FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Clay County, William
Arthur Wilkes, Judge - Case No. 102009CF000233000AMX
Clinton Andrew Thomas, Public Defender, and Nada Margaret
Carey, Assistant Public Defender, Second Judicial Circuit,
Tallahassee, Florida, for Appellant
Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant
Attorney General, Tallahassee, Florida, for Appellee
Louis Kaczmar, III, appeals his sentence of death imposed
after a new penalty phase proceeding. We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const. For the
following reasons, we affirm Kaczmar's sentence of death.
OF THE CASE AND FACTS
previously set forth the relevant facts in Kaczmar v.
State, 104 So.3d 990, 995-98 (Fla. 2012). Kaczmar was
convicted for first-degree murder, attempted sexual battery,
and arson. During Kaczmar's first penalty phase, the
parties stipulated that Kaczmar had been previously convicted
of a robbery. Id. at 997. The State presented a
victim impact statement from Ruiz's brother. Id.
The defense presented testimony from Kaczmar's family and
friends that depicted Kaczmar as a good person who had a
troubled upbringing due to his father's abuse. Dr. Miguel
Mandoki, a child psychiatrist, testified that Kaczmar was
traumatized as a child by his father's alcoholism and his
own chronic drug abuse. Id. Dr. Mandoki also
testified that although he believed Kaczmar to be competent
during trial, he did not think Kaczmar knew what he was doing
on the night of the murder and did not know right from wrong.
Id. At the end of the penalty phase, the jury
recommended a sentence of death by a vote of eleven to one.
the first Spencer hearing, neither the State nor the
defense presented testimony. Id. at 998. In the
trial court's sentencing order, the court found four
statutory aggravating factors. Id. The trial court also
found fourteen mitigating factors. The trial court concluded
that the aggravating circumstances outweighed the mitigation
and imposed a sentence of death. Id.
raised nine issues on direct appeal. Id. We affirmed
Kaczmar's convictions, held that the trial court erred in
finding the CCP and committed during the course of attempted
sexual battery aggravators, which was not harmless beyond a
reasonable doubt, and therefore remanded for a new penalty
phase. Id. at 1008.
August 8, 2013, the trial court held a
Koon hearing, at which Kaczmar waived his right
to present mitigation against his counsel's advice,
including the presentation of any live mitigation witnesses
or the testimony of the mitigation witnesses from the first
penalty phase read into the record. During the second penalty
phase proceeding, held on August 19-20, 2013, the prosecutor
gave an opening statement in which he sought to prove two
aggravating circumstances: (1) the capital felony was
committed by a person previously convicted of a felony and
under sentence of imprisonment or placed on community control
or felony probation; and (2) the capital felony was
especially heinous, atrocious, or cruel (HAC). The prosecutor
and the defense stipulated to the identity of the victim and
Kaczmar's 2002 conviction for the prior violent felony of
robbery. The State presented the live testimony of the
medical examiner, Dr. Jesse Giles, and prior sworn testimony
of nine additional witnesses.
trial court conducted another waiver colloquy during the
second penalty phase proceeding. Kaczmar again refused to
present mitigation; however, he agreed to his counsel's
reading to the jury a stipulation regarding his age at the
time of the murder. The trial court noted that Kaczmar waived
most mitigation but intended to present the stipulation and
argue mitigation presented during the guilt phase. Thus, the
defense counsel presented before the jury the stipulation
that Kaczmar was twenty-four years old on the date of the
murder. Thereafter, the defense rested, and the jury
unanimously recommended the death sentence.
August 20, 2013, the trial court conducted a Spencer
hearing. The State did not present any additional evidence,
and Kaczmar admitted into evidence the transcripts of
testimony from six mitigating witnesses who testified during
the first penalty phase proceeding, including the testimony
of Dr. Mandoki. Both parties submitted to the trial court
sentencing order, the trial court found two statutory
aggravating circumstances: (1) the defendant was previously
convicted of another capital felony or of a felony involving
the use or threat of violence to the person; and (2) the
capital felony was especially HAC. The trial court considered
three statutory mitigating circumstances and found that
none had been proven, and therefore gave
them no weight. The trial court also discussed twenty
nonstatutory mitigating circumstances and gave fifteen of them
slight weight. The trial court found that the aggravating
circumstances far outweighed the mitigating circumstances in
this case. In the sentencing order, the trial court noted
that it was "required to give great weight to the
jury's recommendation" and fully agreed with the
"jury's assessment of the aggravating
appealed the trial court's sentencing order to this Court
raising six claims.
first argues that his death sentence violates Hurst v.
Florida, 136 S.Ct. 616 (2016). We agree but find the
Hurst v. Florida, the United States Supreme Court
held that Florida's capital sentencing scheme is
unconstitutional because "[t]he Sixth Amendment requires
a jury, not a judge, to find each fact necessary to impose a
sentence of death. A jury's mere recommendation is not
enough." 136 S.Ct. at 619. In Hurst v. State,
202 So.3d 40, 54 (Fla. 2016), this Court held that "in
addition to finding the existence of any aggravating
factor unanimously, the jury must also unanimously find that
the aggravating factors are sufficient for the
imposition of death and unanimously find that the aggravating
factors outweigh the mitigation before a sentence of
death may be considered by the judge." Id. We
further held that a unanimous jury recommendation is required
before the trial court may impose a sentence of death.
Id. We also concluded that a Hurst error is
capable of harmless error review. Id. at 68.
was sentenced to death under the procedure that the United
States Supreme Court invalidated in Hurst v.
