IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA EDWARD J. ZAKRZEWSKI, Appellant v. CASE NO.: SC08-59 STATE OF FLORIDA, Appellee. / IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR OKALOOSA COUNTY, FLORIDA ANSWER BRIEF BILL MCCOLLUM ATTORNEY GENERAL RONALD A. LATHAN, JR. ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL THE CAPITOL TALLAHASSEE, FL (850) , EXT COUNSEL FOR THE STATE

2 TABLE OF CONTENTS PAGES(S) TABLE OF CONTENTS i TABLE OF CITATIONS ii PRELIMINARY STATEMENT INTRODUCTION STATEMENT OF CASE AND OF THE FACTS ARGUMENT I. ZAKRZEWSKI S SUCCESSIVE POST-CONVICTION MOTION MUST BE DENIED BECAUSE HIS CHALLENGE TO THE PROTOCOLS IMPLEMENTED BY THE STATE OF FLORIDA HAVE BEEN REPEATEDLY UPHELD BY THIS COURT(RESTATED) II. THIS COURT SHOULD REJECT ZAKRZEWSKI S CLAIM PREMISED EXCLUSIVELY ON AN AMERICAN BAR ASSOCIATION REPORT CRITICIZING FLORIDA S DEATH PENALTY PROCEDURES CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT AND TYPE SIZE i

3 TABLE OF CITATIONS CASES PAGE(S) Buenoano v. State, 565 So.2d 309 (Fla. 1990) Diaz v. State, 945 So. 2d 1136 (Fla. 2006) Hamblen v. State, 565 So. 2d 320 (Fla. 1990) Hill v. State, 921 So. 2d 579 (Fla. 2006) Israel v. State, 985 So.2d 510, (Fla. 2008) Lebron v. State, 982 So.2d 649 (Fla. 2008) Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) , 8, 10 Poyck v. State, 961 So. 220 (Fla. 2007) Rolling v. State, 944 So. 2d 176 (Fla. 2006) , 12 Rutherford v. State, 940 So.2d 1112 (Fla. 2006) , 12 Rutherford v. State, 926 So (Fla. 2006) Schwab v. State, 969 So. 2d 318 (Fla. 2007) ,8 Sexton v. State, 2008 Fla. LEXIS 1610 (Fla. Sept. 18, 2008) Sims v. State, 754 So. 2d 657 (Fla. 2000) ,9 i

4 Woodel v. State, 985 So.2d 524 (Fla. 2008) Zakrzewski v. Florida, 525 U.S (1999) Zakrzewski v. McDonough, 455 F.3d 1254 (11th Cir. 2006) Zakrzewski v. State, 717 So. 2d 488 (Fla. 1998) , 3 Zakrzewski v. State, 866 So. 2d 688 (Fla. 2003) ii

5 PRELIMINARY STATEMENT Appellant, EDWARD ZAKRZEWSKI, the defendant in the trial court will be referred to as appellant or by his formal name. Appellee, the State of Florida, will be referred to as the State. The transcript from the trial, will be denominated by a T. followed by the relevant volume and page number. References to the appellate record, will be denominated by an R. followed by the relevant page number. INTRODUCTION COMES NOW, Appellee, State of Florida, by and through the undersigned Assistant Attorney General, and hereby responds to the successive post-conviction motion filed in the above-styled case. The Appellee respectfully submits that Zakrzewski s arguments should be denied. He raises two claims: 1) Florida s lethal injection protocols are unconstitutional; and 2)an ABA report which chastises Florida s capital litigation procedures should constitute binding authority. These arguments have consistently been rejected by this Court. STATEMENT OF THE CASE AND PROCEDURAL HISTORY Edward Zakrzewski was sentenced to death for the murder of his wife and two small children. He has filed a successive motion for postconviction relief, arguing that his capital sentence is constitutionally infirm. The Florida Supreme Court fully addressed the underlying facts of Zakrzewski s heinous crime in its direct 1

6 appeal opinion: 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 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 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 2

7 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. 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. 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. Zakrzewski v. State, 717 So. 2d 488, (Fla. 1998). This Court affirmed Zakrzewski s death sentences. Id. His motion for rehearing was denied on September 9, 1998 as was his writ for a petition of certiorari. Zakrzewski v. Florida, 525 U.S (1999). 3

