& SC16-1090 Michael Duane Zack, III v. State of Florida and Michael Duane Zack, III v. Julie L. Jones, etc.

Supreme Court of Florida
____________
No. SC15-1756
____________
MICHAEL DUANE ZACK, III,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC16-1090
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MICHAEL DUANE ZACK, III,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[June 15, 2017]
PER CURIAM.
Michael Duane Zack, III, appeals an order of the circuit court denying his
motion to vacate his conviction of first-degree murder and sentence of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For
the reasons that follow, we affirm the denial of postconviction relief and deny the
habeas petition.
FACTS
On June 25, 1996, Michael Zack was indicted for the sexual assault,
robbery, and first-degree murder of Ravonne Smith. We described the facts of the
case on direct appeal as follows:
Although the murder of Smith took place on June 13, 1996, the
chain of events which culminated in this murder began on June 4,
1996, when Edith Pope (Pope), a bartender in Tallahassee, lent her car
to Zack. In the weeks prior, Zack had come to Pope’s bar on a regular
basis. He generally nursed one or two beers and talked with Pope; she
never saw him intoxicated. He told her that he had witnessed his
sister murder his mother with an axe. As a result, Pope felt sorry for
Zack, and she began to give him odd jobs around the bar. When
Zack’s girlfriend called the bar on June 4 to advise him that he was
being evicted from her apartment, Pope lent Zack her red Honda
automobile to pick up his belongings. Zack never returned.
From Tallahassee, Zack drove to Panama City where he met
Bobby Chandler (Chandler) at a local pub. Over the next several
days, Zack frequented the pub daily and befriended Chandler.
Chandler, who owned a construction subcontracting business, hired
Zack to work in his construction business. When Chandler discovered
that Zack was living out of a car (the red Honda), he invited Zack to
live with him temporarily. On the second night at Chandler’s, Zack
woke up screaming following a nightmare. Chandler heard Zack
groan words which sounded like “stop” or “don’t.” Although
Chandler questioned him, Zack would not discuss the nightmare.
Two nights later, on June 11, 1996, Zack left Chandler’s during the
night, stealing a rifle, a handgun, and forty-two dollars from
Chandler’s wallet. Zack drove to Niceville, and on the morning of
June 12, 1996, pawned the guns for $225.
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From Niceville, Zack traveled to Okaloosa County and stopped
at yet another bar. At this bar, Zack was sitting alone drinking a beer
when he was approached by Laura Rosillo (Rosillo). The two left the
bar in the red Honda and drove to the beach, reportedly to use drugs
Zack said he possessed. Once on the beach, Zack attacked Rosillo
and beat her while they were still in the Honda. He then pulled
Rosillo from the car and beat her head against one of the tires.
Rosillo’s tube top was torn and hanging off her hips. Her spandex
pants were pulled down around her right ankle. The evidence
suggests she was sexually assaulted; however, the sperm found in
Rosillo’s body could not be matched to Zack. He then strangled her,
dragged her body behind a sand dune, kicked dirt over her face, and
departed.
Zack’s next stop on this crime-riddled journey was Dirty Joe’s
bar located near the beach in Pensacola. He arrived there on the
afternoon of June 13, 1996, and met the decedent, Ravonne Smith.
Throughout the afternoon, Smith, a bar employee, and Zack sat
together in the bar talking and playing pool or darts. The bar was not
very busy, so Smith spent most of her time with Zack. Both bar
employees and patrons testified that Zack did not ingest any
significant amount of alcohol and that he did not appear to be
intoxicated. In the late afternoon, Smith contacted her friend Russell
Williams (Williams) and invited him to the bar because she was
lonely. Williams arrived at the bar around 5:30 p.m. Prior to leaving
the bar around 7 p.m., Smith called her live-in boyfriend, Danny
Schaffer, and told him she was working late. Smith, Williams, and
Zack then left the bar and drove to the beach where they shared a
marijuana cigarette supplied by Zack. Afterwards, they returned to
the bar and Williams departed. Zack and Smith left the bar together
sometime around 8 p.m. and eventually arrived at the house Smith
shared with her boyfriend.
