 'vigorously attacked Christianity.' Zakrzewski
claims that it was error both in failing to allow defense
counsel to voir dire Dr. McClaren and in permitting Dr.
McClaren to answer the question regarding Nietzsche's views on
Christianity. We disagree. Zakrzewski's preoccupation with
Nietzsche's philosophy was relevant to Dr. McClaren's
examination. When asked how he familiarized himself with
Nietzsche's philosophy, Dr. McClaren responded by saying that
he read information in encyclopedias and various writings of
Nietzsche. Thus, the proper predicate was laid. We do not find
that the trial court abused its discretion in refusing to
allow defense counsel to voir dire Dr. McClaren. Additionally,
Zakrzewski was not precluded from cross-examining Dr. McClaren
or presenting rebuttal evidence. Therefore, we find no merit
to Zakrzewski's claim.
ISSUE I asserts that Zakrzewski was prejudiced by misconduct
(mostly related to Nietzsche) and resultant unreliability in the
trial's penalty phase. Therefore, the State also notes that this
Court
upheld
two
of
the
most
serious
aggravators
in
Florida
jurisprudence, that is, HAC and CCP, concerning the two children.
Zakrzewski, 717 So.2d at 492, held, concerning HAC:
This Court has stated that in order for HAC to apply, the
crime
must
be
both
conscienceless
or
pitiless
and
unnecessarily torturous to the victim. See Hartley v. State,
686 So.2d 1316, 1323 (Fla. 1996); Richardson v. State, 604
So.2d 1107, 1109 (Fla.1992). Clearly, the children's murders
comport with this standard. Both Edward and Anna had defensive
wounds on their bodies, which shows that both children were
aware of their impending deaths. Zakrzewski himself testified
that Edward saw his father in the mirror with the machete in
his hand. Further, the blood spatter expert testified that the
only conclusion that could be drawn from the positioning of
Anna's blood in the bathroom was that Anna was forced to kneel
over the ledge of the bathtub-in execution-style fashionbefore Zakrzewski delivered the deadly blows. Not only was
9
Anna aware of her own impending death, she no doubt could see
her brother's already dead body in the bathtub. We cannot
speculate as to what Zakrzewski's intentions were when he
chose a machete as the means to carry out these murders.
However, we are certain that by murdering his children with a
machete, Zakrzewski caused his children to suffer an
unthinkable horror. Therefore, the trial court did not err in
finding HAC as to the children.
Zakrzewski, 717 So.2d at 492, upheld CCP concerning Zakrzewski's
murder of the two children as well as concerning his murder of his
wife:
We … address Zakrzewski's claim that CCP is inappropriate in
this case. Zakrzewski asserts that because he was under
extreme emotional distress at the time of the murders, it was
impossible for him to commit the murders in a cold,
calculated, and premeditated fashion. Further, Zakrzewski
argues that the murders were committed with a pretense of
moral justification. We disagree. On the day of the murders,
Zakrzewski left work at lunch in order to buy a machete.
Zakrzewski proceeded to set up the murder scene before his
family arrived home, by placing the machete behind the
bathroom door. We find these actions to be both calculated and
premeditated. See Rogers v. State, 511 So.2d 526, 533 (Fla.
1987) (stating that '"calculation" consists of a careful plan
or prearranged design'); Walls v. State, 641 So.2d 381 (Fla.
1994) (holding that CCP requires heightened premeditation,
over and above what is required for premeditated first-degree
murder, which can be evidenced by a 'degree of deliberate
ruthlessness'). In addition, Zakrzewski had the entire day for
'cool and calm reflection,' and the murders were not 'prompted
by emotional frenzy, panic, or a fit of rage.' Jackson v.
State, 648 So.2d 85, 89 (Fla. 1994). Thus, the murders satisfy
the cold element of CCP. See Id. Finally, we do not find that
killing one's own family to save them from having to go
through a divorce constitutes a pretense of moral or legal
justification. See Hill v. State, 688 So.2d 901, 907 (Fla.
1996), cert. denied, 522 U.S. 907, 118 S.Ct. 265, 139 L.Ed.2d
191 (1997) (stating that '[n]o one may take the life of
another indiscriminately, regardless of what that person may
perceive as justification' (quoting Dougan v. State, 595 So.2d
1, 6 (Fla.1992))).
10
The trial court also found another extremely weighty aggravator,
prior violent felony, referencing the other two murders for each
victim. (See Sentencing Order at II 310-20)
Zakrzewski v. State, 717 So.2d 488, 493-94 (Fla. 1998), upheld
each of the three death sentences as proportionate.
Zakrzewski v. State, 866 So.2d 688 (Fla. 2003), affirmed the
trial court's denial of Zakrzewski's first round of postconviction
motions.
Concerning
the
prosecution
arguments,
Zakrzewski,
866
So.2d at 692-93, reasoned and held:
Zakrzewski claims that defense counsel should have objected to
several comments made by the prosecutor during the State's
closing argument. This Court has recognized that 'the decision
not to object to improper comments is fraught with danger ...
because it might cause an otherwise appealable issue to be
considered procedurally barred.' Chandler v. State, 848 So.2d
1031, 1045 (Fla. 2003). However, this Court has also noted
that 'a decision not to object to an otherwise objectionable
comment may be made for strategic reasons.' Id.; see also
Ferguson v. State, 593 So.2d 508, 511 (Fla. 1992) ('The
decision not to object is a tactical one.'); McCrae v. State,
510 So.2d 874, 878 (Fla. 1987) ('Whether to object to an
improper comment can be a matter of trial strategy upon which
a reasonable discretion is allowed to counsel.').
After holding an evidentiary hearing, the trial court found
that Zakrzewski's trial counsel, Issac Bruce Koran and Elton
Killam, both had 'vast experience in criminal defense' and
'during the course of the penalty phase and throughout closing
arguments ... utilized a defense strategy and used their
judgment to make a reasoned strategic decision on whether to
object or not to the prosecutor's statements during closing
argument.' Thus, the trial court concluded that defense
counsel's performance was not deficient. We agree with this
determination.
Significantly, with respect to defense counsel's performance
during the entire penalty phase proceeding, Zakrzewski's only
claim of ineffectiveness is based on defense counsel's failure
to object to specific comments made during the prosecutor's
11
closing argument. Our review of the entire penalty phase
demonstrates that defense counsel presented substantial
mitigation through both lay and expert witnesses, and
presented a thorough penalty phase closing argument.
Further, during the prosecutor's closing argument, defense
counsel did object and motion for a mistrial when the
prosecutor asked the jury to imagine the terror and horror
Anna must have felt when she was forced down into the bath tub
with her brother's 'mutilated body.' Both Killam and Koran
testified at the evidentiary hearing that they did not object
to the identified comments based either on strategy or a
belief that a particular comment was unobjectionable. The
trial court found that these experienced trial lawyers did in
fact make reasonable strategic decisions regarding the failure
to object and, thus, trial counsel's performance was not
deficient. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,
2535, 156 L.Ed.2d 471 (2003) (quoting Strickland and
reiterating that 'strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable'). In light of the entire record
in this case and trial counsel's overall performance during
the penalty phase, we conclude that Zakrzewski has failed to
demonstrate
deficient
performance
regarding
his
trial
counsel's failure to object to comments during closing
argument. Thus, we affirm the trial court's denial of relief
on this claim.
