Florida Supreme Court Vacates Death Sentence, Upholds Murder Conviction

Supreme Co urt of Flori da _ _________ __ No. SC2022 - 1671 _______ _____ ST ATE OF F LORIDA, Appe llant/Cros s -A ppellee, vs. L EO LOUIS KACZMAR, III, Appell ee/ Cros s -A ppellant. _______ ____ No. SC 2023 - 0725 _______ ___ L EO LOUIS KACZMAR, III, Petiti oner, vs. SEC RETARY, DEPARTMENT OF CORRECTIONS, Respondent. F ebr uary 1 9, 202 6 G ROSSHANS, J. T he parties i n this postcon viction case a ppeal the circuit court’ s order that vacated Leo L oui s Kaczmar, III ’s death senten ce

but uphe ld his firs t - degree mur der convicti on. 1 For the reason s given below, we reverse the g rant of penal ty - phase reli ef. We affirm in all other respects. We also den y Kaczmar’s pet ition for habeas corpus relief. I One Decemb er morning in 2008, Eva Mitchell and her husband o bserved a home on fir e in Green Cove S prings, Florid a. Eva called 91 1, while her h usband ran up to th e home, kicke d open the ba ck door, an d shouted to dete rmine if an yone was inside. No one re spon ded. Law enforcem ent and firefi ghters s oon a rrived a t the hom e. They learned that in the d ays lead ing up to the fire, the home had been occu pied by Kaczmar, his wife and chil dren, his uncle, an d his father’ s girlfrie nd — Maria Ruiz. Once the fire was co ntained, l aw enforcem ent located a burne d and bloodi ed body near the ki tchen. The o fficers w ould soon disc over i t was t he body of Maria Ruiz. This discover y gave rise t o an investigation, with canvassi ng efforts being one of the initial steps. From discussi ons with a 1. We have jurisdi ction. See art. V, § 3(b)(1), (9), Fla. Const.

neighbor — Ju lia F e rrell — l aw enforc ement learn ed that a heat ed argum ent ha d occur red at the Kaczmar home in the early morning hou rs before the fire. F e rrell i ndicated that Kaczmar ’s voice was discernabl e during th e argument. Meanwhil e, a fire investigat or took steps to d eterm ine the cause and ori gin of the fir e. To this en d, the invest igator identified and collecte d six areas of fir e debris, five of whic h woul d later test positive for t he presence of gas oline. As the initi al investigat ion was taking shape, Kaczm ar’s wife Priscilla arr ived at the home and called Kaczmar. 2 During the conversat ion, s he passed the phon e to Officer John Parker who asked Kaczmar to come to the h ome. Kaczmar complied. U pon a rriv ing at the home, Kacz mar showed Officer Parker a receipt indi cating t hat Kaczmar h ad purchased gas t hat morning near Jackson ville. Kaczmar told Officer Parker that he h ad been fishing i n the Jacksonville ar ea. Later tha t day, officers asked that K aczmar report to a nearby police stati on in ord er to discuss matt ers relatin g to th e fire an d the 2. Priscilla and her two children sp ent the previo us night with relatives.

disc overy of Ruiz ’s body. Kaczmar agreed and was driven to th e statio n by hi s mother and step father. At the o utse t of the i ntervie w, Detective Ch arlie Shar man advised Kaczmar of his constitutio nal rights, which Ka czmar acknowledged by signing a form. 3 In the exchange that follo wed, Kaczmar generally den ied involvement in the arson an d other wrongdoing. Although he repeated his ear lier st ory that he had been f ishing in Jacks onville, he ackn owle dged being alone in the home with Ruiz fro m roughly 11:00 p.m. to 2:00 a.m. — just ho urs befo re the fi re. Mi d way through the inter view, Detective Sharman presse d Kaczmar a bout s ome of his i njurie s and t he con diti on of h is clothing. Kaczmar r esponde d that he wan ted an attorne y if that line of qu estioning continued. H owever, Kaczmar promptl y reengage d Detective Shar man in discu ssion. In resp onse, Detecti ve Sharman reminded Kacz mar that he had the righ t to a lawyer duri ng the inte rview. N ot inv oking tha t right, K aczma r returne d to talking abo ut matters pert aining to th e active police in vestigation. 3. See Miranda v. Arizo na, 384 U.S. 43 6, 467 (1966) (re quirin g police to advis e suspects in custody of certain thi ngs — includ ing the right t o silence and the presen ce of a lawyer — prior to i nterroga tion).

Kaczmar ultim ately left certain articles of clothi ng at the stat ion, including a sock that he smeared his own bloo d on d uring a brea k in the interview. Weeks later, after law enf orcement unco vered more evi dence implicating Kacz mar (including that he purcha sed a small amo unt of gasoline f rom a nearby gas st ation moment s before t he fire was observed), a grand jury indicte d him on charges of first - degree murder, a ttemp ted sexual battery, and a rson. T he State gave notice that it so ught the dea th penalty for the mu rder. Meanwhil e, Kaczmar ’s pos t - indictment condu ct and conversat ions were brought to the p rosecu tor’s a ttention a nd became so urces of evidenc e at trial. After his arrest, Kaczmar w as confined in the Cla y County Jail, where he s pent significant time with William Filancia, a fellow inmate who was frequently housed with Kaczmar. At some point after K aczma r started talking ab out his case, Filan cia reached out to his att orney, Richar d Kuritz. Kuritz, i n turn, spok e with the p rosecu tor and Detective Sharma n, setting up a meeting with them. Eventually, D etecti ve Sharman enli sted the servic es of an undercover officer, Detective Charl es Humphrey, who agre ed to

portray himsel f as “Carl os,” a friend of Filanci a. Detective Sh arman gave Detect ive Humphrey a ma p that Kaczmar had drawn, which showed the way to Christop her Ryan Modlin’s home. 4 Soo n after being given th e map, Detect ive Humphrey began visit ing K aczmar at the jail. During the four visits, t he two discussed (1) putting gasoline - soa ked cl othes at or un der Modlin’s home in an effort to frame hi m, (2) intimid ating witn esses to come forward in s upport o f Kaczmar, an d (3) arranging to have Kaczmar ’s wife Pri scilla pay “Carlos” $300 for thes e purporte d services. Several m onths aft er Detective Hu mphrey’s last jail visit, Kaczmar’ s case went to t rial. Th e State call ed numerous w itnesses, including t he medical exa miner (Dr. Jesse Giles), tw o DNA experts, Julia F e rrel l, Kaczmar’ s wife, D etect ives Sharman a nd Humphrey, and a fire invest igator an d analyst. Additio nally, the State presente d physical evid ence tying Kacz mar to the crime scen e. This incl uded ph otogr aphi c and v ideo e vidence sh owing Kaczmar purchas ing gasoline minutes be fore the fire. The State also playe d recording s of Kaczmar ’s interview with Detective S harman an d 4. Mod lin live d near the K aczmar home and spent time with Kaczmar th e day before the m urder.

three of hi s conversations wi th Detecti ve Humphrey. Following the State’s cas e, Kaczmar asked for a judg ment of acqui ttal on all charges, which the tria l cou rt deni ed. As for the defense case, Kaczm ar’s counsel c alled one w itness, Detective Mich ael Gol dner, who testified about his se arch of Kaczmar’ s truck. Accor ding to the detectiv e, he obser ved nondescri pt stains and collect ed evidenc e of the m. Bu t neithe r he nor o ther law e nforce ment sought to have t he stain - rel ated evidence tested. Ultimately, the jury fou nd Kaczmar guilty on all charges. And following th e penalty phase, it recommen ded a senten ce of death by a vo te of 11 to 1. Ac cepting tha t reco mmendatio n, the cou rt sentence d Kaczmar to death. Kaczmar a ppealed, raisi ng nine issues f or our review. See Kaczm ar v. St ate (Kac zmar I), 1 04 So. 3d 990, 9 98 (Fl a. 201 2). W e conclu ded that he had failed to show rever sible err or in connection with his first - degree mu rder convict ion. Id. at 9 98 - 1006. But a s fo r the pe nalty p hase, we found that the State had not pr oven three of the fo ur aggra vators a nd dete rmined that such error was n ot harmless. Id. at 1007 - 08. Consequ ently, we reversed

Kaczmar’ s death sentence, remand ing for a new penalty phase. Id. at 10 08. On reman d, Kaczmar wai ved his right to present mitig ation, doing so against his co unsel’s advi ce. See Kaczm ar v. Sta te (Kaczm ar II), 228 So. 3d 1, 6 (Fla. 2017). Prior to jury sel ectio n, the trial co urt ga ve the fo llow ing pre liminary state ment to the jury pool: Good morning, ladies an d gentlemen. My name is William Wilkes, and I’m the Judge that will be handling this case. This case has a li ttle hist ory to it so let me explain you r duty toda y. It’s differe nt than mo st trials we ever have. The de fendant wa s fou nd guilty of mu rder in the fir st degr ee on 8/ 12/1 0, sent ence d on 11/ 5/10 to lif e -- to death in this cas e. Anyway, the Supreme Court always reviews any t ype of death ca se so the case went t o the state S upreme Court, Flo rida S tate Sup reme Court. The y affirmed hi s convict ion, that is t hey confirmed his conv iction fo r the first - degree mur der. However, t he Sup reme Court sent the case back here with instructions that th e defendant is t o have a new trial t o decide what sentence sh ould be i mpo sed. (E mphasis a dded.) No one objec t ed to thi s statement. Later, d uring the evide ntiary p ortion o f the pro ceeding, the State presen ted eviden ce in suppor t of two aggravat ing

circumst ances. To pro ve the prio r - violent - felony (PVF) aggravato r, the prose cutor r elied on the following stipu lation to the j ury: [T]he robbery the defendant was convict ed of involve d the defendant and a co - defendant. The defen dant and co - defendant repeatedly str uck and kicke d the victim abo ut the head an d then forcefully t ook his jewelr y and wallet for themselve s against the victim’s wi ll. T he de fendant was 17 years of a ge at the t ime of the offense . . . but was charged an d sentence d as an adult. As fo r the oth er aggrav ator, th e prosecu tor presented testim ony from the me dical ex aminer, Dr. G iles, to sho w that the murder was es pecially hei nous, atr ocious, or cruel (HAC). Accor ding t o Dr. Giles, Ruiz was stab bed roughly 93 t imes, including 11 fata l stab wounds. In addition t o this evidence, the pros ecutor reintrodu ced the fo rmer testimo ny of te n guilt - phase witnesses. Thi s include d the testimony of Fi lancia an d his l awyer, Richard Kuritz. As fo r mitiga tion, Kac zmar re ad a stipul ati on indicating that he was 24 years o ld when Ruiz was murdered. H e offere d no o ther mitigati ng evidence. Following closing argument s, the judge instru cted the j ury on the law. In p art, the jud ge told th e jury that (1) “[a ]n Appellate Court has r eviewed and aff irmed the defen dant’s convi ction [but]

• 10 -. .. sent the c ase b ack to this Cou rt with the i nstruc tion tha t the defendant is to have a new trial to decide what sent ence shoul d be impos ed,” (2) it should not concern itself with Kaczma r’s guilt, (3) its recommendat ion must be b ased on the evide nce received duri ng that pe nalty - phase proceedi ng, and (4) it must follow th e law as given in th e jury inst ructions. Duri ng delibera tions, the ju ry asked four fact - bas ed questions. Outside the jur y’s presenc e, t he pr osecut or an d defen se counsel both urged the court no t to res olve the factua l issue s framed by the se questions. Agreeing with the parties, the cou rt told the j ury that it s questions were “n ot relevant ” and could not be answ ered. The jury ultim ately r ecommended death by a unanimo us v ote. Later, f o llowing a Spencer 5 hearing, the tria l cou rt again sentence d Kaczmar to d eath. In its w ritten or der, th e cou rt found that the State p roved th e HAC and PVF ag gravator s beyond a r easonable doubt. It furthe r d eterm ined that th ese a ggravators “far outweigh [ed ] ” the 1 5 record - supp orted mitigatin g circumstan ces. Kaczmar a ppealed, argu ing in p art that (1) the p rosecu tor, in 5. Spencer v. State, 615 S o. 2d 68 8 (Fl a. 199 3).

clos ing argum ent, impro perly refe rred to mitiga tion as “ excu ses, ” (2) the trial co urt co mmitted e rror in te lling the jury that its mid - deliberati on quest ions were not rel evant, and (3) his death sentenc e violated Hurst v. Flor ida, 57 7 U.S. 92 (20 16), and Hurst v. St ate, 202 So. 3d 40 (Fl a. 2016) (on r emand). See Kaczm ar II, 228 S o. 3d at 7 - 9, 11 - 12. We ultimately denied all rel ief and affirm ed Kaczmar’s death senten ce. Id. at 9 - 11, 12 - 15. Kaczmar s ought rehearing, arguing for the fi rst tim e that h e was entitle d to a new penalty ph ase based on t he judge’s stat ement to the j ury poo l about his vacated death sentence. Kaczmar v. State, 42 Fla. L. Weekly S85 1, S851 (Fla. Oct. 19, 201 7) (un repor ted orde r). No t reaching the merits of thi s argu ment, w e denied relief withou t prejud ice to Kac zmar’ s right to rai se it in a separate habeas proc eedin g. Id. Two justices, t hough, would have g ranted relief. Id. at S851 - 52 (Pa riente, J., diss enting); id. at S 852 (Quin ce, J., dissenting). Unsuccessful in challe nging his death sentence, Kaczmar then turned to the U.S. Sup reme Cou rt, which deni ed his petitio n for certiorar i over one justice ’s dissent. Kaczmar v. Flori da, 585 U.S. 1011, 1011 (2018); id. (Soto mayor, J., d isse nting).

