& SC12-2349 Norman Blake Mckenzie v. State of Florida and Norman Blake Mckenzie v. Timothy H. Cannon, etc.

Supreme Court of Florida
____________
No. SC12-986
____________
NORMAN BLAKE MCKENZIE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC12-2349
____________
NORMAN BLAKE MCKENZIE,
Petitioner,
vs.
TIMOTHY H. CANNON, etc.,
Respondent.
[December 11, 2014]
REVISED OPINION
PER CURIAM.
Norman Blake McKenzie appeals an order entered in the circuit court
summarily denying his motion to vacate his convictions of first-degree murder and
sentences of death filed pursuant to Florida Rule of Criminal Procedure 3.851. He
also petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V,
§ 3(b)(1), (9), Fla. Const.
FACTS AND BACKGROUND
A jury convicted Norman Blake McKenzie of the first-degree murders of
Randy Wayne Peacock and Charles Frank Johnston. McKenzie v. State, 29 So. 3d
272, 277 (Fla. 2010). The jury recommended the death penalty by a vote of ten to
two for each murder. Id. Following that recommendation, the trial court sentenced
McKenzie to death for the murders. Id. at 277-78. After discharging counsel,
McKenzie represented himself during both the guilt and penalty phases of trial, as
well as during the Spencer1 hearing. Id. at 277. In the opinion affirming the
convictions and sentences, we described the murders, the capital proceedings, and
McKenzie’s decision to represent himself:
[O]n October 5, 2006, two Flagler Hospital employees became
concerned when Randy Peacock . . . did not report to work. The two
employees drove to the home that Peacock shared with Charles
Johnston. Upon their arrival, they noticed that Peacock’s vehicle, a
green convertible, was not there. When the employees entered the
residence, they found Peacock lying face down on the kitchen floor in
a pool of blood. When deputies from the St. Johns County Sheriff’s
Office (SJSO) arrived, they . . . located the body of Charles Johnston
in a shed that was also located on the property. . . . Deputies observed
a gold sport utility vehicle (SUV) in the driveway and determined that
it was registered to Norman Blake McKenzie.
1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
-2-
The deputies subsequently spoke with a neighbor of the
victims. The neighbor stated that on October 4, 2006, he went to the
victims’ home to assist Johnston with repairs on his vehicle. When
the neighbor first arrived, Johnston was not there but Peacock was
present and was speaking with a man whom the neighbor later
identified in a photo lineup as McKenzie. . . .
McKenzie subsequently had an encounter with a Citrus County
sheriff’s deputy during which Randy Peacock’s wallet was recovered
from one of McKenzie’s pockets. Further, Charles Johnston’s wallet
was located in a vehicle that McKenzie had recently operated.
McKenzie agreed to speak with SJSO deputies on two separate
occasions during which he confessed to the murders of Peacock and
Johnston.
McKenzie explained that he went to the victims’ residence on
October 4, 2006, to borrow money from Johnston because of his drug
addiction. . . . McKenzie then asked Johnston for a hammer and a
piece of wood so that he could knock some “dings” out of the door of
his SUV. Johnston could not locate a hammer and gave McKenzie a
hatchet. While walking into the shed to locate a piece of wood,
McKenzie struck Johnston in the head with the . . . hatchet. Johnston
fell to the floor and McKenzie struck him again. McKenzie then
entered the home, approached Peacock, who was cooking in the
kitchen, and struck him with the hammer side of the hatchet
approximately two times.
McKenzie returned to the shed, and when he observed that
Johnston was still alive, he struck Johnston one or more times with the
hatchet. McKenzie removed Johnston’s wallet from his pocket . . .
and re-entered the residence. McKenzie observed that Peacock was
struggling to stand up, so he grabbed a knife and stabbed Peacock
multiple times. McKenzie . . . took Peacock’s wallet and car keys,
and departed in Peacock’s vehicle.
....
During a pretrial hearing, McKenzie expressed frustration with
his court-appointed counsel because his right to a speedy trial had
been waived without first consulting with him. When defense counsel
sought a continuance on the basis that more time was needed to
prepare for trial, McKenzie objected. McKenzie insisted that he was
ready and wanted to proceed as expeditiously as possible. As a result,
defense counsel moved to withdraw. The trial court, based upon
-3-
McKenzie’s assertion that he was ready to proceed, denied the motion
and scheduled a trial date.
During a second pretrial hearing, defense counsel again moved
for a continuance, asserting that additional time was necessary to
prepare for trial and to investigate mitigation. McKenzie again
expressed frustration with his court-appointed counsel. . . . When the
trial court recommended that McKenzie listen to his attorneys’
assertion that more time was required to properly prepare for trial,
McKenzie responded that he did not need the assistance of counsel.
Based upon this statement, the trial court scheduled a Faretta [n.1]
inquiry.
[N.1.] Faretta v. California, 422 U.S. 806 (1975).
During the Faretta hearing, when asked by the trial court why
he wanted to represent himself, McKenzie replied that he was ready
for trial and did not need attorneys to prepare any sort of mitigation on
his behalf. McKenzie also expressed the belief that he possessed
sufficient intelligence to represent himself. With regard to his desire
to proceed to trial as quickly as possible, McKenzie stated that he did
not wish to subject his mother, his fiancée, or the victims’ families to
an extended trial, and that he thought a protracted trial would be a
waste of taxpayer funds.
When the trial court asked McKenzie why he wanted to
discharge his court-appointed counsel, McKenzie replied that they
insisted upon taking actions with which he disagreed. Defense
counsel agreed that McKenzie’s displeasure with them arose from a
difference of opinion with regard to trial strategy. After conducting a
Faretta inquiry, the trial court concluded that McKenzie was
competent to waive counsel and that his waiver was knowing,
intelligent, and voluntary. The trial court allowed McKenzie to
represent himself but appointed standby counsel with McKenzie’s
approval.
