Opposition Brief — Leo Louis Kaczmar, III, Petitioner v. Florida
Supreme Court briefMay 16, 2018
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CAPITAL CASE
No. 17-8148
IN THE
SUPREME COURT OF THE UNITED STATES
LEO LOUIS KACZMAR III, Petitioner,
v.
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
PAMELA JO BONDI
Attorney General of Florida
CAROLYN M. SNURKOWSKI
Associate Deputy Attorney General
Counsel of Record
CHARMAINE M. MILLSAPS
Senior Assistant Attorney General
OFFICE OF THE ATTORNEY
GENERAL
CAPITAL APPEALS
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3584
(850) 487-0997 (FAX)
capapp@myfloridalegal.com
CAPITAL CASE
QUESTIONS PRESENTED
I. Whether this Court should grant review of a decision of the Florida
Supreme Court holding that the Hurst v. State, 202 So.3d 40 (Fla. 2016),
error was harmless error rather than structural error?
II. Whether this Court should grant review of a decision of the Florida
Supreme Court rejecting a Caldwell v. Mississippi, 472 U.S. 320 (1985),
claim?
TABLE OF CONTENTS
PAGE(S)
QUESTIONS PRESENTED...... 2.0.00... 000.00 e eee i
TABLE OF CONTENTS. ....0 0.00 oe eee teen eee ii
TABLE OF AUTHORITIES. .. 2.2.2.2... 0.0.00. cee eens ill
OPINION BELOW. ... 20.0... eee ene eee eens 1
JURISDICTION. 2.0... cc cece teen eee ene 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............ 3
STATEMENT OF THE CASE AND PROCEDURAL HISTORY. ............... 4
REASON FOR DENYING THE WRIT. ............... 0.02... e eee eee eee 7
ISSUE LT... ce eee nee e teen en eens 7
WHETHER THIS COURT SHOULD GRANT REVIEW OF A
DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT
THE HURST V. STATE, 202 So.3d 40 (Fla. 2016), ERROR WAS
HARMLESS ERROR RATHER THAN STRUCTURAL ERROR?
The Florida Supreme Court’s decision............ eee ne Be Bie oe 7
No conflict with this Court’s Sixth Amendment jurisprudence. ...... 10
No conflict with any federal appellate court or state supreme court... 13
Hurst error and harmlessness. ..........0.. 000 cece eee cece eens 14
ISSUE ID. cg. oiap. jae co oo She She She Be Hew Ge ole He Re wee 17
WHETHER THIS COURT SHOULD GRANT REVIEW OF A
DECISION OF THE FLORIDA SUPREME COURT REJECTING A
CALDWELL V. MISSISSIPPI, 472 U.S. 320 (1985), CLAIM?
The Florida Supreme Court’s decision... ......... 00.2 eee eee eee 17
Not properly presented below............ 0.000 cece eee eee ences 18
No conflict with this Court’s Eighth Amendment jurisprudence...... 19
No conflict with any federal appellate court or state supreme court... 25
ii
The Florida Supreme Court’s recent Caldwell precedent............ 27
CONCLUSION. ....... 0... eee eee nee n nen nees 30
CERTIFICATE OF SERVICE. ........... 00... cee tect eens 31
il
TABLE OF AUTHORITIES
CASES PAGE(S)
Adams v. Robertson,
520 U.S. 83 (1997)... ee eet te tte e eee eee e eee eens 19
Adarand Constructors, Incorporated v. Mineta,
584 U.S. 103 (2001)... ee eee c cece ee eee enes 19
Alleyne v. United States,
570 U.S. 99 (2013)... eee tee e eee eee e ee neees 13
Apprendi v. New Jersey,
530 U.S. 466 (2000)... eee eect ete enes 11,12,18
Blakely v. Washington,
542 U.S. 296 (2004)... eee tee eee e eens 11,18
Bowling v. Parker,
344 F.3d 487 (6th Cir. 2008)... 2.2.0.0... 00 ee eee ee eee 22,26
Braxton v. United States,
500 U.S. 344 (1991)... eee teen e eee e ees 138,25
Brown v. State,
521 So.2d 110 (Fla. 1988)... 2.0... 0 eee cece enews 20
Caldwell v. Mississippi,
472 U.S. 820 (1985)... eee nee te eee eenees passim
Campbell v. State,
571 So.2d 415 (Fla. 1990)... 2. ee ccc ee nee ees 15
Chapman v. California,
386 rtf S.18 (1967)... eee eee ee eee ene eneeees 8
Coday v. State,
946 So. 2d 988 (Fla. 2006)... 0.0.0.0. cen ee eee ee en ena 15
Davis v. Singletary,
119 F.8d 1471 (11th Cir. 1997)... 2. ee eee enna 25
Davis v. State,
207 So.3d 142 (Fla. Nov. 10, 2016).... 2... 00.00... ce eee ee 8,9,10,25
Dugger v. Adams,
489 U.S. 401 (1989)... nee ee ee eee ene eeeaes 19,25
iv
Evans v. Sec’y, Fla. Dept. of Corr.,
699 F.3d 1249 (11th Cir. 2012)... 0. cc ee ee eee e ees 24
Fleenor v. Anderson,
171 F.3d 1096 (7th Cir. 1999)... 2.0... ec ce cence en enee 26
Galindez v. State,
955 So.2d 517 (Fla. 2007). 2... eee ete cece ee en naes 13
Griffith v. Kentucky,
479 U.S. 314 (1987)... ce eee ee eee eee eee teen eee n eens 8
Guardado v. Jones,
138 S.Ct. 1131 (April 2, 2018). ... 0.00. c cece cece ec ee eceueeseeaceusees 21,23
Hurst v. Florida,
