State of Florida v. Leo Louis Kaczmar, III & Leo Louis Kaczmar, III v. Secretary, Department of Corrections

Supreme Court of Florida

No. SC2022-1671

STATE OF FLORIDA,

Appellant/Cross-Appellee,

vs.

LEO LOUIS KACZMAR, III,

Appellee/Cross-Appellant.

No. SC2023-0725

LEO LOUIS KACZMAR, III,

Petitioner,

vs.

SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondent.

February 19, 2026

GROSSHANS, J.

The parties in this postconviction case appeal the circuit

court’s order that vacated Leo Louis Kaczmar, III’s death sentence but upheld his first-degree murder conviction. 1 For the reasons

given below, we reverse the grant of penalty-phase relief. We affirm

in all other respects. We also deny Kaczmar’s petition for habeas

corpus relief.

I

One December morning in 2008, Eva Mitchell and her

husband observed a home on fire in Green Cove Springs, Florida.

Eva called 911, while her husband ran up to the home, kicked open

the back door, and shouted to determine if anyone was inside. No

one responded.

Law enforcement and firefighters soon arrived at the home.

They learned that in the days leading up to the fire, the home had

been occupied by Kaczmar, his wife and children, his uncle, and his

father’s girlfriend—Maria Ruiz. Once the fire was contained, law

enforcement located a burned and bloodied body near the kitchen.

The officers would soon discover it was the body of Maria Ruiz.

This discovery gave rise to an investigation, with canvassing

efforts being one of the initial steps. From discussions with a

1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

-2-neighbor—Julia Ferrell—law enforcement learned that a heated

argument had occurred at the Kaczmar home in the early morning

hours before the fire. Ferrell indicated that Kaczmar’s voice was

discernable during the argument.

Meanwhile, a fire investigator took steps to determine the

cause and origin of the fire. To this end, the investigator identified

and collected six areas of fire debris, five of which would later test

positive for the presence of gasoline.

As the initial investigation was taking shape, Kaczmar’s wife

Priscilla arrived at the home and called Kaczmar. 2 During the

conversation, she passed the phone to Officer John Parker who

asked Kaczmar to come to the home. Kaczmar complied.

Upon arriving at the home, Kaczmar showed Officer Parker a

receipt indicating that Kaczmar had purchased gas that morning

near Jacksonville. Kaczmar told Officer Parker that he had been

fishing in the Jacksonville area.

Later that day, officers asked that Kaczmar report to a nearby

police station in order to discuss matters relating to the fire and the

2. Priscilla and her two children spent the previous night with relatives.

-3-discovery of Ruiz’s body. Kaczmar agreed and was driven to the

station by his mother and stepfather. At the outset of the interview,

Detective Charlie Sharman advised Kaczmar of his constitutional

rights, which Kaczmar acknowledged by signing a form. 3

In the exchange that followed, Kaczmar generally denied

involvement in the arson and other wrongdoing. Although he

repeated his earlier story that he had been fishing in Jacksonville,

he acknowledged being alone in the home with Ruiz from roughly

11:00 p.m. to 2:00 a.m.—just hours before the fire.

Midway through the interview, Detective Sharman pressed

Kaczmar about some of his injuries and the condition of his

clothing. Kaczmar responded that he wanted an attorney if that

line of questioning continued. However, Kaczmar promptly

reengaged Detective Sharman in discussion. In response, Detective

Sharman reminded Kaczmar that he had the right to a lawyer

during the interview. Not invoking that right, Kaczmar returned to

talking about matters pertaining to the active police investigation.

3. See Miranda v. Arizona, 384 U.S. 436, 467 (1966) (requiring police to advise suspects in custody of certain things—including the right to silence and the presence of a lawyer—prior to interrogation).

-4-Kaczmar ultimately left certain articles of clothing at the station,

including a sock that he smeared his own blood on during a break

in the interview.

Weeks later, after law enforcement uncovered more evidence

implicating Kaczmar (including that he purchased a small amount

of gasoline from a nearby gas station moments before the fire was

observed), a grand jury indicted him on charges of first-degree

murder, attempted sexual battery, and arson. The State gave notice

that it sought the death penalty for the murder.

Meanwhile, Kaczmar’s post-indictment conduct and

conversations were brought to the prosecutor’s attention and

became sources of evidence at trial. After his arrest, Kaczmar was

confined in the Clay County Jail, where he spent significant time

with William Filancia, a fellow inmate who was frequently housed

with Kaczmar. At some point after Kaczmar started talking about

his case, Filancia reached out to his attorney, Richard Kuritz.

Kuritz, in turn, spoke with the prosecutor and Detective Sharman,

setting up a meeting with them.

Eventually, Detective Sharman enlisted the services of an

undercover officer, Detective Charles Humphrey, who agreed to

-5-portray himself as “Carlos,” a friend of Filancia. Detective Sharman

gave Detective Humphrey a map that Kaczmar had drawn, which

showed the way to Christopher Ryan Modlin’s home. 4 Soon after

being given the map, Detective Humphrey began visiting Kaczmar at

the jail. During the four visits, the two discussed (1) putting

gasoline-soaked clothes at or under Modlin’s home in an effort to

frame him, (2) intimidating witnesses to come forward in support of

Kaczmar, and (3) arranging to have Kaczmar’s wife Priscilla pay

“Carlos” $300 for these purported services.

Several months after Detective Humphrey’s last jail visit,

Kaczmar’s case went to trial. The State called numerous witnesses,

including the medical examiner (Dr. Jesse Giles), two DNA experts,

Julia Ferrell, Kaczmar’s wife, Detectives Sharman and Humphrey,

and a fire investigator and analyst. Additionally, the State

presented physical evidence tying Kaczmar to the crime scene. This

included photographic and video evidence showing Kaczmar

purchasing gasoline minutes before the fire. The State also played

recordings of Kaczmar’s interview with Detective Sharman and

4. Modlin lived near the Kaczmar home and spent time with Kaczmar the day before the murder.

-6-three of his conversations with Detective Humphrey. Following the

State’s case, Kaczmar asked for a judgment of acquittal on all

charges, which the trial court denied.

As for the defense case, Kaczmar’s counsel called one witness,

Detective Michael Goldner, who testified about his search of

Kaczmar’s truck. According to the detective, he observed

nondescript stains and collected evidence of them. But neither he

nor other law enforcement sought to have the stain-related evidence

tested.

Ultimately, the jury found Kaczmar guilty on all charges. And

following the penalty phase, it recommended a sentence of death by

a vote of 11 to 1. Accepting that recommendation, the court

sentenced Kaczmar to death.

Kaczmar appealed, raising nine issues for our review.

See Kaczmar v. State (Kaczmar I), 104 So. 3d 990, 998 (Fla. 2012).

We concluded that he had failed to show reversible error in

connection with his first-degree murder conviction. Id. at 998-1006. But as for the penalty phase, we found that the State had

not proven three of the four aggravators and determined that such

error was not harmless. Id. at 1007-08. Consequently, we reversed

-7-Kaczmar’s death sentence, remanding for a new penalty phase. Id.

at 1008.

On remand, Kaczmar waived his right to present mitigation,

doing so against his counsel’s advice. See Kaczmar v. State

(Kaczmar II), 228 So. 3d 1, 6 (Fla. 2017). Prior to jury selection, the

trial court gave the following preliminary statement to the jury pool:

Good morning, ladies and gentlemen. My name is

William Wilkes, and I’m the Judge that will be handling

this case.

This case has a little history to it so let me explain

your duty today. It’s different than most trials we ever

have.

The defendant was found guilty of murder in the

first degree on 8/12/10, sentenced on 11/5/10 to life --to death in this case. Anyway, the Supreme Court always

reviews any type of death case so the case went to the

state Supreme Court, Florida State Supreme Court. They

affirmed his conviction, that is they confirmed his

conviction for the first-degree murder. However, the

Supreme Court sent the case back here with instructions

that the defendant is to have a new trial to decide what

sentence should be imposed.

(Emphasis added.)

No one objected to this statement.

Later, during the evidentiary portion of the proceeding, the

State presented evidence in support of two aggravating

-8-circumstances. To prove the prior-violent-felony (PVF) aggravator,

the prosecutor relied on the following stipulation to the jury:

[T]he robbery the defendant was convicted of involved the

defendant and a co-defendant. The defendant and codefendant repeatedly struck and kicked the victim about

the head and then forcefully took his jewelry and wallet

for themselves against the victim’s will. The defendant

was 17 years of age at the time of the offense . . . but was

charged and sentenced as an adult.

As for the other aggravator, the prosecutor presented

testimony from the medical examiner, Dr. Giles, to show that the

murder was especially heinous, atrocious, or cruel (HAC).

According to Dr. Giles, Ruiz was stabbed roughly 93 times,

including 11 fatal stab wounds. In addition to this evidence, the

prosecutor reintroduced the former testimony of ten guilt-phase

witnesses. This included the testimony of Filancia and his lawyer,

Richard Kuritz.

As for mitigation, Kaczmar read a stipulation indicating that

he was 24 years old when Ruiz was murdered. He offered no other

mitigating evidence.

Following closing arguments, the judge instructed the jury on

the law. In part, the judge told the jury that (1) “[a]n Appellate

Court has reviewed and affirmed the defendant’s conviction [but]

-9-. . . sent the case back to this Court with the instruction that the

defendant is to have a new trial to decide what sentence should be

imposed,” (2) it should not concern itself with Kaczmar’s guilt,

(3) its recommendation must be based on the evidence received

during that penalty-phase proceeding, and (4) it must follow the law

as given in the jury instructions.

During deliberations, the jury asked four fact-based questions.

Outside the jury’s presence, the prosecutor and defense counsel

both urged the court not to resolve the factual issues framed by

these questions. Agreeing with the parties, the court told the jury

that its questions were “not relevant” and could not be answered.

The jury ultimately recommended death by a unanimous vote.

Later, following a Spencer5 hearing, the trial court again sentenced

Kaczmar to death. In its written order, the court found that the

State proved the HAC and PVF aggravators beyond a reasonable

doubt. It further determined that these aggravators “far

outweigh[ed]” the 15 record-supported mitigating circumstances.

Kaczmar appealed, arguing in part that (1) the prosecutor, in

5. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

- 10 -closing argument, improperly referred to mitigation as “excuses,”

(2) the trial court committed error in telling the jury that its middeliberation questions were not relevant, and (3) his death sentence

violated Hurst v. Florida, 577 U.S. 92 (2016), and Hurst v. State, 202

So. 3d 40 (Fla. 2016) (on remand). See Kaczmar II, 228 So. 3d at 7-9, 11-12. We ultimately denied all relief and affirmed Kaczmar’s

death sentence. Id. at 9-11, 12-15.

Kaczmar sought rehearing, arguing for the first time that he

was entitled to a new penalty phase based on the judge’s statement

to the jury pool about his vacated death sentence. Kaczmar v.

State, 42 Fla. L. Weekly S851, S851 (Fla. Oct. 19, 2017) (unreported

order). Not reaching the merits of this argument, we denied relief

without prejudice to Kaczmar’s right to raise it in a separate habeas

proceeding. Id. Two justices, though, would have granted relief.