Forensic evidence indicates that immediately upon entering the
house Zack hit Smith with a beer bottle causing shards of glass and
blood to spray onto the living room love seat and two drops of blood
to spray onto the interior doorframe. Zack pursued Smith down the
hall to the master bedroom leaving a trail of blood. Once in the
bedroom Zack sexually assaulted Smith as she lay bleeding on the
bed. Following the attack Smith managed to escape to the empty
guest bedroom across the hall. Zack pursued her and beat her head
against the bedroom’s wooden floor. Once he incapacitated Smith,
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Zack went to the kitchen where he got an oyster knife. He returned to
the guest bedroom where Smith lay and stabbed her in the chest four
times with the knife. The four wounds were close together in the
center of Smith’s chest. Zack went back to the kitchen, cleaned the
knife, put it away, and washed the blood from his hands. He then
went back to the master bedroom, placed Smith’s bloody shirt and
shorts in her dresser drawer, stole a television, a VCR, and Smith’s
purse, and placed the stolen items in Smith’s car.
During the night, Zack drove Smith’s car to the area where the
red Honda was parked. He removed the license plate and several
personal items from the Honda then moved it to a nearby lot. Zack
returned to Panama City in Smith’s car and attempted to pawn the
television and VCR. Suspecting the merchandise was stolen, the shop
owners asked for identification and told Zack they had to check on the
merchandise. Zack fled the store and abandoned Smith’s car behind a
local restaurant. Zack was apprehended after he had spent several
days hiding in an empty house.
After he was arrested, Zack confessed to the Smith murder and
to the Pope and Chandler thefts. Zack claimed he and Smith had
consensual sex and that she thereafter made a comment regarding his
mother’s murder. The comment enraged him, and he attacked her.
Zack contended the fight began in the hallway, not immediately upon
entering the house. He said he grabbed a knife in self-defense,
believing Smith left the master bedroom to get a gun from the guest
bedroom.
Zack v. State (Zack I), 753 So. 2d 9, 13-14 (Fla. 2000) (footnotes omitted). A jury
found Zack guilty on all counts on September 15, 1997. Id. at 12.
After the penalty phase hearing, the jury recommended a sentence of death
by a vote of eleven to one. Id. Following the jury’s recommendation, the trial
court sentenced Zack to death on November 14, 1997.1 On direct appeal, Zack
1. The trial judge found the following six aggravators to support the death
sentence:
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raised twelve issues.2 Id. at 16 n.5. We affirmed the convictions and death
sentence. Id. at 26. On October 2, 2000, the Supreme Court denied certiorari
review. Zack v. Florida, 531 U.S. 858 (2000).
(1) the defendant was convicted of a capital felony while under a
sentence of felony probation; (2) the crime was committed in
conjunction with a robbery, sexual battery, or burglary; (3)
the defendant committed the crime to avoid lawful arrest; (4) the
defendant committed the crime for financial gain; (5) the crime was
especially heinous, atrocious, [or] cruel; and (6) the crime was
committed in a cold, calculated, and premeditated manner.
Zack I, 753 So. 2d at 12-13. The trial court assigned little weight to the following
four mitigators:
(1) the defendant committed the crime while under an extreme mental
or emotional disturbance; (2) the defendant was acting under extreme
duress; (3) the defendant lacked the capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law; and (4) nonstatutory mitigating factors of
remorse, voluntary confession, and good conduct while incarcerated.
Zack’s age was not considered a mitigating factor.
Id. at 13.
2. Zack raised the following claims on direct appeal:
(1) the court erred in admitting Williams[v. State, 110 So. 2d 654 (Fla.