136 S.Ct. 616 (2016). 2. ee ee eee eee eee e eet ce nnaee 8
Hurst v. Florida,
186 S.Ct. 616 (2016). 2.6. ee eee tee eens 6-10,11,14,16
Hurst v. State,
202 So.3d 40 (Fla. 2016)... 0... ec ce cee ee eee eee eee eee passim
In re Standard Jury Instructions in Criminal Cases - Report Number 2005-2,
22 So.3d 17 (Fla. 2009). 2... ee cee eee eee eee een eaes 22
In re Standard Criminal Jury Instructions in Capital Cases,
214 So.3d 1286 (Fla. 2017)... 0... 0. ccc cece eee eee eeeee 20
Johnston v. Singletary,
162 F.3d 630 (11th Cir. 1998)... 0.0... ee eee eee eeeeee 25
Johnston v. State,
2018 WL 1633048 (Fla. Apr. 5, 2018).... 00.0000... ccc eee ee ee eee ees 27
Kaczmar v. State,
228 So.3d 1 (Fla. 2017). 2... cece eee eee eens passim
Kansas v. Carr,
186 S.Ct. 633 (2016). 2... cette ee eee eee enes 14,15
Kansas v. Marsh,
548 U.S. 163 (2006)... 6. ce ee ence eee een eenenes 14
Kordenbrock v. Scroggy,
919 F.2d 1091 (6th Cir. 1990)... 0... cece eee eens 26
Lorraine v. Coyle,
291 F.3d 416 (6th Cir. 2002).... 20.00. cc een ee een ees 26
Middleton v. Florida,
138 S.Ct. 829 (Feb. 26, 2018). 20. cee eee eee ees 21,23,24
Neder v. United States,
527 U.S. 1 (1999)... eee eee enn e sees 7,8,11,12
Partin v. State,
82 So.3d 31 (Fla. 2011). 2... cc eee eee e nen eaes 10
Provenzano v. Singletary,
148 F.3d 13827 (11th Cir. 1998)... 2... cee cee eee nena ne 25
Reynolds v. State,
___So0.3d__, 2018 WL 1633075 (Fla. Apr. 5, 2018).................. 17,27,28,29
Ring v. Arizona,
536 U.S. 584 (2002)... 2... eee eee e eee e eee ees 5
Romano v. Oklahoma,
512 U.S. 1 (1994)... ce ee eee ee eee eneuas 19,22,25,28
Rose v. Clark,
478 U.S. 570 (1986)... ce eee ee eee ee eee eee seen nee 11
Sattazahn v. Pennsylvania,
587 U.S. 101 (2008)... 2. eee ee cece eee eeeneee 20
Sireci v. Moore,
825 So.2d 882 (Fla. 2002)... 0... ce ee eee e eee e seen 10
Standard Jury Instructions Criminal Cases,
A477 So. 2d 985 (Fla. 1985)... 0.0.0... ec cece eee ee eee een eee 22
State v. Ballard,
956 So.2d 470 (Fla. 2d DCA 2007)... 2.2... cc cece eee eee 20
State v. DiGuilio,
491 So.2d 1129 (Fla. 1986)... 2... ce ee eee eee eeee 9
State v. Fleming,
61 So.3d 399 (Fla. 2011)... 0. cc ce ee ee ee eee cece nnes 8
State v. Mason,
__N.E.3d___, 2018 WL 1872180 (Ohio April 18, 2018).................... 14,15
Sullivan v. Louisiana,
508 U.S. 275 (1998)... ee eee eee ee ete bene e ee ees 7,12,13
Tedder v. State,
322 So.2d 908 (Fla. 1975)... ce ee ce teen e eee e ee eaas 24
Truehill v. Florida,
138 S.Ct. 3 (Oct. 16, 2017). 20. ee teen eens 21,23
Washington v. Recuenco,
548 U.S. 212 (2006)... ee eee eens 7,8,11,12,18
Williams v. State,
595 So.2d 936 (Fla. 1992). 2.0. ee eee eee eee 20
Wilson v. Sirmons,
536 F.3d 1064 (10th Cir. 2008)... 0... 0. ce eee eee 26
Zack v. State,
753 So.2d 9 (Fla. 2000)... 2. ee eee ee eee ene 9
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. VI. 2... eect ee eens passim
U.S. Const. Amend, VIII... 0... ee cee eens passim
U.S. Const. Amend. XIV... 0... ce ee te eee eee enee 3,4
STATUTES
28 U.S.C. § 1257(a). 2. een cent eee eee eee 2
28 U.S.C. § 2101(c). 2. nee net e teen eee 2
Ch. 2017-1, § 1, Laws of Fla... 0... enn eee 20,21
Ind.Code § 35-50-2-9... 0... cc ee ee ee ee eee eee n ene e eens 26
RULES
Sup. Ct. R. 10... 0... cece cece eee eve eeeeeeeeuceuterveneres 10,13,19,25
Sup. Ct. R.18.8...... 0c ccs cece ccdecdecdeweccedecdecdecdelectlecssdweces 1
vil
OTHER AUTHORITIES
Fla. Std. Jury Instr. Crim, 7.11. 2.0.0... eet ene 9-10
vill
IN THE
SUPREME COURT OF THE UNITED STATES
No. 17-8148
LEO LOUIS KACZMAR III, Petitioner,
v.
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
OPINION BELOW
The Florida Supreme Court’s opinion is reported at Kaczmar v. State, 228 So.3d 1
(Fla. 2017) (SC13-2247).
JURISDICTION
On January 31, 2017, the Florida Supreme Court affirmed the death sentence
following the resentencing. On February 15, 2017, Kaczmar filed a motion for
rehearing in the Florida Supreme Court. On October 19, 2017, the Florida Supreme
Court denied the rehearing. On January 5, 2018, Kaczmar filed a motion for extension
of time to file the petition for writ of certiorari in this Court. On March 14, 2018,
Kaczmar then filed the petition. The petition was timely. See Sup. Ct. R. 13.3; 28
U.S.C. § 2101(c). Jurisdiction exists pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution, which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. Const. Amend, VI.
