Tanzi v. State

• Decision Date: 10 May 2007
• Docket Number: No. SC05-457.,SC05-457.
• Parties: Michael A. TANZI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

964 So.2d 106

Michael A. TANZI, Appellant, v. STATE of Florida, Appellee.

No. SC05-457.

Supreme Court of Florida.

May 10, 2007.

Rehearing Denied August 27, 2007.

Bennett H. Brummer, Public Defender, Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.

PER CURIAM.

Michael A. Tanzi appeals his conviction and sentence of death for first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm his conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

During her lunch hour on April 25, 2000, Janet Acosta was reading a book while seated inside her maroon van parked at the Japanese Gardens in Miami. At that time, Tanzi was stranded in Miami without a means of returning to Key West, where he had been residing for the previous months. Tanzi saw Acosta sitting in her vehicle with her window rolled down and approached her, asking for a cigarette and the time. When Acosta was distracted, Tanzi punched her in the face until he gained entry to the van. He then threatened her with a razor blade and drove away with Acosta in the van. Tanzi held Acosta by the wrist until he reached Homestead.

Upon reaching Homestead, Tanzi stopped at a gas station, where he bound Acosta with rope that was in her van and gagged her with a towel. Tanzi further threatened Acosta, telling her that if she kicked or made noise he would cut her from ear to ear. Tanzi took Acosta's fifty-three dollars in cash. He then bought some cigarettes and a soda and attempted to use Acosta's bank card, which he had obtained after rifling through her belongings. While still in Homestead, Tanzi also forced Acosta to perform oral sex, threatening to kill her with his razor if she injured him. However, he stopped her from continuing because Acosta's teeth were loose as a result of the earlier beating.

Tanzi then continued to drive with Acosta bound and gagged in the rear of the van until he reached Tavernier in the Florida Keys, where he stopped at approximately 5:15 p.m. to withdraw money from Acosta's bank account. He again threatened Acosta with the razor in order to obtain Acosta's personal identification number. Tanzi thereafter stopped at a hardware store to purchase duct tape and razor blades.

Tanzi continued his journey until approximately 6:30 p.m. when he reached Sugarloaf Key. He decided that he needed to get rid of Acosta as she was getting in the way. He also knew he would get caught quickly if he released her alive. Tanzi proceeded to Blimp Road, an isolated area in Cudjoe Key. Tanzi told Acosta that he was going to kill her and then crosslaced a piece of rope and began to strangle her. He temporarily stopped to place duct tape over her mouth, nose, and eyes in an attempt to stifle the noise. Tanzi then continued to strangle Acosta until she died. Tanzi disposed of Acosta's body in a wooded, secluded area where he thought she would go unnoticed.

After the murder, Tanzi drove to Key West, where he shopped, ate, smoked marijuana, visited with friends, and used Acosta's ATM card. Tanzi had planned to access more of Acosta's money, sleep in a hotel, purchase drugs, and alter the van's appearance. However, on April 27, 2000, Tanzi's activities were interrupted when the police observed him returning to Acosta's van, which the police had located and placed under surveillance after Acosta's friends and coworkers reported her missing. When the police approached Tanzi, he had receipts in his pocket showing his ATM withdrawals and purchases. Tanzi stated that he "knew what this was about." He also spontaneously stated he wanted to talk about some bad things he had done.

After waiving his rights and while in a police car en route to the Key West Police Department, Tanzi confessed that he had assaulted, abducted, robbed, sexually battered, and killed Janet Acosta. Tanzi repeated his confession with greater detail several times on audio and video tape. Tanzi also showed the police where he had disposed of Janet Acosta's body and where he had discarded the duct tape and rope.

Tanzi was indicted for the first-degree murder of Janet Acosta. He was also charged by amended information with carjacking with a weapon, kidnapping to facilitate a felony with a weapon, armed robbery with a deadly weapon, and two counts of sexual battery with a deadly weapon. Initially, Tanzi pled not guilty; however, shortly before trial, Tanzi entered a guilty plea to the first-degree murder, carjacking, kidnapping, and armed robbery counts. The two remaining sexual battery counts were severed.