During the guilt phase of the trial, McKenzie admitted that he
went to the victims’ home on October 4 with the intention of taking
their money. McKenzie also admitted that he hit both Johnston and
Peacock with the hatchet and stabbed Peacock with a knife. After the
State rested its case, McKenzie stated that he would not offer any
witness testimony and further declined to testify on his own behalf.
-4-
On August 21, 2007, the jury found McKenzie guilty of two counts of
first-degree murder.
After the verdict was announced, McKenzie advised that he
would like to be represented during the penalty phase and the trial
court appointed counsel. However, the next day McKenzie recanted
his request and stated that the impact of the verdict caused him to be
temporarily distracted from his intended course of action which was to
expedite the trial proceedings. The trial court conducted a second
Faretta inquiry and again concluded that McKenzie was competent to
waive counsel. The trial court allowed McKenzie to represent himself
but reappointed standby counsel.
During the penalty phase . . . McKenzie advised that he would
not offer any mitigation evidence to the jury. However, following the
prosecutor’s closing statement, McKenzie was allowed to place bank
records into evidence for the purpose of demonstrating his financial
behavior in the months before these crimes. By a vote of ten to two,
the jury recommended that a sentence of death be imposed for each
murder.
McKenzie advised the trial court that he wished to represent
himself during the Spencer hearing and that he did not intend to
present any witnesses. In light of the minimal mitigation offered by
McKenzie, the trial court ordered the Florida Department of
Corrections (DOC) to prepare a presentence investigation report
(PSI). During the Spencer hearing, the State did not present any
additional evidence but discussed the aggravating circumstances that
purportedly had been established and also reviewed potential
mitigation factors, such as cooperation with law enforcement, cryptic
references to child abuse, [n.3] and drug addiction. After stating that
he would not expound upon any purported reference to child abuse,
McKenzie read a statement that he prepared in which he expressed
regret for the murders and apologized to the families of the victims.
[N.3.] The PSI report prepared by the DOC noted that
McKenzie’s fiancée “would not discuss [McKenzie’s]
family. . . . She did state that his parents should be the
ones incarcerated and not him. She would not go into
any detail.”
Id. at 275-77 (footnote omitted).
-5-
In sentencing McKenzie to death, the trial court determined that the State
had proven beyond a reasonable doubt the existence of four statutory aggravating
circumstances with regard to each murder: (1) McKenzie had previously been
convicted of another capital felony or of a felony involving the use or threat of
violence to the person (eight prior convictions and the contemporaneous murder of
the other victim) (great weight); (2) the murders were committed while McKenzie
was engaged in the commission of a robbery (significant weight); (3) the murders
were committed for pecuniary gain (merged with the robbery aggravator—no
additional weight was given); and (4) the murders were committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal
justification (CCP) (great weight). Id. at 278.
The court found the existence of nonstatutory mitigating circumstances to
include that McKenzie (1) suffered from an addiction to cocaine (little weight); (2)
was a victim of child abuse (little weight); (3) exhibited good behavior during trial
court proceedings (some weight); (4) expressed remorse (some weight); (5)
cooperated with law enforcement (some weight); (6) possesses a GED and
certificates in architectural design (very little weight); and (7) is serving a life
sentence for armed carjacking, and the minimum mandatory sentence for the
murders is life without the possibility of parole (little weight). Id.
-6-
The trial court concluded that McKenzie had failed to establish the statutory
mitigating circumstance that he was under the influence of an extreme emotional
or mental disturbance at the time of the murders. Id. Instead, the trial court found
“the evidence presented during trial overwhelmingly established that McKenzie
was in complete control of his faculties at the time he committed the murders.” Id.
Finally, with regard to sentencing, we explained:
The trial court concluded pursuant to Muhammad v. State, 782
So. 2d 343 (Fla. 2001), that it could not afford the jury’s advisory
recommendation great weight in light of McKenzie’s minimal
presentation of mitigation during the penalty phase. Accordingly, the
trial court conducted an independent evaluation and concluded that
the aggravating circumstances established far outweighed the
mitigating circumstances. [n.4] Based on this conclusion, the trial
court imposed a sentence of death for each murder.
[N.4.] The trial court further concluded that “[e]ven in
the absence of [CCP] . . . the remaining aggravating
circumstances would far outweigh the mitigating
circumstances.”
Id.On direct appeal, McKenzie asserted the following issues: (1) the trial court
departed from judicial neutrality when it sua sponte struck a juror for cause; (2) the
Faretta and Nelson2 inquiries were defective and, therefore, the trial court
impermissibly allowed McKenzie to represent himself; (3) the trial court
improperly restricted McKenzie’s access to standby counsel; (4) the trial court
2. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
-7-
erred when it prepared one sentencing order to address both murders; (5) the death
sentences are not proportionate; (6) Florida’s death penalty statute violates Ring v.
Arizona, 536 U.S. 584 (2002); (7) the role of the jury during the penalty phase was
impermissibly diminished in violation of Caldwell v. Mississippi, 472 U.S. 320(1985); and (8) the death sentences are unconstitutional because the jury did not
issue specific findings with regard to aggravating circumstances and, therefore, it is
impossible to determine whether the jury determination was unanimous with
regard to the aggravating circumstances that applied. McKenzie, 29 So. 3d at 279-
88. This Court denied relief on all claims and affirmed McKenzie’s convictions
and sentences. Id. at 288. The United States Supreme Court subsequently denied
certiorari review. McKenzie v. Florida, 131 S. Ct. 116 (2010).