In
affirming
the
United
States
District
Court's
denial
of
federal habeas relief, Zakrzewski v. McDonough, 455 F.3d 1254,
1258-60 (11th Cir. 2006), reasoned and held concerning an IAC claim
related to prosecutorial argument:
Zakrzewski claims his trial counsel were ineffective for not
objecting to statements made by the prosecutor during closing
argument, including statements that Zakrzewski was fascinated
with the anti-Christian writings of German philosopher
Nietzsche.[FN2] At the evidentiary hearing on Zakrzewski's
ineffective assistance claim, Defendant's trial counsel, Issac
Bruce Koran and Elton Killiam, testified that, if they did not
object to a closing argument, it was either because of
strategy or a belief that the comment was not objectionable.
Killiam testified that he believes cases must be won at trial,
not on appeal, and prefers not to make objections during
12
closing argument unless the objection is a strong one. An
objectively reasonable trial lawyer could so believe.
FN2. The prosecutor said the following about Zakrzewski's
religious beliefs and interest in Nietzsche:
[A] factor of his disturbance that his own psychologist,
Dr.
Larson,
admitted
was
that
[Zakrzewski]
was
narcissistic. He had these narcissistic tendencies and his
fascination with Nietzsche's superman, the ideal superman
who despises Christianity.
...
After he came back from Molokai and before he went, he was
fascinated
with
Nietzsche.
Nietzsche
denounces
Christianity. In his own words in this writing here,
[Zakrzewski]
denounces
Christianity
....
He
said,
'Christianity is a primary culprit in propagating the
belief that suicide is a ticket to eternal damnation.
Ludicrous. All that's required are a couple of I believes
and please forgive me. The Bible says it. This doctrine of
eternal damnation is but another route of egress for
spineless fools.'
That's surrounded by Nietzsche philosophy about the
creative superman. So, you be sure to weigh his philosophy
about Christianity with whether or not he should be
forgiven for appearing to accept Christianity in Hawaii.
(R. 15, Ex. 3-X at 1216, 1223-24.)
About the prosecutor's religious argument, Koran testified
that he did not object because the prosecution 'had evidence
of writings [Zakrzewski] had made [in prison] subsequent to
being brought back here to this area and they seemed relevant
to us that you'd be able to argue that.' During trial, defense
counsel had presented mitigating evidence that Zakrzewski
'embraced the Christian Faith since the offense.' The
government responded with evidence that before and after the
offense Zakrzewski read and copied quotes from the writings of
German philosopher Nietzsche and that Nietzsche's philosophy
is considered anti-Christian. Defense counsel timely objected
to the admission of this evidence, but the objection was
overruled because the defense had placed Zakrzewski's
religious beliefs at issue.[FN3] An objectively reasonable
trial lawyer could have concluded that an objection to the
prosecutor's closing argument about Defendant's religious
beliefs was not the thing to do given these circumstances.
FN3. Zakrzewski's trial counsel had already presented
testimony from six witnesses, including Zakrzewski, about
Zakrzewski's prayer life and church attendance after the
13
murders. In an attempt to prevent admission of Zakrzewski's
notes about Nietzsche's philosophy, defense counsel argued
that his
earlier questions
were intended
to show
Zakrzewski's remorse, not his 'religious convictions or
beliefs. It would be improper in my opinion for the state
to go into that .... [W]e're not going to argue that to the
jury as a mitigator in this case.' The government responded
that because the defense had already presented evidence of
Zakrzewski's religious practices, it was entitled to
present rebuttal, whether or not the defense ultimately
chose to argue that Zakrzewski's faith was a mitigating
factor to the jury. The trial court overruled defense
counsel's objection and admitted Zakrzewski's writingswhich referenced Nietzsche and Christianity-into evidence.
The trial court sustained a defense objection when the
prosecutor asked Zakrzewski whether Nietzsche's writings
were anti-Christian, but later admitted expert testimony
about this topic over defense objection. Defense counsel
then chose to argue to the jury in closing that Defendant's
post-offense embrace of the Christian faith was a
mitigating factor.
Zakrzewski has failed to show that counsel's not objecting to
the contested statements during closing argument was a course
no competent counsel would have taken.[FN4] In addition,
review of the entire penalty phase shows that defense counsel
presented substantial mitigation through lay and expert
witnesses, presented a thorough penalty phase closing argument
that was responsive to the identified prosecutorial comments,
and objected and moved for a mistrial in response to other
closing argument. We conclude that the state courts reasonably
determined that, considering the applicable federal law,
Zakrzewski failed to show that trial counsel's not objecting
to the pertinent closing comments was deficient performance.
We affirm the district court's denial of relief on this claim.
FN4. Defendant argues that it was objectively unreasonable
for trial counsel not to object to the prosecutor's closing
argument about Defendant's religious beliefs in the light
of Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117
L.Ed.2d 309 (1992), which held that it was constitutional
error to admit evidence that the defendant was a member of
the Aryan Brotherhood during a penalty hearing where that
evidence proved only abstract beliefs that had no relevance
to the issues being decided. Dawson is easily distinguished
from this case because the Court in Dawson said the
evidence would have been admissible if it had been relevant
to rebut mitigating evidence offered by the defendant. See
112 S.Ct. at 1098-99.
14
Zakrzewski
v.
State,
13
So.3d
1057,
2009
WL
400661
(Fla.
2009)(SC08-59, unpublished), in affirming the trial court's denial
of Zakrzewski's 2007 successive postconviction motion, reasoned and
held:
Edward J. Zakrzewski, a prisoner under sentence of death,
appeals the circuit court's denial of his successive motion
for postconviction relief filed under Florida Rules of
Criminal Procedure 3.850 and 3.851. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const. After this Court affirmed
Zakrzewski's conviction and sentence on direct appeal, see
Zakrzewski v. State, 717 So.2d 488 (Fla. 1998), cert. denied,
525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999),
Zakrzewski sought postconviction relief in this Court and
federal courts. See Zakrzewski v. State, 866 So.2d 688 (Fla.
2003) (affirming denial of postconviction relief); Zakrzewski
v. McDonough, 455 F.3d 1254 (11th Cir. 2006), cert. denied,
549 U.S. 1349, 127 S.Ct. 2051, 167 L.Ed.2d 782 (2007)
(affirming denial of federal habeas); Zakrzewski v. McDonough,
490 F.3d 1264 (11th Cir. 2007) (vacating and remanding denial
of motion filed under Fed.R.Civ.P. 60(b)). On remand, the
district court again denied relief. See Zakrzewski v.
McDonough, 2007 WL 2827735 (N.D.Fla. Sep. 26, 2007). Appeal of
that denial is currently pending in the Eleventh Circuit. See
Zakrzewski v. McDonough, 2008 WL 150050 (N.D.Fla. Jan. 14,
2008) (certificate of appealability granted.) [See Zakrzewski
v. McNeil, 573 F.3d 1210 (11th Cir. 2009)("we conclude that
the district court did not abuse its discretion in denying
Rule 60(b) relief")]
In his current postconviction appeal in this Court, Zakrzewski
raises two claims: (1) that the court erred in summarily
denying his claim that Florida's procedures for carrying out
lethal injection violate the Eighth Amendment to the United
States Constitution; and (2) that the court erred in denying
his claim that newly discovered evidence, consisting of the
2006 American Bar Association Report entitled Evaluating
Fairness and Accuracy in the State Death Penalty System: The
Florida Death Penalty Assessment Report, demonstrates that his
conviction
and
sentence
constitute
cruel
and
unusual
punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. This Court has
previously rejected each of these claims. See Ventura v.