Following this, Kacz mar filed a postconvi ction motion in circuit court, asking that his f irst - degree murder convictio n and death sentence be vacated. Ult imately, Kaczmar presen ted 29 numb ered claims and multiple subclaims. Kaczmar asser ted numerous instances of ineff ective assist ance of counsel under Strick land v. Washi ngton, 466 U.S. 668 (19 84). He also claime d violations of due process, relying on the U.S. Supreme C ourt’s decisi ons in Brady v. Mary land, 373 U. S. 83 (1963), Giglio v. United Stat es, 405 U.S. 150 (197 2), an d Napue v. Illinois, 360 U.S. 264 (1959). Finally, Kaczmar argued ent itlement to relief based on cumul ative error in the guilt and penalty p hases. Following a cas e - management hearing, the circuit co urt rule d that all but ei ght claims w ould be decide d at an evidentiar y hearing. At th at hearing, postconvicti on counsel calle d 13 witnesse s, including both of Ka czmar’s defense l awyers, the prose cutor, a DNA expert, an d Kaczmar himself. The State, for i ts p art, cal led o ne witness —a DNA e xpert. Ultimate ly, the circuit cou rt vacated Kacz mar’s deat h sentence, findin g merit in connection with one o f hi s penalt y - pha se ineffect iveness clai ms. According to the circuit court, tria l co unse l

was defici ent for not ob jecting to the circuit cou rt’s s tateme nt that Kaczmar ha d previously b een sentence d to death. That deficien cy, in the cir cuit court’s view, prejudiced Kacz mar. The circ uit cou rt denied relief as to all other claims. These rulings a re set forth in the ord er that b oth p arties no w appeal. T he State challenges the circu it court’ s finding of one instance of in effecti ve assistance of counsel, w hich provided t he only given basis for vacat ing Kaczm ar’s death sent ence. Kaczmar, on the other hand, challeng es the denial of virt ually all his unsuccessf ul claims. Bey ond t his, K aczmar raises a n umber of additional claims by w ay of a habeas pet ition, which h e filed concu rrently with his initi al bri ef. Ou r analy sis is divided in to three sections, starting wit h the State’s app eal and ending with Kaczmar ’s habeas pet ition. II The State’s ap peal focuses on the c ircuit cour t’s grant of one claim of ineff ective assistan ce of co unsel, which dep ends on a showing of deficien t performance a nd prejudice. Th e circu it court foun d both. The State all but con cedes defici ent perf ormance in defense co unsel’s f ailure to object t o the j udge’s c omme nt on

Kaczmar’ s earlier vacate d death sent ence. However, the State asks us to reverse on no - prej udic e grou nds. Though we do n ot entirely accept th e State’s sweeping argum ents in this regard, we agree t hat Kaczmar was n ot prejudic ed by the circuit c ourt’s passing rema rk about Kacz mar’s prior deat h senten ce. A We begin by discussing bac kgro und l egal pri nci ples. Under U.S. Sup reme Cou rt preced ent interpreting the Six th Amendment, a defendant has the right to the effective assi stance o f counsel. Strickla nd, 466 U.S. a t 686. Th is right applies in both guilt and penalty ph ase s. See, e.g., Jackson v. State, 347 So. 3d 292, 302 (Fla. 2022) (guilt phase); State v. M ullens, 3 52 So. 3 d 122 9, 123 6- 37 (Fla. 2022) (pen alty phase). To successf ully claim a breach of this right, th e defe ndant mu st sho w two things: defic ient pe rforma nce and preju dice. Truehill v. St ate, 358 So. 3d 11 67, 117 5 (Fla. 2022). The deficient - perfo rmance p rong focu ses o n the reasonabl eness of counsel’s cond uct. Strickla nd, 466 U.S. a t 6 88. To be reas onable, counsel ne ed not be perfect; nor mu st counsel adhere to the b est or most com mon practices. See Ha rringto n v. Richter, 562 U. S. 86, 1 05 (2 011); Premo v. Moore, 56 2 U.S. 115, 1 22

(2011). Rather, counsel’ s conduct is judg ed against a min imum standar d of objective reason ablene ss — a standar d informed by all the circumstan ces at the time counsel made the ch allenged decision. Str ickla nd, 466 U.S. at 68 8. Acco rdingly, it is only when no reasona ble lawyer w ould act as defense c ounsel did that a finding of deficient perf ormance is app ropriate. Jackson, 347 So. 3d at 304; cf. Har rington, 562 U.S. at 104 (un dersc or ing “ the ‘ wide range ’ of reasona ble professional assistanc e ” (quoting Strick land, 466 U. S. at 689)). A co rolla ry to this rule is that reasonable strategi c decisions do n ot amount to deficien t perform ance. Sheppard v. State, 338 S o. 3d 80 3, 816 (F la. 20 22). In ligh t of thes e princ iple s, it is n ot su rprisin g that the U.S. Supreme Co urt has charact erized review of counsel’ s conduct as being “ highly deferen tial. ” Know les v. Mirzayance, 556 U.S. 111, 124 (2 009) (q uoting Strickland, 4 66 U.S. at 68 9). And consistent with Supreme Court case law, we have recognized that the defendant bears the bur den of showin g that counsel ’s performance was deficien t. Jackson, 347 So. 3d at 301 & n.6. Even if a defend ant can cl ear the “ high bar ” of showing deficient p erforman ce, see Cullen v. Pinholste r, 563 U.S. 170, 1 97

(2011) (quoting Harringto n, 562 U.S. at 105), he must still demonstrat e prejudice in order to be entit led to relief, see Strickla nd, 466 U.S. at 692. The prejudice inq uiry focuse s on the effect of coun sel’s cond uct. Id. at 694. In th e penalty - phase context, the defendant mu st show a reason able prob ability that t he sentencer w ould have im posed a lesser san ction, taking into accou nt the en tirety of th e reco rd. See Mullens, 352 So. 3d a t 1242. Thus, as wit h the deficiency prong, the defendant ha s the burden to show preju dice. See Cullen, 563 U.S. at 189. These princi ples infor m our standar d for assessing r ulings on ineffect iveness clai ms. W e review a circuit c ourt’s factual f indings for co mpetent, substantial evi dence. Truehill, 358 S o. 3d at 1 175. Neverth eless, we revi ew the applic ation of law to fac ts and the court’s ultim ate conclusi ons under the de novo stan dard. Id. Accordingly, “[o] ur deference to su pported fact ual findings doe s not exte nd to the p ostconv iction cou rt ’ s ultimate c onclusions on the deficient p erforman ce and prejudi ce prongs.” Mulle ns, 352 S o. 3d at 12 38 (citing Ki ng v. State, 260 S o. 3d 98 5, 994 (Fla. 2018)).

B Before ap plying these princi ples, we n ote our accept ance of two premis es. One, we cr edit Kaczmar ’s position th at a case from this C ou rt general ly forbids telling a resentencin g jury th at the defendant was previously s ente nced to death. See Hi tchcock v. State, 673 So. 2 d 859, 863 (Fl a. 19 96). Th ough Hitchcock does not provide exten sive doctrinal ju stific ation for thi s rule, 6 we treat it as controlling prec ede nt for pur poses of t his opini on. 7 And two, we accept th at the judge actually sai d what t he transcript indicat es, i.e., t hat Kaczmar was previ ously sent enced “to deat h in this case. ” The c ircuit cou rt fou nd this fac t, and it i s su pported by compe tent, substantial evidence. Nevert heles s, even assuming these tw o premises, we disagree with the circ uit c ourt’s ultim ate finding of prejudice. First, t he statement i tself was not as preju dicial as K aczmar claims. He focuses e xclusively on the fa ct that the ju dge referenced 6. Befo re annou ncing this rule, the Cou rt in H it ch cock specifically ackn owl edged that its remand on a se parate penalty - phase iss ue rende red furth er dis cussion “unn ecessary. ” Id. at 863 (character izing its pros pective anal ysis as providin g “guidance”). 7. Neither part y has asked us to reeval uate Hit ch cock.

his prio r death sentence. Ho wever, as critical to our anal ysis, Kaczmar overlooks othe r statement s by the judg e that woul d substantial ly amel iorate the eff ect of the death - sente nce remark. The judge in dicated that t he case came bac k from this Cou rt for a new penalty ph ase. That stat ement necessar ily impl ies that we invalidat ed the death sentence. Th us, the jury k new that the p rior sentence wa s no longer valid, and it had no reason to regard the vacated sent ence as so mehow dese rving contin ued respect or deferenc e. Bacon v. Lee, 225 F.3 d 470, 4 84 n.4 (4th Cir. 2000); cf. Howell v. Trammell, 728 F. 3d 1202, 1224 (10th Ci r. 2013) (“ [E] vidence of a p rior death senten ce may not pr oduce a unid irection al bias to ward dea th.” (quo ting Roman o v. Oklahoma, 512 U. S. 1, 20 (1994) (Ginsburg, J., dissenting))). Thus, we do no t think tha t the co ntent o f the co urt’s prior - death - senten ce statement irretr ievably dispose d the jury to favor a d eath recommen dation, as Kaczmar se ems to argue. Apart fro m this, t he sta tement wa s quite brief. I t tak es up less than four lines in a penalty - phase tran script that spans n early 700 pages. More over, the t ranscript st rongly suggests th at the judge’s statement as a whole was n ot a model o f clari ty. Specifically, t he

transcr ipt indicates t hat the judge mi sspoke and the n, per th e court repo rter’s te stimony, “ st umbled ” verbally. The st atem ent wa s not onl y brie f and l ikely m uddl ed, but the fact o f Ka cz mar’s pr ior death sent ence was not mentioned again during the penalty - pha se proc eedi ng. Th e judge did not re pe at his statement in the prelim inary or closing instructions, nor di d the parties pre sent any argument based on th e statem ent. We also underscore that t he ju dge instru cted the jury to consider o nly the evidence it received at the penalty - phase hearing in de termining the prop er sentencing recommendat ion. It is undispute d that no evi dence of Kaczmar ’s prior sen tence was introd uced at the pena lty phase. Acco rdingly, we may presum e that the ju ry fol lowed that ins tructio n and based its sentencing verdict on the penalty - phase evi dence alo ne, not an isolated statement uttere d prior to jury s electio n. See Strickland, 466 U.S. at 694 (“In ma king the det ermination whet her the specifi ed errors resulted in the require d prejudice, a co urt should presu me. . . that the. . . jury acted according t o law.”); Weeks v. Angelone, 528 U.S. 225, 2 34 (20 00) (“A j ury is presu med t o foll ow its instr uction s.” (citing Richa rdson v. Marsh, 481 U. S. 20 0, 211 (1987))).

We acknowle dge that this presumpt ion can be rebutted. Bu t in our rev iew o f the entire record, we see nothing that would disp la ce it. Nota bly, we are not alone in relying on this pres umpti on to d eny Strick land relief. See, e.g., McHone v. Polk, 392 F. 3d 69 1, 708 (4t h Cir. 2004); Perry v. McCaughtry, 308 F. 3d 682, 6 90 (7t h Cir. 2002); Brown v. Jones, 255 F.3d 12 73, 12 80 (11th Cir. 2 001). Our decisions i n the direct - appeal conte xt bol ster our no - prejudice holding her e. Hitchcock generally prohi bits advising a resentencin g jury t hat the defenda nt had been previ ously sentenc ed to death for t he same murder at is sue in the curr ent penalty phase. 673 So. 2d at 863. However, Hitchcock says no thing about the approp riate re medy. In fact, it appears we h ave never reversed a death senten ce solely on th e basis that the jury was informe d abou t the defend ant’s prior death sentence. Instead, on at least one occasion, we foun d this type of error to be ha rmless. Teffete ller v. State, 495 So. 2 d 744, 747 (Fl a. 19 86). If th is so rt of erro r can be harmless in t he sense th at it had no reas onable poss ibility of affecti ng the o utcome of the pro ceeding, see Sexton v. State, 402 S o. 3d 270, 280 (Fl a. 20 24) (describing the harmless error standard on

direct appe al), it logically follow s that the effec t of such a st atement is not always prej udicial. Not ably, Kaczmar has n o t cited any Florida cas es reversing convictions — w hether on dire ct appeal or in collateral proc eedings — b ased on compara ble commen ts. 8 We think that omission is telling. Kaczmar als o suggests that the court’s prio r - death - s entence statement was an err oneous instruct ion and that err oneous instructions will almost always result in Strickl and preju dice where trial couns el fails to object t o them. We need say lit tle about this argum ent. We d oubt wh ether the judge’ s prior - death - sentenc e statement coul d be deem ed an in str uction. But eve n if it could b e, that cha racteri zation would no t help K aczmar. C ontrary to his 8. Kaczmar cit es a 1983 decision in which a federal a ppeals court found inef fective assi stance i n counsel’s agr eement wit h an instru ction th at adv ised the jury o f the fact that t he defendant had bee n found gu ilty of the c harged conduc t in a pri or proc eeding. See Arthur v. Bordenkirch er, 71 5 F.2d 1 18, 11 9 (4th Cir. 1983). That decisi on preceded S trickland, has b een limi ted by the court that iss ued it, see Turner v. W illiam s, 35 F. 3d 872, 899 - 900 (4th Cir. 1994), overr uled on oth er grounds by O’De ll v. Nether land, 95 F.3d 1214 (4t h Ci r. 1996) (en banc), and i s — in ou r view — no t well - reasoned. Ac cording ly, we decline to follow i t. Kaczmar als o cite s, as sup port for hi s argum ent, Justi ce Pariente’ s dissent f rom the denial of his motion for reh earing. We find his rel iance on that dissent to be misplace d.