Id. at S851-52 (Pariente, J., dissenting); id. at S852 (Quince, J.,

dissenting).

Unsuccessful in challenging his death sentence, Kaczmar then

turned to the U.S. Supreme Court, which denied his petition for

certiorari over one justice’s dissent. Kaczmar v. Florida, 585 U.S.

1011, 1011 (2018); id. (Sotomayor, J., dissenting).

- 11 -Following this, Kaczmar filed a postconviction motion in circuit

court, asking that his first-degree murder conviction and death

sentence be vacated. Ultimately, Kaczmar presented 29 numbered

claims and multiple subclaims. Kaczmar asserted numerous

instances of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984). He also claimed violations of due

process, relying on the U.S. Supreme Court’s decisions in Brady v.

Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150

(1972), and Napue v. Illinois, 360 U.S. 264 (1959). Finally, Kaczmar

argued entitlement to relief based on cumulative error in the guilt

and penalty phases.

Following a case-management hearing, the circuit court ruled

that all but eight claims would be decided at an evidentiary hearing.

At that hearing, postconviction counsel called 13 witnesses,

including both of Kaczmar’s defense lawyers, the prosecutor, a DNA

expert, and Kaczmar himself. The State, for its part, called one

witness—a DNA expert.

Ultimately, the circuit court vacated Kaczmar’s death

sentence, finding merit in connection with one of his penalty-phase

ineffectiveness claims. According to the circuit court, trial counsel

- 12 -was deficient for not objecting to the circuit court’s statement that

Kaczmar had previously been sentenced to death. That deficiency,

in the circuit court’s view, prejudiced Kaczmar. The circuit court

denied relief as to all other claims.

These rulings are set forth in the order that both parties now

appeal. The State challenges the circuit court’s finding of one

instance of ineffective assistance of counsel, which provided the

only given basis for vacating Kaczmar’s death sentence. Kaczmar,

on the other hand, challenges the denial of virtually all his

unsuccessful claims. Beyond this, Kaczmar raises a number of

additional claims by way of a habeas petition, which he filed

concurrently with his initial brief. Our analysis is divided into three

sections, starting with the State’s appeal and ending with Kaczmar’s

habeas petition.

II

The State’s appeal focuses on the circuit court’s grant of one

claim of ineffective assistance of counsel, which depends on a

showing of deficient performance and prejudice. The circuit court

found both. The State all but concedes deficient performance in

defense counsel’s failure to object to the judge’s comment on

- 13 -Kaczmar’s earlier vacated death sentence. However, the State asks

us to reverse on no-prejudice grounds. Though we do not entirely

accept the State’s sweeping arguments in this regard, we agree that

Kaczmar was not prejudiced by the circuit court’s passing remark

about Kaczmar’s prior death sentence.

A

We begin by discussing background legal principles. Under

U.S. Supreme Court precedent interpreting the Sixth Amendment, a

defendant has the right to the effective assistance of counsel.

Strickland, 466 U.S. at 686. This right applies in both guilt and

penalty phases. See, e.g., Jackson v. State, 347 So. 3d 292, 302

(Fla. 2022) (guilt phase); State v. Mullens, 352 So. 3d 1229, 1236-37

(Fla. 2022) (penalty phase). To successfully claim a breach of this

right, the defendant must show two things: deficient performance

and prejudice. Truehill v. State, 358 So. 3d 1167, 1175 (Fla. 2022).

The deficient-performance prong focuses on the

reasonableness of counsel’s conduct. Strickland, 466 U.S. at 688.

To be reasonable, counsel need not be perfect; nor must counsel

adhere to the best or most common practices. See Harrington v.

Richter, 562 U.S. 86, 105 (2011); Premo v. Moore, 562 U.S. 115, 122

- 14 -(2011). Rather, counsel’s conduct is judged against a minimum

standard of objective reasonableness—a standard informed by all

the circumstances at the time counsel made the challenged

decision. Strickland, 466 U.S. at 688. Accordingly, it is only when

no reasonable lawyer would act as defense counsel did that a

finding of deficient performance is appropriate. Jackson, 347 So.

3d at 304; cf. Harrington, 562 U.S. at 104 (underscoring “the ‘wide

range’ of reasonable professional assistance” (quoting Strickland,

466 U.S. at 689)). A corollary to this rule is that reasonable

strategic decisions do not amount to deficient performance.

Sheppard v. State, 338 So. 3d 803, 816 (Fla. 2022).

In light of these principles, it is not surprising that the U.S.

Supreme Court has characterized review of counsel’s conduct as

being “highly deferential.” Knowles v. Mirzayance, 556 U.S. 111,

124 (2009) (quoting Strickland, 466 U.S. at 689). And consistent

with Supreme Court case law, we have recognized that the

defendant bears the burden of showing that counsel’s performance

was deficient. Jackson, 347 So. 3d at 301 & n.6.

Even if a defendant can clear the “high bar” of showing

deficient performance, see Cullen v. Pinholster, 563 U.S. 170, 197

- 15 -(2011) (quoting Harrington, 562 U.S. at 105), he must still

demonstrate prejudice in order to be entitled to relief, see

Strickland, 466 U.S. at 692. The prejudice inquiry focuses on the

effect of counsel’s conduct. Id. at 694. In the penalty-phase

context, the defendant must show a reasonable probability that the

sentencer would have imposed a lesser sanction, taking into

account the entirety of the record. See Mullens, 352 So. 3d at 1242.

Thus, as with the deficiency prong, the defendant has the burden to

show prejudice. See Cullen, 563 U.S. at 189.

These principles inform our standard for assessing rulings on

ineffectiveness claims. We review a circuit court’s factual findings

for competent, substantial evidence. Truehill, 358 So. 3d at 1175.

Nevertheless, we review the application of law to facts and the

court’s ultimate conclusions under the de novo standard. Id.

Accordingly, “[o]ur deference to supported factual findings does not

extend to the postconviction court’s ultimate conclusions on the

deficient performance and prejudice prongs.” Mullens, 352 So. 3d

at 1238 (citing King v. State, 260 So. 3d 985, 994 (Fla. 2018)).

- 16 -B

Before applying these principles, we note our acceptance of

two premises. One, we credit Kaczmar’s position that a case from

this Court generally forbids telling a resentencing jury that the

defendant was previously sentenced to death. See Hitchcock v.

State, 673 So. 2d 859, 863 (Fla. 1996). Though Hitchcock does not

provide extensive doctrinal justification for this rule, 6 we treat it as

controlling precedent for purposes of this opinion.7 And two, we

accept that the judge actually said what the transcript indicates,

i.e., that Kaczmar was previously sentenced “to death in this case.”

The circuit court found this fact, and it is supported by competent,

substantial evidence. Nevertheless, even assuming these two

premises, we disagree with the circuit court’s ultimate finding of

prejudice.

First, the statement itself was not as prejudicial as Kaczmar

claims. He focuses exclusively on the fact that the judge referenced

6. Before announcing this rule, the Court in Hitchcock specifically acknowledged that its remand on a separate penaltyphase issue rendered further discussion “unnecessary.” Id. at 863 (characterizing its prospective analysis as providing “guidance”).

7. Neither party has asked us to reevaluate Hitchcock.

- 17 -his prior death sentence. However, as critical to our analysis,

Kaczmar overlooks other statements by the judge that would

substantially ameliorate the effect of the death-sentence remark.

The judge indicated that the case came back from this Court for a

new penalty phase. That statement necessarily implies that we

invalidated the death sentence. Thus, the jury knew that the prior

sentence was no longer valid, and it had no reason to regard the

vacated sentence as somehow deserving continued respect or

deference. Bacon v. Lee, 225 F.3d 470, 484 n.4 (4th Cir. 2000);

cf. Howell v. Trammell, 728 F.3d 1202, 1224 (10th Cir. 2013)

(“[E]vidence of a prior death sentence may not produce a

unidirectional bias toward death.” (quoting Romano v. Oklahoma,

512 U.S. 1, 20 (1994) (Ginsburg, J., dissenting))). Thus, we do not

think that the content of the court’s prior-death-sentence statement

irretrievably disposed the jury to favor a death recommendation, as

Kaczmar seems to argue.

Apart from this, the statement was quite brief. It takes up less

than four lines in a penalty-phase transcript that spans nearly 700

pages. Moreover, the transcript strongly suggests that the judge’s

statement as a whole was not a model of clarity. Specifically, the

- 18 -transcript indicates that the judge misspoke and then, per the court

reporter’s testimony, “stumbled” verbally.

The statement was not only brief and likely muddled, but the

fact of Kaczmar’s prior death sentence was not mentioned again

during the penalty-phase proceeding. The judge did not repeat his

statement in the preliminary or closing instructions, nor did the

parties present any argument based on the statement.

We also underscore that the judge instructed the jury to

consider only the evidence it received at the penalty-phase hearing

in determining the proper sentencing recommendation. It is

undisputed that no evidence of Kaczmar’s prior sentence was

introduced at the penalty phase. Accordingly, we may presume

that the jury followed that instruction and based its sentencing

verdict on the penalty-phase evidence alone, not an isolated

statement uttered prior to jury selection. See Strickland, 466 U.S.

at 694 (“In making the determination whether the specified errors

resulted in the required prejudice, a court should presume . . . that

the . . . jury acted according to law.”); Weeks v. Angelone, 528 U.S.

225, 234 (2000) (“A jury is presumed to follow its instructions.”

(citing Richardson v. Marsh, 481 U.S. 200, 211 (1987))).

- 19 -We acknowledge that this presumption can be rebutted. But

in our review of the entire record, we see nothing that would

displace it. Notably, we are not alone in relying on this

presumption to deny Strickland relief. See, e.g., McHone v. Polk,

392 F.3d 691, 708 (4th Cir. 2004); Perry v. McCaughtry, 308 F.3d

682, 690 (7th Cir. 2002); Brown v. Jones, 255 F.3d 1273, 1280

(11th Cir. 2001).

Our decisions in the direct-appeal context bolster our

no-prejudice holding here. Hitchcock generally prohibits advising a

resentencing jury that the defendant had been previously sentenced

to death for the same murder at issue in the current penalty phase.

673 So. 2d at 863. However, Hitchcock says nothing about the

appropriate remedy. In fact, it appears we have never reversed a

death sentence solely on the basis that the jury was informed about

the defendant’s prior death sentence. Instead, on at least one

occasion, we found this type of error to be harmless. Teffeteller v.

State, 495 So. 2d 744, 747 (Fla. 1986). If this sort of error can be

harmless in the sense that it had no reasonable possibility of

affecting the outcome of the proceeding, see Sexton v. State, 402 So.

3d 270, 280 (Fla. 2024) (describing the harmless error standard on

- 20 -direct appeal), it logically follows that the effect of such a statement

is not always prejudicial. Notably, Kaczmar has not cited any

Florida cases reversing convictions—whether on direct appeal or in

collateral proceedings—based on comparable comments. 8 We think

that omission is telling.