State, 34 Fla. L. Weekly S71 (Fla. Jan. 29, 2009) (rejecting
15
challenge to Florida's lethal injection protocols); Tompkins
v. State, 994 So.2d 1072 (Fla.2008) (rejecting challenge to
Florida's lethal injection protocols and rejecting claim as to
the unconstitutionality of the death penalty system based on
the ABA report); see also Henyard v. State, 992 So.2d 120
(Fla. 2008); Lightbourne v. McCollum, 969 So.2d 326 (Fla.
2007); Schwab v. State, 969 So.2d 318 (Fla. 2007); Diaz v.
State, 945 So.2d 1136 (Fla. 2006); Rutherford v. State, 940
So.2d 1112 (Fla.2006).
Accordingly, the trial court's denial of postconviction relief
on both issues is hereby affirmed.
SUMMARY OF ARGUMENT
Zakrzewski presents two issues on which there is controlling
precedent against him. For ISSUE I, Walton controls. For ISSUE II,
Valle controls. Indeed, prior to Walton, ISSUE I's claims had
already been resolved against Zakrzewski in this case, and prior to
Valle, the key aspects of Florida's lethal injection process had
already been resolved against Zakrzewski.
Zakrzewski seems to believe that he has a right to re-present
his prior claims even though they were meritless when they were
presented in the past, even though they have already been resolved
against Zakrzewski in prior litigation, and even though they remain
meritless now. Zakrzewski has no personal right to an evidentiary
hearing on any claim that is prima facie meritless and on which
there is controlling precedent against him.
Neither of the appellate issues merits any relief. Instead, the
State respectfully submits that the trial court's denial of this
16
third
batch
of
Zakrzewski's
postconviction
motions
should
be
affirmed.
ARGUMENT
OVERARCHING STANDARD OF APPELLATE REVIEW.
Rulings of the trial court2 are purportedly the subject of an
appeal. Accordingly, this Court recently re-affirmed the "Tipsy
Coachmen" principle that a "trial court's ruling should be upheld
if there is any legal basis in the record which supports the
judgment." State v. Hankerson, 65 So.3d 502, 505-507 (Fla. 2011).
See also Robertson v. State, 829 So.2d 901 (Fla. 2002)(collected
cases
and
analyzed
the
parameters
of
"right
for
any
reason"
principle of appellate review); Butler v. Yusem, 44 So.3d 102, 105
(Fla. 2010)("key to this ["Tipsy Coachman"] doctrine is whether the
record before the trial court can support the alternative principle
of
law");
Caso
v.
State,
524
So.2d
422,
424
(Fla.
1988)("...
affirmed, even when based on erroneous reasoning, if the evidence
or an alternative theory supports it"); Jaworski v. State, 804
So.2d 415, 419 (Fla. 4th DCA 2001)("we are obligated to entertain
any
basis
to
affirm
the
judgment
under
review,
even
one
the
appellee has failed to argue"); Ochran v. U.S., 273 F.3d 1315, 1316
2
Even in cases of fundamental error, the focus is on a trial
court ruling, that is, one that should have been rendered.
17
(11th
Cir.
2001)("We
conclude
that
summary
judgment
for
the
defendant was appropriate, but for a different reason").
ISSUE I: DOES PORTER REQUIRE THAT IAC BE RE-LITIGATED? (IB 22-62,
RESTATED)
A. Standard of Review.
Walton v. State, 77 So.3d 639, 642 (Fla. 2011), discussed the
controlling rule and standard of appellate review:
Florida Rule of Criminal Procedure 3.851 controls the filing
of postconviction motions in capital cases. See Ventura v.
State, 2 So.3d 194 (Fla. 2009). Rule 3.851(d)(1) prohibits the
filing of a postconviction motion more than one year after a
judgment and sentence of death become final. Rule 3.851(d)(2)
provides that no postconviction motion filed beyond that time
limitation shall be considered unless it alleges that:
(A) the facts on which the claim is predicated were unknown
to the movant or the movant's attorney and could not have
been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not
established within the period provided for in subdivision
(d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file
the motion.
Fla. R.Crim. P. 3.851(d)(2) (emphasis added).
Rule 3.851(f)(5)(B) permits the denial of a successive motion
without an evidentiary hearing '[i]f the motion, files, and
records in the case conclusively show that the movant is
entitled to no relief,' Fla. R.Crim. P. 3.851(f)(5)(B), or if
the motion or a particular claim by the defendant is legally
insufficient, see Johnson v. State, 904 So.2d 400, 403
(Fla.2005). A postconviction motion is defined by rule
3.851(e)(2) as successive 'if a state court has previously
ruled on a postconviction motion challenging the same judgment
and sentence.' A postconviction court's decision to deny an
evidentiary hearing for a successive rule 3.851 motion must be
based on the written materials before the court. See id. For
all practical purposes, such a ruling is tantamount to a pure
question of law, which this Court reviews de novo. See id.
When this Court reviews a trial court's summary denial of
18
postconviction relief, it must accept the allegations of the
defendant as true to the extent that they are not refuted by
the record. See Ventura, 2 So.3d at 198.
B. Applying the Law, the Trial Court's Correct Ruling.
Zakrzewski contends that Porter v. McCollum, __U.S.__, 130 S.Ct.
447 (2009), changed Florida law concerning IAC analysis (See, e.g.,
IB 23) and that it must be applied retroactively (See, e.g., IB 2637). Zakrzewski is wrong on both points.
In rejecting Zakrzewski's Porter claim as untimely, the trial
court cited to Fla.R.Crim.P. 3.851(d)(2)(B) and ruled that the
United States Supreme Court's Porter case was not an exception to
the one-year time limit for Rule 3.851 motions, See Fla.R.Crim.P.
3.851(d)(1):
Rule 3.851(d)(2)(B) allows for a motion to be filed outside of
the
standard
time
limitations
when
'the
fundamental
constitutional right asserted was not established [within the
standard filing period] and has been held to apply
retroactively.' Thus, if Defendant's motion does not assert a
new 'fundamental constitutional right,' or if it does assert
such a right but such right has not been held to apply
retroactively, then the Defendant's motion is untimely.
...
... The US Supreme Court merely held that in Porter, the
Florida Supreme Court was incorrect in its Strickland
analysis. This fact does not create a new fundamental
constitutional right and does not open the door for
reconsideration
of
Defendant's
previously
denied
postconviction relief arguments.
(3PCR 258-59, underlining in original)
The trial court merits affirmance. The trial court was correct,
as Walton v. State, 77 So.3d 639, 641 (Fla. 2011), held. In Walton,
and here, the defendant "claims that he was deprived of effective
19
trial counsel during the penalty phase because that phase was
conducted before a jury that returned a death recommendation in
violation of Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 175
L.Ed.2d 398 (2009)." In Walton, and here, the defendant "asserts
that the Porter decision established that the previous denial of
his ineffective assistance of counsel claims was premised on this
Court's misreading and misapplication of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." In Walton,
and here, the defendant attempted to rely on Witt v. State, 387
So.2d 922 (Fla. 1980), contending that Porter, as new law, must be
applied retroactively to the defendant's case. In Walton, as here,
the trial court ruled that the defendant's motion was untimely.