The Eighth Amendment to the United States Constitution, which provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
U.S. Const. Amend. VIII.
The Fourteenth Amendment of the United States Constitution, section one, which
provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. Amend. XIV.
STATEMENT OF THE CASK AND PROCEDURAL HISTORY
On December 13, 2008, Maria Ruiz’s body was found in the kitchen of Kaczmar’s
grandmother's house in Green Cove Springs. She had been stabbed and suffered blunt
force trauma to her head. Kaczmar; his wife and two children; his uncle; his father;
and his father’s girlfriend, the victim, all lived in the house. The house had been set
on fire in an apparent attempt to hide the murder. Kaczmar agreed to speak with
police and denied any knowledge of the murder or arson and claimed that he had been
fishing in Jacksonville all morning. Cell phone tower records, however, placed him in
Green Cove at 6:26 a.m. and again at 7:31 a.m., contradicting Kaczmar's statements
to police. Kaczmar v. State, 104 So.3d 990, 995-98 (Fla. 2012). Kaczmar’s socks had
blood on them. Id. at 997. The blood on Kaczmar’s socks matched the victim’s DNA
profile at one in 880 billion southeastern Hispanics. (T. Vol. 16 678).
Kaczmar was indicted by a grand jury for first-degree murder, attempted sexual
battery, and arson. Kaczmar, 104 So.3d at 995. Ajury returned a verdict of guilty on
all three counts and recommended Kaczmar be sentenced to death by a vote of 11 to
1. Id.
Kaczmar appealed to the Florida Supreme Court raising nine issues.’ The Florida
Supreme Court affirmed the convictions but remanded for a new penalty phase.
Kaczmar, 104 So.3d at 995.
On August 19-20, 2013, the trial court conducted the second penalty phase,
Kaczmar v. State, 228 So.3d 1, 6 (Fla. 2017). Kaczmar, against the advice of counsel,
waived his right to present mitigation. Jd. The only mitigation presented was a
stipulation that Kaczmar was 24 years old on the date of the murder. The jury
unanimously recommended a death sentence. The trial court found 2 statutory
aggravating circumstances; 15 nonstatutory mitigating circumstances; and again
sentenced Kaczmar to death. Id. at 6-7.
In the direct appeal of the resentecing to the Florida Supreme Court, Kaczmar
raised six issues. Kaczmar, 228 So.3d at 7,n.8.2. On January 12, 2016, while the
The nine issues were: 1) whether the trial court properly denied the motion for
judgment of acquittal regarding attempted sexual battery; 2) whether the trial court
abused its discretion by allowing the State to call the defendant's wife to testify
regarding a plan to fabricate evidence; 3) whether the trial court committed
fundamental error by not sua sponte giving a special jury instruction on the heat of
passion defense; 4) whether the trial court abused its discretion in limiting closing
arguments by preventing defense counsel from reading language of opinions to the
jury; 5) whether the trial court properly denied the motion in limine to require the
State not to edit the defendant's exculpatory statements from the recordings of the
undercover meetings; 6) whether the trial court erred in finding the cold, calculated,
and premeditated aggravator; 7) whether the trial court properly denied the motion for
judgment of acquittal regarding premeditated murder; 8) whether the trial court
properly denied the motion for judgment of acquittal regarding arson; and 9) whether
Florida's death penalty statute violates the Sixth Amendment right-to-a-jury-trial.
2 The six issues were: 1) the trial court erred in assigning great weight to the
jury's death sentence recommendation; 2) the trial court improperly interfered with the
jury's function by dismissing juror questions as “not relevant”; 3) the prosecutor
engaged in impermissible closing argument; 4) the trial court erred in failing to find
and give weight to the mitigating circumstance that Kaczmar was abused; 5)
Kaczmar's death sentence is disproportionate; and 6) the death penalty was improperly
imposed because Florida's death penalty statute is unconstitutional in light of Ring v.
5
appeal was pending in the Florida Supreme Court, this Court decided Hurst v. Florida,
136 8.Ct. 616 (2016), which held that Florida’s death penalty statute violated the Sixth
Amendment right-to-a-jury trial. On February 25, 2016, Kaczmar filed a motion to
allow supplemental briefing regarding Hurst v. Florida. On February 29, 2016, the
Florida Supreme Court ordered the parties to file supplemental briefs. On October 14,
2016, the Florida Supreme Court issued its opinion in Hurst v. State, 202 So.3d 40, 54
(Fla. 2016), holding that the Eighth Amendment and Florida law required unanimous
jury recommendations of death.
On January 31, 2017, the Florida Supreme Court affirmed the death sentence from
the resentencing proceeding. Kaczmar v. State, 228 So.3d 1 (Fla. 2017). The Florida
Supreme Court found the Hurst error to be harmless. Jd. at 7-9. On February 15,
2017, Kaczmar filed a motion for rehearing in the Florida Supreme Court. On October
19, 2017, the Florida Supreme Court denied the rehearing.
Kaczmar then filed a petition for writ of certiorari in this Court from the Florida
Supreme Court’s opinion. This is the State’s brief in opposition.
Arizona, 536 U.S. 584 (2002).
REASON FOR DENYING THE WRIT
ISSUE I
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF
THE FLORIDA SUPREME COURT HOLDING THAT THE HURST YV.
STATE, 202 So.3d 40 (Fla. 2016), ERROR WAS HARMLESS ERROR RATHER
THAN STRUCTURAL ERROR?