Kaczmar also suggests that the court’s prior-death-sentence

statement was an erroneous instruction and that erroneous

instructions will almost always result in Strickland prejudice where

trial counsel fails to object to them. We need say little about this

argument. We doubt whether the judge’s prior-death-sentence

statement could be deemed an instruction. But even if it could be,

that characterization would not help Kaczmar. Contrary to his

8. Kaczmar cites a 1983 decision in which a federal appeals court found ineffective assistance in counsel’s agreement with an instruction that advised the jury of the fact that the defendant had been found guilty of the charged conduct in a prior proceeding. See Arthur v. Bordenkircher, 715 F.2d 118, 119 (4th Cir. 1983). That decision preceded Strickland, has been limited by the court that issued it, see Turner v. Williams, 35 F.3d 872, 899-900 (4th Cir. 1994), overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc), and is—in our view—not wellreasoned. Accordingly, we decline to follow it.

Kaczmar also cites, as support for his argument, Justice Pariente’s dissent from the denial of his motion for rehearing. We find his reliance on that dissent to be misplaced.

- 21 -arguments, our cases have concluded that instructional errors can

be harmless on direct appeal and nonprejudicial on collateral

review. E.g., Hunter v. State, 8 So. 3d 1052, 1071 (Fla. 2008) (direct

appeal); Gonzalez v. State, 990 So. 2d 1017, 1026-27 (Fla. 2008)

(collateral review). Our holding here aligns with those cases.

Based on our analysis above, we conclude that Kaczmar failed

to show prejudice from the judge’s prior-death-sentence statement.

Accordingly, Kaczmar cannot establish a Strickland violation, and

the circuit court erred in granting relief on that basis. We

acknowledge our dissenting colleague’s sincere views to the

contrary. We, however, disagree with the dissent’s key premise that

this brief comment tainted the entirety of the penalty-phase

proceeding. Thus, we remain convinced that our analysis is faithful

to Strickland, aligns with our own precedent, and correctly applies

the law to the relevant facts of Kaczmar’s case. We now turn to

Kaczmar’s cross-appeal.

III

In his cross-appeal, Kaczmar challenges the denial of 24

claims and numerous subclaims. Some of these claims raise

legitimate issues, but many are conclusory and lack any significant

- 22 -legal analysis or support. Other claims border on frivolous.

Though we have carefully considered all of Kaczmar’s arguments,

we devote the majority of our analysis to his substantial claims.

Ultimately, we find none of Kaczmar’s claims to be meritorious and

affirm the circuit court’s denial of guilt-phase relief.

A

Kaczmar alleges that his counsel was ineffective for failing to

seek suppression of statements he made to his cellmate, William

Filancia, and to Detective Humphrey, who portrayed himself as

Filancia’s friend “Carlos.” Kaczmar asserts that suppression was

warranted under U.S. Supreme Court precedent interpreting the

Sixth Amendment. 9 Before analyzing this claim, we discuss those

precedents.

1

In a series of cases beginning with Massiah v. United States,

377 U.S. 201 (1964), the U.S. Supreme Court has held that the

Sixth Amendment prohibits government agents from deliberately

9. He also claims that counsel should have argued a theory of entrapment to the jury. We reject this subclaim without further analysis.

- 23 -eliciting incriminating statements from an accused once judicial

proceedings have been initiated against him, unless counsel is

present or the accused has waived that right. Id. at 206; Brewer v.

Williams, 430 U.S. 387, 400-01 (1977); United States v. Henry, 447

U.S. 264, 274 (1980); Maine v. Moulton, 474 U.S. 159, 176-77

(1985); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).

As suggested above, this rule can apply to informants eliciting

the incriminating statements on behalf of law enforcement. Indeed,

“Massiah established that cooperating government informants can

be considered ‘[g]overnment agents.’ ” United States v. Age, 136

F.4th 193, 232 (5th Cir. 2025) (alteration in original) (quoting

Massiah, 377 U.S. at 206). To establish a Massiah violation when

an informant is involved, the defendant must demonstrate that

(1) the Sixth Amendment right had attached; (2) “the informant . . .

was promised, reasonably led to believe that he would receive, or

actually received a benefit in exchange for soliciting information

from the defendant, and . . . acted pursuant to instruction from the

State, or otherwise submitted to the State’s control”; and (3) the

informant “deliberately elicited” the incriminating statements. Id.

(quoting Thompson v. Davis, 941 F.3d 813, 816 (5th Cir. 2019)). In

- 24 -discussing these requirements, the Fifth Circuit noted:

Acting “in the hopes of” receiving a benefit is

insufficient to establish a Massiah violation; affirmative

enticement from the Government, however, does

establish such a violation. Timing is critical for

determining whether the Government is controlling and

steering the conversation. “The Sixth Amendment is not

violated whenever—by luck or happenstance—the State

obtains incriminating statements from the accused after

the right to counsel has attached.” Crucially, “an

informant cannot be an agent of the State without the

State’s knowledge or consent.”

Id. at 232-33 (citations omitted).

2

In this case, Filancia was housed with Kaczmar on at least two

occasions, and they often discussed their cases. This much we

know. However, the exact timing of particular statements and

discussions is less clear.

Kaczmar’s core argument is that his incriminating statements

were made after Filancia would be considered an “agent” for

Massiah purposes. We acknowledge there is some evidence to

support Kaczmar’s position. Significantly, however, there is also

competent, substantial evidence in the record that Kaczmar made

incriminating remarks (including admissions of guilt) soon after the

two became cellmates and that Filancia simply listened to Kaczmar

- 25 -talk about his case up to a certain point. Indeed, during trial,

Filancia testified that he decided to inform on Kaczmar after

Kaczmar expressed interest in framing Modlin. 10 Thus, any

incriminating statements Kaczmar made prior to this point—i.e.,

before law enforcement directed Filancia to do more than just listen

to Kaczmar—would not have been suppressible under Massiah.

See Kuhlmann, 477 U.S. at 459. Notably, the circuit court credited

this evidence as to timing, and we will not second-guess that

determination. Accordingly, we accept that Kaczmar made some

incriminating statements before Filancia became an agent for

purposes of Massiah.

This recognition brings to light another problem for Kaczmar’s

Massiah claim. At trial, Filancia testified to a number of

incriminating statements attributable to Kaczmar. However,

Kaczmar does not attempt to identify when any of the statements

were actually made. Kaczmar has the burden to demonstrate a

constitutional violation. See Truehill, 358 So. 3d at 1175. Thus,

absent argument establishing that a particular comment came after

10. Filancia’s evidentiary-hearing testimony generally aligns with his trial testimony on the subject of timing.

- 26 -Filancia’s agency was established, Kaczmar cannot demonstrate a

necessary component of his Massiah claim. In short, Kaczmar has

not established deficiency based on counsel’s failure to seek

suppression of the entire body of statements made to Filancia or

any statements in particular.

3

Our analysis differs with respect to Detective Humphrey—the

undercover officer involved in the “Carlos” operation. Recall that

Detective Humphrey portrayed himself as one of Filancia’s friends,

who could help Kaczmar in connection with the charges. Detective

Humphrey spoke with Kaczmar on four occasions at the jail, during

which time the two discussed planting evidence and manufacturing

favorable witnesses. Kaczmar’s wife Priscilla gave $300 to Detective

Humphrey for the services he claimed to have performed.

We agree with Kaczmar that this evidence is likely the product

of a Massiah violation. By the time of Detective Humphrey’s

involvement, Kaczmar had been charged with Ruiz’s murder.

Counsel was not present during the jail visits, nor did Kaczmar say

anything that could be viewed as a waiver of counsel. Furthermore,

we have no doubt that Detective Humphrey, a law enforcement

- 27 -officer, deliberately elicited the incriminating statements. We thus

conclude that counsel was deficient for failing to seek suppression

of the incriminating statements made during Kaczmar’s meetings

with Detective Humphrey. 11

However, this finding of deficiency does not, by itself, warrant

relief. Strickland, 466 U.S. at 693-96. Instead, Kaczmar must also

show prejudice from that deficiency. See Weaver v. Massachusetts,

582 U.S. 286, 300 (2017) (violation of Strickland not complete until

prejudice is demonstrated). In the guilt-phase context, prejudice

means a reasonable probability of an acquittal, absent the

attorney’s error. See Truehill, 358 So. 3d at 1182. Kaczmar has not

shown this.

The State presented uncontroverted evidence that Ruiz was

murdered. The medical examiner testified that Ruiz was stabbed 93

times, which caused her death. In addition, the State presented

strong evidence tying Kaczmar to the scene of the crimes. For

instance, Kaczmar’s former neighbor, Julia Ferrell, testified that she

11. At the evidentiary hearing, counsel testified that he did not object to this evidence because he did not see a basis for suppressing or excluding it. Consistent with that testimony, counsel offered no strategic reason for this conduct.

- 28 -heard him yelling loudly at around 5:00 or 5:30 a.m., which is

roughly an hour before the house fire was observed. Ferrell’s

grandson gave testimony that aligned with hers.

There was also video and photographic evidence showing

Kaczmar buying a small amount of gasoline (using a handheld

container) just before 6:00 a.m. at a station less than a mile from

the Kaczmar home. Critically, testimony at trial established that

gasoline was used in setting the home ablaze. 12

What is more, Kaczmar admitted that he and Ruiz were alone

in the home in the hours preceding the murder. That admission is

supported by cell phone records that are consistent with Kaczmar

making or receiving several calls at the home from 10:53 p.m. to

1:41 a.m. 13

Additionally, there is the DNA evidence. Expert witness Maria

Lam testified that she selected ten areas on Kaczmar’s socks for

12. Kaczmar does not challenge the evidence tying him to the arson.

13. No evidence came to light at the evidentiary hearing that would cast doubt on that admission. If anything, evidence received at this hearing confirmed that Kaczmar was present and alone with Ruiz.

- 29 -DNA testing—all ten areas coming from stains giving positive

indications for the presence of blood. One such stain generated a

mixed profile, with Ruiz’s DNA being the major donor. Kevin

McElfresh, another DNA expert, confirmed the accuracy of Lam’s

analysis. He opined, “The only reasonable scientific explanation is

that that was Maria Ruiz’ blood on those socks.”

The State also presented a significant amount of other

consciousness-of-guilt evidence. As noted before, the evidence

demonstrated that Kaczmar burned down the house in which Ruiz

was found. Kaczmar I, 104 So. 3d at 1005 (discussing some of this

evidence). Cell phone evidence showed that Kaczmar was fleeing

the scene at the time witnesses spotted the house fire. In addition,

Kaczmar was dishonest in his dealings with police.14 For instance,

Kaczmar lied to police when he said that he was fishing in the

hours before the murder, when that was not the case. And he

smeared his own blood on his sock after he knew that he would be

leaving it (and other articles of clothing) at the police station.

Finally, Kaczmar gave a detailed confession to Filancia. As

14. Indeed, Kaczmar admitted at the postconviction

evidentiary hearing that he lied to police.

- 30 -part of that confession, Kaczmar said that he wanted to have sex

with Ruiz and, when she declined his unwanted advances, he

stabbed her to death.

Our prejudice analysis must also take into account the

suppressible evidence and what effect it reasonably could have had

on the jury’s verdict. See Jackson, 347 So. 3d at 300, 307. That

evidence included Kaczmar’s statements and conduct in dealing

with Detective Humphrey. Undoubtedly this evidence was useful to

the State, and the prosecutor did, in fact, underscore it in his

opening statement and closing argument. Nevertheless, we do not

find that such circumstances require a finding of prejudice.