Walton, 77 So.3d at 644, rejected the argument Zakrzewski has
made:
The trial level postconviction court here properly denied
Walton's second successive postconviction motion because the
decision in Porter does not constitute a fundamental change in
the law that mandates retroactive application under Witt.
Walton filed his motion well after the one-year deadline for
postconviction motions under rule 3.851. Walton's claim that
Porter applies retroactively is incorrect and insufficient as
a matter of law for a successive motion because the decision
in Porter does not concern a major change in constitutional
law of fundamental significance. Rather, Porter involved a
mere application and evolutionary refinement and development
of
the
Strickland
analysis,
i.e.,
it
addressed
a
misapplication of Strickland. Porter, therefore, does not
satisfy the retroactivity requirements of Witt. See generally
Witt, 387 So.2d at 924–31.
Further, in the proceedings below, collateral counsel
essentially asked the postconviction trial court to reevaluate
Walton's claims of ineffective assistance of counsel that had
been litigated in his prior postconviction motion in light of
20
the decision in Porter. This is not a permitted retroactive
application as articulated in Witt, which allows a limited
retroactive application only to changes in the law that are of
fundamental constitutional significance.
Therefore, Walton controls, and the trial court's rejection of
Zakrzewski's attempt to invoke Porter to resurrect several IAC subclaims should be affirmed.
Moreover, also dispositive, ISSUE I overlooks that it fails to
even argue that Porter changed anything concerning Strickland's
deficiency prong. Therefore, ISSUE I fails to demonstrate that this
Court's prior holding, that Zakrzewski failed to prove Strickland
deficiency,
See
Zakrzewski,
866
So.2d
at
692-93
(block-quoted
supra), would have been any different due to Porter. See, e.g.,
Waterhouse
v.
State,
792
So.2d
1176,
1182
(Fla.
2001)(
"...
Strickland standard requires establishment of both [the deficiency
and prejudice] prongs ... ").
Concerning Strickland's deficiency prong, Porter actually did
change nothing in the law. In the absence of any state court
finding on Strickland's deficiency prong, Porter reviewed the facts
regarding that prong de novo and held, pursuant to Strickland and
its progeny, that defense counsel was deficient for "fail[ing] to
uncover and present any evidence of Porter's mental health or
mental impairment, his family background, or his military service."
In Porter, counsel, a novice in capital sentencing, "had only one
short meeting with Porter regarding the penalty phase. He did not
obtain any of Porter's school, medical, or military service records
21
or interview any members of Porter's family," Porter, 130 S.Ct. at
453,
even
though
"court-ordered
competency
evaluations,
for
example, collectively reported Porter's very few years of regular
school, his military service and wounds sustained in combat, and
his
father's
'over-disciplin[e].'"
This
type
of
Strickland
deficiency analysis is not new.
Indeed, as to both of Strickland's prongs, the deficiencies of
Porter's counsel look nothing like the allegations that Zakrzewski
attempts to raise and re-raise here. In Porter, unlike here, trial
counsel was a "novice." In Porter, unlike the allegations here,
defense counsel failed to present to the jury perpetual violence
and physical abuse by Porter's father that caused Porter to enlist
in the Army at age 17. Unlike the allegations here, Porter's trial
counsel failed to present as mitigation evidence that, in the
Korean War, Porter was shot in the leg during an advance "above the
38th parallel to Kunu-ri," but while wounded, Porter's unit, the 2d
Division,
with
Porter
still
in
it,
was
"attacked
by
Chinese
forces." Trial counsel failed to present evidence that Porter's
unit was ordered to "hold off the Chinese advance, enabling the
bulk of the Eighth Army to live to fight another day." The weather
was "bitter cold" and the unit was "terribly weary" and zombie-like
because they had been in "constant contact with the enemy fighting
[their] way to the rear, [and had] little or no sleep, little or no
22
food," yet the unit "engaged in a 'fierce hand-to-hand fight with
the Chinese'…." Porter, 130 S.Ct. at 449-50.
Porter,
130
S.Ct.
at
450-51
(internal
citations
omitted),
continued with the evidence that trial counsel failed to present:
Less than three months later, Porter fought in a second
battle, at Chip'yong-ni. His regiment was cut off from the
rest of the Eighth Army and defended itself for two days and
two nights under constant fire. After the enemy broke through
the perimeter and overtook defensive positions on high ground,
Porter's company was charged with retaking those positions. In
the charge up the hill, the soldiers 'were under direct open
fire of the enemy forces on top of the hill. They immediately
came under mortar, artillery, machine gun, and every other
kind of fire you can imagine and they were just dropping like
flies as they went along. … Porter's company lost all three
of its platoon sergeants, and almost all of the officers were
wounded. Porter was again wounded and his company sustained
the heaviest losses of any troops in the battle, with more
than 50% casualties. Colonel Pratt testified that these
battles
were
'very
trying,
horrifying
experiences,'
particularly for Porter's company at Chip'yong-ni. … Porter's
unit was awarded the Presidential Unit Citation for the
engagement at Chip'yong-ni, and Porter individually received
two Purple Hearts and the Combat Infantryman Badge, along with
other decorations.
Colonel Pratt testified that Porter went absent without leave
(AWOL) for two periods while in Korea. He explained that this
was not uncommon, as soldiers sometimes became disoriented and
separated from the unit, and that the commander had decided
not to impose any punishment for the absences. In Colonel
Pratt's experience, an 'awful lot of [veterans] come back
nervous wrecks. Our [veterans'] hospitals today are filled
with people mentally trying to survive the perils and
hardships [of] … the Korean War,' particularly those who
fought in the battles he described. …
Accordingly, the Eleventh Circuit has treated Porter as a factbound, non-fundamental, decision. Reed v. Secretary, Florida Dept.
of
Corrections,
593
F.3d
1217,
1243
n.16
(11th
Cir.
2010),
explained that the "the crux of counsel's deficient performance in
23
Porter
was
the
failure
to
investigate
and
present
Porter's
compelling military history." Similarly, Suggs v. McNeil, 609 F.3d
1218, 1232 (11th Cir. 2010), cited to Porter for a pre-existing
Strickland principle: "Suggs cannot contend that his sentencing
judge and jury 'heard almost nothing that would humanize [Suggs] or
allow them to accurately gauge his moral culpability.' Porter v.
McCollum, …."
Based on the
"compelling military history" mitigation facts
counsel in Porter failed to present at trial, Porter merely applied
Strickland, as Walton held, and Porter found Strickland prejudice,
holding that this Court's failure to find Strickland prejudice was
unreasonable under federal habeas-corpus law. As Walton held, and
contrary to Zakrzewski's assertion, the United State Supreme Court
in
Porter
did
not
change
Strickland
prejudice,
or
any
other,
analysis. Porter did not overrule Strickland or otherwise establish
a
new
"fundamental
constitutional
right,"
Fla.R.Crim.P.
3.851(d)(2)(B).
Indeed,
even
accepting
Zakrzewski's
postconviction
motion's
allegations on their face (See 3PCR/II 172-202), they look nothing
like
the
allegations
in
Porter
in
their
nature
or
in
their
magnitude.
In sum, Porter merely applied Strickland to its facts. In spite
of Zakrzewski's strained efforts to the contrary, Porter presents
no new law to be retroactive. See also Johnston v. Moore, 789 So.2d
24
262,
266-67
(Fla.