Petitioner Kaczmar seeks review of the Florida Supreme Court’s decision holding
that the Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst v. State), error was harmless
rather than structural error. There is no conflict between the Florida Supreme Court’s
decision and this Court’s structural error Jurisprudence. Indeed, the Florida Supreme
Court’s decision accords completely with this Court’s view that jury instructions
omitting an element are subject to harmless error analysis. This Court has repeatedly
found such errors not to be structural error. Neder v. United States, 527 U.S. 1 (1999);
Washington v. Recuenco, 548 U.S. 212 (2006). Nor is there any conflict between the
Florida Supreme Court’s decision and that of any other federal appellate court or state
supreme court. Opposing counsel cites no federal circuit court case or state supreme
court case holding that a jury instruction regarding an omitted element is structural
error. Furthermore, the petition ignores the differences between this Court’s holding
in Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida), and the Florida Supreme
Court’s holding in Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst v. State), but those
differences would be crucial in any structural error verus harmless error analysis. This
Court should deny review of this claim.
The Florida Supreme Court’s decision
Kaczmar argued in his supplemental brief in the Florida Supreme Court that the
Hurst v. Florida error was structural error citing Sullivan v. Louisiana, 508 U.S. 275
(1993). (SC13-2247 SIB at 5-9).° The State, in its supplemental answer brief, argued
that Sixth Amendment right-to-a-jury-trial errors are subject to harmless error citing
Neder v. United States, 527 U.S. 1 (1999), and Washington v. Recuenco, 548 U.S. 212
(2006). (SC13-2247 SAB at 17-20).
The Florida Supreme Court found the Hurst v. State error harmless, reasoning:
Kaczmar first argues that his death sentence violates Hurst v. Florida, —_U.S.
, 1386 S.Ct. 616, 193 L.Ed.2d 504 (2016). We agree but find the error
harmless.
In Hurst v. Florida, the United States Supreme Court held that Florida's
capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose a sentence of
death. Ajury's mere recommendation is not enough.” 136 S.Ct. at 619. In Hurst
v. State, 202 So.3d 40, 54 (Fla. 2016), this Court held that “in addition to
finding the existence of any aggravating factor unanimously, the jury must also
unanimously find that the aggravating factors are sufficient for the imposition
of death and unanimously find that the aggravating factors outweigh the
mitigation before a sentence of death may be considered by the judge.” Jd. We
further held that a unanimous jury recommendation 1s required before the trial
court may impose a sentence of death. Jd. We also concluded that a Hurst error
is capable of harmless error review. Jd. at 68.
Kaczmar was sentenced to death under the procedure that the United States
Supreme Court invalidated in Hurst v. Florida. “When the [United States]
Supreme Court announces ‘a new rule for the conduct of criminal prosecutions,’
the rule must be applied to ‘all cases, state or federal, pending on direct review
or not yet final.’” State v. Fleming, 61 So.3d 399, 403 (Fla. 2011) (quoting
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 938 L.Ed.2d 649 (1987)).
Because Kaczmar's case was pending on direct appeal when Hurst v. Florida
issued, the United States Supreme Court's decision applies to him. See Davis
v. State, 207 So.3d 142 (Fla. Nov. 10, 2016).
We must next address whether that error was harmless beyond a reasonable
doubt. We conclude that the error was harmless. As this Court explained in
Hurst:
The harmless error test, as set forth in Chapman |v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the
burden on the state, as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not contribute to the
3 The supplemental briefs in this case filed in the Florida Supreme Court are
available on the Florida Supreme Court docketing on the Court’s website under the
case number SC13-2247.
verdict, or alternatively stated, that there is no reasonable possibility
that the error contributed to the conviction.
Hurst, 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.
1986)). The Court further discussed the lens through which harmless error
should be evaluated:
Where the error concerns sentencing, the error is harmless only if there
is no reasonable possibility that the error contributed to the sentence.
See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the
harmless error test applies to both constitutional errors and errors not
based on constitutional grounds, “the harmless error test is to be
rigorously applied,” DiGutlio, 491 So.2d at 1137, and the State bears an
extremely heavy burden in cases involving constitutional error.
Therefore, in the context of a Hurst error, the burden is on the State, as
the beneficiary of the error, to prove beyond a reasonable doubt that the
jury's failure to unanimously find all the facts necessary for imposition
of the death penalty did not contribute to Hurst's death sentence in this
case. We reiterate,
The test is not a sufficiency-of-the-evidence, a correct result, a
not clearly wrong, a substantial evidence, a more probable than
not, a clear and convincing, or even an overwhelming evidence
test. Harmless error is not a device for the appellate court to
substitute itself for the trier-of-fact by simply weighing the
evidence. The focus is on the effect of the error on the
trier-of-fact.
DiGuilio, 491 So.2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
Id. at 68. Regarding the right to a jury trial, it must be clear beyond a
reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravating factors and that the aggravating factors
outweighed the mitigating circumstances.
In this case, we find the Hurst v. Florida violation to be harmless beyond a
reasonable doubt. We recently decided a similar case, in which that defendant's
jury, ike Kaczmar's jury, unanimously recommended a death sentence. Davis,
207 So.3d at 156. In Davis, we held that the Hurst v. Florida error was
harmless: “With regard to Davis's sentences, we emphasize the unanimous jury
recommendations of death. These recommendations allow us to conclude
beyond a reasonable doubt that a rational jury would have unanimously found
that there were sufficient aggravators to outweigh the mitigating factors.” Id.
at 174. Kaczmar's jury lkewise recommended a death sentence by a
unanimous twelve-to-zero vote. Kaczmar's jury received the same standard
criminal jury instruction we cited in Davis, ensuring that the jury
“determine[d] whether sufficient aggravators existed and whether the
aggravation outweighed the mitigation before it ... recommend|[ed] a sentence
of death.” Id. (citing Fla. Std. Jury Instr. Crim. 7.11). As with the jury in Davis,
Kaczmar's “jury was presented with evidence of mitigating circumstances and
was properly informed that it may consider mitigating circumstances that are
proven by the greater weight of the evidence.” Jd. (citing Fla. Std. Jury Instr.