The suppressible evidence of the undercover operation was

used to show consciousness of guilt. As noted above, the State had

already presented a great deal of this type of evidence. Thus, the

evidence of the undercover operation was only a part (albeit a

significant component) of the State’s considerable consciousness-ofguilt evidence. In light of all the evidence, we are not persuaded

that there is a reasonable probability that the jury would have

acquitted Kaczmar had it simply not heard the suppressible

evidence and argument related to it.

- 31 -Accordingly, Kaczmar has failed to show prejudice and,

consequently, is not entitled to a new trial based on his counsel’s

failure to seek suppression of the undercover-operation evidence.

B

Kaczmar argues that counsel was deficient in failing to object

to certain testimony by Detective Sharman. Specifically, on redirect

examination, Detective Sharman testified that Filancia did not

“make up” the fact that Kaczmar told him about the location of the

knife used in the murder. 15 Counsel did not object. The circuit

court assumed deficient performance but found no prejudice.

We likewise find no prejudice without addressing Strickland’s

performance prong. Here, the challenged testimony was brief.

Moreover, Detective Sharman did not state, or even imply, that

Filancia had been an overall honest or trustworthy informant—just

that he did not believe that Filancia invented the details about the

15. See Johnson v. State, 404 So. 3d 538, 540 (Fla. 3d DCA 2025) (“It is well settled that ‘it is an invasion of the jury’s exclusive province for one witness to offer his personal view on the credibility of a fellow witness.’ ” (quoting Boatwright v. State, 452 So. 2d 666, 668 (Fla. 4th DCA 1984))).

- 32 -knife’s location. 16 In addition, the prosecutor did not reference this

testimony at any point in his closing argument.

We also recognize that the jury was instructed on its sole

responsibility to assess witness credibility, which would be

inconsistent with any deference being given to the views of one

witness on the credibility of another. Again, we assume the jury

followed the law as embodied in that instruction, and we see

nothing in the record to rebut that presumption. See Strickland,

466 U.S. at 694. Finally, as noted earlier, the State presented

overwhelming evidence of guilt. Considering the totality of the

State’s proof, Detective Sharman’s brief, relatively benign bolstering

testimony was not prejudicial under Strickland.

C

Kaczmar also argues that counsel was ineffective for inducing

testimony by Filancia that he believed Modlin was innocent due to

16. That fact distinguishes this case from Tumblin v. State, 29 So. 3d 1093, 1095, 1100-01 (Fla. 2010), and Page v. State, 733 So. 2d 1079, 1080-81 (Fla. 4th DCA 1999), where the bolstering witnesses expressed more expansive and direct views of the veracity of the witnesses. We also add that Tumblin and Page involved direct appeals—not collateral proceedings like in this case.

- 33 -the fact that Modlin passed a lie-detector test. The circuit court

found no deficient performance, and we agree.

While being deposed by trial counsel, Filancia indicated that

Modlin passed a lie-detector test about Ruiz’s murder. Counsel

obtained an order forbidding mention of this fact. During crossexamination at trial, counsel asked Filancia how he could know

that Modlin was actually innocent. It was that question that led to

the lie-detector testimony. We believe that counsel—in framing his

questions—could have reasonable confidence that Filancia was both

aware of the trial court’s order and would obey it. We also note that

counsel obtained an instruction seeking to minimize any harmful

effect of this testimony. 17 Accordingly, we find no deficiency in

counsel’s phrasing of this question to Filancia.

D

Kaczmar contends that counsel was ineffective for not

17. In his motion, Kaczmar argued that counsel should have objected to Filancia’s testimony that he thought Modlin was innocent. But in his briefs here, he offers nothing more than conclusory assertions on this subject. Accordingly, we find this argument forfeited. See Jackson, 347 So. 3d at 300 (affirming denial of Strickland claim where appellate argument was “undeveloped and conclusory”).

- 34 -presenting the jury with certain exculpatory statements that he

made to Detective Humphrey during their jailhouse discussions.

We, like the circuit court below, find this claim to be without merit.

During his talks with Detective Humphrey, Kaczmar indicated

at various times that he was innocent of the murder. Counsel

argued that this evidence was admissible under the rule of

completeness. The court agreed, but it accepted the prosecutor’s

position that if the exculpatory statements came into evidence

under that rule, the prosecutor could introduce evidence of

Kaczmar’s prior convictions. In light of that ruling, counsel made a

sensible strategic decision to forgo the exculpatory statements in

favor of keeping Kaczmar’s convictions out of evidence. Indeed, at

the evidentiary hearing, counsel testified that keeping Kaczmar’s

convictions from the jury allowed for stronger conviction-based

impeachment of Filancia and Modlin. That testimony, which the

circuit court credited, supports rejection of this claim. See Gregory

v. State, 224 So. 3d 719, 733 (Fla. 2017) (“[C]ounsel’s reasonable

- 35 -trial decisions do not constitute ineffective assistance.”). 18, 19

E

Kaczmar argues that counsel was ineffective for failing to

impeach or refresh the recollection of his former neighbor Julia

Ferrell based on her deposition testimony. The circuit court

rejected this argument. We find that ruling to be supported by

competent, substantial evidence and in accord with the law.

At trial, Ferrell testified about overhearing a very heated

argument shortly before the fire. She indicated that one of the two

voices was Kaczmar’s. When pressed by defense counsel about the

18. Kaczmar relies on what he perceives to be misstatements of law that counsel made at the postconviction evidentiary hearing. His reliance on such testimony, though, is misplaced. Put simply, none of this testimony suggests that counsel’s prioritization was informed by any misunderstanding of evidence law.

19. It is evident from the briefing that Kaczmar’s current counsel strongly disagrees with trial counsel’s choice to prioritize stronger impeachment over introducing the exculpatory evidence. That disagreement alone is not a basis for finding counsel deficient. Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.” (citing Strickland, 466 U.S. at 689)). Also, to the extent Kaczmar is obliquely attacking the court’s evidentiary ruling at trial, that issue was decided against him long ago, see Kaczmar I, 104 So. 3d at 1000, and is not subject to reconsideration now, see Fla. R. Crim. P. 3.851(e)(1); Hendrix v. State, 136 So. 3d 1122, 1124 (Fla. 2014).

- 36 -source of the other voice, Ferrell expressed uncertainty as to

whether it was a male or female voice. It was at this point that

Kaczmar claims his counsel should have impeached Ferrell or

refreshed her recollection with her deposition testimony. In her

deposition, Ferrell indicated that she thought both participants in

the altercation had male voices but maintained some level of

uncertainty.

We think that a competent attorney could have reasonably

decided against impeaching Ferrell on this basis. We doubt that

Ferrell’s deposition and trial testimony are sufficiently in tension to

justify impeachment by prior inconsistent statement. We have said

that “[t]o be inconsistent, a prior statement must either directly

contradict or be materially different from the expected testimony at

trial.” Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004).

Here, Ferrell never claimed at trial or in her deposition that

she was certain that both participants had male voices. Indeed, it

appears that she maintained reasonable consistency with respect to

the second voice. At trial, on direct examination, she indicated that

she thought the second voice was that of Kaczmar’s uncle—a male.

And in her deposition, she expressed a fairly strong belief that it

- 37 -also came from a male—though she was less than certain. In light

of this common ground, we see nothing unreasonable about

declining to impeach on the grounds of prior inconsistency.

But there is another reason why we do not find deficient

performance. As a precondition to this type of impeachment, the

witness must be given a chance to explain the past statement. Id.

at 570. Based on the testimony that came out on direct

examination—i.e., that Ferrell thought the second voice came from

Kaczmar’s uncle—a reasonable attorney could have decided to rely

on that evidence rather than give Ferrell a chance to explain any

differences in her deposition testimony in a way that would be

potentially damaging to Kaczmar. Seeking to avoid that potential

risk, a reasonable attorney could have forgone this possible avenue

of impeachment (again, involving an obviously unfavorable witness

who was adamant that she heard Kaczmar yelling) and instead

sought to backdoor in Ferrell’s comparable statements through the

testimony of responding officers. That is, in fact, what defense

counsel unsuccessfully tried to accomplish. The trial court’s

adverse evidentiary ruling says nothing about either the risk

- 38 -avoided or the fact that the deposition testimony did not offer

significant impeachment value, even if admissible.

Kaczmar’s recollection-refreshed argument fares no better. As

a matter of evidence law, a party is not allowed to refresh a

witness’s recollection unless there is some indication that the

witness has forgotten something—hence the need for the witness’s

memory to be jogged. See Reid v. State, 799 So. 2d 394, 398 (Fla.

4th DCA 2001).

Here, there is nothing in Ferrell’s trial testimony indicating

that any tension with the deposition was based on her lack of

memory. And in postconviction proceedings, Kaczmar did not call

Ferrell as a witness or attempt to prove lack of recollection by

another means. As such, Kaczmar has failed to prove deficient

performance.

F

Kaczmar argues that counsel was ineffective for calling

Detective Goldner as a witness at trial. In rejecting that argument,

the circuit court found a reasonable strategic reason for counsel’s

decision to call this particular witness. The record supports that

ruling.

- 39 -Detective Goldner conducted a search of Kaczmar’s vehicle,

during which he located and collected evidence of certain

nondescript stains. Evidence of the stains was never sent for

testing. Counsel seized on the lack of testing to support the theory

that the police’s investigation was incomplete. As the circuit court

found, that strategic decision does not fall outside the wide range of

reasonably competent performance. See Banks v. State, 219 So. 3d

19, 29 (Fla. 2017).

G

Kaczmar asserts that counsel was ineffective for failing to

impeach Filancia by highlighting the nature and underlying details

of the charges for which he was jailed. We agree with the circuit

court that this claim could be denied on the basis of the preexisting

record. Allen v. State, 416 So. 3d 291, 302 (Fla. 2025) (summary

denial proper if existing record refutes claim).

According to Kaczmar, counsel should have impeached

Filancia when he testified that he and Kaczmar were friendly and

that he believed Kaczmar trusted him. As Kaczmar sees it, the

details of Filancia’s charged crimes would have seriously

undermined Filancia’s trust-related testimony.

- 40 -We find this claim to be meritless. Counsel was well aware

that the jury had already heard evidence indicating that Kaczmar

was friendly with and trusted Filancia to some extent. Based on

that reality, we believe that a competent lawyer could—as counsel

did here—focus on more promising areas of impeachment. Truehill,

358 So. 3d at 1178 (finding that counsel acted reasonably in

declining to impeach witness on ground that would have offered

limited value in light of other evidence at trial).

H

Kaczmar argues that trial counsel was ineffective in failing to

challenge the State’s DNA evidence. We agree with the circuit court

that this argument lacks merit. We assess Kaczmar’s DNA-related

claim in several parts.

1

Kaczmar faults counsel for failing to object to the prosecutor’s

statement in opening argument that Ruiz’s blood was on his sock.

We see no prosecutorial misconduct that would have warranted an

objection.