1959),] rule evidence; (2) the court erred in denying a motion for
judgment of acquittal on the sexual battery charge; (3) the trial court
erred in denying the motion for judgment of acquittal on the robbery
charge; (4) the trial court erred in instructing the jury on felony
murder based upon a burglary; (5) the sentencing order failed to
consider all of the mitigating evidence presented; (6) the trial court
erred in finding that the murder was committed to avoid or prevent a
lawful arrest; (7) the trial court erred in finding that the murder was
committed in a cold, calculated and premeditated manner; (8) the trial
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On October 18, 2002, Zack filed his first amended 3.851 motion in the trial
court, raising six claims. While Zack’s motion was pending, the Supreme Court
decided Atkins v. Virginia, 536 U.S. 304 (2002), which held that the execution of
an intellectually disabled person is cruel and unusual punishment in violation of
the Eighth Amendment. The trial court denied Zack’s rule 3.851 motion on July
14, 2003. Zack raised six issues before this Court on appeal.3 Zack v. State (Zack
II), 911 So. 2d 1190 (Fla. 2005). This Court affirmed the trial court’s order and
noted that the “evidence in this case shows Zack’s lowest I.Q. score to be 79.” Id.
court erred in using victim impact evidence; (9) the trial court erred in
admitting the rebuttal evidence from Candice Fletcher; (10) the trial
court erred by failing to give Zack’s proposed instruction on the role
of sympathy; (11) the trial court erred in retroactively applying the
aggravating factor of a murder committed while on felony probation;
and (12) the trial court erred in refusing to admit a family photo
during the penalty phase.
Zack I, 753 So. 2d at 16 n.5.
3. On postconviction appeal, Zack raised the following issues: (1) trial
counsel was ineffective for failing to challenge the DNA evidence presented by
the State; (2) counsel was ineffective because he failed to prepare Zack to testify at
trial; (3) counsel was ineffective because he made prejudicial remarks to the jury in
the opening statement and closing argument; (4) the trial court erred in summarily
denying claims raised in his motion for postconviction relief involving Zack’s right
to a Frye[v. United States, 293 F. 1013 (D.C. Cir. 1923),] hearing and the
constitutionality of the death sentence under Atkins; (5) that Florida’s capital
sentencing scheme is unconstitutional under Ring[v. Arizona, 536 U.S 584
(2002)]; and (6) collateral counsel was ineffective. Zack II, 911 So. 2d at 1197.
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at 1201. The Court also denied relief on Zack’s petition for writ of habeas corpus,
filed on February 12, 2004. Id. at 1203.
Zack filed a successive postconviction motion on December 1, 2004, raising
an Atkins claim. The trial court denied the claim without an Atkins hearing,
finding that after a review of the expert trial testimony none had found Zack’s I.Q.
to be near the required statutory figure of 70 in order to establish intellectual
disability. This Court affirmed the trial court’s denial. In its order, this Court
relied on Cherry v. State, 781 So. 2d 1040 (Fla. 2000), and held that “Zack has not
provided any new evidence of [intellectual disability] and previous evidence
demonstrates that his I.Q. was well above the statutory figure of 70 or below.”
On March 4, 2005, Zack filed a second petition for a writ of habeas corpus
based upon the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36
(2004). This Court denied the petition on October 6, 2005. Zack v. Crosby, 918
So. 2d 240 (Fla. 2005).
Zack also filed a federal habeas petition that included an Atkins claim. Zack
v. Crosby, 607 F. Supp. 2d 1291 (N.D. Fla. 2008). All claims not based on Atkins
were dismissed with prejudice as untimely. Id. at 1295. Zack’s Atkins claim was
denied with prejudice on the merits on March 26, 2009. In its order, the court
found that the record refuted Zack’s allegation that he is intellectually disabled and
held that the record uniformly concluded that Zack’s I.Q. was significantly above
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the minimum threshold for intellectual disability. The Eleventh Circuit, in an en
banc opinion, affirmed the dismissal of many of the claims in the habeas petition as
untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013). The Supreme Court
denied certiorari review on October 7, 2013. Zack v. Crews, 134 S. Ct. 156
(2013).
On May 26, 2015, Zack filed a second successive postconviction motion
raising a claim of intellectual disability based on Hall v. Florida, 134 S. Ct. 1986
(2014). The trial court summarily denied the motion on July 8, 2015. Zack now
appeals from the circuit court’s denial of relief, arguing that the court erred in (1)
summarily denying Zack an evidentiary hearing on his intellectual disability claim
and (2) dismissing Zack’s motion on the basis that his I.Q. was too high for an
Atkins hearing without considering other evidence as required by Hall.