2001)(holding
that
the
IAC
clarification
in
Stephens v. State, 748 So.2d 1028, 1033-1034 (Fla. 1999), was not
retroactive under Witt v. State, 387 So.2d 922 (Fla. 1980)).
Accordingly, Marek v. State, 8 So.3d 1123, 1129 (Fla. 2009),
held
that
"Marek's
argument
is
procedurally
barred
because
he
previously litigated this issue." In Marek v. State, 8 So.3d 1123
(Fla.
2009),
the
defendant
filed
a
successive
post-conviction
motion attempting to re-litigate the same claim of ineffectiveness
that he had raised in the initial post-conviction motion. The trial
court summarily denied the successive motion. On appeal, Marek
asserted that his previously raised claim of ineffectiveness for
failing to investigate mitigation should be reevaluated under the
standards enunciated in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct.
2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529
U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).3 Marek argued that
3
Thus, Zakrzewski's Initial Brief, in his appeal to this Court
from the trial court denial of his second round of postconviction
proceedings, argued a theme that sounds like the same theme he now
argues with Porter, for example:
... this Court has refused to re-examine its decisions
predicated upon its understanding of the meaning of Strickland
which was at least arguably in error under Rompilla, Wiggins,
or Williams. Thus, individuals on Florida's death row who have
meritorious claims under anyone of these three decisions and
who presented those claims to this Court before the issuance
of these three opinions since the year 2000, will not get the
benefit of those three decisions.
25
these
cases
modified
the
Strickland
standard
for
claims
ineffective assistance of counsel. Marek, 8 So.3d at 1126.
of
This
Court concluded that the previously raised claim of ineffectiveness
should not be reevaluated because "contrary to Marek's argument,
the United States Supreme Court in these cases did not change the
standard of review for claims of ineffective assistance of counsel
under Strickland." Marek, 8 So.3d at 1128. Marek, 8 So.3d at 112829, discussed how Rompilla, Wiggins, and Williams were applications
of Strickland.
Applying
Marek's
rationale,
here
Porter
--
like
Rompilla,
Wiggins, and Williams -- is an application of Strickland to the
particular case, not a new method of analysis or otherwise new law
whatsoever. Here, like in Marek, the defendant is not entitled to
re-litigate a previously denied claim. Here, Zakrzewski has had his
day in court to present his IAC-at-the-penalty-phase claims and
sub-claims, and he lost them, which remains the binding law of the
case, thereby requiring the trial court's summary denial. The trial
court's decision here merits affirmance.
Thus, to the degree that Zakrzewski's 2011 claims have been
previously resolved against him and affirmed by this Court on
appeal, the law of the case binds him. Under the law of the case
(Initial Brief at p. 67, SC08-59, underlining in original)
26
doctrine, questions of law actually decided on appeal govern the
case through all subsequent stages of the proceedings. See Florida
Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001). A
defendant cannot re-litigate claims that have been denied by the
trial court where that denial has been affirmed by an appellate
court.
See
State
2003)(reasoning
v.
that
McBride,
the
law
848
of
the
So.2d
case
287,
289-290
doctrine
(Fla.
applies
to
postconviction motions; citing Kelly v. State, 739 So.2d 1164, 1164
(Fla. 5th DCA 1999)). Topps v. State, 865 So.2d 1253, 1255 (Fla.
2004),
explained,
in
discussing
the
kindred
principle
of
res
judicata, "if a matter has already been decided, the petitioner has
already had his or her day in court, and for purposes of judicial
economy, that matter generally will not be reexamined again in any
court."
More specifically, Zakrzewski complains about the prosecutor's
insertion
into
the
penalty
phase
of
the
trial
discussions
of
Nietzsche and "anti-Christian writings" (IB 44 et seq.), "Golden
Rule" (IB 44, 60); and narcissism (IB 45, 57-58).
On direct appeal, Zakrzewski, 717 So.2d at 495 (block-quoted in
facts supra), held that the prosecutor's insertions of Nietzsche
and related arguments regarding Christianity were not error. This
holding is the law of the case: It was proper for the prosecutor to
interject these matters.
27
Zakrzewski's
2001
postconviction
motion
included
IAC-related
complaints pertaining to "anti-Christian writings" (1PCR/II 24446), "Golden Rule" (1PCR/II 242); and narcissism (See 1PCR/II 244).
Thus, the 2001 postconviction motion asserted that "the prosecutor
went
far
beyond
that
[the
sincerity
of
Zakrzewski's
Christian
belief] and instead, unfairly portrayed the defendant as the antiChrist" (1PCR/II 246 n.6). Subsequently, in this Court's review of
the trial court's denials of these claims, Zakrzewski's Initial
brief argued to this court in SC02-1734:
Notwithstanding
the aforementioned
strict constitutional
limitations on the state’s conduct during closing argument,
defense counsel, virtually without objection, permitted the
prosecutor to relentlessly vilify and demonize their client.
[specific examples]
...
Perhaps most disturbing was the demonization of Zakrzewski
based upon the prosecutor’s self-serving spin on his alleged
anti-Christian religious beliefs. [specific examples]
(Initial Brief pp. 35-44, SC02-1734) Zakrzewski, 866 So.2d 692-93
(block-quoted supra), rejected Zakrzewski's claims, making them the
law of the case.4
4
Zakrzewski, in his Initial brief in SC08-59, also attacked the
references to Nietzsche and argued "anti-Christian theme":
The State was permitted to recall Dr. McClaren as a rebuttal
witness in order to elicit testimony from a mental health
expert that he had familiarized himself with Nietzsche and
that Nietzsche 'vigorously attacked Christianity' (T. 1157).
Using Dr. McClaren's testimony about Nietzsche, the prosecutor
launched into argument that Mr. Zakrzewski was fascinated with
Nietzsche, an anti-Christian. The prosecutor employed a
28
Zakrzewski may be attempting (at IB 51 et seq.) to invoke freestanding First Amendment claims. He made a similar argument in
SC08-59
(Initial
Brief,
pp.
71-72,
SC08-59)
as
part
of
the
appellate claim that this Court rejected, See Zakrzewski, 13 So.3d
1057, thereby barring any such claim here. Moreover, Dawson v.
Delaware, 503 U.S. 159 (1992) is a 1992 case, and the other cases
the Initial Brief cites are at least equally old, and Zakrzewski
fails to prima facie demonstrate why this matter was raised well
beyond Rule 3.851's one-year limit. Yet further, to the degree that
Zakrzewski
has
morphed
or
embellished
his
old
First
Amendment
arguments, the direct appeal (as well as the prior postconviction
proceedings) still procedurally bar this claim. See, e.g., Davis v.
State,
928
So.2d
1089,
1120-22
(Fla.
2005)(claim
alleging
prosecutor's argument inflammatory "was presented and rejected by
this Court on direct appeal, and therefore is procedurally barred";
claim attacking good faith of prosecutor available at time of
direct appeal and therefore procedurally barred).
Moreover, arguendo, even if the merits of any First-Amendment
claim were reached, it has none. As Zakrzewski v. McDonough, 455
F.3d 1254, 1259-60 n.4 (11th Cir. 2006), explained "the Court in
reading-Nietzsche-equals-anti-Christian theme. He argued ...
[block quote omitted] (T. 1223-4)...