“Opening remarks are not evidence, and the purpose of

opening argument is to outline what an attorney expects to be

- 41 -established by the evidence.” Truehill, 358 So. 3d at 1177

(emphasis added) (quoting Occhicone v. State, 570 So. 2d 902, 904

(Fla. 1990)). Here, the prosecutor stated what he expected the

evidence would show with respect to the source of the blood on

Kaczmar’s socks. That comment was completely permissible.

See Schoenwetter v. State, 46 So. 3d 535, 549 (Fla. 2010)

(“[C]ounsel cannot be deemed ineffective for failing to make a

meritless objection.”).

Moreover, we reject Kaczmar’s argument that evidence at trial

did not align with the prosecutor’s predictive assertion. In fact, the

profile that Lam primarily discussed was generated from a blood

stain, and Ruiz was the major contributor for that profile. On top of

this, McElfresh specifically testified that “[t]he only reasonable

scientific explanation is that that was Maria Ruiz’ blood on those

socks.”20 That testimony is consistent with the State’s

postconviction expert’s testimony—i.e., that there is a “high

20. Kaczmar suggests that McElfresh’s testimony could not support the prosecutor’s claims, indicating that he lacked the qualifications to opine on the source of the DNA. Kaczmar never alleged in his motion that McElfresh was not qualified to give that testimony. Accordingly, any qualification-based argument would be unpreserved. See Jackson, 347 So. 3d at 300-01.

- 42 -probability that the DNA from [Ruiz] as the major contributor would

be from blood DNA.” 21

2

Kaczmar also faults counsel for not having his retained DNA

expert, Candy Zuleger, attend and assist at trial. Based on our

review of the record, we do not think that Zuleger’s presence was

necessary to respond effectively to the State’s DNA evidence.

Indeed, even without Zuleger’s presence, counsel was still able to

underscore defense-friendly aspects of the DNA evidence.

For instance, with the assistance of Zuleger’s report, the

defense was able to highlight the possibility of a third contributor to

the DNA profile. Counsel also succeeded in getting both of the

State’s DNA experts to acknowledge some theoretical ways that

Ruiz’s DNA could get on Kaczmar’s socks. Counsel also got Lam to

admit that DNA testing cannot show things such as age.

In light of these circumstances and others, Kaczmar cannot

show that Zuleger’s presence at trial was so essential that every

21. To the extent Kaczmar faults counsel for not objecting to similar comments in closing argument about Ruiz’s blood being on Kaczmar’s socks, his reliance on such comments is misplaced for the reasons given above.

- 43 -reasonable lawyer in counsel’s position would have insisted on her

presence. Cf. Harrington, 562 U.S. at 111 (“In many instances

cross-examination will be sufficient to expose defects in an expert’s

presentation.”). 22

3

Next, Kaczmar claims ineffectiveness in counsel’s decision to

refrain from cross-examining Lam on the ground that Ruiz’s DNA

could have come from a non-blood source. As noted above, the

DNA profiles came from areas that tested positive for the presence

of blood. Counsel accepted the common-sense inference that Ruiz’s

blood was the source of the DNA. In fact, in Kaczmar’s direct

appeal, we reviewed the record and drew a comparable inference.

We said that the scientific evidence showed that Ruiz’s blood was

on Kaczmar’s sock. Kaczmar I, 104 So. 3d at 997.

We also add that instead of contesting whether Ruiz’s blood

was the source of the DNA on Kaczmar’s socks, counsel sought to

22. To the extent Kaczmar is separately arguing

ineffectiveness based on counsel’s failure to call Zuleger as a witness at trial, such an argument would lack merit. Counsel testified that he did not call Zuleger because she would have corroborated significant aspects of Lam’s testimony.

- 44 -undermine the significance of the DNA evidence—highlighting the

possibility of a third donor and the inability to establish the age of

the DNA. Choosing this route allowed the defense to blunt some of

the force of the DNA evidence and raise questions about a possible

unknown killer, while at the same time maintaining credibility with

the jury. Indeed, counsel testified at the evidentiary hearing that

one of his strategic concerns was maintaining credibility with the

jury. That credibility might well have been jeopardized had counsel

pressed more remote possibilities of the source of Ruiz’s DNA.23

4

Additionally, Kaczmar criticizes counsel for failing to “put [in]

testimony about the ten samples” to underscore that Ruiz was the

major contributor for only two of the samples, while Kaczmar was

the major contributor for six of them. Though we think counsel

could have brought these topics up with the State’s experts, counsel

was not unreasonable in focusing on different ways to blunt the

23. It was not until the postconviction hearing that Kaczmar himself gave an indication that Ruiz wore his father’s socks and that the household’s dirty laundry was stored and washed together. No witness at trial testified to such things. Nor do we have any basis for concluding that counsel was aware of these or similar alleged facts.

- 45 -force of the DNA evidence against Kaczmar. 24 We have already

recounted some of those efforts. Moreover, highlighting the

individual profiles would have posed its own issues. The jury would

have been reminded that Ruiz’s DNA was found on at least eight

separate areas of the socks (all testing positive for the presence of

blood), as opposed to hearing about the results as to just one

particular sample. Perhaps, despite these concerns, current

counsel would have nonetheless pressed the State’s expert on the

number of samples tested and underscored that Ruiz was the major

contributor for two of them. But that difference of opinion does not

mean that defense counsel was deficient. See Strickland, 466 U.S.

at 689 (“There are countless ways to provide effective assistance in

any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.”). 25

24. At the postconviction hearing, counsel testified that he saw no reason to point out that Kaczmar was the major donor for some of the samples. That assessment seems eminently reasonable to us.

25. Kaczmar also asserts that counsel should have objected to the prosecutor’s statement in closing argument about Ruiz being the major contributor to the DNA profile on the socks. Kaczmar failed to raise this argument in his motion below. Therefore, it has not been preserved. See Jackson, 347 So. 3d at 300-01. Moreover,

- 46 -In conclusion, Kaczmar has not shown any deficient

performance in connection with the DNA evidence.

I

Kaczmar argues that his counsel was ineffective for failing to

present a chain-of-custody argument for keeping his bloody socks

out of evidence. We, like the circuit court below, reject this

argument.

Under Florida law, a defendant seeking to exclude physical

evidence based on a break in the chain of custody must make a

threshold showing of probable tampering. See Davis v. State, 383

So. 3d 717, 739 (Fla. 2024). Here, Kaczmar fails to point to any

evidence indicating that his socks were tampered with after he left

them in the custody of law enforcement. This being the case, no

showing of probable tampering has been proffered.

a competent lawyer in trial counsel’s position might well have declined to object here because the major-/minor-donor distinction was not a particularly damaging aspect of the DNA evidence. Rather, what made this evidence particularly devastating is that Ruiz’s DNA was on the socks Kaczmar was wearing on the day of the murder and the DNA came from stains that tested positive for the presence of blood.

- 47 -Resisting this straightforward analysis, Kaczmar contends that

he himself did the tampering, when he smeared blood on one of the

socks. But Kaczmar’s reliance on his own conduct is misplaced.

As already noted, this conduct occurred prior to Kaczmar’s

departure from the interview. Any “tampering” done by Kaczmar

does not raise concerns that the socks admitted into evidence at

trial differed from the socks that Kaczmar wore to the police station

and smeared blood on. 26

In short, Kaczmar’s chain-of-custody argument lacks merit.

As a consequence, we do not fault counsel for failing to raise it.

J

Kaczmar argues that trial counsel was ineffective in failing to

challenge cell phone related evidence presented by a detective who

investigated the murder. We agree with the circuit court that this

argument lacks merit.

Detective Danillo Matos gave testimony at trial concerning the

26. We also question whether a defendant’s own conduct could ever constitute the probable tampering necessary for purposes of chain-of-custody exclusion. See Gonzalez v. State, 136 So. 3d 1125, 1147 (Fla. 2014) (refusing to grant appellate relief where appellant was responsible for the claimed error). However, we need not decide this issue in order to deny relief.

- 48 -location of Kaczmar’s cell phone based on records indicating which

cell towers were involved in certain phone calls. For instance,

Detective Matos testified that the cell-tower evidence was consistent

with Kaczmar being present at the home early in the morning on

the day of the murder. To support the ineffectiveness claim

directed at this evidence, Kaczmar called an expert to testify at the

postconviction evidentiary hearing. Despite having issues with how

Detective Matos framed some of his trial testimony, the expert did

not challenge any of the detective’s underlying analysis.

Aside from the lack of evidence regarding any analytical

shortcoming by Detective Matos, counsel’s testimony at the

evidentiary hearing dooms this claim. As revealed at the hearing,

Kaczmar admitted that he was present at the house during the

relevant time frames. And by Kaczmar’s own admission to police,

he was present at his home from roughly 11:00 p.m. to 2:00 a.m.—

the times at issue with this claim. Based on these two admissions,

counsel would have had little reason to challenge evidence placing

Kaczmar near the crime scene at the relevant times. Put simply, in

light of this evidence, we cannot see how counsel could possibly be

deemed deficient for not challenging Detective Matos’s cell-tower

- 49 -testimony. See Smith v. State, 330 So. 3d 867, 880 (Fla. 2021) (“A

decision that lodging a particular challenge to the validity of

evidence would be a waste of resources in light of counsel’s

knowledge of corroborating facts including the defendant’s

confession can be a reasonable strategic decision.” (citation

modified) (quoting Patrick v. State, 246 So. 3d 253, 262 (Fla.

2018))).

K

Kaczmar argues that trial counsel was ineffective in failing to

object to the evidence of his drug use and the instruction on the

legal effect of voluntary intoxication. This argument is meritless.

The record shows that counsel made a strategic choice not to

challenge the evidence of his drug use. And Kaczmar, in our view,

has not demonstrated that counsel’s strategic decision was

unreasonable under the circumstances of this case. See Sheppard,

338 So. 3d at 816. As for the voluntary-intoxication instruction,

Kaczmar has not convinced us that the instruction given was an

inaccurate statement of law or shown how it somehow operated in

an unlawful fashion in this particular case. In light of this, we do

not see how Kaczmar can show deficiency in failing to object to an

- 50 -instruction that Kaczmar fails to show was incorrect or unsound.

See Davis v. State, 136 So. 3d 1169, 1201 (Fla. 2014) (counsel not

deficient for failing to object to a proper jury instruction).

L

Kaczmar argues that trial counsel was ineffective for failing to

object to certain comments made by the prosecutor. The circuit

court found the preexisting record sufficient to refute this claim.

Kaczmar has not shown that this ruling was wrong.

In his briefs, Kaczmar reproduces a number of prosecutorial

comments in closing argument, which he believes necessitated

objections from counsel. Based in part on how this issue has been

briefed to us, we decline to offer a point-by-point analysis of each of

the comments that Kaczmar faults. Instead, having reviewed all the

comments in the context of the prosecutor’s overall argument, we

conclude that none were so egregious that all reasonable lawyers

would have objected to them. See Jackson, 347 So. 3d at 304.

M

Kaczmar argues that trial counsel was ineffective for failing to

sufficiently investigate the details underlying Filancia’s plea

agreement and specifically learn that Filancia was facing a lowest

- 51 -permissible sentence of 65 years in prison. The circuit court found

that counsel acted reasonably in focusing on other avenues of

impeachment. We agree with that ruling.