On September 15, 2011, McKenzie filed a motion to vacate the convictions
and sentences pursuant to Florida Rule of Criminal Procedure 3.851, asserting four
claims. The first claim alleged that due to State action, McKenzie was denied a
full and fair capital sentencing phase, and the postconviction court should now
consider McKenzie’s mitigation evidence to determine whether his death sentences
are constitutional. The “State action” in question was divided into multiple
subparts and can be summarized as follows: (1) appointed counsel were ineffective
during the time they represented McKenzie because they failed to properly visit
him in custody and sufficiently consult with him before waiving his right to a
-8-
speedy trial; counsel also failed to adequately explain the capital sentencing
process; (2) McKenzie was not offered the assistance of a mental health expert
pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985), and counsel were ineffective for
failing to ask for the appointment of an expert prior to their discharge; (3)
McKenzie had a constitutional right to compel witnesses to testify on his behalf but
was not permitted to do so; (4) McKenzie was denied his right of access to courts
because he was not given access to a law library; (5) McKenzie was denied the
right to present mitigation when he attempted to model his defense after the
presentation by the prosecution, but the prosecutor blocked introduction of the
mitigation by objection; (6) the prosecutor’s use of McKenzie’s opening statement
as substantive evidence violated the Confrontation Clause of the United States
Constitution; (7) the prosecutor improperly visited McKenzie in jail without a
court reporter present and, during the visit, falsely informed McKenzie that he
could not introduce statements from his first recorded interrogation by law
enforcement officers; (8) the prosecution’s failure during trial to play two recorded
interrogations of McKenzie prevented the jury and the trial court from considering
existing mitigation, and McKenzie was never given copies of the interrogations;
(9) the PSI prepared by the DOC was deficient; and (10) without full consideration
of McKenzie’s drug abuse, his mental illness, and developmental factors, the death
sentences are unconstitutional.
-9-
In his second claim, McKenzie reiterated that his counsel were ineffective,
which led McKenzie to choose to represent himself. Under this claim, McKenzie
quoted extensively from a report prepared by a clinical and forensic psychologist
and listed twenty-five “distinct toxic formative influences and compromising
factors” that should have been presented during the penalty phase.3 According to
the psychologist, each of these influences or factors presented “malignant
implications for Mr. McKenzie’s life trajectory and participation in the capital
offense.” McKenzie’s third claim challenged the constitutionality of Florida’s
lethal injection procedure and statute. His final claim challenged the
constitutionality of Florida’s death penalty statute in light of the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
3. The twenty-five factors are: (1) trans-generational family dysfunction and
distress; (2) hereditary predisposition to psychological disorder and personality
pathology; (3) hereditary predisposition for alcohol and drug abuse/dependence;
(4) fetal cigarette exposure; (5) fetal alcohol exposure; (6) pregnancy and birth
complications; (7) childhood symptoms consistent with Attention Deficit
Hyperactivity Disorder; (8) inhalant abuse; (9) alcohol and drug abuse; (10)
chronic stress in childhood; (11) Hepatitis C and HIV status; (12) mother in mid-
teens at parenting onset; (13) physical and psychological abuse; (14) functional
abandonment by father; (15) physical and emotional neglect post-divorce; (16)
perverse family sexuality and probable family-context sexual abuse; (17) observed
family violence; (18) mother’s alcohol abuse; (19) corruptive and alcoholic
stepfather figures; (20) corruptive influence of siblings; (21) traumatic sexual
exposures and abuse; (22) availability of alcohol and illicit drugs; (23) childhood
onset alcohol and drug abuse; (24) substance-related offending and incarceration
in early adulthood; and (25) cocaine-induced psychological decompensation and
extended sleep deprivation at the time of the offense, in a temporal context of
psychotic symptoms.
- 10 -
The postconviction court held a Huff4 hearing, and on March 8, 2012,
summarily denied McKenzie’s motion without an evidentiary hearing. McKenzie
now appeals the summary denial, challenging the trial court’s ruling on his first
and second postconviction claims (and all incorporated subclaims), and has also
petitioned this Court for a writ of habeas corpus.
ANALYSIS
Standard of Review
This Court has explained the standard of review of a summarily denied
initial motion for postconviction relief as follows:
“A defendant is normally entitled to an evidentiary hearing on a
postconviction motion ‘unless (1) the motion, files, and records in the
case conclusively show that the movant is entitled to no relief, or (2)
the motion or particular claim is legally insufficient.’ ” Valentine v.
State, 98 So. 3d 44, 54 (Fla. 2012) (quoting Franqui v. State, 59 So.
3d 82, 95 (Fla. 2011)). An evidentiary hearing must be held on an
initial 3.851 motion whenever the movant makes a facially sufficient
claim that requires factual determination. See Amendments to Fla.
Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So. 2d 488, 491 n.2
(Fla. 2000). “[T]o the extent there is any question as to whether a rule
3.851 movant has made a facially sufficient claim requiring a factual
determination, the Court will presume that an evidentiary hearing is
required.” Walker v. State, 88 So. 3d 128, 135 (Fla. 2012). However,
merely conclusory allegations are not sufficient—the defendant bears
the burden of “establishing a ‘prima facie case based on a legally valid
claim.’ ” Valentine, 98 So. 3d at 54 (quoting Franqui, 59 So. 3d at
96).
“To uphold the trial court’s summary denial of claims raised in
an initial postconviction motion, the record must conclusively
4. Huff v. State, 622 So. 2d 982 (Fla. 1993).
- 11 -
demonstrate that the defendant is not entitled to relief.” Everett v.
State, 54 So. 3d 464, 485 (Fla. 2010). When reviewing the circuit
court’s summary denial of an initial rule 3.851 motion, we will accept
the movant’s factual allegations as true and will affirm the ruling only
if the filings show that the movant has failed to state a facially
sufficient claim, there is no issue of material fact to be determined, the
claim should have been brought on direct appeal, or the claim is
positively refuted by the record. See Walker, 88 So. 3d at 135.
Finally, “[b]ecause a court’s decision whether to grant an evidentiary
hearing on a rule 3.851 motion is ultimately based on written
materials before the court, its ruling is tantamount to a pure question
of law, subject to de novo review.” Seibert v. State, 64 So. 3d 67, 75
(Fla. 2010) (citing State v. Coney, 845 So. 2d 120, 137 (Fla. 2003)
(holding that pure questions of law that are discernable from the
record are subject to de novo review)).
Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013).
Ineffective Assistance of Trial Counsel
McKenzie first claims that, prior to their discharge, appointed counsel were
deficient because they failed to meet with him at one of the various locations
where he was being held in custody to discuss the waiver of speedy trial and the
capital sentencing process. Based upon this purported deficiency, McKenzie
contends that he acted impulsively and decided to represent himself, which led to
mitigation not being introduced. We conclude that the trial court properly denied
this claim.
On direct appeal, this Court specifically noted that an attorney may waive
speedy trial without consulting the client and even against the client’s wishes.
McKenzie, 29 So. 3d at 282; see also State v. Kruger, 615 So. 2d 757, 759 (Fla. 4th
- 12 -
DCA 1993). Thus, if the right to speedy trial may be waived without consulting
the defendant, counsels’ waiver here cannot be considered an error, let alone one
that is “so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Further, McKenzie’s initial and reply briefs fail to present a case in which
counsel was deemed constitutionally deficient solely for failing to visit a criminal
defendant before waiving the right to a speedy trial, and our research reveals no
supporting precedent. Accordingly, McKenzie’s allegation of deficiency is not
supported in the law, and he has failed to satisfy the first prong of Strickland.5
McKenzie next claims that he was prejudiced by counsels’ failure to visit
him because, had such visits occurred, he would not have acted impulsively and
elected to represent himself. This claim is not only speculative, but positively
refuted by the record. See Barnes, 124 So. 3d at 911. The record on direct appeal
reflects that McKenzie was determined to go to trial as quickly as possible and,
despite urgings from the trial court that he listen to counsel, would not be swayed
from this course of action. During a pretrial hearing, McKenzie informed the trial
court:
5. Contrary to the blatant misrepresentation in McKenzie’s motion for
rehearing, this Court does not hold—and never has held—that trial counsel has no
obligation to meet with a client and can never be deemed ineffective for failing to
meet with a client. Instead, the analysis clearly reflects that our holding is limited
to the context of speedy trial waivers.
- 13 -
I have been here ready to go to trial from the time that I
was booked on this charge. . . . There’s been plenty of
time—there’s nothing—this case is a cut-and-dry case.
You can ask the prosecutor that. There’s not a lot to do,
okay. I’ve been found competent by another—by my
evaluation, there’s no reason for this to continue on the
way it is. None at all. And if the state’s willing to take
me to trial, then let’s go to trial.
(Emphasis supplied.) McKenzie insisted that he was ready for trial because there
was no discovery to be completed, stating “There’s no depositions to be made. I
was the only one present during the murders when they occurred, how can there be
a deposition to be made? . . . You can’t depo a dead person.” During a later
pretrial hearing, McKenzie again expressed frustration with his counsel based upon
their second request for a continuance. When the trial court recommended that
McKenzie listen to counsel when they informed him that they were not ready to
proceed to trial, McKenzie responded, “if that’s your advice, I don’t—I don’t need
them.”
During the Faretta hearing, when asked by the trial court why he wanted to
represent himself, McKenzie replied that he was ready for trial and did not need
attorneys to prepare any mitigation on his behalf. McKenzie also expressed the
belief that he possessed sufficient intelligence to represent himself, stating:
I’m intelligent enough. I’m aware of what’s going on. I’m aware of
the severity of the charges. I’m aware of the severity of the
consequences of being found guilty. I understand every bit of it. I
know the ramifications of what’s taking place.
- 14 -
With regard to his desire to proceed to trial as quickly as possible, McKenzie
stated:
I just don’t feel that it’s necessary for me to drag this out through the
courts and cause the taxpayers to spend more and more money on this.
I really don’t. There’s just—there’s, there’s not a lot to do in this
case. There isn’t. I understand that it’s a severe case. I’m not trying
to alleviate the severity of this case at all. And I know that my life is
on the line here. I understand that.
....
I don’t want to sit here and drag my fiancée through all this. I don’t
want to have my mother dragged through all this, okay? . . . I don’t
want to have the victim’s [sic] family dragged through all this and
have them have to suffer through it all. I don’t.
But I will put an end to this as fast as possible, as quick as
possible.
(Emphasis supplied.)
McKenzie’s own statements during these pretrial hearings establish that
visits by counsel to discuss the strategy to defend and the need for a waiver of
speedy trial would not have been productive. McKenzie’s assertion on rehearing
that we have somehow improperly discerned his intent is puzzling indeed, as the
prior quotes from the record on direct appeal are those of McKenzie himself. They
reflect that McKenzie’s express intent with regard to resolving the murder charges
expeditiously was to spare his fiancée, his mother, and the victims’ families the
anguish of a prolonged trial. He acknowledged that the case was straightforward,
informed the court that he had been ready for trial since he was “booked,” and
expressed his belief that enough time had passed since his arrest. Based upon these
- 15 -
statements by McKenzie, we hold there is no reasonable probability that, had
counsel visited him prior to waiving speedy trial, McKenzie would have
acquiesced to this decision and proceeded to trial with representation.
Moreover, even if McKenzie had been represented by counsel, during trial
two detectives testified with regard to McKenzie’s highly detailed confessions.
McKenzie admitted that he committed the murders because he wanted money to
purchase drugs. Given the viciousness of the murders with a hatchet and a knife,
the fact that McKenzie actually tricked one of the victims into giving him a murder
weapon, and McKenzie’s extensive violent criminal history, there is no reasonable
probability that, had McKenzie been represented by counsel, and mental health and
addiction evidence introduced, the result of the penalty phase would have been
different, and our confidence in the outcome has not been undermined. See
Strickland, 466 U.S. at 694 (to establish prejudice based upon a claim of
ineffective assistance of counsel, a defendant must demonstrate “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”).6 Accordingly, McKenzie
has also failed to establish the second prejudice prong of Strickland.
