Zakrzewski v. State

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Zakrzewski v. State, 866 So. 2d 688 (Fla. 2003)
• Decision Date: 13 November 2003
• Docket Number: No. SC02-1734.,SC02-1734.
• Parties: Edward ZAKRZEWSKI, Appellant, v. STATE of Florida, Appellee.

866 So.2d 688

Edward ZAKRZEWSKI, Appellant, v. STATE of Florida, Appellee.

No. SC02-1734.

Supreme Court of Florida.

November 13, 2003.

Rehearing Denied February 4, 2004.

Baya Harrison III, Monticello, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Edward Zakrzewski was sentenced to death for the murder of his wife and two young children. This Court affirmed his death sentences on appeal. See Zakrzewski v. State, 717 So.2d 488, 490 (Fla.1998). Now in postconviction proceedings, Zakrzewski appeals the trial court order denying his motion for postconviction relief after an evidentiary hearing.¹ The four issues raised on appeal are whether (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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We conclude that no error occurred in the trial court's denial of post-conviction relief in this case and therefore affirm the trial court's order.

FACTS AND PROCEDURAL HISTORY

Zakrzewski pled guilty to the first-degree murders of his wife, Sylvia, and his two children, Edward and Anna. A penalty phase before a jury was held that 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 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.

Zakrzewski, 717 So.2d at 490-91.

At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of seven to five for the murders of Sylvia and Edward, and recommended a sentence of life imprisonment for the murder of Anna. See id. at 491. The trial court found the same three aggravating factors with respect to each of the murders: (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). See id. The trial court found 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. The trial court also found and weighed twenty-four nonstatutory mitigators. See id.² Finding that the aggravating circumstances outweighed the mitigating circumstances for each of the three murders, the trial court imposed three death sentences, following the jury's recommendation for the murders of Sylvia and Edward and overriding the jury's recommendation of a life sentence for the murder of Anna. See id.

On direct appeal, Zakrzewski raised nine issues. See id. at 492.³ This Court concluded that the trial court erroneously found HAC with respect to Sylvia's murder but further concluded that the error was harmless beyond a reasonable doubt. See id. at 492-93. The Court rejected the remainder of Zakrzewski's arguments and affirmed the three death sentences. See id. at 495. The United States Supreme Court denied certiorari. See Zakrzewski v. Florida, 525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).

Zakrzewski then filed a motion for postconviction relief under Florida Rules of Criminal Procedure 3.850 and 3.851, in which he raised the following claims: (1) trial counsel were ineffective for failing to move to suppress evidence seized from his home; (2) his guilty pleas were involuntary; (3) he was denied a fair penalty phase before a panel of impartial, indifferent jurors; and (4) trial counsel were ineffective for failing to object to the State's improper and prejudicial closing argument. Subsequently, Zakrzewski filed an amendment to his postconviction motion, adding a claim that Florida's death penalty statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Following a Huff⁴ hearing, the circuit court held an evidentiary hearing on claims (1), (2) and (4).⁵ The circuit court denied relief and Zakrzewski now appeals, raising four issues for this Court's review.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

In Zakrzewski's first two issues on appeal, he argues that his trial counsel were ineffective for failing to object to several comments made by the prosecutor during closing arguments and for failing to file a motion to suppress evidence taken from his home. This Court recently summarized the defendant's burden in establishing a claim of ineffective assistance of counsel:

To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694; Rutherford, 727 So.2d at 220.

Gore v. State, 846 So.2d 461, 467 (Fla.2003) (parallel citations omitted). Further, "when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong." Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001). As explained by this Court in Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999), both the performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are mixed questions of law and fact, and the Court will give deference to the trial court's findings of fact that are supported by competent, substantial evidence. We address Zakrzewski's two ineffective assistance of counsel claims separately below.

A. Failure to Object to the Prosecutor's Comments During Closing Argument

Zakrzewski claims that defense counsel should have objected to several comments made by the prosecutor during the State's closing argument. This Court has recognized that "the decision not to object to improper comments is fraught with danger... because it might cause an otherwise appealable issue to be considered procedurally barred." Chandler v. State, 848 So.2d 1031, 1045 (Fla.2003). However, this Court has also noted that "a decision not to object to an otherwise objectionable comment may be made for strategic reasons." Id.; see also Ferguson v. State, 593 So.2d 508, 511 (Fla.1992) ("The decision not to object is a tactical one."); McCrae v. State, 510 So.2d 874, 878 (Fla.1987) ("Whether to object to an improper comment can be a matter of trial strategy upon which a reasonable discretion is allowed to counsel.").

After holding an evidentiary hearing, the trial court found that Zakrzewski's trial counsel, Issac Bruce Koran and Elton Killam, both had "vast experience in criminal defense" and "during the course of the penalty phase and throughout closing arguments... utilized a defense strategy and used their judgment to make a reasoned strategic decision on whether to object or not to the prosecutor's statements during closing argument." Thus, the trial court concluded that defense counsel's performance was...