(Initial Brief, p. 70, SC08-59)
29
Dawson said the evidence would have been admissible if it had been
relevant to rebut mitigating evidence offered by the defendant. See
112 S.Ct. at 1098-99," which is the situation here.
Zakrzewski also presents (IB 60-61) a laundry list of excerpts
from
the
through
trial
record.
Zakrzewski
However,
presenting
these
them
in
were
his
already
2001
litigated
postconviction
motion (1PCR/II 242-44) and his subsequent Initial Brief (pp. 3739) in SC02-1734. The rejection of Zakrzewski's prior allegations
in Zakrzewski, 866 So.2d at 693, is law of the case. Moreover,
Zakrzewski has failed to present any developed argument concerning
these items, making them prima facie insufficient at the trial
court and at the appellate court levels, and the State objects to
any
Reply-Brief
attempt
to
amplify
the
claim(s).
Concerning
insufficiency at the appellate level, see Jones v. State, 966 So.2d
319, 330 (Fla. 2007)("In his reply brief, Jones raises for the
first time a claim that ... the trial court abused its discretion
by ... "; "we need not address it"); Whitfield v. State, 923 So.2d
375,
379
presents
So.2d
(Fla.
merely
121,
133
sentence ...
2005)("we
conclusory
(Fla.
summarily
affirm
arguments");
2002)("Lawrence
because
Lawrence
complains,
v.
in
Whitfield
State,
a
831
single
bare claim is unsupported by argument); concerning
insufficiency at the trial court level, see, e.g., Franqui v.
State,
59
So.3d
82,
96
(Fla.
2011)("As
to
the
prosecutorial
comments cited as improper in both the guilt phase and penalty
30
phase, we first note that the amended motion filed by Franqui
failed to establish how these alleged instances of ineffective
assistance of counsel prejudiced him—mere conclusory allegations
are not sufficient").
Zakrzewski also weaves arguments around Furman v. Ga., 408 U.S.
(1972) (IB 26-28, 37 et seq.), and an ABA report (IB 38 n.26).
These are barred by prior proceedings in this case. Zakrzewski's
2007
successive
postconviction
motion
previously
alleged
the
application of Furman v. Ga., 408 U.S. (1972) (2PCR/I 15 et seq.),
and
the
September
17,
2006,
ABA
study
(2PCR/I
20
et
seq.).
Zakrzewski's prior Initial Brief (p. 39, SC08-59, underlining in
original) reasserted Furman and the ABA report, for example:
The ABA Report issued on September 17, 2006, identified
numerous defects and flaws in the Florida capital sentencing
scheme that inject arbitrariness into the decision-making
process. The ABA Report cited a number of the areas 'in which
Florida's death penalty system falls short in the effort to
afford
every
capital
defendant
fair
and
accurate
procedures[.]' ABA Report on Florida at iii. The team
cautioned that the apparent harms in the system 'are
cumulative' and must be considered in such a way; 'problems in
one area can undermine sound procedures in others.' Id. at
iii-iv. A review of the areas identified in the report as
falling short makes apparent that in Florida's death penalty
scheme is deficient for the many of the same reasons the
schemes at issue in Furman were found to be unconstitutional.
Death sentences, like Mr. Zakrzewski's, are a product of an
arbitrary and capricious system, including the postconviction
process. Who is executed in Florida is determined by a myriad
of factors unrelated to the facts of the crime or the
character of the defendant.
31
Zakrzewski,
13
So.3d
1057,
2009
WL
400661
(unpublished;
block
quoted in the facts supra), rejected Zakrzewski's arguments, making
it the law of the case.
Indeed, ISSUE I is barred no matter which way its allegations
turn.
To
the
degree
that
CLAIM
I
of
Zakrzewski's
2010-2011
postconviction motion alleged matters not included in his 2001
postconviction motion, those new claims must also be presented with
specific, detailed justification for why they were presented so
late, as required by Fla.R.Crim.P. 3.851(d). Thus, if the new
claim/subclaim is legal in nature, then the current motion must
attempt to justify it as new and retroactive fundamental law, as
Zakrzewski unsuccessfully attempts to do using Porter. If a new
claim/subclaim is factual in nature, Zakrzewski must affirmatively
satisfy the due-diligence standard; given ISSUE I's citations to
the trial record, such matters have been, and are, prima facie
untimely. Put another way, it is Zakrzewski's burden to demonstrate
why his 2010-2011 claims should be heard about a decade beyond his
one-year Rule 3.851 deadline. No matter how his claims are viewed,
he has failed.
Finally, the State notes that Zakrzewski's argues the seven-tofive jury votes (IB 59-60; see also Initial Brief, pp. 55-59 & 7071,
SC08-59).
This
is
argument
is
based
upon
an
incorrect
assumption that there was error. It is also rank speculation, which
cannot
be
the
basis
of
any
relief.
32
Zakrzewski
ignores
the
possibility that votes can also swing towards more jurors voting
for death, as the discussion in Suggs v. McNeil, 609 F.3d 1218,
1232-33 (11th Cir. 2010), illuminated.
In conclusion, Porter's heroics are in stark contrast with the
facts here; and in Porter, the United States Supreme Court merely
applied Strickland to those facts, as Walton correctly held. Porter
provides no relief for Zakrzewski as a procedural vehicle or on its
facts.
ISSUE I attempts to re-package and re-present arguments that
have
already
been
correctly
rejected.
Florida's
death
penalty
procedure was reliably imposed on this triple-murderer, EDWARD J.
ZAKRZEWSKI, because of the facts of the horrendous murders he
perpetrated, the extreme aggravation -- including the prior violent
felonies of triple murders, HAC on two of the victims, and CCP on
all three of the victims -- compared with the mitigation.
ISSUE I should be rejected.
ISSUE II: DOES LETHAL INJECTION USING ANOTHER CHEMICAL PRIMA FACIE
MAKE THE FLORIDA PROCESS UNCONSTITUTIONAL AND REQUIRE THAT THE
TRIAL COURT PROVIDE ZAKRZEWSKI AN EVIDENTIARY HEARING?(IB 63-75,
RESTATED)
Zakrzewski's
lethal
injection
claim
is
allegedly
based
on
Florida switching one of its lethal-injection process' chemicals.
In
essence,
Zakrzewski
contends
that
precedent
in
another
defendant's case should be disregarded concerning the switch in
chemicals
and
that
the
trial
court
33
should
have
provided
him,
personally,
a
full
evidentiary
hearing
on
Florida's
lethal
injection process. Zakrzewski is incorrect.
Regardless of when Zakrzewski averred pentobarbital as a "new"
chemical substituting for sodium thiopental,5 Zakrzewski's argument
is meritless. In the State's April 27, 2011 response, the State
asserted that Zakrzewski had not prima facie demonstrated that any
new chemical would have any different effects from a previously
used chemical to rise to the level of a constitutional violation
(3PCR/I 167; accord 3PCR/II 340). This argument remains applicable
today.
The
mere
change
in
chemicals
does
not
constitute
a
constitutional violation, regardless of which defendant attempts to
litigate the matter.
Thus, here, the trial court correctly ruled:
In the second ground of his motion, Defendant argues that a
change in Florida's lethal injection protocol has resulted in
a punishment violative of the Eighth Amendment's prohibition
against cruel and unusual punishment. Contrary to Defendant's
5
The State disputes Zakrzewski's apparent suggestion that the
State misrepresented any material fact to the trial ocurt.