argum ents, our cases ha ve conclu ded that instructi onal e rrors can be harmle ss o n direct app eal and nonprej udicial on collater al review. E.g., Hunter v. State, 8 S o. 3d 10 52, 10 71 (Fl a. 20 08) (direct appeal); Go nzalez v. State, 99 0 So. 2d 101 7, 102 6 - 27 (Fl a. 2008) (collateral r eview). Our holding here aligns wit h those cases. Based on our analysis abov e, we conclude t hat Kaczmar failed to show prej udice fr om the j udge’s pr ior - deat h - sente nce statement. Accor dingly, Kaczmar cannot establish a S trickland v iolation, and the circ uit cou rt erred in granti ng rel ief on th at bas is. We acknowle dge our dissen ting colleag ue’s sincere vi ews to t he contrary. We, however, disagree wit h the dissent’s key pr emise that this b rief co mment tainted the ent irety o f the pe nalty - p hase proceeding. Thus, we rem ain convinced that our analysis is f ait hful to Strickla nd, aligns with ou r own p recede nt, and correc tly ap plies the law to t he relevant facts of Kac zmar’s case. We no w turn to Kaczmar’ s cro ss - appeal. III In his cross - a ppeal, Kacz mar challen ges the denial of 24 claims and numerous s ubclaims. Some of these claims r aise legitimate issues, but many are concluso ry and lack any significant

legal analysi s or suppor t. Other claims border on frivolous. Though we have carefully consi dered all of Kaczmar’ s arguments, we devote th e majority of our analy sis to his substan tial claims. Ultimately, we fin d none of Kaczmar’s claims to be meritorious and affirm the circu it cou rt’s d enial of guilt - phase relief. A Kaczmar alleg e s that hi s counsel was in effective for failing to seek suppr ession of st atements he made t o his cellmate, William Filancia, and to Detective Hum phr ey, who portra yed himself as Filan ci a’s frie nd “ Carl os.” Kaczmar assert s that suppression was warrant ed under U.S. Suprem e Court precedent interpre ting the Sixt h Amen dmen t. 9 Before analyzi ng this claim, we discuss t hose precedents. 1 In a series of ca ses beginning with Massiah v. U nited States, 377 U. S. 20 1 (1964), the U.S. Supreme Court has h eld that the Sixt h Amen dmen t proh ibits government agents from deliberately 9. He also claim s th at counsel shoul d have argue d a theory of entrap ment to the jury. We reje ct this subclaim without furth er analysis.

elicit ing incrim inating s tateme nts from a n accused once judicial proceeding s have been initi ated again st him, unless c ounsel is present or th e accused has w aived that right. Id. a t 206; B rewer v. Williams, 430 U.S. 387, 400 - 01 (19 77); United States v. Henry, 447 U.S. 264, 2 74 (1980); Maine v. Moult on, 474 U.S. 159, 176 - 77 (1985); Kuhlmann v. Wilson, 477 U.S. 436, 459 (19 86). As suggeste d above, t his rule can apply to informants eliciting the incri minating stat ements on be half of law enf orcement. Indee d, “ Massiah establis hed that cooper ating governmen t inf ormants can be considere d ‘[g]overnm ent agent s.’ ” United States v. Age, 136 F.4t h 193, 2 32 (5 th Cir. 2025) (alteration in original) (quoting Ma ssi ah, 377 U.S. at 206). To e stablish a Massiah violation when an informan t is involved, the defend ant must d emonstrate that (1) the Sixth Amendm ent right had attached; (2) “ the info rmant . .. was promise d, reasonably le d to believe that he would receive, or actually rec eived a benefi t in excha nge for solicitin g information from the defen dant, and . .. acted pu rsuant to i nstruc tion fro m the State, o r otherwi se sub mitted to the State ’ s co ntrol”; and (3) the informa nt “de liberate ly elicited” the i ncriminatin g statements. Id. (quoting Thompson v. Davi s, 9 41 F.3d 813, 8 16 (5th Cir. 2019)). In

discussing these requir ements, t he Fifth Cir cuit note d: Acting “in t he hopes of” receivi ng a benefit is insufficien t to establish a Ma s siah viola tion; affirma tive entice ment fro m the G overnme nt, howe ver, does establish su ch a violation. Timing is critical for determining whether the Go vernment is controlli ng and steering t he conversat ion. “The Sixth Amen dment is n ot violated when ever — by lu ck or happ enstance — the State obtains incr iminati ng statement s from the accused a fter the right to co unsel h as attached.” Crucially, “an informant canno t be an agent of the S tate withou t the State ’ s knowle dge or consen t.” Id. at 232 - 33 (citations omitted). 2 In this case, Fi lancia was housed with Kaczmar on at least two occasions, and they often discusse d their cases. This much we know. However, the exact timing o f parti cula r statemen ts and disc ussion s is les s clear. Kaczmar ’ s core argument is that his incriminating statements were made af ter Filancia wo uld be consider ed an “agen t” for Ma ssi ah purp oses. We acknowled ge there is some e vidence to suppo rt Kaczm ar’s pos ition. Signific antly, h owever, t here is also competent, substant ial evidence in the record that Kaczmar made incriminat ing remarks (in cluding admi ssions of gui lt) soon after the two became c ellmates and that Filancia simply listened to Kacz mar

talk about h is case up to a c ert ain poin t. Ind eed, during tria l, Filancia test ified that he decided to inf orm on Kaczmar af ter Kaczmar e xpressed inter est in frami ng Modlin. 10 Thus, any incriminat ing statemen ts Kaczmar made prior to this point — i.e., befo re law enf orcement direct ed Filancia to do more than just li sten to Kaczmar — w ould n ot have be en su ppressible under Massiah. See Kuhl mann, 47 7 U.S. at 4 59. No tably, the circuit c ourt c redi ted this eviden ce as to timing, and we will not second - guess that dete rmination. Acco rdin gly, we accept that Kaczma r made some incriminat ing statemen ts before Fil ancia became an agent for purpo ses of Ma ssi ah. Th is recognition brings to light another p roblem fo r Kaczm ar’s Ma ssi ah claim. At t rial, Filancia test ified to a number of incriminat ing statemen ts attributa ble to Kaczmar. However, Kaczmar doe s not att empt to id entif y when any of th e statements were actually made. K aczmar has the burden to demo nstrate a cons titutiona l violatio n. See Truehill, 358 S o. 3d at 1175. Thus, absent ar gument establi shing that a particular comment came aft er 10. Filancia’s evi dentiary - hearing testimony generally aligns with his tri al te stimo ny on th e subjec t of timin g.

Filancia’s ag ency was esta blished, Kaczm ar cannot dem onstrate a necessary component of his Massiah claim. In short, Kaczmar has not establi shed defici ency based on counsel’s fail ure to seek suppr essi on of th e entire body of st atements made t o Filancia or any statemen ts in part icular. 3 Our analysis dif fers wi th respect to Detect ive Humphr ey — the undercover officer involved in the “Carlo s” operati on. Recall t hat Detective H umphr ey portrayed him self as one of Fila ncia’s friend s, who could hel p Kaczmar in connection with the charges. Detective Humphrey s poke with K aczmar on four occasi ons at the j ail, during which tim e the two discusse d planting eviden ce and manufactu ring favorable wi tnesses. Kacz mar’s wif e Priscilla gave $ 300 to Detectiv e Humphrey for the services he cl aimed to have perf ormed. We agree wit h Kaczmar th at this eviden ce is likely the pr oduct of a M a ssi ah violation. By t he time of Detective Humphrey ’s involvement, Kaczmar had been char ged with Ru iz’s mu rder. Counsel was n ot present d uring the jail vi sits, nor did Kacz mar say anythin g that could be view ed as a waiver of counsel. Furtherm ore, we have no dou bt that Detect ive Humphrey, a law enforcement

officer, deliberatel y elicited the incr iminating st atement s. We thus conclude t hat counsel wa s deficien t for failin g to seek suppression of the incr iminating st atements made d uring Kaczm ar’s meetings with Detect ive Humphrey. 11 However, t his fi nding o f defi ciency do es not, b y itself, warra nt relief. Strickland, 466 U.S. a t 693 - 96. Instead, Kaczmar must also show preju dice from that defi ciency. See Weaver v. M assachusetts, 582 U. S. 28 6, 300 (2 017) (v iolat ion of Strickla nd not com plete u ntil prejud ice is d emonstrate d). In the guilt - phase context, prejudice means a reason able pr obability of an acquittal, abse nt the attorne y’s e rror. See Truehill, 358 S o. 3d at 1 182. Kaczm ar has not shown this. The State pres ented uncontro verted evi dence that Ruiz was murdere d. The medical examiner testified that Ruiz was stabbed 9 3 times, which caused her death. In add ition, the Sta te pres ented strong evid ence tyin g Kaczmar to the scen e of the cri mes. For instance, Kacz mar’s forme r neighbo r, Julia F e rrel l, testified that she 11. At th e evidentiary hear ing, counsel testified th at he d id not object t o this evidence because he di d not see a basis for suppressin g or exclud ing it. Co nsistent with that te stim ony, counsel off ered no strat egic reason for this conduct.

heard him yel ling loudl y at ar ound 5:00 or 5:30 a.m., which is roug hly an hou r befo re the house f ire was observe d. Fe rre ll ’s grandson gave testimo ny that aligned with hers. There was al so video and phot ographic evi dence sho wing Kaczmar buying a small amount of gasoline (using a hand held container) just b efore 6:00 a.m. at a station less tha n a mile from the Kaczmar home. Criti cally, testimony at tria l established t hat gasoline was u sed in sett ing the home ablaz e. 12 What is more, Kaczmar admit ted that he and Ruiz were alone in the home in the hours prece ding th e murder. That admissi on is suppo rted by cell phone recor ds that a re co nsistent with Kaczmar making or recei ving several cal ls at the ho me from 10:53 p.m. to 1:41 a.m. 13 Additional ly, there is t he DNA eviden ce. Expert witness M aria Lam testifi ed that she selecte d ten areas on Ka czmar’s sock s for 12. Kaczmar doe s not challenge the evidence tying him to the arson. 13. No evidence ca me to light at the evidentiary h earing that woul d cast doubt on that admission. If anyth ing, evidence receiv ed at this hear ing confirmed t hat Kaczmar was pr esent and al one with Ruiz.

DNA te sting — all ten areas c oming from stain s giving posi tive indic ations fo r the p resence of blood. O ne such stai n generat ed a mixe d prof ile, w ith R uiz’s D NA bei ng th e major don or. Kevin McElfresh, another DN A expert, conf irmed the acc uracy of Lam’s analysis. He opined, “The only r easonable sci entific explan ation is that that wa s Ma ria Rui z’ blood on th ose socks.” The State als o presente d a significan t amount of other consciousn ess - of - g uilt evidence. A s noted before, t he evidence demon strate d that Kaczma r burned down the house in which Ru iz was f ound. K aczmar I, 104 S o. 3d at 1005 (discussi ng some of t his evidence). Cell phone evi dence showe d that Kaczm ar was fle eing the scene at t he time witn esses spotted th e house fir e. In a dditi on, Kaczmar was dishonest in h is dealing s with police. 14 For instance, Kaczmar lie d to police when he s aid that he was fishing in the hours before t he murder, when that was n ot the case. And he smeared his own blo od on h is soc k af ter he knew that he woul d be leaving it (and other a rticle s of cl othing) at the police station. F inally, Kaczmar gave a detaile d confession to Fil ancia. As 14. Indeed, Kacz mar admitt ed at the postcon viction evidentiar y hearing t hat he lied to police.

part of that confession, Kacz mar said that he wanted to have s ex with Ruiz and, when s he declined his u nwanted advances, he stabb ed her to d eath. Our prej udice anal ysis must also take int o acc ount the suppressi ble evidence an d what eff ect it reasona bly could have ha d on the jury’s ver dict. See Ja ckson, 347 S o. 3d at 300, 30 7. That evidence incl uded K aczmar’s state ments and con duct in dealing with Detect ive Humphrey. Un doubt e dly this evid ence was useful t o the State, and th e pro secuto r did, in fa ct, und erscore it in his opening stat ement and closin g argument. Nevertheless, we do not find tha t such circumst ances requir e a finding of prejudi ce. The suppres sible evidence of the underc over operati on was used to show con sciousness of guilt. As noted abo ve, the Sta te had already presen ted a gr eat deal of this ty pe of evidence. Thus, the evidence of the undercover o peration was only a part (albeit a significan t componen t) of the St ate’s considera ble consciousn ess - of - guilt eviden ce. In light of all t he evidence, we are not persu aded that there is a reasona ble pr obabi lit y that the jur y would ha ve acquitted Kacz mar h ad it simply not h eard the suppressi ble evidence an d argument r elated to it.