8 Thereafter, Zakrzewski pursued state postconviction relief, raising four issues: (1) his lawyers in the penalty phase provided ineffective assistance of counsel by failing to object to certain closing arguments; (2) his lawyers were ineffective for failing to move to suppress evidence; (3) his guilty pleas were involuntary and should be set aside; and (4) his death sentence is unconstitutional based on Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct (2002). Zakrzewski v. State, 866 So. 2d 688, 689 (Fla. 2003). Zakrzewski s state post-conviction claims were rejected by this Court in their entirety. Id. 1 On May 15, 2007 he filed a motion in Circuit Court for the First Judicial Circuit denominated Motion to Vacate Judgments of Conviction and Sentences. The motion sought to challenge, among other things, Florida s capital litigation protocols. On August 30, 2007, this motion was denied by Circuit Court Judge G. Robert Barron of the First Judicial Circuit. Zakrzewski now brings this successive motion for postconviction relief, essentially raising the same issues that 1 Similarly, the United States Court of Appeals for the Eleventh Circuit denied his federal habeas claims. Zakrzewski v. McDonough, 455 F.3d 1254 (11th Cir. 2006). However, somewhat concurrently, Zakrzewski filed a motion in federal court pursuant to Fed R. Civ. P. 60(b), asserting that his federal habeas counsel was appointed via a fraud perpetuated on the federal district court. The Eleventh Circuit remanded the matter to district court so as to permit additional factfinding regarding whether Zakrzewski was entitled to relief under Rule 60(b). This matter has been fully briefed and is awaiting oral argument scheduling. 4

9 were denied by the First Judicial Circuit. His claims have been repeatedly denied by this Court and must be denied. ARGUMENT I. ZAKRZEWSKI S SUCCESSIVE POST-CONVICTION MOTION MUST BE DENIED BECAUSE HIS CHALLENGE TO THE PROTOCOLS IMPLEMENTED BY THE STATE OF FLORIDA HAVE BEEN REPEATEDLY UPHELD BY THIS COURT(RESTATED) Zakrzewski argues that he is entitled to an evidentiary hearing to challenge the protocols instituted by the State of Florida and the Department of Corrections, notwithstanding this Court s recent decisions denying a similar challenges to the constitutionality of Florida s protocols. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007); Schwab v. State, 969 So. 2d 318 (Fla. 2007). He has filed this successive habeas petition arguing that his due process rights would be contravened if he were denied the opportunity present his own witnesses and evidence at an evidentiary hearing. However, the arguments advanced by Zakrzewski are entirely without merit and should be rejected by this Court. Zakrzewski s successive habeas petition is apparently premised on what he deems to be newly discovered evidence. Zakrzewski argues that he has been made aware of evidence suggesting that Florida lethal injection procedures are fraught with potential errors, and violate the Eighth Amendments tenets against cruel and unusual punishment. Specifically, he references, among other matters, newly discovered DOC memos purportedly 5

10 indicating that capital defendants suffered significant pain during executions. This Court has articulated what is in fact necessary in order to bring a successive post-conviction motion predicated on newly discovered evidence: Florida Rule of Criminal Procedure governs the timeliness of, and necessity of an evidentiary hearing on, successive postconviction motions in final capital cases. Rule 3.851(d)(1) bars a postconviction motion filed more than one year after a judgment and sentence are final. An exception to this rule permits otherwise untimely motions if the movant alleges that "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." Fla. R. Crim. P (d)(2)(A). Rule 3.851(f)(5)(B) permits denial of a successive postconviction 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." This Court's precedent provides the criteria for obtaining a new capital penalty phase based on newly discovered evidence. [*11] In addition to demonstrating that the evidence could not have been discovered previously through the exercise of due diligence, the defendant must establish that the newly discovered evidence probably would have produced a life sentence. Ventura v. State, 794 So. 2d 553, 571 (Fla. 2001); see also Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) ("[T]he newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial."); Scott v. Dugger, 604 So. 2d 465, 468 (Fla. 1992) ("The Jones standard is also applicable where the issue is whether a life or death sentence should have been imposed."). Poyck v. State, 961 So. 2d 220, 224 (Fla. 2007). The Florida Supreme Court observed that evaluation of a newly discovered evidence claim involves consideration of whether: 1) the 6