At the outset, we note that there was evidence at the

postconviction hearing indicating that counsel was, in fact, aware of

the State’s view of Filancia’s lowest permissible sentence. Based on

that awareness, we think counsel’s choice of using other

impeachment evidence represents an informed judgment to forgo

one arguable basis for impeachment in favor of others believed to be

more promising. Truehill, 358 So. 3d at 1182 (reasonable for

counsel to forgo certain avenues of impeachment in favor of more

targeted cross-examination); Kessler v. Cline, 335 F. App’x 768, 770

(10th Cir. 2009) (extent and manner of cross-examination of a

particular witness “is a strategic choice and therefore ‘virtually

unchallengeable’ ” (quoting Strickland, 466 U.S. at 690)). Counsel

introduced Filancia’s prior convictions, presented evidence that

Filancia had access to Kaczmar’s court papers, and showed the

extremely favorable aspects of Filancia’s plea agreement (which

essentially took a life sentence off the table and included a 20-year

- 52 -sentencing cap). Kaczmar has failed to show ineffectiveness in this

regard.

N

Kaczmar argues that trial counsel was ineffective in failing to

request a special instruction on what he characterizes as a “heat of

passion” defense. The circuit court found no deficient performance,

and we agree with that ruling.

Florida law recognizes a “heat of passion” defense, which can

provide either a partial or complete defense to premeditated firstdegree murder. Taylor v. State, 316 So. 3d 420, 427 (Fla. 1st DCA

2021). As relevant here, when operating as a partial defense, “heat

of passion” negates the premeditation mens rea. Id.

A core requirement of this defense—whether partial or

complete—is that the defendant is acting upon a “sudden sufficient

provocation” and not “a bad or corrupt heart.” Id. The provocation

must be of such a magnitude that it would “obscure the reason or

dominate the volition of an ordinarily reasonable [person].” Id.

(quoting Paz v. State, 777 So. 2d 983, 984 (Fla. 3d DCA 2000)).

Critically, absent evidence of sudden provocation, a defendant

- 53 -cannot succeed on a heat-of-passion defense and is not entitled to

an instruction on it. Id. at 427-28.

Based on our review of the record, we conclude that evidence

of sudden provocation was lacking, even when viewed in the light

most favorable to Kaczmar. Counsel cannot be held deficient for

failing to request an instruction that is not supported by the

evidence.

However, even assuming there was sufficient evidence to

support a special instruction on this defense, counsel’s action was

still not objectively unreasonable. The evidence presented at the

guilt phase shows that this defense would have been extraordinarily

weak. Under the only evidence at trial on the sequence of the

attack, Kaczmar’s own unwelcomed sexual advances caused Ruiz to

flee from him and ultimately resort to self-defense. It was her

actions in self-defense that Kaczmar now asserts created the

adequate provocation. We think that a rational jury would have

had great difficulty in characterizing Kaczmar’s reaction to Ruiz’s

self-defense as reasonable in any sense.

Additionally, Kaczmar was much larger than Ruiz and could

have simply stopped the attack at any time after disarming her.

- 54 -Instead, according to the medical examiner’s uncontroverted

testimony, Ruiz was brutally attacked for at least several minutes

during which she was stabbed over 90 times. Based on these facts,

we think a competent lawyer could forgo seeking an instruction on

a defense which would have had little to no chance of succeeding.

See Knowles, 556 U.S. at 127 (“The law does not require counsel to

raise every available nonfrivolous defense. Counsel also is not

required to have a tactical reason—above and beyond a reasonable

appraisal of a claim’s dismal prospects for success—for

recommending that a weak claim be dropped altogether.” (citations

omitted)).

O

Kaczmar argues that the State violated Brady v. Maryland by

not making him aware that Filancia had been in a relationship with

the foster mother of Ruiz’s daughter. In rejecting Kaczmar’s Brady

claim, the circuit court reasoned that the impeachment value of this

evidence was minimal, and thus the evidence was not material. We

agree.

To prevail on his Brady claim, Kaczmar “must demonstrate

that (1) favorable evidence which is exculpatory or impeaching,

- 55 -(2) was suppressed by the State, and (3) because the evidence was

material, he was prejudiced.” Hutchinson v. State, 343 So. 3d 50,

54 (Fla. 2022) (citing Sweet v. State, 293 So. 3d 448, 451 (Fla.

2020)).

Here, trial counsel had already impeached Filancia on multiple

substantial grounds. Counsel pointed out Filancia’s multiple felony

convictions, stressed Filancia’s favorable plea deal, and

underscored Filancia’s access to Kaczmar’s court paperwork. As

Kaczmar appears to accept, the relationship evidence would have

added only marginal impeachment value. Considering the limited

value of the additional impeachment evidence, the substantial

grounds on which defense counsel actually impeached Filancia, and

the strength of the State’s proof, the evidence at issue would not

have “put the whole case in such a different light as to undermine

confidence in the verdict.” Sweet, 293 So. 3d at 451 (quoting State

v. Huggins, 788 So. 2d 238, 243 (Fla. 2001)).

Accordingly, the circuit court did not err in denying Kaczmar’s

Brady claim.

P

Kaczmar argues that the State violated due process when the

- 56 -prosecutor failed to correct the false testimony of one of its

witnesses. We disagree and affirm the circuit court’s rejection of

this claim.

As interpreted by the U.S. Supreme Court, the Fourteenth

Amendment prohibits prosecutors from presenting or failing to

correct material evidence that they know to be false. Napue, 360

U.S. at 269; Giglio, 405 U.S. at 153-54. To vacate a conviction

based on a violation of this principle, a defendant must

demonstrate falsity and prosecutorial knowledge of that falsehood.

Glossip v. Oklahoma, 604 U.S. 226, 246 (2025). But that is not

enough. Hampton v. Shinn, 143 F.4th 1047, 1068 (9th Cir. 2025).

Indeed, a court may not grant relief unless the falsehood was

material. Id.

Relying on these principles, Kaczmar’s claim is that the

prosecutor knowingly failed to correct Richard Kuritz’s—Filancia’s

lawyer at the time—false testimony that the reason for Filancia’s

20-year sentencing cap was the so-called sentencing guidelines. We

accept for purposes of this opinion that Kaczmar satisfied the falsity

and knowledge prongs. Accordingly, our focus shifts to materiality.

- 57 -In discussing this prong, we have described it as “defense

friendly,” at least in relation to the effect-based prongs of Brady and

Strickland. See Sheppard, 338 So. 3d at 829. After all, unlike

Brady and Strickland’s reasonable-probability standard for

materiality or prejudice, the materiality standard in the

Giglio/Napue context is whether there is a reasonable possibility of

a different outcome. See Martin v. State, 311 So. 3d 778, 808 (Fla.

2020). Another distinguishing feature is that the State, not the

defendant, must prove lack of materiality. Id. Nevertheless, the

materiality prong still poses a substantial barrier for relief. Here,

three circumstances lead us to conclude that Kuritz’s testimony

was not material.

First, Kuritz was not one of the key witnesses. Cf. Glossip,

604 U.S. at 248 (finding materiality satisfied because the false

testimony came from the State’s key witness). His overall testimony

was brief. The State used his limited testimony to show that

Filancia did not get any details about Kaczmar’s crimes from him.

Not surprisingly, Kuritz offered no details whatsoever as to the

events surrounding the crimes.

Second, the guidelines testimony—the subject of the Napue

- 58 -claim—was confusing and difficult to follow. Notably, Kaczmar fails

to explain how the jury would have logically assigned any value to

it.

Third, the State’s proof of guilt was overwhelming, and that

proof did not rely at all on Kuritz’s testimony. As previously

discussed, a witness heard Kaczmar loudly arguing with someone

and within an hour he appears on a surveillance video buying

gasoline. The house in which he and Ruiz lived burned to the

ground—the conflagration aided by gasoline. Kaczmar fled from the

scene, repeatedly lied to police, and had Ruiz’s blood on his socks.

See Hampton, 143 F.4th at 1070 (finding no materiality where

evidence of guilt was overwhelming).

Q

Kaczmar argues that the cumulative effect of all the errors at

his guilt phase deprived him of a fundamentally fair proceeding.

We disagree. In our analysis above, we assumed deficient

performance under Strickland based on counsel’s failure to seek

suppression of the undercover operation involving Detective

Humphrey and counsel’s failure to object to Detective Sharman’s

bolstering testimony. We also assumed the first two prongs of a

- 59 -Napue violation based on Kuritz’s guidelines testimony. After

considerable analysis, we found that the required prejudice or

materiality prongs were not established. We now conclude that

even when viewed together, these matters do not undermine our

confidence that Kaczmar received a fair and reliable guilt phase.

See Strickland, 466 U.S. at 696 (focus of prejudice prong is on

reliability of outcome); Catlin v. Broomfield, 124 F.4th 702, 742-43

(9th Cir. 2024) (focus for Napue materiality is on overall fairness of

defendant’s trial). Thus, Kaczmar has not demonstrated the

“requisite prejudice” to support relief on the basis of cumulative

error. See Davis v. State, 383 So. 3d 743, 761 (Fla. 2024).

We now turn to Kaczmar’s penalty-phase claims.

R

Kaczmar argues that his counsel was ineffective for not

impeaching Filancia’s former testimony when it was read to the jury

at his second penalty phase, which occurred in 2013. We disagree.

At Kaczmar’s second penalty phase, the State’s proof consisted

primarily of the former testimony of ten witnesses at Kaczmar’s

guilt phase. That included Filancia’s testimony. Kaczmar is

claiming that counsel should have impeached Filancia’s former

- 60 -testimony by pointing out that Filancia received a 15-year sentence

(which is five years under the sentencing cap) as well as the fact

that Filancia’s completed scoresheet showed a lowest permissible

sentence of 65 years in prison.

However, consistent with our analysis above, we see no

deficiency in counsel’s reliance on the impeachment already

included in the transcript, which the second penalty-phase jury

heard during the reading of the transcript. That impeachment

included the favorable plea deal, prior convictions, and access to

Kaczmar’s court papers. In our view, further impeachment was not

constitutionally required under the facts of this case.

S

Kaczmar contends that trial counsel was ineffective at the

2013 penalty phase for not objecting to the prosecutor’s

characterization of mitigating evidence as an excuse. We agree with

the court’s ruling below that Kaczmar cannot show deficient

performance.

At the evidentiary hearing, counsel testified that he was aware

of the general rule that the prosecutor may not denigrate mitigation.

Counsel added that he did not perceive the prosecutor’s excuse

- 61 -statement to be denigrating—either in content, context, or tone.

For that reason, counsel declined to object. We conclude that

counsel’s decision not to object was both reasonable and supported

by the record, including counsel’s testimony at the evidentiary

hearing. See Sheppard, 338 So. 3d at 816 (actions attributable to

sound trial strategy do not constitute deficient performance). Thus,

Kaczmar cannot show deficiency.

T

Kaczmar contends that trial counsel acted unreasonably in

not objecting to the court’s answer to four jury questions, which

were submitted to the court during the 2013 penalty-phase

deliberations. We, like the circuit court, see no merit to this

argument.