Crim. 7.11). As in Davis, Kaczmar's “jury was not informed that the finding
that sufficient aggravating circumstances outweighed the mitigating
circumstances must be unanimous, and even though it was instructed that it
was not required to recommend death even if the aggravators outweighed the
mitigators, the jury did in fact recommend death unanimously.” Jd. (citing Fla.
Std. Jury Instr. Crim. 7.11). Given that Kaczmar's jury received the same
critical instructions as Davis's jury, we are confident beyond a reasonable
doubt that here, as in Davis, “the jury unanimously made the requisite factual
findings to impose death before it issued the unanimous recommendations.” Id.
Finally, as in Davis, “the egregious facts of this case” provide “[fjurther
support[ | [for] our conclusion that any Hurst v. Florida error here was
harmless.” /d. at 175. Kaczmar stabbed a woman approximately ninety-three
times after she refused to have sex with him, burned down his own house to
cover up the murder, and attempted to recruit an undercover police officer to
frame his friend for the murder. See Kaczmar, 104 So.3d at 996-97. The
sentencing court found two aggravating factors: that Kaczmar had previously
been convicted of a violent felony and that the murder was especially heinous,
atrocious, or cruel (HAC). See § 921.141(5)(b), (h) (2009). “And this Court has
indicated that the prior violent felony and HAC aggravators are ‘two of the
most weighty in Florida's sentencing calculus.’” Partin v. State, 82 So.3d 31,
46 (Fla. 2011) (quoting Sireci v. Moore, 825 So.2d 882, 887 (Fla. 2002)).
Accordingly, we hold that the Hurst v. Florida violation was harmless beyond
a reasonable doubt. See Davis, 207 So.3d at 175. What we said in Davis is
equally true in this case:
Here, the jury unanimously found all of the necessary facts for the
imposition of death sentences by virtue of its unanimous
recommendations. In fact, although the jury was informed that it was
not required to recommend death unanimously, and despite the
mitigation presented, the jury still unanimously recommended that [the
defendant] be sentenced to death.... The unanimous recommendations
here are precisely what we determined in Hurst v. State to be
constitutionally necessary to impose a sentence of death.
Id. As in Davis, the Hurst v. Florida violation in Kaczmar's case does not
entitle him to a new penalty phase
Kaczmar v. State, 228 So.3d 1, 7-9 (Fla. 2017) (SC13-2247).
No conflict with this Court’s Sixth Amendment jurisprudence
There is no conflict between the Florida Supreme Court’s decision in this case and
this Court’s decisions regarding structural error. See Sup. Ct. R. 10(c) (listing conflict
with this Court as a consideration in the decision to grant review). Kaczmar asserts
10
that Hurst v. Florida error is structural error not subject to harmless error analysis.
Pet. at 19-33. But this Court’s Sixth Amendment jurisprudence provides that a
violation of the Sixth Amendment right-to-a-jury-trial error is not structural error.
In Neder v. United States, 527 U.S. 1, 8 (1999), a case where the judge found an
element of the crime instead of the jury, this Court explained that structural error
occurs in “only a very limited class of cases.” Jd. at 8. The Neder Court explained that
while an omission of an element of the crime was subject to harmless error, a flawed
beyond-a-reasonable-doubt jury instruction was not because it has the effect of
vitiating “all the jury's findings” but, “in contrast,” an omission of an element does not
have the effect of vitiating “all the jury's findings.” Jd. at 11 (emphasis in original).
This Court in Neder observed that the error of the judge making the factual findings
regarding an element “differs markedly” from the type of errors that defy harmless
error review. Id. at 8. The Neder Court then explained the criticism that spawned the
harmless error doctrine in the first place which was based on appellate courts
reversing regardless of its effect on the judgment which encouraged “litigants to abuse
the judicial process” and “the public to ridicule it.” Jd. at 18. The Neder Court
explained that if a criminal defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any error from such a trial was subject
to harmless error analysis. Id. at 8 (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)).
In Washington v. Recuenco, 548 U.S. 212 (2006), this Court held that the judge
rather than the jury determining an element of the crime in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000), was not structural error. The Washington Supreme
Court had concluded that violations of the Sixth Amendment right-to-a-jury-trial under
Blakely v. Washington, 542 U.S. 296 (2004), could never be harmless error but this
Court reversed. This Court explained again that it is the “rare” error that is
structural. Recuenco, 548 U.S. at 218. The Recuenco Court once again followed the
11
“strong presumption” that “if a criminal defendant had counsel and was tried by an
impartial adjudicator,” any error from such a trial was subject to harmless error
analysis. Id. (quoting Neder, 527 U.S. at 8).
Kaczmar relies on Sullivan v. Louisiana, 508 U.S. 275 (1998), as the basis for his
structural error argument. Pet. at 25. The Neder Court itself distinguished the
beyond-a-reasonable-doubt standard of proof problem presented by Sullivan from the
error of judge-made findings problem presented by Neder. Neder, 527 U.S. at 10-12.
The Neder Court explained that, while a flaw in the reasonable doubt instruction
infects all of the jury findings, but a judge making the findings instead of the jury does
not. Jd. at 11 (emphasis in original). Furthermore, the Neder “strong presumption”
that any error is subject to harmless error applies here because Kaczmar had counsel
and was tried by an impartial jury and an impartial judge.
Kaczmar attempts to distinguish Neder and Recuenco but fails. Neder and
Recuenco are directly on point. Neder involved the judge making a factual finding that
should have been made by the jury, just as Hurst does. And Recuenco involved an
Apprendi error, just as Hurst does. Sullivan, on the other hand, involved the
reasonable doubt jury instruction. Not only do both Neder and Recuenco involve the
same type of error as occurred in this case, both were decided after Sullivan. Neder
and Recuenco control, not Sullivan.