Florida. "When the [United States] Supreme Court
announces 'a new rule for the conduct of criminal
prosecutions, ' the rule must be applied to 'all
cases, state or federal, pending on direct review or not yet
final.' " State v. Fleming, 61 So.3d 399,
403 (Fla. 2011) (quoting Griffith v. Kentucky, 479
U.S. 314, 328 (1987)). Because Kaczmar's case was pending
on direct appeal when Hurst v. Florida issued, the
United States Supreme Court's decision applies to him.
See Davis v. State, 41 Fla.L.Weekly S528 (Fla. Nov.
next address whether that error was harmless beyond a
reasonable doubt. We conclude that the error was harmless. As
this Court explained in Hurst:
The harmless error test, as set forth in Chapman [v.
California, 386 U.S. 18 (1967), ] and progeny, places
the burden on the state, as the beneficiary of the error, to
prove beyond a reasonable doubt that the error complained of
did not contribute to the verdict, or alternatively stated,
that there is no reasonable possibility that the error
contributed to the conviction.
Hurst, 202 So.3d at 68 (quoting State v.
DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986)). The Court
further discussed the lens through which harmless error
should be evaluated:
Where the error concerns sentencing, the error is harmless
only if there is no reasonable possibility that the error
contributed to the sentence. See, e.g., Zack v.
State, 753 So.2d 9, 20 (Fla. 2000). Although the
harmless error test applies to both constitutional errors and
errors not based on constitutional grounds, "the
harmless error test is to be rigorously applied, "
DiGuilio, 491 So.2d at 1137, and the State bears an
extremely heavy burden in cases involving constitutional
error. Therefore, in the context of a Hurst error,
the burden is on the State, as the beneficiary of the error,
to prove beyond a reasonable doubt that the jury's
failure to unanimously find all the facts necessary for
imposition of the death penalty did not contribute to
Hurst's death sentence in this case. We reiterate,
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a device
for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus is
on the effect of the error on the trier-of-fact.
DiGuilio, 491 So.2d at 1139. "The question is
whether there is a reasonable possibility that the error
affected the [sentence]." Id.
Id. at 68. Regarding the right to a jury trial, it
must be clear beyond a reasonable doubt that a rational jury
would have unanimously found that there were sufficient
aggravating factors and that the aggravating factors
outweighed the mitigating circumstances.
case, we find the Hurst v. Florida violation to be
harmless beyond a reasonable doubt. We recently decided a
similar case, in which that defendant's jury, like
Kaczmar's jury, unanimously recommended a death sentence.
Davis, 41 Fla.L.Weekly at S528. In Davis,
we held that the Hurst v. Florida error was
harmless: "With regard to Davis's sentences, we
emphasize the unanimous jury recommendations of
death. These recommendations allow us to conclude beyond a
reasonable doubt that a rational jury would have unanimously
found that there were sufficient aggravators to outweigh the
mitigating factors." Id. at S539. Kaczmar's
jury likewise recommended a death sentence by a unanimous
twelve-to-zero vote. Kaczmar's jury received the same
standard criminal jury instruction we cited in
Davis, ensuring that the jury "determine[d]
whether sufficient aggravators existed and whether the
aggravation outweighed the mitigation before it . .
. recommend[ed] a sentence of death." Id.
(citing Fla. Std. Jury Instr. Crim. 7.11). As with the jury
in Davis, Kaczmar's "jury was presented
with evidence of mitigating circumstances and was properly
informed that it may consider mitigating circumstances that
are proven by the greater weight of the evidence."
Id. (citing Fla. Std. Jury Instr. Crim. 7.11). As in
Davis, Kaczmar's "jury was not informed
that the finding that sufficient aggravating circumstances
outweighed the mitigating circumstances must be unanimous,
and even though it was instructed that it was not required to
recommend death even if the aggravators outweighed the
mitigators, the jury did in fact recommend death
unanimously." Id. (citing Fla. Std. Jury Instr.
Crim. 7.11). Given that Kaczmar's jury received the same
critical instructions as Davis's jury, we are confident
beyond a reasonable doubt that here, as in Davis,
"the jury unanimously made the requisite factual
findings to impose death before it issued the unanimous
recommendations." Id. Finally, as in
Davis, "the egregious facts of this case"
provide "[f]urther support [for] our conclusion that
any Hurst v. Florida error here was harmless."
Id. at S540. Kaczmar stabbed a woman approximately
ninety-three times after she refused to have sex with him,
burned down his own house to cover up the murder, and
attempted to recruit an undercover police officer to frame
his friend for the murder. See Kaczmar, 104 So.3d at
996-97. The sentencing court found two aggravating factors:
that Kaczmar had previously been convicted of a violent
felony and that the murder was especially heinous, atrocious,
or cruel (HAC). See § 921.141(5)(b), (h)
(2009). "And this Court has indicated that the prior
violent felony and HAC aggravators are 'two of the most
weighty in Florida's sentencing calculus.' "
Partin v. State, 82 So.3d 31, 46 (Fla. 2011)
(quoting Sireci v. Moore, 825 So.2d 882, 887 (Fla.
we hold that the Hurst v. Florida violation was
harmless beyond a reasonable doubt. See Davis, 41
Fla.L.Weekly at S540. What we said in Davis is
equally true in this case:
Here, the jury unanimously found all of the necessary facts
for the imposition of death sentences by virtue of its
unanimous recommendations. In fact, although the jury was
informed that it was not required to recommend death
unanimously, and despite the mitigation presented, the jury
still unanimously recommended that [the defendant] be
sentenced to death . . . . The unanimous recommendations here
are precisely what we determined in Hurst v. State
to be constitutionally necessary to impose a sentence of
Id. As in Davis, the Hurst v.
Florida violation in Kaczmar's case does not entitle
him to a new ...