In the middle of deliberations, the jury asked four questions—

each requesting information that was not presented in or was not

the focus of the second penalty phase. For instance, the jury asked

whether there was evidence at the “initial trial” that Kaczmar had

(in the days and weeks before the murder) talked about wanting to

have sex with Ruiz or treated her in a derogatory fashion. Kaczmar

agrees that the court rightly refrained from giving any factually

- 62 -responsive answers to the jury. Nevertheless, Kaczmar argues that

in declining to provide a substantive response to the jury, the

circuit court should not have characterized the questions as “not

relevant.” Kaczmar faults counsel for failing to object to this “not

relevant” statement.

We see things differently. It is clear that Kaczmar’s jury was

required to look solely to the evidence at the 2013 penalty phase in

carrying out its function under the death-penalty statute. Cruz v.

State, 320 So. 3d 695, 725 (Fla. 2021) (finding that it was error for

the judge to rely on “nonrecord evidence” from the codefendant’s

trial); Fla. Std. Jury Instr. (Crim.) 3.10 (“This case must be decided

only upon the evidence that you have heard from the testimony of

the witnesses [and have seen in the form of the exhibits in evidence]

and these instructions.” (brackets in original)).

Here, each of the jury’s questions necessarily sought at least

some evidence beyond what was presented to it. Relatedly, the

subject of the questions had no meaningful connection to the sort of

evidence that would inform a lawful jury recommendation in this

case—i.e., aggravation (which focused on Kaczmar’s prior crimes

and the manner in which Ruiz’s murder was carried out) and

- 63 -mitigation (which was almost nonexistent). 27 Bottom line, we do

not agree with Kaczmar that the court’s response frustrated the

jury’s ability to properly assess the relevant evidence. This being

the case, we decline to fault counsel for not taking issue with the

circuit court’s response to the jury. Soliz v. Davis, 750 F. App’x

282, 293 (5th Cir. 2018) (“In order to show that counsel was

deficient for failing to object, . . . the objection must have merit.”

(quoting Ries v. Quarterman, 522 F.3d 517, 530 (5th Cir. 2008)). 28

U

Kaczmar contends that trial counsel should have ensured that

certain preliminary instructions were read to the jury at the start of

the 2013 penalty phase. That failure, Kaczmar tells us, constituted

ineffective assistance. We disagree and affirm the circuit court’s

rejection of this argument.

27. For instance, one of the questions asked whether the murder weapon was ever found. An answer to this question, though, does not seem to have any bearing on the aggravation and mitigation which the jury was to assess and which was to inform its recommendation.

28. We also note that the court’s “not relevant” statement described the jury’s questions, not any facts or evidence. Accordingly, Kaczmar misplaces reliance on rules prohibiting courts from commenting on or summing up the evidence.

- 64 -In his postconviction motion below, Kaczmar faulted counsel

for not making sure that all standard preliminary instructions were

read to the jury. For example, Kaczmar’s jury was not instructed

on notetaking or cell phone usage during penalty-phase

proceedings. Though these, and other omitted instructions, appear

to us to be accurate and useful, we cannot say that every

reasonable defense lawyer in trial counsel’s position would have

insisted that the court give them or object to their omission. See

Jackson, 347 So. 3d at 304. Consequently, Kaczmar cannot show

that his counsel’s conduct in relation to these instructions was

unreasonable and thus deficient. See id.

V

Kaczmar argues that trial counsel was ineffective for failing to

request a so-called “presumption of life” instruction. We disagree.

Notably, Kaczmar does not tell us what exactly a presumption

of life means or what an instruction on this presumption should

look like. To the extent Kaczmar means that a presumption of life

has the effect of imposing a burden on the State to prove an

aggravating circumstance beyond a reasonable doubt, his jury was

already instructed to this effect. If, however, Kaczmar means that

- 65 -this asserted presumption survives and has force even after the jury

finds an aggravating circumstance, then he has failed to provide

any support for this principle. In any event, Kaczmar has not cited

a single case holding that a jury should have been instructed on the

presumption for which Kaczmar now seeks recognition. At a

minimum, then, we cannot fault counsel for failing to press an

argument that has no precedential support. See Lynch v. State,

254 So. 3d 312, 323 (Fla. 2018).

W

Kaczmar argues that Florida’s death-penalty scheme violates

the cruel-and-unusual-punishment clauses of the U.S. and Florida

Constitutions “because the delay of being executed is especially

heinous, atrocious, or cruel.” Though it is hard to ascertain what

exactly this cryptic argument means, we are confident it lacks

merit.

If Kaczmar is claiming that his time on death row—coupled

with his eventual execution—is unconstitutional, that claim is

plainly inconsistent with our precedent. See Orme v. State, 361 So.

3d 842, 845 (Fla. 2023) (collecting cases); cf. Knight v. Florida, 120

S. Ct. 459, 461 (1999) (Thomas, J., concurring) (noting uniform

- 66 -rejection of such claims).

Assuming instead that Kaczmar’s claim is based on some sort

of estoppel or unclean-hands theory, that claim would be equally

unavailing. In his motion, Kaczmar argued that the statesanctioned killing of a capital defendant by execution necessarily

meets the legal criteria of the HAC aggravator and, as a result,

amounts to cruel and unusual punishment. Not surprisingly,

Kaczmar cites no case in which a court has ever accepted this

position, and we decline to be first.

X

Kaczmar argues that the circuit court erred in denying his

penalty-phase Napue claim, which is based on the same guidelines

testimony previously discussed in connection with the guilt-phase

Napue claim. We agree with the circuit court that this claim does

not warrant relief.

Like we did above, we assume the falsity and knowledge

prongs. And again, we conclude that Kuritz’s testimony was not

material. Kuritz was not a key witness at the penalty phase. His

testimony had no bearing on the State’s evidence of aggravation

- 67 -(which was compelling). Nor did his testimony operate to diminish

the mitigation (which was minimal).

Accordingly, we conclude that the circuit court properly denied

Kaczmar’s second Napue claim.

Y

Kaczmar argues that the cumulative effect of all the errors at

his 2013 penalty phase deprived him of a fundamentally fair

proceeding. We disagree.

In our analysis above, we assumed deficient performance

under Strickland in counsel’s failure to object to the circuit court’s

prior-death-sentence statement and also assumed that Kuritz’s

guidelines testimony was false and that the prosecutor knew of the

falsehood—thereby establishing the first two prongs of a Napue

claim. However, viewing the effects of these two issues in the

aggregate, we are still confident that Kaczmar received a

fundamentally fair trial. See Strickland, 466 U.S. at 696; Catlin,

124 F.4th at 742. Put differently, even when considering these

issues together, they do not result in the required level of prejudice

to support cumulative-error relief. See Davis, 383 So. 3d at 761.

- 68 -IV

Concurrent with his initial brief, Kaczmar filed a habeas

petition, which raises six additional claims. We deny them all.

A

Kaczmar makes five claims asserting ineffectiveness of his

appellate counsel as a basis for relief. Before addressing each

claim, we discuss several applicable background principles.

We have recognized that appellate-ineffectiveness claims are

cognizable in a habeas petition. Jackson, 347 So. 3d at 308. These

claims essentially mirror those asserting trial-level ineffectiveness—

meaning the petitioner must demonstrate both deficient

performance and prejudice to obtain relief. Truehill, 358 So. 3d at

1187.

With respect to the deficiency prong, it is foundational that

counsel has no duty to press every conceivable argument that is in

some sense supported by the record. See Valle v. Moore, 837 So. 2d

905, 908 (Fla. 2002). Nevertheless, we accept that in limited

circumstances, appellate counsel can be deficient for failing to raise

certain issues in the briefs. Id. The omitted issue, though, must be

meritorious and “plainly stronger” than the arguments that

- 69 -appellate counsel actually advanced. Allen, 416 So. 3d at 308;

Davila v. Davis, 582 U.S. 521, 533 (2017). We also stress that

scrutiny of counsel’s performance in the appellate context remains

“highly deferential.” Herrington v. Dotson, 99 F.4th 705, 720 (4th

Cir. 2024). Indeed, courts presume that counsel acted reasonably

in selecting the most promising issues to be briefed. Waters v.

Lockett, 896 F.3d 559, 568 (D.C. Cir. 2018); cf. United States v.

Friedman, 971 F.3d 700, 709-10 (7th Cir. 2020); (“Tempting as it

may be to call foul on every perceived trial error, that strategy

generally produces diminishing returns.”).

Moreover, a showing of deficient performance does not

guarantee relief. Instead, a habeas petitioner must also show

prejudice. Paralleling its trial analogue, the prejudice inquiry here

focuses on the effect the asserted error had on the outcome of the

appellate proceeding. See Smith, 330 So. 3d at 889. Accordingly, a

habeas petitioner must demonstrate a reasonable probability of a

different outcome on appeal, had counsel raised the omitted issue.

See id. at 890-92. Put differently, if a claim would not have

succeeded on direct appeal, there is no prejudice. See id.

With these principles laid out, we now assess Kaczmar’s

- 70 -individual claims.

1

Kaczmar begins with the claim that appellate counsel was

ineffective for not arguing reversible error in the court’s failure to

conduct a Nelson 29 hearing, which focuses on whether appointed

trial counsel has provided competent representation. Prior to trial,

Kaczmar sent a letter to the trial court. In that letter, he expressed

a “feel[ing]” that counsel was not representing him properly.

Kaczmar asserted that counsel (1) lacked specialization in criminal

law, (2) had not spoken with certain unnamed witnesses, and

(3) had not filed certain unspecified motions.

We do not view these statements as sufficient to trigger the

trial court’s duty to assess counsel’s competence. In a number of

cases, we have held that grievances about counsel’s strategy and

sporadic visitation do not require a Nelson inquiry, especially when

the defendant has not specifically requested that the judge carry

out such an inquiry. See, e.g., Morrison v. State, 818 So. 2d 432,

440 (Fla. 2002); Figueroa-Sanabria v. State, 366 So. 3d 1035, 1048

29. Nelson v. State, 274 So. 2d 256, 258 (Fla. 4th DCA 1973).

- 71 -(Fla. 2023). In our view, Kaczmar’s complaints about counsel fall

into this category of grievances.30 Thus, we find that appellate

counsel was not deficient for failing to raise a Nelson claim on

appeal.

2

Kaczmar next faults appellate counsel for not arguing that

trial counsel had an actual conflict of interest. We deny this claim.

As best as we can tell from his briefing, Kaczmar asserts that a

conflict arose during trial when the State presented evidence of his

efforts to incriminate Modlin. Recall, for example, that while in jail,

Kaczmar directed an undercover detective (who he thought was

“Carlos”) to manufacture and plant evidence indicating that Modlin

had murdered Ruiz and burned the home. As Kaczmar sees it,

counsel needed to blunt the force of this consciousness-of-guilt

evidence. To accomplish this, Kaczmar says that counsel should

have professed his own incompetence—specifically acknowledging

30. We further note that since the defendant did not ask the trial court to conduct a hearing on counsel’s competence, reversal on direct appeal could only be based on a finding of fundamental error—an exceedingly demanding standard. See State v. Dortch, 317 So. 3d 1074, 1081 (Fla. 2021); Ritchie v. State, 344 So. 3d 369, 386 (Fla. 2022).