Accordingly, Kaczmar h as failed to show prej udice and, consequently, is not entitled t o a new trial based on his counsel’s failure to see k suppressi on of the under cover - opera tion evidence. B Kaczmar arg ues that coun sel was deficient in failing t o object to certain t estimony by Detect ive Sharm an. Specifical ly, on redirect examination, Detective S harman t estified that Filancia di d no t “make up” the fact that Kac zmar to ld him about the l ocatio n of the knife used i n the mu rder. 15 Counse l did n ot object. The circu it court assu med deficient performance b ut found no prej udice. We li kewis e find n o prej udice without addressing Stri ckla nd ’s performan ce prong. Here, th e challenged testim ony was brief. Mo reove r, Detecti ve Sharman di d not state, or even imply, that Filancia ha d been an overa ll ho nest or trustwo rthy in forman t — just that he did not believe th at Filancia i nvented the det ails about th e 15. See Johnso n v. State, 404 S o. 3d 538, 5 40 (Fla. 3d DC A 2025) (“It is well settled that ‘ it is an invasion of the jury ’ s excl usive province for one witness t o offer his pers onal view on t he credibility of a fellow wit ness. ’ ” (quoting Boatw rig ht v. S tat e, 452 S o. 2d 66 6, 668 (Fl a. 4th DCA 1 984))).

knife’s locati on. 16 In addit ion, the pr osecut or did not refere nce this testimony at any p oint in his clos ing argument. We also recognize that the ju ry was instru cted o n its sole responsibility to assess w itness credibili ty, which would be inconsistent with a ny deference being given t o the views of one witness on the c redibility of ano ther. Again, we assume the jur y follo wed the l aw as embod ied in tha t instru ction, and we see nothing in the rec ord to rebut th at presu mption. See Strickl and, 466 U. S. at 694. Finally, as noted earlier, the Stat e p resente d overwhel ming evidenc e of guilt. Cons ideri ng t he totality o f the State’ s proo f, Det ective Sharm a n’s brief, relati vely b enign bo lsteri ng testim ony was not prejudicial unde r Stricklan d. C Kaczmar als o argues that counsel was in effective for induc ing testimony by Fil ancia t hat he believed Modlin was in nocent due t o 16. That fact distinguishes t his case fr om Tumblin v. Stat e, 29 So. 3d 1093, 1095, 1100 - 01 (Fla. 2010), and Page v. St ate, 733 So. 2d 1079, 1080 - 81 (Fla. 4th DC A 1999), w here the bolste ring witnesses e xpressed m ore expansiv e and direct views of the veracit y of the wit nesses. We also add th at Tumblin a nd Page involved direct appeals — n ot collater al proceeding s like in this case.

the fac t that Mo dlin passed a lie - detector tes t. The c ircuit c ourt found no defi cient perf ormance, and we ag ree. While being d eposed by tr ial counsel, Filancia indica ted that Modlin passed a l ie - detector test about Ruiz’s murder. Counsel obta ined an ord er forbi dding m ention of th is fact. During cross - examination at trial, counsel as ked Filancia how he could k now that Modlin wa s actually inn ocent. It was that question t hat led to the lie - detec tor testi mony. We believe t hat counsel — in framing his questions — could have r easonable c onfidence that Filancia was bot h aware of the trial court’s order and would obe y it. We a lso note that counsel obtain ed an inst ruction seeking t o minimize any harmful effect o f this te stim ony. 17 Accordingly, we find no deficienc y in counsel’s phr asing of this question t o Filancia. D Kaczmar c ontends that counsel was in effective for n ot 17. In his motio n, Kaczmar arg ued that counsel should have objected t o Filancia’s testimony that he thought Modlin was innoc ent. Bu t in his b riefs here, he o ffers no thing m ore tha n conclusory assertions on t his subje ct. Accordingly, we find th is argum ent forfe ited. See Ja ckson, 347 So. 3d at 30 0 (affirmi ng denial of Strick land claim w here appellat e argument was “unde velo ped an d conc lus ory”).

presenting t he jury w ith certain excul patory statem ents that he made to Detecti ve Hump hrey duri ng the ir jailhouse discus sions. We, lik e the c ircuit co urt be low, find this claim to be withou t merit. During his tal ks with Detect ive Humphrey, Kaczmar indicated at various t imes that he was in nocent of th e murder. Counsel argued th at this eviden ce was admissibl e under the r ule of completen ess. The court agreed, but it acce pted the pros ecutor’s position th at if the exculpat ory statemen ts came int o evidence unde r that rule, the p rosecuto r coul d intro duce evidence of Kaczmar’ s prio r convicti ons. In light of that ruling, counsel made a sensible str ategic decisi on to forgo t he exculpatory s tatement s in favo r of keeping K aczmar’ s convicti ons out of eviden ce. Indeed, at the evidentiar y hearin g, counsel tes tified that keeping Kaczmar’s conv ictions from the ju ry allo wed for s tronger co nvict ion - based impeachm ent of Filancia an d Modli n. That testimo ny, which the circu it court c redited, suppo rts rejecti on of th is cla im. See Gregory v. State, 224 So. 3d 71 9, 733 (Fla. 2017) (“[C]o unsel ’s r eason able

trial decisi ons do not const itute inef fective assistan ce.”). 18, 19 E Kaczmar arg ues that coun sel was ineff ective for faili ng to impeach or refresh the rec olle ction of his forme r neighbor Ju lia Fe rrell based on her d epos ition testimo ny. Th e circui t court rejected thi s argument. We find that rulin g to be su pport ed by competent, substant ial evidence an d in accord with t he law. At trial, Fe rrell te stifie d about over hearing a ver y heated argum ent shortly befo re the fire. She i ndica ted that o ne of th e two voices was Ka czmar ’s. W hen pressed by defen se counsel about the 18. Kaczmar r elies on what he percei ves to be misstate ments of law that counsel made at th e postconvict ion evidentiary hearing. His reliance on such testimony, tho ugh, is misplaced. Put sim ply, none of this t estimony suggest s that coun sel’s priori tization was informe d by any misu nd erstan ding of eviden ce law. 19. It is evident from the brie fing tha t Kaczmar’s c urrent counsel strong ly disagre es with tr ial counsel’s choice to prioritize stronger i mpeachment ove r introdu cing the exculp atory evidence. That disagreem ent alone is not a basis for f inding counsel deficient. Occhicone v. State, 768 S o. 2d 1037, 1048 (Fla. 2 000) (“Couns el cannot be de emed ineffect ive merely beca use curren t counsel disagrees w ith trial counsel ’s strategic de cisions.” (c iting Strick land, 466 U. S. at 689)). Also, to the exte nt Kaczmar is obl iquel y attacking t he court ’s evidentiary ru ling at trial, that issue was decided again st him long ago, see K aczm ar I, 104 S o. 3d at 100 0, and is not su bject to reconsideration now, see Fla. R. Crim. P. 3.851(e)(1); He ndrix v. St ate, 13 6 So. 3d 1122, 1124 (F la. 20 14).

sourc e of the other voice, Fe rrell expressed uncer tainty as to whether it was a male or female vo ice. It was at this po int that Kaczmar clai ms hi s counsel should have impeach ed Fe rrell or refresh ed her recollecti on with her deposition t estimony. In her deposi tion, Fe rrell ind icated that she thoug ht both p articipa nts in the altercation had mal e vo ices but maintai ned some l evel of unce rtainty. We think t hat a competent at torney coul d have reaso nab ly deci ded again st impeach ing Fe rrell on this basis. We doubt that Fe rrell ’s deposition and trial test imony are sufficient ly in tensi on to justi fy impea chment by prior inconsistent stat ement. We have said that “[t] o be inconsi stent, a p rior s tateme nt must eith er dire ctly contra dict or b e materia lly d ifferent from th e exp ected testimo ny at trial.” Pea rce v. Sta te, 880 So. 2d 56 1, 569 (Fla. 2004). Here, Fe rrell never claimed at trial or in he r depo sition tha t she was certai n th at both partici pants had mal e voices. Inde ed, i t appears that she maintained reason able consist ency with respect to the second v oice. At trial, o n dire ct ex aminatio n, she ind icated th at she thought t he second v oice was that of Kaczmar’s uncle — a mal e. And in her dep osition, she ex pressed a fairly stro ng be lief tha t it

also came from a male — though she was less than certain. In light of th is comm on gr ound, we see not hing unreasonab le about declining to impeach o n the g rounds of pri or inc onsis tency. But there is anot her reason w hy we do no t find d eficient perfo rmance. A s a preco ndition to this typ e of im peachmen t, the witness mu st be given a chanc e to explain the past st atement. Id. at 57 0. Based on th e testimony th at came out on dir ect examination — i.e., that Fe rre ll thought the second v oice came f rom Kaczmar’ s uncle — a reas onable at torney could ha ve decided to r ely on that eviden ce rath er than give Fe rrell a chance to explain an y differences i n her deposit ion testim ony in a way that would be potentially damag ing to Kaczmar. S eeking to avoid th at potential risk, a reasonabl e attor ney could have for gone this p ossible aven ue of impeachmen t (again, involving an o bviously unfavorable witness who was adam ant th at she heard Kaczmar yelling) and instead sought to backdo or in Fe rrell ’s comparable st ateme nts through the testim ony of re spondi ng officers. Th at is, in fact, what defen se counsel un suc cessf ull y tried to accomplish. The trial cou rt’s adverse evi dentiary ruling says nothin g about either the risk

avo ided or the fact that th e depo sition te stimo ny did no t offer significan t impeachm ent value, ev en if admissible. Kaczmar’ s recollect ion - refre shed argum ent fares no bette r. As a matter of evi dence law, a part y is not allowed to r efresh a witness ’s reco ll ectio n unless th ere is some ind ication tha t the witness ha s fo rgotten so mething — hence t he need fo r the witn ess ’ s mem ory to be jogge d. See Reid v. State, 799 S o. 2d 394, 3 98 (Fla. 4th DC A 2001). Here, there is no thing in Fe rrell ’ s trial testimony indicating that any tension with t he deposition w as based on her lack of memory. A nd in postcon viction proce edings, Kacz mar did n ot call Fe rrell as a witness or attemp t to pro ve la ck of reco llectio n by another mean s. As such, Kaczmar has failed to pro ve deficient performan ce. F Kaczmar arg ues that coun sel was ineff ective for call ing Detective G oldner as a wit ness at tri al. In re jectin g that a rgume nt, the circuit court found a reas onable str ategic reason f or counsel’s decision to c all this particul ar witness. The record su pports tha t ruling.

Detective G oldner conduct ed a search of K aczmar’s v ehicle, during which h e located an d collect ed evidence of certain nondescri pt stains. E vidence of the stai ns was neve r sent for testing. Couns el seize d on th e lack of t esting to supp ort the th eory that th e police’s investigat ion was incom plete. As the cir cuit court found, th at strategic decision does not f all outside the wide r ange of reasonably c ompetent performanc e. See Ban ks v. State, 219 So. 3d 19, 29 (Fla. 2 017). G Kaczmar as serts that coun sel was inef fective for f ailing to impeach Fila ncia by highlighting the nature a nd underlying details of the charges for which he was jailed. We agree wit h the circuit court tha t this claim coul d be denied on the b asis of the preexist ing reco rd. Allen v. S tate, 416 So. 3d 291, 302 (Fla. 2025) (summary denial proper if existing recor d refutes clai m). According to Ka czmar, counsel sho uld have impea ched Filancia when h e testifie d that he and Kaczm ar were f riendly and that he believed Kaczmar t rusted him. As K aczmar sees it, the details of Filancia’s char ged crimes would have seri ously undermine d Filancia’s tr ust - related testim ony.

We find this claim to be meritless. C ounsel was well aware that th e jury had already he ard evidence in dicating t hat Kaczmar was frien dly with and trust ed Filancia t o some exten t. Based on that r eality, we believe that a co mpetent l awyer could — as co unsel did her e — focus on more promi sing areas of i mpeachment. Trueh ill, 358 So. 3d at 1 178 (finding that counsel a cted reaso nably in declining to im peach witn ess on ground t hat would have of fered limited val ue in light of other evidence at trial). H Kaczmar arg ues that tr ial counsel was inef fective in fai ling to challenge th e State’s D NA evidence. We agree wit h the circuit court that th is argument lacks merit. We assess Kacz mar’s D NA - rel ated claim in sever al parts. 1 Kaczmar fault s counsel for f ailing to object to the prose cutor’s statement in opening argum ent that Ruiz ’s blood w as on his soc k. We see no prosec utorial miscon duct t hat would have war ranted an objec tion. “Opening rem arks ar e not evidence, and the purpos e of opening argument is to ou tline what an attorney expect s to be

establishe d by the evidence. ” True hill, 35 8 So. 3 d at 11 77 (emphasis a dded) (quotin g Occhicone v. State, 57 0 So. 2d 902, 9 04 (Fla. 1990)). Here, the prosec utor stat ed what he expecte d the evidence w ould show wit h respect t o the sou rce of the b lood o n Kaczmar’ s socks. That com ment was compl etely permi ssible. See Schoenwetter v. State, 46 So. 3 d 535, 5 49 (Fl a. 201 0) (“[C]ounsel cannot be dee med ineffect ive for failing to make a meritle ss ob jection. ”). Mo reove r, we reject K aczmar’s argumen t th at evid ence at tr ial did not align with the prosec utor’s predict ive asserti on. In fac t, t he profi le that Lam primarily discussed was generate d from a blood stain, and Ruiz was th e majo r contrib utor fo r that p rofile. On top of this, McElfresh specific ally testif ied that “[t]h e only reasonabl e scientifi c explanat ion is that t hat was Maria Ruiz’ bl ood on those socks.” 20 That testimony is consiste nt with the St ate’s postc onvictio n expert’ s testi mony — i.e., that there i s a “ high 20. Kaczmar sugg ests that McElfresh’s test imony coul d not support t he prosecutor’s cl aims, indicat ing that he lack ed the qualificat ions to opine on t he source of t he DNA. Kaczmar never alleged in h is motion that McElfresh was not qualifie d to give that tes timo ny. Accordingly, any qualificati on - based argument woul d be unpres erved. See J ackson, 347 So. 3d at 300 - 01.

probab ility tha t the D NA from [Ruiz] as the maj or contri buto r would be fr om blo od DNA. ” 21 2 Kaczmar als o faults counsel for not having his retained DNA expe rt, Candy Zuleger, attend and assist at trial. B ased o n our revie w of the re cord, we do not t hink that Zuleger ’s presence w as necessary to resp ond effect ively to t he State’s DNA evi dence. Indeed, even without Zuleger ’s presence, counsel wa s still able to unders core defense - frien dly aspect s of the DNA evi dence. For instance, with the assist ance of Zuleg er’s repor t, the defe nse was ab le to highl ight the p oss ibility o f a third contribu tor to the DNA profi le. Couns el also succeeded in getting b oth of the State’s DNA e xperts t o acknowledge some t heoretical ways that Ruiz’s DNA c ould get on K aczmar ’s soc ks. Co unsel also got Lam to a dmit that DNA t esting cannot sh ow thin gs such as age. I n light of these circumstances an d others, Kacz mar cannot show that Zuleg er’s presen ce at tri al was so essenti al that every 21. To th e exte nt Kaczm ar fau lts counsel for not o bjecting to similar com ments in closing argument abo ut Ruiz ’s bloo d being on Kaczmar’ s socks, his r eliance on such com ments is m isplaced for the reasons giv en above.