Zakrzewski states (IB 64) that, on May 23, 2011, the State
"asserted that the three drug protocol was not being changed."
Zakrzewski is incorrect; the State did not represent that a
chemical "was not being changed." Instead, on May 23, 2011, the
Assistant Attorney General stated that, "as of May 5th, there is no
change in the protocol." (3PCR/III 435) Thus, on April 27, 2011,
the State, in a written response, indicated that at that time the
Assistant Attorney General did not know whether D.O.C. has adopted
any new chemical (3PCR/I 168 n. 14; see also 3PCR/III 371)
On May 23, 2011, the State indicated that a change in chemicals
would not be keep a secret (See 3PCR/III 430), and, when D.O.C. did
switch to pentobarbital, it was not a secret.
34
claim in his motion, this Court does not interpret Lightbourne
v. McCollum, 969 So.2d 326 (Fla. 2007), to require the use of
any specific drug for the purposes of carrying out lethal
injection executions. The Lightbourne Court even addresses
this issue stating:
"Determining the specific methodology and the chemicals to
be used are matters left to the DOC and the executive
branch, and this Court cannot interfere with the DOC's
decisions in these matters unless the petitioner shows that
there are inherent deficiencies that rise to an Eighth
Amendment violation."
Id. at 352.
This Court finds that Defendant's allegation in ground two is
legally insufficient as it fails to show that any chemical
proposed for use by the Department in carrying out lethal
injections will result in failures amounting to Eighth
Amendment violations.
(3PCR/II 259-60)
ISSUE II essentially contends that Zakrzewski has a right to
personally present a lethal injection claim. This is essentially
the same argument that Zakrzewski made in SC08-59. There, for
example, Zakrzewski's 2008 Initial Brief argued:
Mr. Zakrzewski was deprived of his due process rights of
notice and opportunity to be heard and to present evidence on
his challenge to Florida's lethal injection procedures. ...
Even though Mr. Lightbourne was given an opportunity to be
heard and present evidence on his challenge to the lethal
injection procedures, Mr. Zakrzewski was denied that right ...
.
(Initial
brief,
pp.
16-17,
SC08-59)
There,
Zakrzewski
(Initial
Brief, pp. 21-31, SC08-59), like now (See IB 67-74), excerpted from
Schwab v. State, 969 So.2d 318 (Fla. 2007) to argue that, he is
entitled
to
his
own
evidentiary
hearing.
This
Court
rejected
Zakrzewski's arguments at Zakrzewski, 13 So.3d 1057, 2009 WL 400661
(Fla. 2009):
35
This Court has previously rejected each of these claims. See
Ventura v. State, 34 Fla. L. Weekly S71 (Fla. Jan. 29, 2009)
(rejecting challenge to Florida's lethal injection protocols);
Tompkins v. State, 994 So.2d 1072 (Fla.2008) (rejecting
challenge to Florida's lethal injection protocols and
rejecting claim as to the unconstitutionality of the death
penalty system based on the ABA report); see also Henyard v.
State, 992 So.2d 120 (Fla.2008); Lightbourne v. McCollum, 969
So.2d 326 (Fla.2007); Schwab v. State, 969 So.2d 318 (Fla.
2007); Diaz v. State, 945 So.2d 1136 (Fla. 2006); Rutherford
v. State, 940 So.2d 1112 (Fla.2006).
This reasoning and holding were correct in 2009 and remain correct
now. Indeed,, in terms of the essential aspects of Florida's lethal
injection process, Lightbourne v. McCollum, 969 So.2d 326 (Fla.
2007), and Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d
420 (2008), remain compelling now.
Here, instead of just Lightbourne, Zakrzewski also complains
about Valle v. State, 70 So.3d 530, 536-46 (Fla. 2011). Zakrzewski
complains (IB 64-65) that the Circuit Court should have allowed him
to rely upon a "June 8th adoption of [a] new lethal injection
protocol."
Zakrzewski
complains
(IB
69),
that
he
"sought
an
opportunity to present his claim in the same fashion that Mr. Valle
presented his." Zakrzewski wants (See IB 70-71) his own evidentiary
hearing, regardless of what was occurring in Valle and regardless
of the meritless nature of the claim.
As Ventura v. State, 2 So.3d 194, 198 (Fla. 2009), explained,
Zakrzewski's attempts to get own evidentiary hearing hearing ignore
sound principles of stare decisis:
This Court has thus previously rejected each of these
challenges to Florida's lethal-injection protocol and-based
36
upon the sound principle of stare decisis - we continue the
same course here. See, e.g., Lightbourne, 969 So.2d at 349-53;
Schwab, 969 So.2d at 321-25. As we stated in Schwab, 'Given
the record in Lightbourne and our extensive analysis in our
opinion in Lightbourne v. McCollum, we reject the conclusion
that
lethal
injection
as
applied
in
Florida
is
unconstitutional.' Schwab, 969 So.2d at 325.
Here,
indeed,
under
stare
decisis,
Valle
does
control
as
precedent. Zakrzewski's 2011 claim has been resolved against his
position. Zakrzewski's claim is meritless. Valle, 70 So.3d at 53646, reasoned and held:
On June 30, 2011, Governor Rick Scott signed a death warrant,
and Valle's execution was set for August 2, 2011. Twenty-two
days prior, on June 8, 2011, the DOC had promulgated a revised
lethal injection procedure, replacing the first drug in its
three-drug
protocol,
sodium
thiopental,
with
another
barbiturate, pentobarbital. ...
...
Pursuant to this Court's order, the circuit court conducted an
evidentiary hearing on July 28 and August 2, 2011, during
which Valle presented the testimony of Dr. David Waisel, an
anesthesiologist, and federal public defender Matt Schulz, who
witnessed the June 16, 2011, execution of his client, Eddie
Powell, in Alabama. Valle also offered into evidence several
letters, which were written by Lundbeck to the DOC and
Governor Scott regarding the company's opposition to the use
of its drug in executions. In rebuttal, the State presented
the testimony of Dr. Mark Dershwitz, an anesthesiologist, and
John Harper and Dr. Jacqueline Martin, both of whom witnessed
the June 23, 2011, execution of Roy Blankenship in Georgia.
...
In this claim, Valle raises various challenges to the
constitutionality of Florida's lethal injection procedures,
but the bulk of his argument focuses on the DOC's June 8,
2011, substitution of five grams of pentobarbital for five
grams of sodium thiopental as the first of three drugs used in
the lethal injection protocol. ... As presented, the DOC's
recent replacement of sodium thiopental with pentobarbital in
Florida's three-drug lethal injection sequence is the primary
claim underlying Valle's Eighth Amendment challenge.
37
...
This Court has previously recognized its duty 'to ensure that
the method used to execute a person in Florida does not
constitute cruel and unusual punishment.' Lightbourne, 969
So.2d at 349. To fulfill its obligation, this Court is guided
by article I, section 17 of the Florida Constitution, which
provides that '[a]ny method of execution shall be allowed,
unless prohibited by the United States Constitution.'
Specifically, Florida's provision on the prohibition against
cruel and unusual punishment 'shall be construed in conformity
with decisions of the United States Supreme Court which
interpret the prohibition against cruel and unusual punishment
provided in the Eighth Amendment to the United States
Constitution.' Art. I, § 17, Fla. Const. Therefore, in
accordance with our state constitution, this Court is bound by
the precedent of the Supreme Court regarding challenges to
this state's chosen method of execution. See Lightbourne, 969
So.2d at 335 ('[W]e must evaluate whether lethal injection is
unconstitutional '"in conformity with decisions of the United
States Supreme Court."' (quoting art. 1, § 17, Fla. Const.)).