Kaczmar improperly relies on Justice Scalia’s dissent in Neder. Pet. at 31-32. But
conflict cannot be established based on a dissent. Pet.at 31-32. Nor does this
argument account for Justice Scalia’s later view that the judge rather than the jury
determining an element was not structural error. Justice Scalia joined the majority
in Recuenco. The Florida Supreme Court correctly determined that Hurst error was
not structural error in accordance with this Court’s decision in Neder and Recuenco.
12
There is no conflict with this Court’s Sixth Amendment jurisprudence regarding
structural error.
No conflict with any federal appellate court or state supreme court
Not only is there no conflict with this Court, there is no conflict with that of any
federal appellate court or state supreme court either. As this Court has observed, a
principal purpose for certiorari jurisdiction “is to resolve conflicts among the United
States courts of appeals and state courts concerning the meaning of provisions of
federal law.” Braxton v. United States, 500 U.S. 344, 347 (1991); see also Sup. Ct. R.
10(b) (listing conflict among federal appellate courts and state supreme courts as a
consideration in the decision to grant review). In the absence of such conflict, certiorari
is rarely warranted.
The federal circuits court, of course, follow Recuenco. See, e.g., United States v.
McCray, 563 Fed. Appx. 705, 709 (11th Cir. 2014) (explaining that an Alleyne v. United
States, 570 U.S. 99 (2018), error, like Apprendi error, is subject to harmless error
analysis citing Recuenco). And most state courts of last resort, including the Florida
Supreme Court, follow Recuenco as well. Galindez v. State, 955 So.2d 517, 519 (Fla.
2007) (concluding that Apprendi and Blakely errors are subject to harmless error
analysis citing Recuenco). Opposing counsel cites no federal circuit case or state
supreme court case holding that this type of error is structural error. He cites no case
from any federal circuit court or state court of last resort that follows Sullivan instead
of Recuenco in this particular area.
There is no conflict between the Florida Supreme Court’s decision and that of any
federal circuit court of appeals or that of any state supreme court.
13
Hurst error and harmlessness
There is one area where there is tension between the Florida Supreme Court’s view
and this Court’s view and that is in the nature of a Hurst error. There are significant
differences between this Court’s holding in Hurst v. Florida and the Florida Supreme
Court’s holding in Hurst v. State. This Court’s holding in Hurst v. Florida was limited
to aggravating circumstances. Hurst v. Florida, 1386 S.Ct. at 624 (holding “Florida's
sentencing scheme, which required the judge alone to find the existence of an
aggravating circumstance, is therefore unconstitutional”) (emphasis added); see also
State v. Mason, ___ N.E.8d ___, 2018 WL 1872180 (Ohio April 18, 2018) (holding that
Ohio’s death penalty scheme was constitutional under this Court’s decision in Hurst
v. Florida; explaining that weighing is not a factual determination for purposes of the
Sixth Amendment; and concluding that Hurst v. Florida does not require a jury to find
mitigating facts or perform the weighing). But the Florida Supreme Court greatly
expanded that holding in its Hurst v. State opinion to include jury findings of the
sufficiency of the aggravating circumstances; jury findings of mitigation; and jury
findings of weighing. Opposing counsel insists that mitigating circumstances and
weighing are elements under Hurst v. State. But that is not this Court’s view.
This Court has observed that “weighing is not an end; it is merely a means to
reaching a decision.” Kansas v. Marsh, 548 U.S. 163, 179 (2006). This Court’s view is
that neither mitigating circumstance nor weighing must be found by a jury; this
Court’s view is that only aggravating circumstances must be found by the jury because
those are the only true factual determinations in capital sentencing. This Court does
not view mitigation or weighing as factual findings at all. This Court has explained
that aggravating circumstances are “purely factual determinations,” but that
mitigating circumstances, while often having a factual component, are “largely a
judgment call (or perhaps a value call).” Kansas v. Carr, 136 §.Ct. 633, 642 (2016).
14
This Court noted that the mitigating circumstance of mercy, “simply is not a factual
determination.” Jd. at 643. The Carr Court explained that “the ultimate question
whether mitigating circumstances outweigh aggravating circumstances is mostly a
question of mercy” and that it would mean “nothing” to tell the jury that the
defendants “must deserve mercy beyond a reasonable doubt.” fd. at 642.
Neither the concept of structural error nor the concept of harmless error apply to
“Judgment calls” or “questions of mercy.” Because this Court does not view either
mitigating circumstances or weighing as factual findings, there is no error regarding
a jury’s lack of findings to be considered either structural or harmless. When a court
finds no error it does not conduct a harmless error analysis on that non-error.
It is difficult to decide questions of harmless error if two courts do not agree on the
nature of the error. While the Florida Supreme Court sees mitigation and weighing
as factual determinations that the jury must make, this Court does not. This Court
is going to be hard pressed to conduct any type of harmless error analysis regarding
factual findings that it does not view as facts at all or as being error in the first place.”
“ Most lower appellate courts agree with this Court’s view that the Sixth
Amendment right to jury findings is limited to aggravating circumstances and does not
extend to weighing. As the Ohio Supreme Court recently observed, “nearly every
court” that has considered the issue has held that the Sixth Amendment only applies
to the eligibility decision and aggravating circumstances. State v. Mason, __ N.E.3d
__, 2018 WL 1872180, *5 (Ohio April 18, 2018) (citing several federal circuit cases and
state supreme court cases). _
5° Mitigating circumstances simply are not elements of the crime of capital
murder under state law regardless of the Florida Supreme Court’s decision in Hurst
uv. State. The prosecution does not prove mitigating circumstances; the defense does.