reasonabl e lawyer i n counsel’s posit ion would have insi sted on her presence. C f. Harri ngton, 562 U.S. at 111 (“In many in stances cross - examin ation w ill be sufficien t to expose defect s in an expert ’ s pres entation.”). 22 3 Next, Kaczm ar claims inef fectiven ess in counsel ’s dec ision to refrain fro m cross - examin ing Lam on the gro und that Ruiz’s DNA could have c ome from a non - blood sourc e. As n oted above, t he DNA profiles ca me fr om areas that test ed positive for t he presence of bl ood. Cou nsel acc epted the commo n - sense i nference t hat Ruiz’s blood was the s ource of the DN A. In fa ct, i n Kaczmar’s direct appeal, we revi ewed the recor d and drew a com parable inf erence. We said that t he scientific evi dence showe d that Ruiz ’s blood was on Kaczmar ’s sock. Kac zmar I, 104 So. 3d at 99 7. We also add that instead of contestin g whether R uiz’s blood was the sour ce of the DNA on Kacz mar’s soc ks, counsel sough t to 22. To the extent K aczmar is separat ely arguing ineffect iveness based on co unsel’s f ailure to call Zule ger as a witness at trial, su ch an argu ment woul d lack merit. Counsel testifi ed that he did not call Z uleger because sh e would have corrob orate d significant aspects of Lam’s test imony.

undermine t he signif icance of the DNA evi dence — highlighting the poss ibility o f a third d onor a nd the ina bility to estab lish the ag e of the DNA. Choosing this route allo wed the defense t o blunt some of the force of t he DNA evidence and r aise questions a bout a possible unknown killer, while at the same time maintaining credibility with the jury. Indeed, counsel test ified at t he evidentiary hearing th at one of his strat egic concer ns was maint aining credi bility w ith the jury. That credibility might well have been jeopardiz ed had couns el pressed mor e remote possi bilities of t he source of Rui z’s DNA. 23 4 Additionally, Kaczmar criticizes counsel for failing to “put [in] testimony a bout the ten samples” to underscore that Ruiz was the major cont ribut or for only two of the samples, whi le Kaczmar was the maj or co ntributo r for six of them. T hou gh we think c ounsel could have br ought th ese topics up with the State’s exper ts, counsel was not unreaso nable in focusing on different ways to blunt the 23. It was not unti l the pos tconviction he aring tha t Kac zmar himself gave an i ndicati on that Ruiz wore h is father’s soc ks and that th e household’s dir ty laundry w as stored and w ashed together. No witness at trial test ified to such things. Nor do we have any basis for concl uding that counsel was aw are of these or similar alleged fact s.

force of the DN A evidence ag ainst Kaczmar. 24 We have alrea dy recou nted some of th ose efforts. Moreover, highlighting the indiv idua l profi les w ould hav e pos ed its ow n iss ues. The jury would have been remi nded that Ruiz’s DNA was fo und on at least eight separate ar eas of the soc ks (all testin g positive for t he presence of blood), as oppose d to hearing ab out th e results as to just one particular sample. Per haps, despite t hese concerns, current counsel w ould have nonethel ess presse d the State’s expert on the number of sam ples tested an d underscore d that Rui z was the major contri butor fo r two of the m. Bu t that di fference of opinio n does not mean that def ense counsel wa s deficient. See Strickland, 466 U.S. at 689 (“There ar e countless way s to provide effect ive assistan ce in any given cas e. Even the best cr iminal defen se attorney s would not defend a parti cular cli ent in the same w ay.”). 25 24. At the p ostc onvicti on hea ring, cou nsel te stified tha t he saw no reason to poin t out that Ka czmar w as the maj or dono r for some of the sam ples. That asse ssment seem s eminent ly reasonable to us. 25. Kaczmar al so asserts that counsel sho uld have object ed to the pr osecut or ’s s tatement in closing argument about Ruiz be ing the maj or co ntributo r to the D NA profi le on th e socks. Kaczmar failed to raise t his argument in his motion bel ow. Therefore, it has not been preserve d. See Ja ckson, 347 S o. 3d at 300 - 01. Moreove r,

In conclusi on, Kaczmar has not shown an y deficient performan ce in connecti on with t he DNA evidence. I Kaczmar arg ues that his coun sel was inef fective for f ailing to present a chain - of - cust ody arg umen t for keeping h is bl oody s ocks out of eviden ce. We, like the ci rcuit court bel ow, reject t his argum ent. Under Flori da law, a defendant seeking to exclude p hysical evidence based on a break in t he chain of custody must make a thr eshold sh owin g of probabl e tam perin g. See Davis v. State, 383 So. 3d 717, 7 39 (Fla. 202 4). Her e, Kacz mar fails to p oint to any evidence in dica ting that hi s socks were tampere d with af ter he left them in the custody of law enforcement. This being th e case, no showing of p robable tampering has been pro ffered. a competent l awyer in trial counsel’s p osition might well have decline d to object here becaus e the major - /m ino r - dono r dis tinctio n was not a partic ularly damagi ng aspect of the DNA eviden ce. Rather, what made th is evidence p articularly de vastatin g is that Ruiz’s DNA was on the socks Kaczmar w as wearing on th e day of the m urder an d th e DNA came from sta ins that te sted positive for the presenc e of blood.

Resisting t his straigh tforward anal ysis, Kaczmar conten ds that he himself di d the tampering, when he smeared b lood on one of the socks. But K aczmar’s relian ce on his own conduct is mispl aced. As alr eady n oted, thi s conduc t occ urre d prior to Kacz mar’s depa rture fro m the inte rview. A ny “tampering” done by Kac zmar does not raise c oncerns t hat the socks a dmitted int o evidence at trial diff ered from the socks t hat Kaczmar w ore to the poli ce station and smeare d blood on. 26 In short, K aczmar’s chain - of - custody a rgument lacks merit. As a consequ ence, we do n ot fault c ounse l for fai ling to rais e it. J Ka c zmar argues t hat trial counsel was ineff ective in failin g to challenge c ell phone r elated eviden ce presented by a detective wh o inves tigated th e murde r. We agree with the c ircui t cou rt that this argument lacks mer it. Detective Danillo Matos gave t estimony at trial concer ning the 26. We also questio n whether a def endant’s own con duct could ever c onstitute the p robable tamperi ng nece ssary for purposes of chain - of - cust ody e xclu sion. See Gonzalez v. State, 136 So. 3d 1125, 1147 (Fla. 2 014) (r efusing to gr ant appellate r elief where appellan t was resp onsible f or the claimed er ror). However, we need not deci de this issue in order to deny reli ef.

location of K aczmar’s cell ph one based on r ecords indicat ing which cell towers wer e involved in certain phone c alls. For instance, Detective Mat os testifi ed that the cell - tower evi dence was consistent with Kacz mar being present at the home e arly in the mo rning on the day of the mu rder. To support the ineffect iveness claim directed at this evidence, Kaczmar calle d an expert to t estify at t he postconvict ion evident iary hearin g. Despite having issues with how Detective Mat os framed som e of his trial testimo ny, the e xpert d id no t challenge an y of the detective’s underlying analysis. Aside from th e lack of eviden ce regar ding any analyt ical shortcoming by Detective Matos, c ounsel’s testim ony at t he evidentiar y hearing do oms this claim. As r evealed at t he hearing, Kaczm ar admitted that he was present at the house durin g the relevant t ime frames. An d by Kac zmar ’s own a dmis sion to polic e, he was present a t his ho me fro m roughly 11:00 p.m. to 2:00 a.m. — the times at issue with t his claim. Based on these t wo admissions, counsel w ould have had litt le reason to challenge evi dence placing Kaczmar near the crim e scene at the relevan t times. Put simply, in light of t his evidence, w e cannot see how couns el could possi bly be de emed deficient for n ot challengin g Detective Mat os’s cell - tow er

testim ony. See Smith v. State, 330 So. 3 d 867, 8 80 (Fl a. 2021) (“ A decision that lodging a particular ch allenge to the va lidity of evidence w ould be a waste of r esources in li ght of counsel ’ s knowledg e of corroborat ing facts incl uding the defen dant’s confession c an be a reasona ble strateg ic decision.” (citation modified) (quoting Patrick v. St ate, 246 So. 3d 25 3, 262 (Fla. 2018))). K Kaczmar arg ues that tr ial counsel was inef fective in fai ling to object to th e evidence of his dr ug use and the inst ruction on th e legal effect of volunt ary intoxication. This argument i s meritless. The record sh ows that counsel made a str ategic cho ice not to challenge th e evidence of h is drug use. And Kacz mar, in our vi ew, has no t demo nstrate d that counsel ’s strategi c decision was unreasona ble under the cir cumstan ces of this case. See Sheppard, 338 So. 3d at 8 16. As for the volu ntary - into xicatio n instruc tion, Kaczmar has n o t convince d us that t he instruction gi ven was an inaccurat e statement of law or shown how it somehow o perated in an unlawful fash ion in thi s particular case. In light of this, we do not see how Kacz mar can show deficiency in failing to object to an

instru ction th at Kaczmar f ails to s how w as inc orrec t or uns ound. See Davis v. St ate, 136 So. 3d 1169, 1201 (Fla. 2014) (counsel not defic ient fo r failing to ob ject to a prop er jury instru ction). L Kaczmar arg ues that tr ial counsel was inef fective for failing t o object to cert ain commen ts made by t he prosecutor. T he circuit court fo und th e preex isting re cord su fficient to refute th is claim. Kaczmar has not sho wn that this ruling wa s wrong. In his briefs, Kaczmar r eproduces a num ber of prosecut orial comments in closing argum ent, which he believes necessit ated objection s from counsel. Based in part on how this issue h as been briefe d to us, we decline to offer a p oint - by - point analysis of each of the comment s that Kaczmar faults. Instead, having reviewed all the comments in the context of the prosecutor’s overal l argument, we conclude t hat none wer e so egregious t hat all reason able lawyers would have o bjected to them. See Ja ckson, 3 47 So. 3d at 304. M Kaczmar arg ues that tr ial counsel was inef fective for failing t o sufficient ly investig ate the details u nderlying Filanci a’s plea agreement an d specifically learn that Fi lancia was faci ng a lowest

permissibl e sentence of 6 5 years in pr ison. The ci rcuit cou rt found that couns el acted reas onably in focusing on other avenu es of impeachment. We a gree with that ruling. At the outset, we note that t here was evidence at the postconvict ion hearin g indicating t hat counsel was, in fact, aware of the Stat e’s view of Filanci a’s lowest perm issible sent ence. Base d on that awar eness, we thin k counsel’s choic e of using oth er impeachm ent evidenc e represent s an informed judg ment to forgo one arguabl e basis for impeachment in fav or of o thers belie ved to be more pr omisi ng. True hill, 35 8 So. 3d at 1182 (rea sonable for counsel to forg o certain avenues of impe achment in favor of more tar geted cross - examinatio n); Kessler v. Cline, 3 35 F. App ’ x 768, 7 70 (10th Cir. 2 009) (exten t and m ann er of cr oss - exami nation of a particular witness “is a str ategic choice an d therefo re ‘virtually unchallengeable’ ” (quoting Strickla nd, 466 U.S. at 6 90)). Counsel introduce d Filancia’s pri or convictions, presented e vidence th at Filancia ha d access to Kaczm ar’s court pa pers, and showe d the extremely fav orabl e aspects of Filan cia’s plea agre ement (wh ich essentially t ook a lif e sentence off th e table and incl ude d a 20 - year

sentencing cap). Kaczmar has failed t o show ineffect iveness in this regard. N Kaczmar arg ues that tr ial counsel was inef fective in fai ling to request a spe cial instr uction on wha t he characteri zes as a “heat of passion” defense. The circuit cour t found no deficie nt performance, and we agree with that ruling. Florida law r ecognizes a “heat of passion” def ense, which can provide either a partial or com plete defense t o premedi t ated firs t - degre e murder. T aylor v. State, 316 So. 3d 42 0, 427 (Fla. 1st DCA 2021). As releva nt here, when operating as a par tial defense, “heat of passion” n egate s th e premeditat ion mens rea. Id. A core requirem ent of this defense — whether pa rtial or complete — is that the defen dant is actin g upon a “sudden suf ficient prov ocati on” an d not “a bad or c orr upt heart.” Id. T he prov ocat ion must be of such a magnitude that it would “obsc ure the reason or dominate t he volition of an or dinarily r easonable [per son ].” Id. (quoting Paz v. State, 777 So. 2d 983, 984 (Fla. 3 d DCA 20 00)). Critically, absent eviden ce of su dden provoca tion, a defendant

can not succee d on a heat - of - passion defen se and is no t entitl ed to an ins tructio n on it. Id. at 427 - 28. Based on our review of the record, we conclude that evi dence of sudden pro vocation w as lacking, even when viewe d in the light most favorabl e to Kaczmar. Counsel cannot b e held deficient f or failing to requ est an in structi on that i s no t su pported by the evidence. However, even assuming t here was suff icient eviden ce to support a spe cial instr uction on th is defense, co unsel’s action wa s still not obje ctively unr easonable. The evi dence pre sented at th e guilt phase sh ows that t his defense would hav e been extr aordinarily weak. Under t he only evidenc e at trial on th e sequence of t he attack, Kaczm ar’s own unw elcomed sex ual advances caused Ruiz to flee fro m him a nd ultim ately re sort to self - defense. It was her actions in self - defense th at Kaczmar now asserts cre ated the adequate pr ovocati on. We think that a r ational jury woul d have had great diff iculty in characterizin g Kaczmar’s rea ction to Ruiz’s self - defense a s reasonabl e in any sense. Additionally, Kac zmar was much lar ger than Ruiz and could have simply st opped the at tack at any time af ter disarming her.