11 basis for the claim was not known to the claimant, 2) the basis for the claim could not have been discovered through due diligence, and 3) the newly discovered evidence will likely lead to a life sentence. Id. Zakrzewski s motion fails to satisfy the foregoing criteria. Zakrzewski may not argue that he was caught unaware as to the existence of a constitutional challenge to the State s method of execution. The Florida Legislature adopted lethal injection as Florida s method of execution on January 14, Diaz v. State, 945 So.2d 1136, 1154 (Fla. 2006)(noting that on January 14, 2000, section was amended to provide for lethal injection as the method of execution in Florida citing ch , 3, at 4, Laws of Fla). Florida s adopted its method of execution over seven years ago. The Florida Supreme Court has repeatedly upheld the constitutionality of lethal injection. Diaz v. State, 945 So.2d at 1144(rejecting a cruel and unusual punishment challenge to both Florida s lethal injection statute and protocols and explaining that the court had previously considered the constitutionality of lethal injection in Florida after a full evidentiary hearing in Sims v. State, 754 So.2d 657 (Fla.2000) and has subsequently rejected similar claims citing Rolling v. State, 944 So.2d 176, 179 (Fla. 2006); Rutherford v. State, 926 So.2d 1100, 1113 (Fla. 2006); 7

12 Hill v. State, 921 So.2d 579, 583 (2006). 2 Additionally, this Court has held, in the wake of the Diaz execution, that Florida s lethal injection protocol do not violate the Eighth Amendment. Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007); Schwab v. State, 969 So.2d 318 (Fla. 2007). In response to longer than normal time that the Diaz execution took, 2 Moreover, Zakrzewski s present calls for an evidentiary hearing are also unwarranted. Guidance should be drawn from previous challenges to Florida s then-existing method of execution. In Hamblen v. State, 565 So. 2d 320 (Fla. 1990), a capital defendant bought a facial constitutional challenge to Florida s use of the electric chair as a means of execution. Hamblen s argument was premised on problems emanating from the execution of a capital felon named Jesse Tafero. According to this Court, during Tafero s execution, flames and smoke erupted from the headpiece of the electric chair. Id. at 321. Hamblen contended that Florida s use of the electric chair constituted cruel and unusual punishment. Not unlike Zakrzewski in the instant case, Hamblen supplemented his arguments with several affidavits. This Court rejected Hamblen s constitutional challenge, noting that the identical issue had been addressed (and rejected) in a related case. See Buenoano v. State, 565 So.2d 309 (Fla. 309 (Fla. 1990) (upholding electrocution as execution method notwithstanding problems occurring during the Tafero execution). In denying Hamblen s successive motion for post-conviction relief, the Court relied both on Buenoano s prior ruling, and the fact that an evidentiary hearing involving issues related to the Tafero execution had already taken place in federal court. Hamblen, supra, at Hamblen is instructive. The Florida Supreme Court has certainly embraced the proposition that once it upholds the constitutionality of a particular means of execution, that particular decision becomes a lead case which binds the Court in future constitutional challenges to the same method of execution. See, e.g., Sims v. State, supra (upholding lethal injection as constitutionally permissible method of execution); see also Hill v. State, 921 So. 2d 579 (Fla. 2006) (relying on Sims in upholding the constitutionality of lethal injection); Rolling v. State, 944 So. 2d 176 (2006) (same). 8

13 the Florida Supreme Court ordered an evidentiary hearing regarding Florida s lethal injection protocols. The trial court in Lightbourne conducted a 13 day evidentiary hearing in which forty witnesses testified that resulting in a record exceeding 6,500 pages. Lightbourne, 969 So.2d at 330. Furthermore, the Florida Supreme Court has reaffirmed its holding in Lightbourne in several recent cases. Woodel v. State, 985 So.2d 524, *27 (Fla. 2008); Israel v. State, 985 So.2d 510, *35-36, (Fla. 2008); Lebron v. State, 982 So.2d 649, 666 (Fla. 2008). 3 3 Similarly, this Court has rejected claims predicated on the Dyehouse memos referenced by Zakrzewski. The Florida Supreme Court has stated: With regard to the Dyehouse memorandum recommending the use of a BIS monitor to more accurately assess the level of consciousness of the inmate, it might be beneficial to incorporate a device that could monitor the inmate's level of sedation to ensure the inmate will not experience subsequent pain of execution. However, the Court's role regarding the executive branch in carrying out executions is limited to determining whether the current procedures violate the constitutional protections provided for in the Eighth Amendment. We do not believe that it is within this Court's purview to mandate the use of a specific device to assess consciousness. We reaffirm the Court's essential holding in Sims that "determining the methodology and the chemicals to be used are matters best left to the Department of Corrections." Sims, 754 So. 2d at 670. Unless the United States Supreme Court intends for the judicial branch to exercise detailed supervisory authority over the process of lethal injection, we do not consider the failure of the DOC to incorporate the use of the BIS monitor to constitute an Eighth Amendment violation in itself. 9