And mitigating circumstances are not proven beyond a reasonable doubt by the defense
under Florida law. Rather, mitigating circumstances are only required to be proven
by the “greater weight of the evidence.” Coday v. State, 946 So.2d 988, 1001 (Fla. 2006)
(citing Campbell v. State, 571 So.2d 415, 419 (Fla. 1990)).
While the Florida Supreme Court failed to directly address the nature of
mitigating circumstances in its Hurst v. State opinion, it did treat the weighing as a
15
Opposing counsel ignores this dilemma in their certiorari petition. This dilemma
makes this case a poor vehicle for deciding the issue of whether Hurst v. Florida error
is structural error. Pet. at 32.
There is yet another vehicle problem in this case. Kaczmar waived the
presentation of mitigation during the resentencing. A stipulation that Kaczmar was
24 years old at the time of the murder was presented to the jury in support of the age
mitigating circumstance. But no other mitigation was presented to the jury.
Kaczmar, 228 So.3d at 6 (noting Kaczmar refused to present mitigation to the jury
other than a stipulation regarding his age). Arefusal to presentation mitigation to the
jury amounts to a waiver of the right under Hurst v. State to jury findings on
mitigation and weighing. A capital defendant cannot waive the presentation of
mitigation and then asserted his right to jury findings on mitigation and weighing was
violated. Opposing counsel also ignores the waiver issue in the petition. A case with
a threshold waiver issue is a poor vehicle to decide a structural error question.
There is no basis for granting certiorari review of this issue.
factual finding that must be made by the jury. But before a jury can make “factual
findings” regarding the weighing of aggravating circumstances against the mitigating
circumstances, the jury must make the antecedent factual findings regarding
mitigating circumstances. Even if the Florida Supreme Court views mitigating
circumstances as only partially factual and partially a judgment call, then weighing
is not actually a factual finding either because a large component of what the jury is
weighing — the mitigating circumstances — are not factual in nature.
Nor does the Florida Supreme Court explain how the most common mitigating
circumstance of “mercy” can possibly be viewed as factual. Opposing counsel cannot
seriously be arguing that mercy is an element of the crime of capital murder that must
be proven by the prosecution beyond a reasonable doubt. Yet this Court would have
to adopt such a view to reach the structural error versus harmless error question
regarding weighing presented by the petition.
16
ISSUE II
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF
THE FLORIDA SUPREME COURT REJECTING A CALDWELL V.
MISSISSIPPI, 472 U.S. 320 (1985), CLAIM?
Petitioner Kaczmar seeks review of the Florida Supreme Court’s decision holding
that the Hurst v. State error was harmless but which did not address the Caldwell v.
Mississippi, 472 U.S. 320 (1985), claim. This Court does not grant review of issues not
presented below. The Caldwell claim was not properly presented to the Florida
Supreme Court with “fair precision.” Additionally, there is no conflict between the
Florida Supreme Court’s decision and this Court’s Eighth Amendment jurisprudence
of Caldwell and its progeny. Nor is there any conflict between the Florida Supreme
Court’s decision and that of any other federal appellate court or state supreme court.
Furthermore, there is no valid Caldwell claim. Under this Court’s decision in Romano
v. Oklahoma, 512 U.S. 1, 9 (1994), a defendant must show that the remarks to the jury
improperly described the role assigned to the jury by local law to establish a Caldwell
violation. A Florida jury’s decision regarding a death sentence was, and remains, an
advisory recommendation, A Florida judge, under both the old death penalty statute
and the new death penalty statute, may ignore a jury’s recommendation of death and
impose a life sentence. Florida’s standard penalty phase jury instructions do not
violate Caldwell. Moreover, the Florida Supreme Court recently held that Florida’s
standard penalty phasejury instructions do not violate Caldwell. Reynolds v. State,
So.3d___, 2018 WL 1633075 (Fla. Apr. 5, 2018). This Court should deny review of this
claim.
The Florida Supreme Court’s decision
Kaczmar argued in his supplemental! brief filed in the Florida Supreme Court that
the Hurst v. State error was structural error. And in support of that structural error
17
argument, he asserted there was a “Caldwell problem” because the jury was repeatedly
informed that their recommendation was advisory and, therefore, the Florida Supreme
Court should not place any weight on the jury’s unanimous recommendation of death
in its harmless error analysis. (SC13-2247 SIB at 9-12).° Oddly, he admitted in his
supplemental brief that the characterization of the jury’s decision as an advisory
recommendation “accurately identified the role of the jury under Florida law.” SIB at
11. The State in its answer brief addressed the Caldwell claim only in a footnote,
stating that because “no Caldwell claim was raised in the initial brief, the State
declines to address the issue. Caldwell is not part of a proper harmless error analysis.”
(SC13-2247 SAB at 20, n.7). His reply brief did not address Caldwell any further.
Kaczmar’s argument regarding Caldwell was actually made in support of argument
that the error should be viewed as structural error rather than harmless error, not as
a separate issue. Because the Caldwell claim was not raised as a separate issue, the
Florida Supreme Court did not address the Caldwell claim. The Florida Supreme
Court did not discuss or cite Caldwell in their opinion. Kaczmar, 228 So.3d at 7-9.
Not properly presented below
Kaczmar did not properly present a Caldwell claim to the Florida Supreme Court.
While the structural error argument was properly presented below, the Caldwell claim
was not. The Caldwell claim was not presented as an actual separate claim but as an
argument in support of another argument. Indeed, petitioner’s own statement in the
supplemental brief that the instructions “accurately identified the role of the jury
under Florida law” negates any actual Caldwell claim.
° The supplemental briefs in this case filed in the Florida Supreme Court are
available on the Florida Supreme Court docketing on the Court’s website under the
case number SC13-2247.