6. McKenzie’s assertion on rehearing that the mitigation presented in his
postconviction motion would have motivated at least four additional jury members
to recommend life sentences constitutes pure speculation.
- 16 -
We affirm the summary denial of this subclaim.
Mental Health Expert
In Ake, the Supreme Court held that “when a defendant demonstrates to the
trial judge that his sanity at the time of the offense is to be a significant factor at
trial, the State must, at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense.” 470 U.S. at 83. It further concluded
that “where the consequence of error is so great, the relevance of responsive
psychiatric testimony so evident, and the burden on the State so slim, due process
requires access to a psychiatric examination on relevant issues, to the testimony of
the psychiatrist, and to assistance in preparation at the sentencing phase.” Id. at 84.
This Court has consistently held that Ake claims are procedurally barred if they are
not presented on direct appeal. See, e.g., Anderson v. State, 18 So. 3d 501, 519
(Fla. 2009); Whitfield v. State, 923 So. 2d 375, 379 (Fla. 2005); Marshall v. State,
854 So. 2d 1235, 1248 (Fla. 2003). McKenzie did not present an Ake challenge in
this case on direct appeal, and this subclaim is barred.
Moreover, this claim also lacks merit. The trial court, in rejecting the
statutory mitigating circumstance that McKenzie was under the influence of an
extreme mental or emotional disturbance at the time of the murders, specifically
stated in the sentencing order:
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The fact that the Defendant may wish to have this mitigating
circumstance considered based on his statement to the court that he
was intoxicated at the time he committed the murders, does not
overcome the other evidence in the case that establishes in
overwhelming fashion that the Defendant was in complete control of
his faculties when these heinous crimes were committed.
(Emphasis supplied.) The record on direct appeal reflects that McKenzie never
requested the appointment of an expert during the guilt or penalty phases to
investigate the existence of mental health mitigation or any other psychological
matter. Whether to request the assistance of an expert, or present any mitigation
evidence other than his bank records, was exclusively McKenzie’s decision after
he knowingly, intelligently, and voluntarily waived his right to counsel, assumed
full control of his case, and chose to represent himself. Moreover, during the
penalty-phase Faretta inquiry, the trial court expressly informed McKenzie he
would not receive special treatment if he chose to represent himself, and McKenzie
acknowledged that he understood. He cannot now assert, and no evidence supports
his claim, that the trial court had an affirmative duty to offer or demand for him the
assistance of a mental health expert pursuant to Ake during the penalty phase.
Similarly, McKenzie’s claim that counsel were ineffective for failing to
request the appointment of a mental health expert prior to their discharge fails. As
previously noted, after the jury rendered guilty verdicts, McKenzie stated that he
wished to be represented by counsel during the penalty phase. After the trial court
appointed counsel for McKenzie, counsel disclosed that prior to McKenzie’s initial
- 18 -
decision to represent himself, they requested an evaluation to “determine whether
he was competent to stand trial.” During a pretrial hearing, McKenzie also stated,
“I’m sorry, Your Honor, but [counsel] has two evaluations by a psychiatrist
already. He can turn those over to you right now to show you that I’m competent.”
Thus, McKenzie was found to be competent both in an evaluation sought by
counsel and by the trial court during multiple Faretta inquiries.
In alleging that counsel were ineffective, McKenzie ignores the fact that he
was found to be competent to represent himself, and he chose not to present
mitigation evidence during the penalty phase other than the bank records. Had
counsel requested the appointment of a mental health expert prior to their
discharge, McKenzie’s unequivocal statements and conduct throughout the trial
both demonstrate that he would have refused to submit to an evaluation because it
would have delayed the trial, and that would have been directly contrary to his
express intent to expedite the proceedings.
There was nothing in the record to indicate to counsel or the trial court that
McKenzie’s mental health status was or would be a legitimate issue or a significant
factor in the case. Accordingly, McKenzie has failed to establish both the
deficiency and prejudice prongs of Strickland.
We affirm the summary denial of this subclaim.
Witnesses
- 19 -
This subclaim arises from McKenzie’s decision to represent himself. We
have previously cautioned that a defendant who elects to proceed without counsel
is entirely responsible for his own defense, even if he has standby counsel. See
Behr v. Bell, 665 So. 2d 1055, 1056-57 (Fla. 1996). A defendant who chooses to
represent himself cannot later complain that the quality of his defense was
substandard or amounted to ineffective assistance of counsel. See id.Although McKenzie contends that he was denied the opportunity to compel
witnesses on his behalf, he fails to provide the name of a single witness whom he
sought to present but was precluded from doing so by either the trial court or the
State. McKenzie never sought to invoke any process whatsoever. With regard to
the right to compulsory process for obtaining witnesses guaranteed by the Sixth
Amendment, the Supreme Court has stated that this right must be initiated by the
defendant:
There is a significant difference between the Compulsory
Process Clause weapon and other rights that are protected by the Sixth
Amendment—its availability is dependent entirely on the defendant’s
initiative. Most other Sixth Amendment rights arise automatically on
the initiation of the adversary process and no action by the defendant
is necessary to make them active in his or her case. While those rights
shield the defendant from potential prosecutorial abuses, the right to
compel the presence and present the testimony of witnesses provides
the defendant with a sword that may be employed to rebut the
prosecution’s case. The decision whether to employ it in a particular
case rests solely with the defendant. The very nature of the right
requires that its effective use be preceded by deliberate planning and
affirmative conduct.
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Taylor v. Illinois, 484 U.S. 400, 410 (1988) (emphasis supplied) (footnote
omitted). While representing himself, McKenzie chose not to present any
witnesses—mental health or otherwise. He had the opportunity to do so, but he
simply did not take advantage of that process. Accordingly, he cannot now assert
that his right to compulsory process and to compel witnesses was violated.