ANALYSIS
Zack’s first claim is based on the trial court’s summary denial of his motion
pursuant to a rule of law that has now been found unconstitutional under Hall.
During the pendency of this case, we determined that Hall applies retroactively as
a development of fundamental significance. Walls v. State, 213 So. 3d 340, 346
(Fla. 2016).
A postconviction court’s decision on whether to grant an evidentiary hearing
on a claim is a pure question of law, reviewed de novo. Mann v. State, 112 So. 3d
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1158, 1162 (Fla. 2013). A claim may be summarily denied if it is legally
insufficient or positively refuted by the record. Id. at 1161. To prevail on a claim
of intellectual disability, a defendant must establish three elements: (1)
significantly subaverage general intellectual functioning, (2) existing concurrently
with deficits in adaptive behavior, and (3) manifesting prior to age 18. § 921.137,
Fla. Stat. (2016); Fla. R. Crim. P. 3.203.
Hall recognizes that intellectual disability “is a condition, not a number.”
Hall, 134 S. Ct. at 2001. In a recent opinion, we found that Hall requires courts to
consider all three prongs of intellectual disability in tandem and that no single
factor should be dispositive of the outcome. See Oats v. State, 181 So. 3d 457, 459
(Fla. 2015). However, Hall also states that a “defendant must be able to present
additional evidence of intellectual disability” where “a defendant’s I.Q. test score
falls within the test’s acknowledged and inherent margin of error.” Hall, 134 S. Ct.
at 2001. Generally, the standard error of measurement is approximately five
points. Id. at 1998 (citing to Diagnostic and Statistical Manual of Mental
Disorders 28 (rev. 3d ed. 1987)). Thus, an “I.Q. score of 70 is considered to
represent a band or zone of 65 to 75.” Id.
The trial court correctly found the significantly subaverage intellectual
functioning prong dispositive of Zack’s intellectual disability claim based on
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Zack’s scores prior to age 18, which were all over 75. At the Huff4 hearing, Zack
presented his full range of scores, as well as evidence of adaptive deficits before
age 18. The record demonstrates five I.Q. scores for Zack: a score of 92 in 1980
when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in
1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing is
required, defendants must still be able to meet the first prong of Hall. Because
Zack’s current score is well above 75, and there are no scores in his history below
75, it is unlikely that he would ever be able to satisfy the significantly subaverage
intellectual functioning prong. Accordingly, we affirm the trial court’s summary
denial of Zack’s intellectual disability claim.
Zack’s second claim is that the trial court erred in dismissing his motion on
the basis that his I.Q. was too high for an Atkins hearing without considering other
evidence as required by Hall. In reviewing the trial court’s determination that
Zack is not intellectually disabled, “this Court examines the record for whether
competent, substantial evidence supports the determination of the trial court.”
State v. Herring, 76 So. 3d 891, 895 (Fla. 2011). We do not “reweigh the evidence
or second-guess the circuit court’s findings as to the credibility of witnesses.”
4. Huff v. State, 622 So. 2d 982 (Fla. 1993).
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Brown v. State, 959 So. 2d 146, 149 (Fla. 2007). However, questions of law are
reviewed de novo. Herring, 76 So. 3d at 895.
We find that the trial court’s determination that Zack did not satisfy the
significantly subaverage intellectual functioning prong is supported by competent,
substantial evidence. As previously mentioned, Zack provided several I.Q. scores
that were all well outside the standard error of measurement. While Zack argues
that Hall requires the trial court to consider other evidence, a defendant’s scores
must first fall within the test’s acknowledged and inherent margin of error. Hall,
134 S. Ct. at 2001. Here, all of the scores presented—92, 84, 86, 79, and 80—are
outside of the test’s margin of error and the presentation of evidence regarding the
other two prongs do not cure Zack’s inability to satisfy the first. Consequently, we
affirm the trial court’s determination.