The parties agree that Valle's various challenges to the DOC's
lethal injection procedures are governed by the Supreme
Court's plurality decision in Baze v. Rees, 553 U.S. 35, 128
S.Ct. 1520, 170 L.Ed.2d 420 (2008), which defined the contours
of a condemned inmate's burden of proof for mounting a
successful Eighth Amendment challenge to a state's lethal
injection
protocol.[FN9]
Although
acknowledging
that
'subjecting individuals to a risk of future harm—not simply
actually inflicting pain—can qualify as cruel and unusual
punishment,' the Supreme Court in Baze explained that to
prevail on such a claim, condemned inmates must demonstrate
that 'the conditions presenting the risk must be "sure or very
likely to cause serious illness and needless suffering," and
give rise to "sufficiently imminent dangers."' 553 U.S. at 49–
50, 128 S.Ct. 1520 (quoting Helling v. McKinney, 509 U.S. 25,
33, 34–35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)) (plurality
opinion); see also Brewer v. Landrigan, ––– U.S. ––––, 131
S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) ('[S]peculation cannot
substitute for evidence that the use of the drug is "sure or
very likely to cause serious illness and needless suffering."'
(quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520)). That is,
'there must be a "substantial risk of serious harm," an
"objectively intolerable risk of harm" that prevents prison
officials from pleading that they were "subjectively blameless
for purposes of the Eighth Amendment."' Baze, 553 U.S. at 50,
128 S.Ct. 1520 (quoting Farmer v. Brennan, 511 U.S. 825, 842,
38
846 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). This
standard imposes a 'heavy burden' upon the inmate to show that
lethal injection procedures violate the Eighth Amendment. Id.
at 53, 128 S.Ct. 1520 (quoting Gregg v. Georgia, 428 U.S. 153,
175, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).
FN9. In Lightbourne, which predates the Supreme Court's
decision in Baze, this Court held that inmate Lightbourne
failed to establish that Florida's August 2007 lethal
injection protocol violated the Eighth Amendment since he
did not show 'a substantial, foreseeable or unnecessary
risk of pain in the DOC's procedures for carrying out the
death penalty through lethal injection.' Lightbourne, 969
So.2d at 353. After Baze was decided, this Court rejected
the notion that Baze required reconsideration of our
decision in Lightbourne and concluded that Florida's 2007
procedures passed constitutional muster under any of the
risk-based standards. See Ventura v. State, 2 So.3d 194,
200 (Fla. 2009) ('Florida's current lethal-injection
protocol passes muster under any of the risk-based
standards considered by the Baze Court (and would also
easily satisfy the intent-based standard advocated by
Justices Thomas and Scalia).').
Cognizant of this standard, we now turn to Valle's challenge
to the DOC's substitution of pentobarbital for sodium
thiopental. In the lethal injection context, 'the condemned
inmate's lack of consciousness is the focus of the
constitutional inquiry.' Ventura, 2 So.3d at 200; see also
Schwab, 995 So.2d at 924, 927 [Schwab v. State, 995 So.2d 922
(Fla. 2008)] (adopting the trial court's order, which stated
that 'the critical Eighth Amendment concern is whether the
prisoner has, in fact, been rendered unconscious by the first
drug'). As we explained in Lightbourne, '[i]f the inmate is
not fully unconscious when either pancuronium bromide or
potassium chloride [the second and third drugs in the
protocol] is injected, or when either of the chemicals begins
to take effect, the prisoner will suffer pain.' 969 So.2d at
351; see also Baze, 553 U.S. at 53, 128 S.Ct. 1520 ('[F]ailing
a proper dose of sodium thiopental that would render the
prisoner unconscious, there is a substantial, constitutionally
unacceptable risk of suffocation from the administration of
pancuronium bromide and pain from the injection of potassium
chloride.').
...
After reviewing the evidence and testimony presented below, we
conclude that Valle has failed to satisfy the 'heavy burden'
39
that Florida's current lethal injection procedures, as
implemented by the DOC, are constitutionally defective in
violation of the Eighth Amendment of the United States
Constitution. We thus affirm the circuit court's orders.
Indeed,
arguendo,
even
accepting
Zakrzewski's
proposed
postconviction motion on its face, it merely contended (3PCR/II
213) that a mere change in the chemical to pentobarbital entitled
Zakrzewski to an evidentiary hearing. Valle is, therefore, on point
and
controls:
The
use
of
pentobarbital
does
not
prima
facie
demonstrate any ground for relief. Accord Valle v. Singer, 655 F.3d
1223, 1229-1238 (11th Cir. 2011)(adopting United States District
Court's
reasoning;
"Florida's
recent
replacement
of
sodium
thiopental with pentobarbital in the three-drug lethal injection
sequence underlies the bulk of Valle's claims in this action";
"Even
if
Valle's
claims
were
timely
filed,
for
the
reasons
previously discussed, they fail as a matter of law because Valle
has not met his burden of affirmatively showing that a substantial
risk of serious harm exists or that the risk is substantial when
compared
to
the
known
and
available
alternatives";
"It
is
noteworthy that, in Baze, the inmate petitioners proposed a onedrug barbituate-only protocol, using either pentobarbital or sodium
thiopental as the suggested alternative drug"; "Valle's various
objections
rejected
to
on
the
the
lethal
injection
merits
in
protocol
previous
itself
cases,"
have
citing
been
Baze,
Lightbourne, Schwab); see also Kokal v. State, 2012 WL 181648,
(Fla. Jan. 20, 2012)(unpublished; citing Valle); DeYoung v. Owens,
40
646 F.3d 1319, 1325-27 (11th Cir. 2011); Powell v. Thomas, 641 F.3d
1255, 1258 (11th Cir. (2011).
In other words, Zakrzewski attempts to flip precedent over and
sideways by arguing that because he and his current counsel were
not involved in making the prior precedent, it does not control his
case. Zakrzewski's position, of course, does not comport with the
principle of precedent.
For this issue, as well as for ISSUE I, this Court properly
chose
cases
as
"lead
cases"
and
resolved
the
cases,
thereby
establishing precedents, which, as such, control both issues here.
CONCLUSION
Based
on
the
foregoing
discussions,
the
State
respectfully
requests this Honorable Court affirm the trial court's denial of
Zakrzewski's third batch of successive postconviction motions.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the
following by U.S. MAIL on April
16
, 2012: Martin J. McClain,
Esq.;
141
N.E.
McClain
&
McDermott
P.A.;
Manors, Florida 33334-1064.
41
30th
Street;
Wilton
CERTIFICATE OF COMPLIANCE
I
certify
that
this
brief
was
computer
generated
using
Courier New 12 point font.
Respectfully submitted and certified,
PAMELA JO BONDI
ATTORNEY GENERAL
______________________________
By: STEPHEN R. WHITE
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 159089
Attorney for Appellee, State of Fla.
Office of the Attorney General
PL-01, The Capitol
Tallahassee, Fl 32399-1050
(850) 414-3300 Ext. 4579
(850) 487-0997 (FAX)
AG#: L11-2-1287
42