The postconviction court properly denied this subclaim without an
evidentiary hearing.
Access to Law Library
During the Faretta inquiry, the trial court warned McKenzie that if he chose
to represent himself, he would be more limited than an attorney in researching his
defense. McKenzie confirmed to the trial court that he understood this
ramification of self-representation. Although McKenzie informed the court during
the inquiry that he had “no library privileges,” McKenzie does not allege that he
ever asked the staff at the jail for library privileges, that jail staff denied him such
access, that he brought such a denial to the attention of the trial court, or that the
trial court did nothing to ensure McKenzie the access he sought. Cf. Langon v.
State, 791 So. 2d 1105, 1109-10 (Fla. 4th DCA 1999) (“At a status conference . . .
Langon moved for access to video tapes and his files, as well as increased access to
the law library. Langon also moved for a continuance in order to review these
items and prepare for trial. . . . The court denied Langon’s motion for a
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continuance and instructed the sheriff’s office to bring the tapes and files to
Langon’s cell.”). Because McKenzie chose to represent himself, he was
responsible for alerting the trial court to any difficulties he encountered in
accessing legal materials. There is no indication in the record that McKenzie was
denied access to any legal materials he sought. Therefore, this subclaim is
conclusively refuted by the record, and summary denial was proper.
Prosecutorial Misconduct
Under this claim, McKenzie asserts that the State allegedly sabotaged his
case in multiple ways. McKenzie first claims that the prosecution improperly
relied on his guilt phase opening statement as substantive evidence during its guilt
phase closing statement, and this conduct violated the Confrontation Clause. As a
preliminary matter, McKenzie did not object to the prosecutor’s closing statement
of which he now complains, and this issue has not been preserved. Further, an
allegation of improper argument by the prosecution is procedurally barred if not
asserted on direct appeal. See Ferrell v. State, 29 So. 3d 959, 977 (Fla. 2010);
Kelley v. State, 569 So. 2d 754, 756 (Fla. 1990).
Moreover, even if preserved, we conclude that no improper argument or
Confrontation Clause violation occurred. During his opening statement, McKenzie
told the jury in great detail how and why the murders occurred:
I’m here before you being tried for two crimes which occurred
on October 4th at about dusk. My intention, in this opening
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statement, is twofold: To take up the least amount of your time as
possible, and give you a clear understanding of the crime that took
place. Only I can do this. Though the prosecution can, and will, no
doubt, put before you an excellent case, only I can truly bring you into
the horror of the evening of October 4th, 2006.
....
At approximately 3:00 p.m. on October 4th, 2006, needing
some money, I contemplated on how I could get some. I was working
for Randy Peacock and Charles Johnston. . . . I knew that they had
some money; I wasn’t sure how much. I had drove to their house with
the intention of physically depriving them of their money.
....
I asked . . . Charles Johnston if he had a hammer. You can’t see
the damage to my truck . . . but there is damage on the other side . . . .
It was my intention to utilize the hammer and a piece of wood to bang
out the dent as much as possible to be able to open up the driver’s side
door as much as possible without doing further damage to the vehicle,
as well as get a weapon in my hand.
. . . On this table is where the hatchet was given to me at that
time. He gave me the hatchet because it has a flat side to it. . . . I was
given a hatchet. I needed a piece of wood. He searched upon the
carport and couldn’t find one. I knew that there was wood laying in
the back of the home, from previous work that I had done around the
home, and I said “come on, we can find a piece of wood back there
easily.” He still searched around the front. I don’t know if he felt
something wrong or what, but I kind of sensed that he did, and I
finally talked him into getting—I know there’s one, you know, right
around the corner, and we walked back there and went into the shed. .
. . And he walked in and I walked in behind him. . . . I struck Charles
Johnston one time in the back of the head with the . . . flat part of the
hatchet, not the blade side, probably about right there. He fell down,
knocking down a lot of the shelves. . . .
....
I walked into the front door. Randy Peacock was standing in
the kitchen, cooking a pot of chicken soup. And I walked up behind
him and I struck him one time in the top, the back of his head, once
again . . . with the flat part of the hatchet. Basically about the same
spot that I hit Charles Johnston at. . . .
He fell forward, on both elbows, about like that, directly into
the pot of chicken soup, with the soup still maintaining where it was
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being cooked at on the stove. He didn’t fall over, but he was knocked
out. And he didn’t cry out in pain. He was knocked out. And . . . I
was puzzled why he wouldn’t fall, and then I realized that he was
balanced perfectly there, knocked out, leaning with his arms in the
pot.
(Emphasis supplied.) At this point, the trial court informed McKenzie that he
should tell the jury what he expected the evidence to show, “as opposed to giving a
statement.”
According to McKenzie, the Confrontation Clause violation occurred when
the prosecutor made the following comments during guilt phase closing
statements:
. . . All of those injuries and all of that blood and all of that
viciousness because Norman Blake McKenzie, as he told you in his
own words in his opening statement, wanted these items and wanted a
car to get away for his own purposes.
Ladies and gentlemen, the evidence has clearly shown you,
beyond any doubt, that this defendant is guilty of both counts of
murder in the first degree. It’s a rare case, it’s a unique case where
you hear from the defendant, right off the beginning of the case, that’s
represented himself here, but still, the State has to prove every
element of each of those counts beyond and to the exclusion of every
reasonable doubt.
Norman McKenzie stood up, and in his own words in his
opening statement, told you what that evidence would show, but the
most compelling thing he told you was that not one single witness that
would take the stand could know the horror of that day, that he was
the only one that knew the horror of that day, and the truth of his own
words to you has been the truth of this entire case throughout
yesterday and today.
....
. . . And Mr. McKenzie told you himself in his opening that the
evidence would show that [Randy Peacock] was there for just a little
while, he was sort of balanced there in that position. So forethought
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about why—why was he still there, and then more injuries to that man
with a different instrument. And those are the circumstances, ladies
and gentlemen, you must consider based on Florida’s law.