PETITION FOR WRIT OF HABEAS CORPUS
In his petition for habeas corpus relief, Zack asserts that his death sentence is
unconstitutional under Hurst v. Florida, 136 S. Ct. 616 (2016). In Hurst v. Florida,
the Supreme Court found that a jury must make a specific factual finding with
regard to the existence of mitigating or aggravating circumstances supporting a
death sentence in order to preserve the Sixth Amendment right to a jury trial. Id. at
622. We have interpreted Hurst v. Florida, an extension of Ring v. Arizona, 536
U.S. 584 (2002), to require a jury to unanimously find each aggravating factor, that
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the aggravating factors are sufficient to warrant death, and that the aggravating
factors outweigh the mitigation. See Hurst v. State (Hurst), 202 So. 3d 40, 57, 66
(Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017). However, Zack’s first-
degree murder conviction and sentence of death were final in 2000, before the
Supreme Court decided Ring. Therefore, Zack is not entitled to Hurst relief
because Hurst does not apply retroactively to cases that were final before Ring was
decided. See Asay v. State, 210 So. 3d 1, 22 (Fla. 2016). Accordingly, we deny
relief on this claim.
CONCLUSION
In light of the foregoing, we affirm the trial court’s denial of relief on Zack’s
postconviction motion to vacate his conviction of first-degree murder and sentence
of death, and we deny habeas relief.
It is so ordered.
LABARGA, C.J., and QUINCE, J., concur.
CANADY, J., concurs specially with an opinion, in which POLSTON, J., concurs.
PARIENTE, J., concurs in result with an opinion.
LAWSON, J., concurs in result with an opinion.
LEWIS, J., concurs in part and dissents in part.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., specially concurring.
I concur in the conclusion that Zack’s IQ scores justify the denial of his
intellectual disability claim. I also agree that Zack is not entitled to Hurst v.
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Florida, 136 S. Ct. 616 (2016), postconviction relief and that the habeas petition
should therefore be denied. But I would not rely on Asay v. State, 210 So. 3d 1
(Fla. 2016). Instead, I would deny the Hurst claim on two grounds. First, no Hurst
error occurred in this case—given the contemporaneous convictions establishing
aggravation. See Hurst v. State, 202 So. 3d 40, 77-83 (Fla. 2016) (Canady, J.,
dissenting). Second, in any event Hurst should not be given retroactive
application. See Mosley v. State, 209 So. 3d 1248, 1285-91 (Fla. 2016) (Canady,
J., concurring in part and dissenting in part).
POLSTON, J., concurs.
PARIENTE, J., concurring in result.
I would not deny retroactive application of Hurst v. State (Hurst), 202 So. 3d
40 (Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017), to Zack, but because
I am bound by this Court’s precedent from Asay v. State, 210 So. 3d 1 (Fla. 2016),
I concur in result with the majority’s rejection of Zack’s Hurst claim. I do concur,
however, in the majority’s rejection of Zack’s intellectual disability claim and
write separately to emphasize that Zack’s range of IQ scores do not approach “the
test’s acknowledged and inherent margin of error.” Hall v. Florida, 134 S. Ct.
1986, 2001 (2014). As the majority explained, “[t]he record demonstrates five I.Q.
scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores
after Zack turned 18—84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in
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2015.” Majority op. at 10. Thus, because Zack’s lowest I.Q. scores do not fall
within the test’s margin of error, it is unnecessary to conduct a “conjunctive and
interrelated” assessment of Zack’s evidence of intellectual disability as required by
Hall. Cf. Walls v. State, 213 So. 3d 340, 346 (Fla. 2016); Oats v. State, 181 So. 3d
457, 467 (Fla. 2015).
LAWSON, J., concurring in result.
See Okafor v. State, No. SC15-2136, slip op. at 15 (Fla. June 8, 2017)
(Lawson, J., concurring specially).
An Appeal from the Circuit Court in and for Escambia County,
Linda Lee Nobles, Judge - Case No. 171996CF002517XXXAXX
And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, and Dawn B. Macready
and Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
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