Instead, acc ording t o the medical examin er’s uncont roverted testim ony, Ruiz was brutall y attack ed for at least sev eral minutes during which sh e was stabbe d over 90 times. Base d on these f acts, we think a co mpetent lawyer could forgo seeking an instructio n on a defense wh ich would have had li ttle t o no chance of succee ding. See Knowles, 556 U.S. at 127 (“The law doe s not requi re co unsel t o raise every av ailable nonfr ivolous defen se. Counsel also is not required t o have a tactical r eason — abov e and beyon d a reasonable appraisal of a claim’s dismal prospect s for success — for recommen ding that a w eak claim be dropped alt ogeth er.” (citations omitte d)). O Kaczmar arg ues that th e State violated Brady v. Maryland b y not making him a ware that Filancia had been in a r elationship w ith the fos ter moth er of Rui z’s daughter. In r ejecting Kaczmar ’s Brad y claim, the ci rcuit court r easoned that t he impeachmen t value of th is evidence wa s minimal, and thus the evi dence was no t material. We agree. To prevail on his Bra dy claim, K aczmar “must demonstr ate that (1) f avorable evidence wh ich is exculp atory or impeachin g,

(2) was suppres sed by the St ate, and (3) beca use the evidence w as material, he was prejudiced. ” Hutc hinson v. S tate, 343 So. 3d 50, 54 (Fla. 2022) (citing Sweet v. Sta te, 293 S o. 3d 44 8, 451 (Fla. 2020)). Here, tri al counsel had alr eady impeache d Filancia on multiple subs tantial g rounds. Counsel pointed out Filancia’s multiple felony convictions, stressed Fil ancia’s fav orable plea de al, and undersc ored Filanci a’s access to K aczmar’s cour t paper wo rk. As Kaczmar a ppears to acce pt, t he relationshi p evidence w ould ha ve added only mar ginal impe achment value. Consid e ring the limited value of the ad ditional impeachment evidence, t he substantial grounds on whi ch defense co unsel actually i mpeach ed Filancia, and th e stre ngth of th e State ’s p roof, the evidence at issue woul d not have “put th e whole case in such a differen t light as to undermi ne confidence in the verdict.” Sweet, 29 3 So. 3 d at 451 (quoti ng State v. Hu ggins, 788 S o. 2d 23 8, 243 (Fla. 2001)). Accordingly, the circ uit cou rt did not err in d enying Ka czma r’s Brady claim. P Kaczmar arg ues that th e State violated due process wh en the

prose cutor fai led to c orrect th e false testim ony o f one of its witnesses. W e disagree and affirm the c ircui t cou rt’s rejec tion o f this claim. As in terpreted by the U.S. Su preme C ourt, the F ourte enth Amend ment prohib its pros ecuto rs from pre sentin g or failing to correct mat erial eviden ce that they know to be fal se. Napu e, 360 U.S. at 269; Giglio, 405 U.S. a t 153 - 54. T o vacate a convict ion based on a viol ation of this prin ciple, a defend ant must demonstrat e falsit y and prosecutor ial knowledg e of that falseh ood. Glossip v. Oklahoma, 604 U.S. 226, 246 (20 25). But that is not enough. Hampto n v. S hinn, 143 F. 4th 104 7, 106 8 (9th Cir. 20 25). Ind eed, a court m ay not grant relief unless the fal sehood was materi al. Id. Relying on these prin ciples, Kaczm ar’s claim is that the pros ecutor know ing ly fai led to cor rect Rich ard Kur itz ’s — Filancia ’s lawye r at the tim e — false testimon y that t he reason for Filancia’ s 20 - year sent enci ng cap was the so - call ed sentenci ng guidelin es. We accep t for pu rposes of thi s op inion that Kac zmar sa tisfied the fal sity and kn owle dge pr ongs. According ly, our fo cus shifts to ma teriali ty.

In discussin g this prong, w e have described it as “ defense friend ly, ” at least in r elation to the ef fect - base d pron gs of Brady and Strickla nd. See Sheppard, 338 S o. 3d at 829. After a ll, unl ike Brady a nd S trick land ’s reason able - probabili ty standa rd for materi ality o r prejud ice, the ma terial ity stand ard i n the Giglio / N apue c ontext is w hether there is a r easonable possi bility of a diffe rent ou tcome. See Martin v. Sta te, 31 1 So. 3d 778, 80 8 (Fla. 2020). A nothe r distingu ishin g feature i s that the State, not the defe ndant, mu st prove la ck of ma teriality. Id. Nevert heless, the materi ality p rong still p oses a substantia l barri er for rel ief. He re, three cir cumstances lea d us to conclude th at Kuritz’s t estimony was not m aterial. First, Kuritz was not one of the key wit nesses. C f. Glossip, 604 U.S. at 248 (finding mater iality satisfied becaus e the f alse testimony ca me from the St ate’s key w itness). His over all testimony was b rief. The State used his limi ted testim ony to show that Filancia did no t get any deta ils ab out Kaczmar’s crimes from him. Not su rprisi ngly, Kuri tz offere d no details whatsoever as to the events sur rounding t he crimes. Second, t he guidelines t estimony — the subject of t he Napue

claim — was conf using and diffi cult to fo llow. Nota bly, Kaczmar f ails to ex plain h ow th e jury w ould ha ve logically assigned any val ue to it. Third, the State ’s p roof of gu ilt was ove rwhelming, a nd that proof d id not re ly at al l on Ku ritz’s te stimo ny. As previously dis cuss ed, a witness heard Kacz mar loudly arguing with so meone and within an hour he appears on a surveil lance vid eo buying gasoline. The hou se in which he and Ru iz liv ed burn ed to th e groun d — the c onflagration aid ed by gasoline. Kaczmar fled fro m the scene, rep eatedly lied to polic e, and had Ruiz ’s blood on his socks. See Ha mpt on, 143 F.4th at 1070 (finding no materiality where evi dence of guilt was overw helming). Q Kaczmar arg ues that th e cumulative ef fect of all th e errors at his guilt phase depri ved him of a fun damentally f air proceedin g. We disagre e. In our analysis ab ove, we assumed deficient performan ce under Stric kland b ased on counsel’ s failure to see k suppressi on of the under cover oper ation involving Detective Humph rey an d counsel’ s failure to obje ct to Detectiv e Sharman’s bolster ing testimony. W e also assumed t he first t wo prongs of a

Napue violation b ased on Kuritz’s g uidelines test imony. After considera ble analy sis, we found th at the required pr ejudice or materi ality p rong s w ere not est ablished. We now c onclude t hat even when view ed togeth er, these matt ers do no t under mine our confidence t hat Kaczmar r eceived a f air and reliable guilt pha se. See Strickla nd, 466 U.S. at 696 (focus of p rejudi ce prong is o n reliability of outcom e); Catlin v. Broomfield, 124 F.4 th 702, 7 42 - 43 (9th C ir. 202 4) (focu s for Napue mat eriality is on overall fairn ess of defendant ’s trial). Thus, Kaczmar has not demonst rated the “requisit e prejudice” to s upport reli ef on the basis of cumulativ e error. See D avis v. S tate, 383 So. 3d 74 3, 761 (Fla. 2024). We now turn to Kaczmar ’s penalty - phase claim s. R Kaczmar arg ues that his coun sel was inef fective for not impeaching Filancia’s former testimony when it was rea d to the jury at his second pen alty phase, w hich occur red in 2 013. We disagree. At Kaczmar’s sec on d penalty ph ase, the St ate’s proof consi sted primarily of the form er testim ony of ten wi tnesses at Kaczmar ’s guilt phase. That included Fil ancia’s testi mony. Kaczmar is claiming th at counsel sh ould have impe ached Filan cia’s former

testimony by pointing out t hat Filancia recei ved a 15 - year sentence (which is f ive years under t he sentencing cap) a s well as th e fact that Filan cia’s complete d scoreshe et showed a lowe st permissible sentence of 65 years in prison. However, con sistent with our analysi s above, we see no deficiency in counsel’s r eliance on t he impeachment already included in the trans cript, w hich the second penalty - phase jury heard during the read ing of the transc ript. Th at imp eachmen t included t he favorable pl ea deal, pri or convictions, an d access to Kaczm ar’s cou rt papers. In ou r view, fu rther imp eachme nt was not constituti onally require d under the f acts of this case. S Kaczmar c ontends that trial counsel w as ineffective at the 2013 pe nalt y pha se for not obj ecti ng to t he prose cut or’s character ization of mit igating evid ence as an excus e. We agree wit h the court’s rulin g below t hat Kaczmar cannot show d eficient perfo rmanc e. At the evidenti ary heari ng, counsel test ified that he w as aware of the g eneral rule tha t the pro secuto r may n ot denigrate mitigati on. Couns el ad ded th at he di d no t perc eive the prosec utor’s exc use

statement to be denigr ating — either in content, co ntex t, or tone. For that r eason, counsel d eclined to object. We conclu de that counsel’s d ecision n ot to object was both reas onable and su pported by the record, i ncluding co unsel’s testim ony at the evident iary hearing. See Sheppa rd, 33 8 So. 3d a t 816 (actions a ttributa ble to sound trial stra tegy do not constitute defic ient perfo rmance). Thus, Kaczmar cann ot show defici ency. T Kaczmar c ontends that trial counsel act ed unreasonably in not o bjecting to the c ourt’s a nswer to fo ur ju ry questio ns, whic h were s ubmitted to the cou rt du ring the 2013 penal ty - phase deliberati ons. We, lik e the ci rcuit c ourt, s ee no merit to this argum ent. In the middle of deliberati ons, the jury ask ed four questions — each request ing inf ormation that was not presented i n or was no t the foc us of the second penal ty phase. For in stance, t he jury asked whether there was eviden ce at the “init ial trial” th at Kaczmar had (in the days and weeks befor e the murder) t alked about wan ting to have sex wit h Ru iz or treated her in a derogatory fash ion. Kaczmar agree s that the c ourt rightl y refra ine d from giving a ny factua lly

responsiv e answers t o the jury. Nevert heless, Kaczmar argues that in declining t o provide a sub stantive resp onse to the jury, the circu it court should n ot have char acterized th e questions as “n ot relevant. ” Kaczmar f aults counsel for failing to ob ject to this “no t relevant” st atemen t. We see thing s differently. It is clear th at Kaczmar’s jury w as required t o look solely to the evi dence at th e 2013 penalty phas e in carryin g out i ts func tion under th e dea th - penalty s tatute. Cruz v. State, 320 So. 3 d 695, 725 (Fl a. 20 21) (finding that it was erro r for the judge to r ely on “nonre cord evidenc e” from the c odefendant ’s trial); Fla. Std. Ju ry In str. (Crim.) 3.10 (“This c ase must b e decid ed only upon the evi dence that you have hear d from the testi mony of the wit nesses [and have seen in the form of th e exhibits in evid ence] and these instr ucti ons.” (brackets in original)). Here, each of the jury’s q uestions neces sarily sough t at least some evidenc e beyond what w as presente d to it. Relatedly, t he subject of th e questions ha d no meaningf ul connecti on to the sort of evidence th at would inform a law ful jury r ecommendation i n this case — i. e., aggravation (wh ich focused on Kaczmar’s prior crimes and the manner in which Ruiz’s murder was c arried out) an d

mitigation (which was a lmost nonexistent). 27 Botto m line, we do not agree with Kaczmar that the court’s respons e frustrat ed the jury’s abilit y to properly asse ss the relevant evidence. This being the case, we de cline to fault counsel for not taking issue w ith the circu it court’ s respo nse to th e jury. S oliz v. Davi s, 750 F. App ’ x 282, 2 93 (5t h Cir. 2018) (“ In ord er t o show th at co unsel was defic ient fo r failing to ob ject,. . . the objection m ust have merit.” (quoting Ries v. Quarterman, 522 F. 3d 517, 530 (5th Cir. 2008)). 28 U Kaczmar c ontends that trial counsel sh ould have en sured that certai n preli minary instru ctio ns were read to the jury a t the sta rt of the 2013 penalt y phase. That failure, Kaczmar tells us, constituted ineffect ive assista nce. We disagree and affirm the circ uit cou rt’s rejec tion o f this argum ent. 27. For instan ce, one of the questi ons asked wheth er the murder weap on was ever f ound. An answer to t his questi on, though, does no t seem to have any bearing on the a ggravation an d mitigati on which the jury was to assess an d which was t o inform its recommen dation. 28. We also note that the c ourt’ s “ not relevant ” statement described t he jury’s quest ions, not an y facts or eviden ce. Accordingly, Kaczmar mi splaces relian ce on rules pr ohibiting court s from comment ing on or sum ming up the evid ence.

In his postcon viction moti on below, Kaczmar fault ed counsel for no t makin g sure that al l stand ard p relimi nary instruc tions were read to the jury. For example, Kaczmar’s jury was no t instru cted on notetaking o r cell phone usage during penalt y - phase proceedings. Thou gh these, and oth er omi tted ins tructio ns, appear to us to be accur ate and useful, we cannot say t hat every reasonabl e defense lawyer in trial counsel ’s position would have insis ted tha t the court g ive the m or obje ct to the ir omiss ion. See Jack son, 347 S o. 3d at 3 04. Cons equen tly, Kaczmar cann ot show that his couns el’s conduct in relation to these i nstructi ons was un reaso nab le and thus defici ent. See id. V Kaczmar arg ues that tr ial counsel was inef fective for failing t o request a so - calle d “ presu mpti on of life ” inst ruction. We disagr ee. Notably, Kacz mar does not t ell us what exactl y a presumpti on of life means or w hat an in struction on t his presumpt ion should look like. To the ext ent Kaczmar means that a pre sum ption of life has the eff ect of imposing a b urden on t he State to prove an aggravatin g circumstan ce beyond a r easonable dou bt, his jury was already instr ucted to t his effect. If, however, Kaczm ar means that

this assert ed presumpt ion survives and has force ev en after t he jury finds an aggr avating cir cumstance, t hen he has failed to provide any sup port for t his p rincip le. In any event, Kaczmar has not cit ed a single case h olding t hat a jury should have be en instructed on the pres umpti on for wh ich Kaczmar n ow seeks recogn ition. At a minimum, then, we cannot fault counsel for failing to press an argum ent that has no precedent ial suppo rt. See Lynch v. State, 254 So. 3d 31 2, 323 (Fla. 2018). W Kaczmar arg ues that Flori da’s death - pen alty schem e violates the cruel - and - un usual - punishm ent clause s of the U.S. and Florida C onstitut ions “because t he delay of bein g executed i s especially heinou s, atroc ious, or c ruel.” Thou gh it is hard to ascertain what exactly t his cryptic arg ument mean s, we are confide nt it lacks merit. If Kaczmar is cl aiming th at his time on death r ow — couple d with his eventual execut ion — is unc onsti tuti onal, that claim is plainly incons istent with our precedent. See Orme v. State, 361 So. 3d 842, 845 (Fl a. 20 23) (coll ecting case s); cf. Knight v. F lorida, 120 S. Ct. 459, 461 (199 9) (Thomas, J., con curring) (no ting uniform

rejection of s uch claims). Assuming instead t hat Kaczmar’s c laim is base d on some sort of estoppel or unclean - hands t heory, t hat claim would be equ ally unavailing. In his motion, K aczmar argued that the st ate - sanction ed killing of a capital defen dant by execution necessari ly meets the leg al criter ia of the HAC aggravat or and, as a result, amoun ts to cr uel a nd unus ual pun ish ment. Not sur prisi ngly, Kaczmar cit es no case in which a court has ever accept ed this positi on, and we declin e to be first. X Kaczmar arg ues that th e circuit court erred in denyi ng his penalty - pha se Napue claim, whi ch is based on t he same guidelin es testim ony pr eviou sly d is cuss ed in conne ction with the guilt - p hase Napue claim. We agr ee with the circuit court that this claim does not warra nt relief. Like we did a bove, we assum e the falsity an d knowledge pron gs. And again, we conclude that Kuritz’s test imony was not materi al. Kuri tz was no t a key wit ness at the penalt y phase. H is testimony ha d no bearing on t he State’s evi dence of agg ravation

