Kaczmar v. State, SC13–2247

• Decision Date: 31 January 2017
• Docket Number: No. SC13–2247,SC13–2247
• Citation: 228 So.3d 1
• Parties: Leo Louis KACZMAR, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

228 So.3d 1

Leo Louis KACZMAR, III, Appellant,

v.STATE of Florida, Appellee.

No. SC13–2247

Supreme Court of Florida.

[January 31, 2017]

Clinton Andrew Thomas, Public Defender, and Nada Margaret Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee

PER CURIAM.

Leo Louis Kaczmar, III, appeals his sentence of death imposed after a new penalty phase proceeding. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Kaczmar's sentence of death.

STATEMENT OF THE CASE AND FACTS

We previously set forth the relevant facts in Kaczmar v. State, 104 So.3d 990, 995–98 (Fla. 2012). Kaczmar was convicted for first-degree murder, attempted sexual battery, and arson. During Kaczmar's first penalty phase, the parties stipulated that Kaczmar had been previously convicted of a robbery. Id. at 997. The State presented a victim impact statement from Ruiz's brother. Id. The defense presented testimony from Kaczmar's family and friends that depicted Kaczmar as a good person who had a troubled upbringing due to his father's abuse. Dr. Miguel Mandoki, a child psychiatrist, testified that Kaczmar was traumatized as a child by his father's alcoholism and his own chronic drug abuse. Id. Dr. Mandoki also testified that although he believed Kaczmar to be competent during trial, he did not think Kaczmar knew what he was doing on the night of the murder and did not know right from wrong. Id. At the end of the penalty phase, the jury recommended a sentence of death by a vote of eleven to one. Id.

During the first Spencer ¹ hearing, neither the State nor the defense presented testimony. Id. at 998. In the trial court's sentencing order, the court found four statutory aggravating factors.² Id. The trial court also found fourteen mitigating factors.³ The trial court concluded that the aggravating circumstances outweighed the mitigation and imposed a sentence of death. Id.

Kaczmar raised nine issues on direct appeal.⁴ Id. We affirmed Kaczmar's convictions, held that the trial court erred in finding the CCP and committed during the course of attempted sexual battery aggravators, which was not harmless beyond a reasonable doubt, and therefore remanded for a new penalty phase. Id. at 1008.

On August 8, 2013, the trial court held a Koon ⁵ hearing, at which Kaczmar waived his right to present mitigation against his counsel's advice, including the presentation of any live mitigation witnesses or the testimony of the mitigation witnesses from the first penalty phase read into the record. During the second penalty phase proceeding, held on August 19–20, 2013, the prosecutor gave an opening statement in which he sought to prove two aggravating circumstances: (1) the capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or felony probation; and (2) the capital felony was especially heinous, atrocious, or cruel (HAC). The prosecutor and the defense stipulated to the identity of the victim and Kaczmar's 2002 conviction for the prior violent felony of robbery. The State presented the live testimony of the medical examiner, Dr. Jesse Giles, and prior sworn testimony of nine additional witnesses.

The trial court conducted another waiver colloquy during the second penalty phase proceeding. Kaczmar again refused to present mitigation; however, he agreed to his counsel's reading to the jury a stipulation regarding his age at the time of the murder. The trial court noted that Kaczmar waived most mitigation but intended to present the stipulation and argue mitigation presented during the guilt phase. Thus, the defense counsel presented before the jury the stipulation that Kaczmar was twenty-four years old on the date of the murder. Thereafter, the defense rested, and the jury unanimously recommended the death sentence.

On August 20, 2013, the trial court conducted a Spencer hearing. The State did not present any additional evidence, and Kaczmar admitted into evidence the transcripts of testimony from six mitigating witnesses who testified during the first penalty phase proceeding, including the testimony of Dr. Mandoki. Both parties submitted to the trial court sentencing memoranda.

In its sentencing order, the trial court found two statutory aggravating circumstances: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and (2) the capital felony was especially HAC. The trial court considered three statutory mitigating circumstances⁶ and found that none had been proven, and therefore gave them no weight. The trial court also discussed twenty nonstatutory mitigating circumstances⁷ and gave fifteen of them slight weight. The trial court found that the aggravating circumstances far outweighed the mitigating circumstances in this case. In the sentencing order, the trial court noted that it was "required to give great weight to the jury's recommendation" and fully agreed with the "jury's assessment of the aggravating circumstances."

Kaczmar appealed the trial court's sentencing order to this Court raising six claims.⁸

DISCUSSION

Kaczmar first argues that his death sentence violates Hurst v. Florida, –––U.S. ––––, 136 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. A jury'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." Id. We further held that a unanimous jury recommendation is required before the trial court may impose a sentence of death. Id. We also concluded that a Hurst error is capable of harmless error review. Id. 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, 93 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 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," DiGuilio, 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, like 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."...