Zack v. Crosby, No. SC04-201 (FL 7/7/2005), SC04-201.

Decision Date07 July 2005
Docket NumberNo. SC04-201.,SC04-201.
PartiesMICHAEL DUANE ZACK, Petitioner, v. JAMES V. CROSBY, JR., etc., Respondent.
CourtFlorida Supreme Court

Linda McDermott of McClain and McDermott, P.A., Wilton Manors, Florida, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent.


Michael Duane Zack, a prisoner under sentence of death, appeals an order of the trial court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the trial court's order denying postconviction relief, and we deny relief on Zack's petition for writ of habeas corpus.


The underlying facts in this case are fully set forth in this Court's decision on direct appeal. See Zack v. State, 753 So. 2d 9 (Fla. 2000). Zack murdered Ravonne Smith after a nine-day crime spree which began on June 4, 1996. During his crime spree, Zack also murdered Laura Rosillo. Additionally, he stole a vehicle, a rifle, a handgun, and money from other victims. Zack killed Smith on June 13 after meeting her in a bar. They smoked marijuana and went back to Smith's house. Immediately upon entering the house, Zack hit Smith with a beer bottle, pursued her down the hall to the master bedroom, and then sexually assaulted her. Zack also pursued Smith throughout the house, beat her head against the bedroom's wooden floor, and stabbed her in the chest four times with an oyster knife. Afterwards, Zack cleaned the knife, put it away, and washed the blood from his hands. He put Smith's bloody shirt and shorts in her dresser drawer. He took a television, a VCR, and Smith's purse, and then left in Smith's boyfriend's car. He attempted to pawn the television and VCR which led to his apprehension several days later. Zack confessed to Smith's murder. He claimed that he and Smith had consensual sexual contact and that he attacked Smith only after she made a comment about his mother being murdered.

At trial, defense counsel argued that Zack suffers from fetal alcohol syndrome (FAS) and posttraumatic stress disorder (PTSD), and because of this, Zack was impulsive, under constant mental and emotional distress, and could not form the requisite intent to commit premeditated murder. Zack testified in his defense, explaining what happened when he returned to Smith's home with her on the night of the murder, that any sexual contact was consensual, and that he reacted as a result of comments she made about his mother. The State was allowed to present evidence of collateral crimes, also called Williams1 Rule evidence, and presented the evidence of the Rosillo murder. The State presented expert testimony regarding DNA evidence in order to identify blood found on both Smith and Rosillo's clothes, as well as Zack's clothing.

The jury convicted Zack of first-degree murder, sexual battery, and robbery, and recommended a sentence of death by a vote of eleven to one. The trial court sentenced Zack to death. This Court affirmed Zack's conviction and sentence on direct appeal. See Zack v. State, 753 So. 2d 9, 20, 25 (Fla. 2000).

Zack's registry counsel raised six issues in a motion for postconviction relief: (1) whether counsel was ineffective for failing to object to the DNA evidence and failing to request a Frye2 hearing; (2) whether the trial court erred in failing to sua sponte hold a Frye hearing; (3) whether trial counsel was ineffective for calling Zack to testify without preparing him for cross-examination or explaining to him that he had a choice to testify or not; (4) whether the death penalty is disproportionate due to the possibility that Zack suffers from a possible brain dysfunction and mental impairment, both of which are in the same category as mental retardation, thereby prohibiting execution under Atkins v. Virginia, 536 U.S. 304 (2002); (5) whether trial counsel was ineffective in closing arguments to the jury; and (6) whether the sentence is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002). The trial court summarily denied issues two, four, and six, but held an evidentiary hearing on issues one, three, and five.

At the evidentiary hearing, both Zack and his trial attorney, Elton Killam, testified. The trial court denied all postconviction relief. Zack appealed the trial court's order and filed a petition for writ of habeas corpus.