14 Finally, this Court has again, recently had occasion to consider the issue of the constitutionality of lethal injection, observing: [The defendant] contends that lethal injection as it is performed pursuant to Florida s three drug protocol constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and the Florida Constitution. We have previously denied this same challenge to the current lethal injection protocol and 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. Lightbourne has failed to overcome the presumption of deference we give to the executive branch in fulfilling its obligations, and he has failed to show that there is any cruelty inherent in the method of execution provided for under the current procedures. Alternatively, even if the Court did review this claim under a "foreseeable risk" standard as Lightbourne proposes or "an unnecessary" risk as the Baze petitioners propose, we likewise would find that Lightbourne has failed to carry his burden of showing an Eighth Amendment violation. As stressed repeatedly above, it is undisputed that there is no risk of pain if the inmate is unconscious before the second and third drugs are administered. After Diaz's execution, the DOC added additional safeguards into the protocol to ensure the inmate will be unconscious before the execution proceeds. In light of these additional safeguards and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC's procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment protections. Lightbourne v. McCollum, 969 So. 2d 326, (Fla. 2007). 10

15 therefore deny relief on this claim. See Lightbourne v. McCollum, 969 So. 2d 326, (Fla. 2007); Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). The same method of execution, consisting of lethal injection of the same three drug combination under similar protocols, has also been found by the United States Supreme Court to be constitutional. Baze v. Rees, 128 S. Ct 1520 (2008). Most recently we rejected a successive attack on lethal injection after Baze in Schwab v. State, 33 Fla. L. Weekly S431 (June 27, 2008). Sexton v. State, 2008 Fla. LEXIS 1610, at *42-43 (Fla. Sept. 18, 2008). Accordingly, this claim should be rejected. II. THIS COURT SHOULD REJECT ZAKRZEWSKI S CLAIM PREMISED EXCLUSIVELY ON AN AMERICAN BAR ASSOCIATION REPORT CRITICIZING FLORIDA S DEATH PENALTY PROCEDURES In Zakrzewski s second claim, he principally relies upon the American Bar Association s analysis of Florida s administration of the death penalty (ABA Report). The ABA Report criticizes Florida s death penalty system; and, Zakrzewski relies on the ABA Report to supplement his argument that sentencing him to death violates the federal Constitution. A similar argument was raised in Rutherford v. State, 940 So.2d 1112 (Fla. 2006). In Rutherford, a capital defendant argued that the same ABA Report relied upon by Zakrzewski, called into question the legitimacy of his death sentence. The Florida Supreme Court noted that much of the information contained in the ABA Report was already well-known, but, even if this were not so, nothing in the report would cause this cause this Court to recede from its decisions upholding the facial constitutionality of the 11

16 death penalty. Id. at 1118 (emphasis added). Similarly, this court should determine that the ABA Report, relied upon by Zakrzewski, does not constitute persuasive, let alone binding, authority; and therefore, this claim should be rejected. See, e.g., Rolling v. State, 944 So. 2d 176 (Fla. 2006). CONCLUSION For the foregoing reasons, the State of Florida, by and through the undersigned counsel, respectfully asks this Court to DENY Zakrzewski s successive post-conviction motion. RESPECTFULLY SUBMITTED, BILL MCCOLLUM ATTORNEY GENERAL RONALD A. LATHAN, JR. ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL THE CAPITOL TALLAHASSEE, FL (850) , ext COUNSEL FOR THE STATE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Martin J. McClain, 141 N.E. 30th Street, Wilton Manors, FL this 24th day of September,

17 Ronald A. Lathan, Jr. Attorney for the State of Florida CERTIFICATE OF FONT AND TYPE SIZE Counsel certifies that this brief was typed using Courier New font 12 point. Ronald A. Lathan, Jr. Attorney for the State of Florida 13