(which was compelling). Nor d id his te stimo ny operate to dim inish the mitigation (whic h was minimal). Accor dingly, we conc lude that the ci rcuit c ourt properl y deni ed Kaczmar’ s second Napue claim. Y Kaczmar arg ues that th e cumulative ef fect of all th e errors at his 2013 pen alty phase depr ived him of a f undament ally fair proceeding. We disagree. In our analysi s above, we assumed deficient performance unde r Strick land in counsel’s fail ure to object t o the circuit cour t’s prior - death - sent ence statem ent and als o assumed th at Kuritz’s guidelines t estimony was f alse and t hat the prosecut or knew of the false hood — thereb y establ ishing th e first two pron gs of a Napue claim. However, viewing th e effects of th ese two issues in the aggregate, we are still conf ident tha t Kaczmar receive d a fundam entally fair trial. See Strickland, 466 U.S. at 696; Catl in, 124 F.4th at 742. Put d ifferently, even w hen consider ing these issues togeth er, they d o not result in the required le vel of prejudi ce to su pport cumul ative - error relief. S ee Davis, 38 3 So. 3d at 761.

IV Concurrent with his in itial brief, Kaczmar filed a habeas petition, w hich raises six additio nal claims. We deny them all. A Kaczmar makes five claims assertin g ineffecti veness of his appellate c ounsel as a basi s for relief. Be fore addressing each claim, we dis cuss several appli cabl e bac kgro und pri ncipl es. We have rec ognized that appellate - i neffectivenes s claims are cognizable in a habeas pet ition. Jackson, 347 So. 3d at 308. These claims essent ially mir ror those asser ting tri al - level ineffectivenes s — meaning th e petitioner m ust demon strate both defic ient performan ce and prejudic e to obtain rel ief. Truehill, 35 8 So. 3 d at 1187. With r espect to the deficien cy prong, i t is foundational that counsel ha s no duty to press ever y conceiva ble argument that is in some sense su pported by th e record. See Valle v. Moore, 837 So. 2d 905, 9 08 (Fl a. 2002). Nevertheles s, we accept t hat in limit ed circumst ances, appellat e counsel c an be deficient f or failin g to raise certain issu es in the brief s. Id. The omitted issue, though, must be merito rious a nd “plainly stronger” than the argum ents that

appellate c ounsel actually advance d. Allen, 41 6 So. 3d at 308; Davil a v. D avis, 5 82 U.S. 521, 533 (20 17). We also s tress that scrutiny of co unsel’s perf ormance in t he appellate cont ext remains “highly defere ntial.” Herrington v. Dotson, 99 F.4t h 705, 7 20 (4t h Cir. 2024). Indeed, court s presume th at counsel act ed reasonably in selecting the most promisin g issues to be brief ed. Waters v. Lockett, 896 F. 3d 559, 568 (D.C. Ci r. 201 8); cf. United States v. Friedm an, 971 F.3d 70 0, 709 - 10 (7t h Cir. 2020); (“Tempting as it may b e to call foul o n every p erceived trial e rror, tha t strate gy generally produc es diminishing returns.”). Mo reove r, a showing of deficient per formance does n ot guarantee rel ief. Instea d, a habeas peti tioner must al so show prejudice. Paralleling its trial analogue, th e prejudice inquiry h ere focuses on t he effect the asserted er ror had o n the outc ome of th e appellate proc eeding. See Smith, 330 S o. 3d at 8 89. A ccordingly, a habeas pet itioner m ust demonstr ate a reasonabl e probability of a diff erent outcom e on ap peal, h ad counsel r aised the omitt ed issue. See id. at 890 - 92. P ut d ifferen tly, if a claim would not h ave succeede d on direct appeal, t here is no prej udice. See i d. With t hese principles lai d out, w e now assess Ka czmar’s

individual claims. 1 Kaczmar beg ins with the claim that appell ate counsel was ineffec tive fo r not arg uing re versibl e error in the cou rt’s fai lure to conduct a Nelson 29 hearing, which foc uses on whether appointed trial counsel has provide d compe tent repres entatio n. Prior to trial, Kaczm ar sent a letter to the trial cou rt. In that letter, he ex press ed a “feel [ing ] ” that coun sel was no t represe nting him p roperly. Kaczmar as serted th at counsel (1) lacked specializ ation in criminal law, (2) had not spoken with certain unnam ed witnesses, a nd (3) had not fi led certain unsp ecified moti ons. We do not view these stat ements as sufficient to t rigger the trial court ’s duty to assess c ounsel’s compet ence. In a number of cases, we h ave held that g rievances about co unsel’s st rategy and sporadic visi tation do n ot require a Nelson inquiry, especially when the defendant has n ot specifically requested th at the judge car ry out such an i nquiry. See, e.g., Morrison v. State, 818 So. 2d 432, 440 (Fl a. 20 02); F igueroa - Sanabria v. S tate, 366 So. 3d 103 5, 104 8 29. Nelson v. St ate, 27 4 So. 2d 2 56, 2 58 (Fl a. 4th DCA 19 73).

(Fla. 2023). In o ur view, Kaczmar’s complaint s about counsel fall into this category of grievances. 30 Thus, we find th at appellate counsel wa s not deficient for failing to rai se a Nelson claim on appeal. 2 Kaczmar ne xt faults app ellate counsel for not arguin g that trial couns el had an actual c onflict of i nterest. We deny this claim. As best as we can tell from hi s briefing, Kacz mar assert s tha t a conflict ar ose during t rial when th e State presented evid ence of his efforts to incri minate Modli n. Recall, fo r exa mple, tha t while in jail, Kaczmar dire cted an underc over det ective (who he thought was “Carlos”) t o manufact ure and plant evidence indicat ing th at Modlin had murdere d Ruiz and burn ed the home. As Kacz mar sees it, counsel ne eded to blunt the force of th is consciousn ess - of - guilt evidence. T o accomplish th is, Kaczmar says that counsel s houl d have prof essed his own incompe tenc e — specifically acknowledging 30. We fur ther note that sin ce the defen dant di d not a sk the trial court to conduct a hear ing on coun sel’s compet ence, reversal on dir ect a ppeal c ould onl y be based on a finding of fundam ental error — an e xceedingly demanding s tandard. See State v. Dortch, 317 So. 3d 10 74, 10 81 (Fl a. 202 1); Ritc hie v. Sta te, 344 S o. 3d 369, 38 6 (Fla. 2022).

that Kacz mar ’s incrimina ting co nduct stem med from his feelings of desperation, which in tu rn were due to counsel’s poor communicat ion and repres entation. But inst ead of accep ting responsi bility for Kacz mar’s desper ation, trial counsel opted t o preserve h is own reputati on and ther eby put his per sonal interests ahead of Kaczm ar’s inter ests. This claim, howe ver, fail s to establish a Sixt h Amen dme nt viol ation. In order to va cate a convicti on in collateral proceedin gs based on an actual conf lict of in terest (even wh ere the court had reason to know of th e alleged conflict), a defendant must show some adver se effect on t he representati on due to the confli ct. Micken s v. Taylor, 535 U. S. 16 2, 173 - 74 (2002). This means t hat Kaczm ar has to identify a r easonable str ategy that went unused du e to the assert ed confl ict. See Noe v. Uni ted States, 60 1 F.3d 7 84, 79 0 (8th Ci r. 2010) (applying Mickens). Per Kaczmar, that unused st rategy was a confession of incompeten ce by coun sel in the presen ce of the jury. However, based on ou r thorough review of the re cord, we simp ly do not believe t hat such a confessi on would hav e been reason able. Thus, th is conflict cl aim is meritles s. And as we have repeat edly indicated, appellat e counsel cann ot be faulted f or failing to r aise a

meritless argument. Hilton v. State, 326 S o. 3d 640, 65 4-55 (Fla. 2021). 3 Next, Kaczm ar argues that ap pellat e counsel should have argued for r eversal based on an alleged vi olation of Mir and a v. Arizona. We again disagree. Relying on M iranda, counse l moved to suppress sta tements Kaczmar made during h is police int erview as well a s physical evidence obtain ed during that intervi ew. The tri al cou rt denied the motion, findi ng no Mira nda violati on. And a ppellat e counsel did n ot challenge that ru ling on appeal. We concl ude that coun sel’s decision to omit this issue w as entirel y reasonable. Kaczmar clai ms that law enforcement continued his interro gation despite hi s invoc ation o f cou nsel. Howe ver, sho rtly after Kaczmar clai ms to have invo ked that righ t (roughly three pages of tr anscript lat er), he concededly reinitiated discussi ons with police. Kaczmar does not highlight any particu larly damaging statement s made wit hin this short p eriod o f time. Perhaps rec ognizin g the limited val ue of suppressi ng any statem ents mad e to po lice withi n the narro w wind ow of time

discusse d above, Kaczmar tells us that these infir m statements somehow le d to the seizure of h is bloody sock s. This logic, howe ver, is inconsist ent with case law finding tha t “ Miranda errors don ’t ‘require the s uppression of the physical fr uits of an un - Mirandi zed statement,’ so long as t he statemen t was voluntary. ” United S tates v. Lester, 98 F.4t h 76 8, 775 (6t h Cir. 2024) (quot ing Vega v. Tekoh, 597 U. S. 13 4, 146 n. 3 (202 2)). K aczmar ’s soc ks are physica l objects, a n d there is r ecord evidenc e strongly s uggesting voluntari ness. Since there was so little to gai n from b riefing the Mi rand a issue, we t hink that object ively reason able appell ate counsel co uld refrain fro m doing s o. And sin ce a ny sup press ion w ould hav e had very minimal ef fects, we conclude th at there was also no prej udice. 4 For his next a ppellate - inef fectiven ess claim, Kacz mar asser ts that co unsel s hould have argue d that the tria l cou rt imp roperly denie d his m otion for s equest ered a nd indiv idua lize d voir dire. This meritless clai m borders on being frivol ous. Kaczmar fails to identify any b inding or well - reasoned autho rity req uiring co urts to cond uct individ ual - seques tered voi r

dire upon req uest, nor does he cite any controlling p rece dent holding that a court abused its discretion in failing to a llow such voir d ire. A bsent such author ity, we fa il to see how c ounsel c ould possibly be deficient, especially in li ght of the wel l - accepted princ iple that c ounse l cannot b e faulte d for fa iling to a rgue fo r a change in the law. S ee Smith, 310 So. 3d at 371; Lyn ch, 254 So. 3d at 32 3. This analysis is enough to reject thi s parti cular ineffectivene ss claim. Yet we say a few words ab out the theor y of prejudice that Kaczmar a dvances in support o f it. Recall that prejudi ce for Strickla nd purpo ses looks at the probable eff ect of counsel ’s act on the out come of a par ticul ar pr ocee ding. 46 6 U.S. at 693 - 95. For appellate - ineffecti veness claim s like this one, prejudice depen ds on the outcome of the appeal. 31 Here, though, Kacz mar asserts only future prej udic e in the form o f pro cedura l barriers that wou ld potentially f rustrat e his ability to rai se a similar clai m as part of a 31. Had appellat e counsel raise d this mer itless argument, w e would have al most cert ainly reject ed it and still affi rmed the convictions. Thus, Kaczmar cann ot show th at the outcome of his appellate process in Flor ida state court wo uld have been any different had counsel rai sed this unsu pported argument.

pros pecti ve feder al habeas petit ion. But a federal habeas proc eedin g, of cou rse, is not the pro ceed ing whose outcome ma tters for pu rposes of this appellate - ineffe ctiveness claim. See Dic kinso n v. Sh inn, 2 F.4th 85 1, 860 (9th Ci r. 20 21) (reasoning th at loss of a favorable a ppellate st andard of revi ew is not the prejudice r equired by Strickl and). 5 For his final appellate - ineffectiven ess claim, Kaczmar makes an argument ver y similar to a claim raised in h is postconvict ion motion. Speci fically, he argues that appell ate counsel w as deficient in failing to argue for rever sal based on the j udge’s pri or - d eath - sentence c omment. We have already foun d that trial counsel’s failu re to ob ject did not prejudi ce Kaczmar an d thus foun d no basis for relief. We reach a similar con clusion h ere. Since couns el did not object to this stat ement, reversal would only have been possible if t he statement constitute d fundamental error. See Ritchie, 344 S o. 3d at 3 8 6. For the r easons given above — including th e statement ’s content and briefness a s well as the fac t that it wa s no t repeate d — we find th e statement did no t amoun t to fundame ntal erro r. See Teffetelle r, 495 So. 2d at 747;

Kearse v. State, 770 S o. 2d 11 19, 1 131 (Fla. 20 00); Lowe v. State, 259 So. 3d 23, 48 (Fla. 20 18). Accor dingly, counse l was no t deficient fo r faili ng to b rief this issue — one that would not have pro duced a reversal. In sum, we hav e considered an d denied all of K aczmar’s appellate - ineffecti veness claim s. We now addres s one remaini ng claim. B Kaczmar arg ues that th e State’s failure t o charge agg ravating circumst ances in his in dictment re quires vacat ur of his death sentence — ev en at t his post - final ity stage. Kaczm ar is wro ng for two si mp le reasons. First, his ar gument is proce durally barred as it could have been rais ed on direct r eview. See Lott v. Sta te, 303 So. 3d 165, 1 66 (Fla. 2 020); F la. R. Cri m. P. 3.8 51 (e)(1). 32 32. Our 19 83 deci si on in State v. Gray, 435 S o. 2d 8 16 (Fla. 1983), does not command a dif ferent conclu sion. We acknowle dge that Gray says in dict a that “the co mplete failur e of an accusator y instrument to charge a cr ime is a defect that can be raised at any time — befo re tria l, after t rial, o n app eal, o r by habeas c orpus.” Id. at 818. However, to the extent that this st atement is in some tension with Lot t ’s proced ural - bar holding, we decline to fo llow Gray ’s dict a.