Despite McKenzie’s assertion that his opening statement was relied upon by the
prosecution as substantive law, the quote above reflects the prosecution
specifically informed the jury that the State had the burden of proving McKenzie’s
guilt “beyond and to the exclusion of every reasonable doubt.” Further, McKenzie
omitted from his initial brief a portion of the State’s closing statement, which
followed the paragraph above that ends with the words “yesterday and today”:
Ladies and gentlemen, we didn’t show you a lot of pictures or
spend a lot of time on them. We showed you what we needed to to
prove the elements of our case. It’s our job . . . to show you that
Randy Wayne Peacock, who was in his own kitchen cooking chicken
soup, died this death, and under the law of the state of Florida, this is a
premeditated murder.
(Emphasis supplied.) The record also reflects that during the guilt phase, the State
presented as witnesses two detectives who heard McKenzie’s confessions. Those
detectives testified in great detail to the facts of the murders as they were conveyed
by McKenzie. Finally, before opening statements were given, the trial court
informed the jury that “[w]hat the lawyers say, and what Mr. McKenzie says, is not
evidence, and you are not to consider it as such during the opening statement”
(emphasis supplied). The court later instructed the jury “[i]t is up to the State to
prove the defendant’s guilt by evidence,” and “[i]t is to the evidence introduced in
this trial and to it alone that you are to look for that proof.”
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Accordingly, the record conclusively refutes McKenzie’s allegation that the
prosecutor improperly relied upon his opening statement as evidence. Rather, the
State expressly noted during closing statements that it carried the burden of
establishing McKenzie’s guilt of the crimes, and the trial court affirmed this
principle in its instructions. Moreover, during the guilt phase, the State presented
ample evidence of McKenzie’s guilt and did not rely upon McKenzie’s opening
statement. Lastly, although McKenzie claims that “the State used his opening
statements to argue its case despite a lack of confrontation of those statements,” no
authority has been presented to support the principle that a criminal defendant can
assert a Confrontation Clause challenge to a statement when the defendant is the
one who voluntarily made the statement. This allegation of misconduct fails.
McKenzie’s remaining claims of prosecutorial misconduct arise from the
perils of self-representation. These claims are (1) the prosecutor improperly
objected to McKenzie’s closing statements, thereby preventing McKenzie from
presenting evidence in mitigation;7 and (2) the prosecutor visited McKenzie in jail
7. McKenzie cites the following exchanges in support of this subclaim:
MCKENZIE: I don’t believe that under any circumstances at
this time right now could this crime have ever occurred in my state of
mind as I am right now. Never.
Demonstrating a depraved mind without regard for human life.
Did I go there to get that? Yes, [I] did. I did. Could I do that now?
No.
- 26 -
without a court reporter present8 and allegedly informed him that during trial, he
could not introduce statements from his first interrogation by law enforcement.
Had McKenzie been represented, counsel would have (1) presented opening and
closing statements that properly commented on the evidence offered during trial;
and (2) advised McKenzie as to the admissibility of statements made during the
first interrogation and whether those statements would be beneficial or detrimental
to McKenzie’s case. However, McKenzie chose to represent himself and,
therefore, he was responsible for his entire defense. Behr, 665 So. 2d at 1056-57.
As a result, any misinterpretation of the law or misunderstanding of trial procedure
STATE: Your Honor, I’m going to have to object because it’s
not about what Mr. McKenzie could do now; it’s about what
happened on the day of the crime.
COURT: I’m going to sustain the objection. Mr. McKenzie,
you have to comment on the evidence.
MCKENZIE: Yes, ma’am.
(Guilt phase closing statement.)
MCKENZIE: Some things occurred in my childhood that in
the beginning I didn’t know was wrong, and I remember—
STATE: I’m sorry, Your Honor. At this point I’m going to
have to object.
(Penalty phase closing statement.)
8. McKenzie cites no legal authority for the proposition that a prosecutor
who visits a pro se criminal defendant in jail is legally required to have a court
reporter present.
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and the rules of evidence by McKenzie were exclusively due to his actions. We
hold that the postconviction court properly denied this subclaim.9
Interrogation Recordings
In response to a notice of discovery filed by McKenzie’s counsel prior to
their discharge, the State filed a “Discovery Exhibit.” Listed in that exhibit is
“Electronic surveillance of conversations.” Thus, McKenzie was on notice that
electronic copies of his two interrogations existed, and he could have requested
that they be provided to him. Had McKenzie acquired and reviewed the
recordings, he could have played them for the jury, argued to the jury or the trial
court that they provided compelling evidence of mental health and addiction
mitigation, and used them to rebut the detectives’ testimony. However, McKenzie
took no steps to acquire the recordings. Accordingly, the failure of the jury and the
trial court to view the recordings can only be attributed to McKenzie, and not to
any misconduct by the State.
We hold that the postconviction court properly denied this subclaim without
an evidentiary hearing.
Deficient PSI
9. McKenzie’s assertion on rehearing that our holding condones
“prosecutors engag[ing] in all sorts of misconduct when seeking a death sentence
of a pro se defendant” is based upon the false and misguided premise that the State
engaged in improper conduct during the trial proceedings.
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Because of the minimal mitigation offered by McKenzie, the trial court
ordered the preparation of a PSI by the DOC.10 McKenzie now contends that this
report was deficient because it did not contain any reference to the recorded
confessions, his mental health, or his social history. However, during the Spencer
hearing McKenzie was provided a copy of the PSI, and the trial court insisted that
he read it, stating “I want you to sit down there and I want you to read through it.