Postconviction Relief

Zack raises six issues for review of the trial court's order denying postconviction relief. He argues that trial counsel was ineffective for failing to challenge the DNA testimony presented by the State; that counsel was ineffective because he failed to prepare Zack to testify at trial; that counsel was ineffective because he made prejudicial remarks to the jury in the opening statement and closing argument; that the trial court erred in summarily denying claims raised in his motion for postconviction relief involving Zack's right to a Frye hearing and the constitutionality of the death sentence under Atkins; that Florida's capital sentencing scheme is unconstitutional under Ring; and that collateral counsel was ineffective. We address each claim below, and deny relief.

1. DNA Evidence

Zack's first claim is that trial counsel was ineffective because he failed to challenge certain DNA evidence presented by the State. There were two types of DNA evidence presented by the State: Polymerase Chain Reaction (PCR) DNA evidence and Restriction Fragment Length Polymorphisms (RFLP) DNA evidence. Both types of DNA evidence were introduced to prove identity. Zack argues that the PCR DNA evidence was inadmissible and that his trial counsel should have requested a Frye hearing and challenged the qualifications of the State's expert. He contends that counsel failed to do so because he did not understand the science of DNA evidence.

In a successful ineffective assistance of counsel claim, the proponent must establish two things: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

The State presented two expert witnesses who testified about DNA evidence, Tim McClure and Karen Barnes, both from Florida Department of Law Enforcement (FDLE). According to these experts, the DNA evidence showed that Zack had Smith's blood on him, and that Zack's sperm was found in Smith's body. In his opening statement, defense counsel told the jury that he was not going to cross-examine the State's expert witnesses about DNA, fingerprints, or blood spatters because he was not going to challenge that evidence. At the close of trial, defense counsel reiterated that Zack did not challenge the DNA evidence. At the postconviction hearing, Zack's trial counsel stated that he did not challenge the evidence because he did not dispute Zack's identity as the person who caused the death of the victim. In fact, Zack confessed that he killed Smith, and he said they had consensual sexual contact. The only issue at trial was the issue of intent.

Zack argues that trial counsel should have requested a Frye hearing on the admissibility of the PCR DNA evidence, which would have resulted in the exclusion of this evidence. Under Florida law, a Frye hearing is utilized in order to determine if an expert scientific opinion is admissible. See Flanagan v. State, 625 So. 2d 827, 829 (Fla. 1993). Such opinion must be based on techniques that have been generally accepted by the relevant scientific community and found to be reliable. See Frye, 293 F. at 1014. However, Frye is only utilized where the science at issue is new or novel. Brim v. State, 695 So. 2d 268 (Fla. 1997).

Zack relies on Murray v. State, 692 So. 2d 157 (Fla. 1997), to support his contention that PCR DNA testing is new or novel and is subject to Frye testing. The Murray decision was released several months prior to Zack's trial.3 Zack also asserts that his trial counsel lacked any understanding of DNA evidence and had no idea that it should have been excluded. The trial court, however, agreed with trial counsel's assessment that because Zack admitted to sexual contact with Smith and admitted to causing her death, the DNA evidence did not prove any fact at issue in this case. Based on this conclusion, the trial court concluded that trial counsel's strategy was sound and did not constitute ineffective assistance of counsel.

A trial court's resolution of a Strickland claim is a mixed question of law and fact. See Strickland, 466 U.S. at 698 ("Ineffectiveness is . . . a mixed question of law and fact."); Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). Thus, we defer to the trial court's factual findings, but review de novo the trial court's legal conclusions. See Stephens, 748 So. 2d at 1033.

The factual findings indicate that trial counsel did not challenge the DNA evidence and that Zack conceded the fact that he had engaged in sexual contact with Smith and was responsible for her death. Thus, the PCR and RFLP DNA evidence was offered to demonstrate facts that Zack did not dispute. Trial counsel told the jury that he would not dispute this evidence because doing so would have served no purpose for the defense at trial. Based on these facts, we agree with the trial court's legal conclusion and find trial counsel's...

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