And second, we have c onsistently held that agg ravatin g factors need not be list ed in th e indictment. Wolf v. State, 4 16 So. 3d 1117, 1137 (F la. 2025) (coll ecting cases). W e add that Kaczmar ’s invo cation o f our sta te con stitution — specifically, t he indictment clause — d oes not alter our analysis. Accordingly, this claim lacks m erit, just li ke the other f ive befo re it. V In sum, none of K aczmar ’s postcon viction clai ms — whether in his mot ion or peti tion — suppo rt relief. A cco rdingly, we affirm the circuit cour t’s order in all respects, exc ept as to the claim on which it grante d relie f. As to that claim, including the grant of a new penalty ph ase, we reverse. Last ly, we deny Kaczmar ’s habeas petiti on in its entirety. On remand, th e circuit court shall r einstate Kaczmar’ s death sentence. It is so ordered. MUÑIZ, C.J., and CO URIEL, FRANCIS, and SASSO, JJ., concu r. LABARGA, J., dissents with a n opin ion. TANE NBAU M, J., did not p arti cipat e. NOT FI NAL U NTIL TIME EX PIRES TO FIL E REHE AR ING MOT ION AND, I F FILE D, DE TERMI NED.

LABARGA, J., dissenting. Kaczmar was in dicted on ch arges of f irst - degree murder, attemp ted sexua l batte ry, and arson. T he jury fo und hi m guil ty of all charges an d ultimat ely recommen ded the death pen alty by a vote of 11 to 1. Ma jority op. at 7. T his Co urt affirm ed Ka czmar’s con viction for first - degree mur der but revers ed the death sen tence and remande d the case for a new p enalty phase. Kaczmar v. State, 104 So. 3d 99 0, 100 8 (Fla. 2012). On rem and, the rese ntenc ing court sent enced Kaczmar t o death af ter the penalt y phase jury u nanimou sly reco mmended the death pe nalty. T his Court a ffirmed the death sent ence. Kaczmar v. Stat e, 228 So. 3d 1 (Fla. 20 17). There after, Kac zmar filed a mo tion for rehea ring, a rguing for the fir st time that he was enti tled to a new penalt y phase beca use the resent encing judge inf ormed the ent ire group of pros pective jurors that Kaczmar had b een previously sen tence d “to death in this case.” Kac zmar v. Sta te, 42 Fl a. L. Weekly S 851, S851 (Fl a. Oct. 19, 2017) (unrepo rted orde r). Withou t reac hing the m erits, this Cou rt deni ed the mo tion for rehe aring wi thou t prejud ice, permi tting Kaczmar to chal lenge t he statemen t in a separate pr o ceed ing. Id. Notably, t wo justices woul d have gran ted rehearing b ased on the

resentencin g judge’s im proper com ment. Id. at S 851 - 52 (P ariente, J., dis senting); id. at S852 (Quince, J. dissentin g). The circuit court, af ter considering Kaczmar’s motion in a separ ate procee ding as suggeste d by this Court, granted his post convicti on motion and vacated his d eath sent ence, having found that Kacz mar was preju diced by defen se c ounsel’s f ailure to object to t he resentencing judge’s prejudici al statement. Today, the cir cuit court’s fi ndings and soun d reasoni ng notwithstanding, the ma jority concludes that Kaczmar cannot establish a Str ickland vi olation because he was not prejudiced by the resent encing judge’s im proper st atement. I disse nt. In Hitchcock v. State, 673 So. 2d 859 (Fla. 1996), lik e in th is case, the trial court o n remand impro perly i nformed the j ury the defendant had p reviously been sen tenced to death: First of all, this case is back bef ore you for consi deration because a jury previously rec ommen ded that James Ernest Hit chcock be senten ced to death for this cri me. However, t he death sent ence was over turned becau se of an incomplet e jury instr uction rende red to the p revious jury. Id. at 863.

This Court remanded Hitchc ock’s resent encing on ot her grounds but addressed t he trial cour t’s improper statement “to provide guid ance in t he next resentenci ng” and to avoid “pre conditio ning the p rese nt jury to a d eath re commend ation.” Id. In do ing so, thi s Cou rt unequ ivocally ins tructed the tria l cou rt that “[n]o other i nstructio n [but the follo wing] is to be given b y the cou rt as to a prior jury’ s penalty - pha se verdict or wh y the case is before the ju ry for res entenci ng at this time ”: An appellat e court h as reviewed and aff irmed the defe ndant’s convictio n for the m urde r of [the victim ]. However, t he appellat e court sent t he case back to thi s court with instru ctio ns that the defend ant is to have a new trial at this tim e to d ecide what s entence should be impos ed. Id. Fu rthermo re, in a no te to j udges, this Cou rt later a pprov ed a jury instr uction using t he above languag e suggeste d in Hitchcock nearly verbat im: Give 1a at the be ginning of penal ty proceedin gs before a jury tha t did not try the i ssu e of gu ilt. Give brackete d language if the case has been r emanded by th e supreme court fo r a new p enalty proceed ing. See Hi tchcock v. State, 21 Flor ida Law Weekly S13 9 (1996). In a ddition, give th e jury o ther app ropria te general i nstruc tions. 1.a. Ladies an d gentlemen of t he jury, th e defendant has be en foun d gui lty of Murder in t he First Degree. [An appellat e court h as reviewed and aff irmed the

defendant ’s conviction. However, th e appellate co urt sent the case b ack to this co urt with instr uctions that the defend ant is to have a new t rial to deci de what sentence sh ould be impose d. ] Cons equent ly, you wi ll not concer n yourselves w ith the questi on of [his] [her ] guilt. Standard Jury Instructions in Cr im. Cases No. 96 -1, 69 0 So. 2d 1263, 1264 (Fla. 19 97) (br acket s an d emphas is in original). Notwi thstandin g the gu idance offe red b y this Cou rt in Hitchcock, and a jury i nstruction pr oviding the acce ptable lang uage to be presente d to the jury, the resentenci ng judge in explicably gave the following o ff - the - cuff e xplana tion to the panel of pr ospective jurors in Kaczm ar’s new penalty phase pr oceeding: This case has a li ttle hist ory to it so let me explain you r duty toda y. It’s differe nt than mo st trials we ever have. The de fendant wa s fou nd guilty of mu rder in the fir st degr ee on 8/ 12/2 010, sen tenc ed on 11/ 5/ 10 to life — to death in this case. Anyway, the Supreme Co urt always review s any t ype of death case so t he case went t o the sta te Sup reme Cou rt, Flori da State Su pre me Court. They affir med his convicti on, that is they conf irmed his conv iction fo r the first d egree murder. H owe ver, the Supreme Co urt sent th e case back here wi th instruct ions that th e defendant is t o have a new trial t o decide what sentence sh ould be im po sed. Kaczm ar, 42 Fla. L. Weekly at S851 - 52 (P ariente, J., dissenting).

Thus, th e prospective juror s were advise d that Kaczmar was sentence d “to death in this case” on Novem ber 5, 2010, an d that “the Suprem e Court sent the case back here wi th instructi ons that the defend ant is to have a new t rial to deci de what sent ence should be im posed. ” Id. at S851. As a dir ect result of thi s disclosure, t he actual juror s seated for Kaczm ar’s new penalty phas e, who we re respo nsible fo r rend ering a re commendati on of l ife imp risonme nt or death, inst antly learned t hat a judge h ad previously s entenced Kaczmar to d eath in t his case. In my view, gi ven the prejudice c aused by the r esentencing jud ge’s revel ation, the c ircui t cou rt prope rly fou nd that Kac zmar was prejudi ced by defense c ounsel’s fail ure to object t o the resentencin g judge’s stat ement and properly ordere d a new penalty phas e. Defense coun sel should ha ve objected as s oon as the statement was made and req uested the co urt excuse t he entire panel of pros pective jurors an d start again with a new panel — the common pract ice when t he entire panel h as been tain ted. Moreover, the trial court’s st atemen t was “clear rever sible error” and th e failure to raise t he issue before t he rehear ing

constitute s “ineffective as sistance of appellate co unsel that i s apparent on t he face of the recor d.” Id. (cita tions omitted). While acknowledging that Hit chcock “general ly forbid s telling a resentencin g jury t hat the defenda nt was previously sentence d to dea th,” majori ty op. at 1 7, the m ajority no nethel ess co ncludes that Kaczmar cann ot establish a Strickland vi olation becaus e he was not prejud iced by the cou rt’s s tatement. Id. at 14, 21 - 22. I stro ngly disagree. First, t he majority concl udes that t he statement it self was not as prejudici al as Kaczmar clai ms. Id. at 18. The majorit y presumes that beca use the circuit co urt ordered a new penalty phase, “the jury knew th at the prior sent ence was no long er valid, an d it had no reason to regar d the vacate d sentence as s omehow deser ving continued res pect or defer ence.” Id. T his is contra ry to the reasoning in Hit chcock, where this C ourt ca utio ned that “ [m]a king the present jury awar e that a pri or jur y recom men ded de at h and reemphasiz ing this fact as the trial judge di d here could have the effect of precondition ing the present jury to a death recommendation.” Hitchcock, 673 S o. 2d at 863 (e mph asis a dded).

Seco nd, the ma jority “u nders core[s] tha t the jud ge ins tructe d the jury to co nsider only the evidence it received at the penalt y - phase hearing in d etermining the prope r sentencing recommen dation.” Majori ty op. at 19. Beca use “no evid ence of Kaczmar’ s prior senten ce was introdu ced at the pen alty phase,” the majority ar gues that “we m ay presume that t he j ury fo llowed that instructi on and based it s sentencin g verdict on the penalt y - phase evidence al one, not an i solated stat ement uttered pr ior to jury selectio n.” Id. Ho wever, I c ould no t disa gree more strongly wi th the character ization of t he judge’s commen t as just “a n isolated statem ent.” Id. Mo reover, the timin g of the s tateme nt duri ng jury selection — a s opposed to dur ing the present ation of eviden ce — does not mitigat e the prejudice. In fact, the harm i s even more blatant because th e jury was aware of t he prior death sen tence througho ut the new penalt y phase. Inde ed, accor ding t o Hi tch coc k, it is a resentencin g jury’s aw arene ss of a prio r deat h se ntence t hat may prec onditi on th e juror s to re comm end de ath. 673 So. 2d at 86 3. The instructi on to consid er only evidenc e did not remedy th e prejudici al effect th e statement had beca use the jur y remained aware of Kaczm ar’s prior deat h sentence as i t heard th e evi dence,

considere d the evidenc e, and rende red its sentencin g recommen dation. This i s not to suggest t hat the jury felt bound by the prior death sentence. R ather, the danger is the jury’s she er awarenes s of the prior senten ce as it contemplated K aczmar’s penalty. In a situati on of th is magnitu de, tha t is eno ugh to satisfy the prejudice r equirement un der Strick land. Third, the maj ority furthe r reaso ns that th e state ment’s brev ity and lack of clari ty dimi nish its prejud icial effect. Ma jority op. a t 18 - 19. However, the statemen t framed the pe nalty phase proc eedin gs an d purpor ted t o expl ain th e juror s’ dut y in t he new proceeding s. The fact t hat the court j umbled its words and eng aged in minor self - correction in deliverin g the stat ement does not diminish its pr ejudicial eff ect. Simply p ut, the resent encing jury heard the stat ement and t hus became aware t hat Kaczmar h ad previously been sent enced to death i n the case. This awar eness, accor ding t o Hitchcock, is ex actly what m ay pre conditio n a jury to recommen d death. At the outset of K aczmar’s r esentenci ng, the jurors bec ame aware that Kaczmar had previ ously been senten ced t o death in the case they wer e about to consi der. Addition ally, as th e resentencing

proc eedin gs pr ogresse d, th e jury u ndou btedly dedu ced tha t the previous de ath sent ence imposed b y the tri al judge was preceded by a death rec ommendation f rom a jur y. Given the magni tude of this information, it is highl y likely that the jury wa s preconditio ne d to recommen d death — the prej udice Hitchcock sought to avo id. It is therefor e inconceivabl e that Kacz mar failed to sat isfy th e Strickland prejudice st andard. The prej udice her e is insurmoun table and the only reme dy is a retrial of t he penalty phase. I wou ld affirm th e findi ngs and conclu sions of the circu it court and remand t he case for a new penalty phase. An Appe al from the Ci rcuit Cou rt in and for Cla y County, Michael S. Sharr it, Judge Case No. 1020 09CF0 00233000 AMX James Uthmei er, Attorn ey General, and Jason W. Rodrig uez, Senior Assistant Attorney General, Tallah assee, Flo rida, for App ella nt/Cross - Appellee /Respondent Dawn B. Mac ready, Capital C ollateral Regi onal Cou nsel, and Elizabeth Spi aggi, Assistant Capital Collat eral Regi onal Counsel, Northern R egion, Tallah assee, Flori da, for Appel lee/Cro ss - Appe llant /Petitio ner