After the plea colloquy and following a lunch recess, defense counsel moved to waive the penalty phase jury; however, the trial judge denied the motion. Hours later and arguing pro se, Tanzi stated that he had problems with one of his attorneys and vaguely mentioned that he should have a jury determine his guilt if he was forced to have a penalty phase jury. While the trial judge inquired into Tanzi's dissatisfaction with his attorneys, the judge did not rule on Tanzi's oral motion to withdraw his plea. The case proceeded to the penalty phase before a jury.

On February 19, 2003, the jury returned a unanimous recommendation of a death sentence. The court followed the jury's recommendation and sentenced Tanzi to death, finding that the aggravators greatly outweighed the mitigators.¹ The court also sentenced Tanzi to consecutive life sentences for carjacking with a deadly weapon, kidnapping to facilitate a felony with a deadly weapon, and armed robbery with a deadly weapon.

On May 9, 2003, Tanzi filed a written motion to withdraw his plea, and an evidentiary hearing on the motion was held on November 15, 2004. The court entered a written order denying Tanzi's motion to withdraw his plea on January 6, 2005. This direct appeal followed.

II. ISSUES RAISED ON APPEAL

Tanzi raises six claims on appeal: (A) the trial court erred in denying Tanzi's motion to withdraw his guilty plea; (B) the trial court erred in permitting questions regarding lack of remorse; (C) the trial court erred in permitting impeachment of Tanzi's expert witness by a specific and unrelated act of misconduct; (D) the trial court erred in admitting Tanzi's confession to sexual battery; (E) the trial court erred in assessing the murder in the course of a felony aggravator twice; and (F) the trial court did not properly consider and weigh mitigation evidence.² None of these claims warrant relief.

A. Motion to Withdraw Guilty Plea

Tanzi asserts that the trial court abused its discretion in denying his motion to withdraw his plea of guilty of first-degree murder. As stated previously, hours after entering his plea and after the trial court denied his motion to waive the penalty phase jury, Tanzi expressed dissatisfaction with his counsel and vaguely mentioned that he should have a guilt phase jury since he was being forced to have a penalty phase jury. Tanzi's feeling that he should have a jury determine his guilt was intertwined with his expressions of dissatisfaction with his counsel.³ While the trial court inquired into Tanzi's dissatisfaction with his counsel, the trial court did not inquire into Tanzi's statements regarding a guilt phase. Then, after Tanzi was sentenced, defense counsel presented a more artfully written motion to withdraw Tanzi's guilty plea.

After holding an evidentiary hearing on the motion, the trial court concluded that Tanzi did not establish "good cause" for withdrawing his guilty plea. The trial court's order stated:

The evidence presented showed that Counsel and the Defendant discussed entering a plea of guilty, the reasons for doing so, and the hoped for result. The Defendant knew that the results of the strategy were necessarily uncertain because the decision was entirely within the Court's discretion. Having been fully informed and having elected to adopt the strategy recommended by Counsel, the Defendant will not be heard to repudiate that choice because it was not successful.

The trial court found that Tanzi was properly advised and that Tanzi understood the consequences of his plea, specifically that a penalty phase jury waiver was not guaranteed as a result of his plea.

Because Tanzi orally mentioned a desire to have a guilt phase prior to his sentence, both parties agree that the presentence standard of Florida Rule of Criminal Procedure 3.170(f) applies to Tanzi's motion to withdraw his plea. At the outset, we note that this presentence standard is favorable to defendants, and trial courts are encouraged to liberally grant motions made before sentencing. See State v. Partlow, 840 So.2d 1040, 1044-45 (Fla.2003) (Cantero, J., concurring). However, in this case, Tanzi did not present an unequivocal request to withdraw his plea prior to sentencing. And, when Tanzi presented a written motion to withdraw his plea after sentencing, the trial court properly related the written motion back to the earlier oral motion and applied the more lenient presentence standard of rule 3.170(f).

Specifically, rule 3.170(f) provides that "[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn." In Robinson v. State, 761 So.2d 269 (Fla.1999), this Court explained the presentence standard in the following manner:

The burden is upon a defendant to establish good cause under the rule, and use of the word "shall" indicates that such a showing entitles the defendant to withdraw a plea as a matter of right. Use of the word "may," however, suggests that the rule also allows, in the discretion of the court, withdrawal of the plea in the interest of justice, upon a lesser showing than good cause. In any event, this rule should be liberally construed in favor of the defendant. Adler v. State, 382 So.2d 1298,...