18
Typically, this Court does not review a claim not properly presented to the lower
court. Adams v. Robertson, 520 U.S. 83, 87-88 (1997) (discussing the various ways a
petitioner may properly present an issue to a lower court and dismissing the writ of
certiorari as improvidently granted because the issue was not presented to the state
supreme court). This Court is a court of final review, “not first review.” Adarand
Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (dismissing the writ of certiorari
as improvidently granted). This Court requires that the claim be presented with “fair
precision.” Adams, 520 U.S. at 88. There is little analytical connection between
structural error and Caldwell. A Caldwell claim is based on the Eighth Amendment.
On the other hand, a harmless error is a species of remedy that applies to nearly all
constitutional provisions; a claim of structural error is not an Eighth Amendment
claim. A petitioner may not cite a case in support of an entirely separate claim and
then assert that he properly presented both claims to the lower court. The Caldwell
claim was not presented to the Florida Supreme Court with “fair precision” and this
Court should deny review on that basis alone.
No conflict with this Court’s Eighth Amendment jurisprudence
There is no conflict between the Florida Supreme Court’s decision in this case and
this Court’s decisions in Caldwell and its progeny. See Sup. Ct. R. 10(c) (listing conflict
with this Court as a consideration in the decision to grant review).
There was no violation of Caldwell. To establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly described the role
assigned to the jury by local law. Romano v. Oklahoma, 512 U.S. 1, 9 (1994); see also
Dugger v. Adams, 489 U.S. 401 (1989). Caldwell requires that the prosecutor, judge,
or jury instructions misrepresent the jury’s role in sentencing. Darden v. Wainwright,
477 U.S. 168, 183, n.15 (1986) (rejecting a Caldwell attack, explaining that “Caldwell
19
is relevant only to certain types of comment — those that mislead the jury as to its
role in the sentencing process in a way that allows the jury to feel less responsible than
it should for the sentencing decision”) (emphasis added). Petitioner admitted in his
supplemental brief filed in the Florida Supreme Court in this case that the
characterization of the jury decision as an advisory recommendation was an
“accurately identified the role of the jury under Florida law.”
Even today, under Florida’s new death penalty statute, the judge remains the final
sentencer in Florida. A jury’s recommendation of death in Florida is just that — a
recommendation. Florida’s new death penalty statute refers to the jury’s vote as a
“recommendation.” Ch. 2017-1, § 1, Laws of Fla. (“Tfa unanimous jury determines that
the defendant should be sentenced to death, the jury's recommendation to the court
shall be a sentence of death.”); see also In re Standard Criminal Jury Instructions in
Capital Cases, 214 So.3d 1236, 1238, n.4 (Fla. 2017) (Lawson, J., concurring) (stating:
“the jury's verdict is only a recommendation”). A Florida trial court, while bound by
the jury’s findings of no aggravation and a recommendation of a life sentence, is not
bound by a jury’s recommendation of a death sentence. A judge is still free to reject the
jury’s death recommendation of death and impose a life sentence. And such a decision
is not even appealable under double jeopardy principles under long established
precedent. Williams v. State, 595 So.2d 936 (Fla. 1992) (holding that the Double
Jeopardy Clause prohibits a new penalty phase where the judge had imposed a life
sentence at the first penalty phase citing Brown v. State, 521 So.2d 110 (Fla. 1988));
State v. Ballard, 956 So.2d 470, 475 (Fla. 2d DCA 2007) (Villanti, J., concurring)
(noting a judge's decision to override a jury's recommendation of death is not
appealable); cf. Sattazahn v. Pennsylvania, 537 U.S. 101 (2003). Characterizing the
jury’s recommendation as advisory is accurate. The jury’s recommendation in Florida
was, and remains, “advisory.”
20
Two United States Supreme Court Justices have expressed the view that Caldwell
is an issue in Florida in non-final capital cases.’ Truehill v. Florida, 138 S.Ct. 3 (Oct.
16, 2017) (Sotomayor, J., dissenting from the denial of certiorari) (advocating that the
Florida Supreme Court revisit its precedent rejecting Caldwell challenges to the use
of the term “advisory” to describe the jury’s recommendation in the wake of Hurst);
Middleton v. Florida, 138 S.Ct. 829 (Feb. 26, 2018) (Sotomayor, J., dissenting from the
denial of certiorari) (expressing the view that describing a juror’s role in sentencing as
“merely advisory” is a Caldwell concern and because the Florida Supreme Court’s
reasoning that “unanimity ensured that jurors had made the necessary findings of fact”
under Hurst “effectively” transforms “the pre-Hurst jury recommendations into
binding findings of fact”) (emphasis added). Justice Sotomayor repeated her concerns
alone recently in Guardado v. Jones, 138 8.Ct. 1131 (April 2, 2018) (Sotomayor, J.,
dissenting from the denial of certiorari).®
But Caldwell requires that the prosecutor, judge, or jury instructions
misrepresent the jury’s role in sentencing. Darden v. Wainwright, 477 U.S. 168, 183,
n.15 (1986) (rejecting a Caldwell attack, explaining that “Caldwell is relevant only to
certain types of comment — those that mislead the jury as to its role in the sentencing
process in a way that allows the jury to feel less responsible than it should for the
sentencing decision”). Florida’s new death penalty statute refers to the jury’s decision
as a “recommendation.” Ch. 2017-1, § 1, Laws of Fla. There is no misrepresentation
7 Justice Breyer’s separate opinion was based mainly on his view that the
Eighth Amendment requires jury sentencing in capital cases — a view no other Justice
has taken. While he purports to join the dissenters, he does so on separate grounds.
He cannot be said to agree with Justice Sotomayor that there is a Caldwell problem
with the Florida Supreme Court’s harmless error analysis.
8 Neither Justice Breyer nor Justice Ginsburg joined Justice Sotomayor in
Guardado, as they had previously done.
21
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