We’ve got all morning.” After, the trial court asked McKenzie if there was
anything incorrect, or anything that should be added. McKenzie replied “no,”
other than requesting that the amount of his estimated monthly expenses be
changed. McKenzie did not alert the trial court to the lack of information in the
PSI similar to what he now asserts should have been included. To the contrary,
before reading his prepared statement during the Spencer hearing, the following
dialogue occurred:
MCKENZIE: . . . [The prosecution] made a slight reference to
some experiences, however traumatic or not they may have been, in
my childhood. I’m not going to expound upon that at all.
COURT: You don’t wish to offer any of that mitigation?
MCKENZIE: No, I don’t. I just, I don’t. I’m not going to—
I’m not going to go through that, you know.
10. In his motion for rehearing, McKenzie curiously claims that we have
somehow misunderstood that “the PSI was not a report by Mr. McKenzie but a
report about Mr. McKenzie.” This assertion makes no sense in light of the above
sentence.
- 29 -
(Emphasis supplied.) Thus, McKenzie had no desire for his social history to be
presented to the trial court for consideration as mitigation. This was McKenzie’s
decision while he acted as his own counsel. Further, as discussed in the prior
subclaim, McKenzie had notice of the recordings of his prior statements to law
enforcement. If McKenzie had wanted the trial court to consider these recordings
as possible drug abuse or mental health mitigation, he could have simply requested
them and had them presented during the Spencer hearing, or even requested that
the interrogations be presented during trial. He did not do so.
Accordingly, any claims of deficiency with regard to the interrogations or
the PSI are waived at this juncture because (1) the trial court asked McKenzie if
anything was missing from the report, and McKenzie replied in the negative; (2)
McKenzie was on notice that the interrogation recordings existed, but did nothing
to bring them to the court’s attention; and (3) McKenzie expressly informed the
trial court that he did not wish to present any mitigation with regard to his
childhood. Based on the foregoing, the postconviction court properly denied this
subclaim without an evidentiary hearing.
Summation
A number of the subclaims presented in the first issue on appeal arise from
McKenzie’s decision to represent himself during his capital criminal proceeding.
Based upon his knowing, intelligent, and voluntary waiver of his right to counsel,
- 30 -
and due to either inadvertence, lack of legal experience, or a definitive decision,
evidence that might have been considered by the jury or the trial court as
mitigation was not presented. The fact that McKenzie may have made ill-advised
decisions while he represented himself does not establish that he is entitled to a
“do-over” of his penalty phase or any phase of his underlying trial in the
postconviction context. If this approach was adopted, many competent capital
defendants would elect to represent themselves during trial as a delaying tactic.
Instead, the cautionary statement in Behr applies with equal force here: “[A]
defendant who represents himself has the entire responsibility for his own defense,
even if he has standby counsel. Such a defendant cannot thereafter complain that
the quality of his defense was a denial of ‘effective assistance of counsel.’ ” 665
So. 2d at 1056-57 (quoting Faretta, 422 U.S. at 835 n.46). In light of the
foregoing, we affirm the summary denial of the subclaims presented in
McKenzie’s first postconviction claim.
Additionally, because McKenzie’s second claim on appeal essentially
constitutes a presentation of the mitigation evidence that McKenzie would have
offered if this Court had granted him relief on his first claim, we reject this claim
as well. Contrary to McKenzie’s misrepresentation on rehearing, our analysis has
not discounted “expertise in psychology and addiction.” Rather, we reiterate that
McKenzie had no desire to present experts in these fields while he acted as his own
- 31 -
counsel, and his belated attempt to do so during the postconviction proceedings
was improper. Based upon the evidence that McKenzie chose to introduce during
the penalty phase, this Court on direct appeal conducted a full proportionality
review with regard to the death sentences imposed by the trial court. See
McKenzie, 29 So. 3d at 286-87. Accordingly, to claim on rehearing that no such
review occurred is misleading at best, and false at worst. McKenzie is not entitled
to a second proportionality review at the postconviction appellate stage for
evidence that he chose not to present during his capital trial.
Finally, because there is no error by the postconviction court, McKenzie’s
claim of cumulative error fails. See Lukehart v. State, 70 So. 3d 503, 524 (Fla.
2011) (“This Court has repeatedly held that where the alleged errors, when viewed
individually, are ‘either procedurally barred or without merit, the claim of
cumulative error also necessarily fails.’ ” (quoting Israel v. State, 985 So. 2d 510,
520 (Fla. 2008)).
Habeas Corpus Petition
In the sole issue presented in the habeas petition, McKenzie claims that
because he is mentally ill, to execute him would be unconstitutional. However,
regardless of whether McKenzie actually suffers from mental illness, we have
previously held that mental illness alone does not operate as an absolute bar to
execution. See, e.g., Power v. State, 992 So. 2d 218, 222 (Fla. 2008) (“[N]either
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this Court nor the Supreme Court has recognized mental illness as a per se bar to
execution.” (quoting Diaz v. State, 945 So. 2d 1136, 1151 (Fla.), cert. denied, 549
U.S. 1103 (2006)). Further, in 2011 this Court rejected a claim that execution of
the mentally ill is inconsistent with “evolving standards of decency in death
penalty jurisprudence.” Johnston v. State, 70 So. 3d 472, 484 (Fla. 2011).
Accordingly, this claim is without merit, and McKenzie is not entitled to habeas
relief.
CONCLUSION
For the foregoing reasons, we affirm the denial of the rule 3.851 motion and
deny the petition for writ of habeas corpus.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., concurs in result.
NO MOTION FOR REHEARING WILL BE ALLOWED.
Two Cases:
An Appeal from the Circuit Court in and for St. Johns County,
Wendy Williams Berger, Judge - Case No. 552006CF001864XXAXMX
And an Original Proceeding – Habeas Corpus
James Lawrence Driscoll, Jr. and David Dixon Hendry of Capital Collateral
Regional Counsel-Middle Region, Tampa, Florida,
for Appellant/Petitioner
- 33 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Mitchell David
Bishop, Assistant Attorney General, Daytona Beach, Florida,
for Appellee/Respondent
- 34 -