- 72 -that Kaczmar’s incriminating conduct stemmed from his feelings of

desperation, which in turn were due to counsel’s poor

communication and representation. But instead of accepting

responsibility for Kaczmar’s desperation, trial counsel opted to

preserve his own reputation and thereby put his personal interests

ahead of Kaczmar’s interests. This claim, however, fails to establish

a Sixth Amendment violation.

In order to vacate a conviction in collateral proceedings based

on an actual conflict of interest (even where the court had reason to

know of the alleged conflict), a defendant must show some adverse

effect on the representation due to the conflict. Mickens v. Taylor,

535 U.S. 162, 173-74 (2002). This means that Kaczmar has to

identify a reasonable strategy that went unused due to the asserted

conflict. See Noe v. United States, 601 F.3d 784, 790 (8th Cir.

2010) (applying Mickens). Per Kaczmar, that unused strategy was a

confession of incompetence by counsel in the presence of the jury.

However, based on our thorough review of the record, we simply do

not believe that such a confession would have been reasonable.

Thus, this conflict claim is meritless. And as we have repeatedly

indicated, appellate counsel cannot be faulted for failing to raise a

- 73 -meritless argument. Hilton v. State, 326 So. 3d 640, 654-55 (Fla.

2021).

3

Next, Kaczmar argues that appellate counsel should have

argued for reversal based on an alleged violation of Miranda v.

Arizona. We again disagree.

Relying on Miranda, counsel moved to suppress statements

Kaczmar made during his police interview as well as physical

evidence obtained during that interview. The trial court denied the

motion, finding no Miranda violation. And appellate counsel did not

challenge that ruling on appeal. We conclude that counsel’s

decision to omit this issue was entirely reasonable.

Kaczmar claims that law enforcement continued his

interrogation despite his invocation of counsel. However, shortly

after Kaczmar claims to have invoked that right (roughly three

pages of transcript later), he concededly reinitiated discussions with

police. Kaczmar does not highlight any particularly damaging

statements made within this short period of time.

Perhaps recognizing the limited value of suppressing any

statements made to police within the narrow window of time

- 74 -discussed above, Kaczmar tells us that these infirm statements

somehow led to the seizure of his bloody socks. This logic, however,

is inconsistent with case law finding that “Miranda errors don’t

‘require the suppression of the physical fruits of an un-Mirandized

statement,’ so long as the statement was voluntary.” United States

v. Lester, 98 F.4th 768, 775 (6th Cir. 2024) (quoting Vega v. Tekoh,

597 U.S. 134, 146 n.3 (2022)). Kaczmar’s socks are physical

objects, and there is record evidence strongly suggesting

voluntariness.

Since there was so little to gain from briefing the Miranda

issue, we think that objectively reasonable appellate counsel could

refrain from doing so. And since any suppression would have had

very minimal effects, we conclude that there was also no prejudice.

4

For his next appellate-ineffectiveness claim, Kaczmar asserts

that counsel should have argued that the trial court improperly

denied his motion for sequestered and individualized voir dire. This

meritless claim borders on being frivolous.

Kaczmar fails to identify any binding or well-reasoned

authority requiring courts to conduct individual-sequestered voir

- 75 -dire upon request, nor does he cite any controlling precedent

holding that a court abused its discretion in failing to allow such

voir dire. Absent such authority, we fail to see how counsel could

possibly be deficient, especially in light of the well-accepted

principle that counsel cannot be faulted for failing to argue for a

change in the law. See Smith, 310 So. 3d at 371; Lynch, 254 So. 3d

at 323.

This analysis is enough to reject this particular ineffectiveness

claim. Yet we say a few words about the theory of prejudice that

Kaczmar advances in support of it. Recall that prejudice for

Strickland purposes looks at the probable effect of counsel’s act on

the outcome of a particular proceeding. 466 U.S. at 693-95. For

appellate-ineffectiveness claims like this one, prejudice depends on

the outcome of the appeal.31 Here, though, Kaczmar asserts only

future prejudice in the form of procedural barriers that would

potentially frustrate his ability to raise a similar claim as part of a

31. Had appellate counsel raised this meritless argument, we would have almost certainly rejected it and still affirmed the convictions. Thus, Kaczmar cannot show that the outcome of his appellate process in Florida state court would have been any different had counsel raised this unsupported argument.

- 76 -prospective federal habeas petition. But a federal habeas

proceeding, of course, is not the proceeding whose outcome matters

for purposes of this appellate-ineffectiveness claim. See Dickinson

v. Shinn, 2 F.4th 851, 860 (9th Cir. 2021) (reasoning that loss of a

favorable appellate standard of review is not the prejudice required

by Strickland).

5

For his final appellate-ineffectiveness claim, Kaczmar makes

an argument very similar to a claim raised in his postconviction

motion. Specifically, he argues that appellate counsel was deficient

in failing to argue for reversal based on the judge’s prior-deathsentence comment. We have already found that trial counsel’s

failure to object did not prejudice Kaczmar and thus found no basis

for relief. We reach a similar conclusion here.

Since counsel did not object to this statement, reversal would

only have been possible if the statement constituted fundamental

error. See Ritchie, 344 So. 3d at 386. For the reasons given

above—including the statement’s content and briefness as well as

the fact that it was not repeated—we find the statement did not

amount to fundamental error. See Teffeteller, 495 So. 2d at 747;

- 77 -Kearse v. State, 770 So. 2d 1119, 1131 (Fla. 2000); Lowe v. State,

259 So. 3d 23, 48 (Fla. 2018).

Accordingly, counsel was not deficient for failing to brief this

issue—one that would not have produced a reversal.

In sum, we have considered and denied all of Kaczmar’s

appellate-ineffectiveness claims. We now address one remaining

claim.

B

Kaczmar argues that the State’s failure to charge aggravating

circumstances in his indictment requires vacatur of his death

sentence—even at this post-finality stage. Kaczmar is wrong for two

simple reasons.

First, his argument is procedurally barred as it could have

been raised on direct review. See Lott v. State, 303 So. 3d 165, 166

(Fla. 2020); Fla. R. Crim. P. 3.851(e)(1).32

32. Our 1983 decision in State v. Gray, 435 So. 2d 816 (Fla. 1983), does not command a different conclusion. We acknowledge that Gray says in dicta that “the complete failure of an accusatory instrument to charge a crime is a defect that can be raised at any time—before trial, after trial, on appeal, or by habeas corpus.” Id. at 818. However, to the extent that this statement is in some tension with Lott’s procedural-bar holding, we decline to follow Gray’s dicta.

- 78 -And second, we have consistently held that aggravating factors

need not be listed in the indictment. Wolf v. State, 416 So. 3d

1117, 1137 (Fla. 2025) (collecting cases). We add that Kaczmar’s

invocation of our state constitution—specifically, the indictment

clause—does not alter our analysis.

Accordingly, this claim lacks merit, just like the other five

before it.

V

In sum, none of Kaczmar’s postconviction claims—whether in

his motion or petition—support relief. Accordingly, we affirm the

circuit court’s order in all respects, except as to the claim on which

it granted relief. As to that claim, including the grant of a new

penalty phase, we reverse. Lastly, we deny Kaczmar’s habeas

petition in its entirety. On remand, the circuit court shall reinstate

Kaczmar’s death sentence.

It is so ordered.

MUÑIZ, C.J., and COURIEL, FRANCIS, and SASSO, JJ., concur. LABARGA, J., dissents with an opinion.

TANENBAUM, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

AND, IF FILED, DETERMINED.

- 79 -LABARGA, J., dissenting.

Kaczmar was indicted on charges of first-degree murder,

attempted sexual battery, and arson. The jury found him guilty of

all charges and ultimately recommended the death penalty by a

vote of 11 to 1. Majority op. at 7. This Court affirmed Kaczmar’s

conviction for first-degree murder but reversed the death sentence

and remanded the case for a new penalty phase. Kaczmar v. State,

104 So. 3d 990, 1008 (Fla. 2012). On remand, the resentencing

court sentenced Kaczmar to death after the penalty phase jury

unanimously recommended the death penalty. This Court affirmed

the death sentence. Kaczmar v. State, 228 So. 3d 1 (Fla. 2017).

Thereafter, Kaczmar filed a motion for rehearing, arguing for

the first time that he was entitled to a new penalty phase because

the resentencing judge informed the entire group of prospective

jurors that Kaczmar had been previously sentenced “to death in this

case.” Kaczmar v. State, 42 Fla. L. Weekly S851, S851 (Fla. Oct. 19,

2017) (unreported order). Without reaching the merits, this Court

denied the motion for rehearing without prejudice, permitting

Kaczmar to challenge the statement in a separate proceeding. Id.

Notably, two justices would have granted rehearing based on the

- 80 -resentencing judge’s improper comment. Id. at S851-52 (Pariente,

J., dissenting); id. at S852 (Quince, J. dissenting). The circuit

court, after considering Kaczmar’s motion in a separate proceeding

as suggested by this Court, granted his postconviction motion and

vacated his death sentence, having found that Kaczmar was

prejudiced by defense counsel’s failure to object to the resentencing

judge’s prejudicial statement.

Today, the circuit court’s findings and sound reasoning

notwithstanding, the majority concludes that Kaczmar cannot

establish a Strickland violation because he was not prejudiced by

the resentencing judge’s improper statement. I dissent.

In Hitchcock v. State, 673 So. 2d 859 (Fla. 1996), like in this

case, the trial court on remand improperly informed the jury the

defendant had previously been sentenced to death:

First of all, this case is back before you for consideration

because a jury previously recommended that James

Ernest Hitchcock be sentenced to death for this crime.

However, the death sentence was overturned because of

an incomplete jury instruction rendered to the previous

jury.

Id. at 863.

- 81 -This Court remanded Hitchcock’s resentencing on other

grounds but addressed the trial court’s improper statement “to

provide guidance in the next resentencing” and to avoid

“preconditioning the present jury to a death recommendation.” Id.

In doing so, this Court unequivocally instructed the trial court that

“[n]o other instruction [but the following] is to be given by the court

as to a prior jury’s penalty-phase verdict or why the case is before

the jury for resentencing at this time”:

An appellate court has reviewed and affirmed the

defendant’s conviction for the murder of [the victim].

However, the appellate court sent the case back to this

court with instructions that the defendant is to have a

new trial at this time to decide what sentence should be

imposed.

Id. Furthermore, in a note to judges, this Court later approved

a jury instruction using the above language suggested in

Hitchcock nearly verbatim:

Give 1a at the beginning of penalty proceedings before a

jury that did not try the issue of guilt. Give bracketed

language if the case has been remanded by the supreme

court for a new penalty proceeding. See Hitchcock v.

State, 21 Florida Law Weekly S139 (1996). In addition,

give the jury other appropriate general instructions.

1.a. Ladies and gentlemen of the jury, the defendant

has been found guilty of Murder in the First Degree.

[An appellate court has reviewed and affirmed the

- 82 -defendant’s conviction. However, the appellate court

sent the case back to this court with instructions that

the defendant is to have a new trial to decide what

sentence should be imposed.] Consequently, you will

not concern yourselves with the question of [his] [her]

guilt.

Standard Jury Instructions in Crim. Cases No. 96-1, 690 So. 2d

1263, 1264 (Fla. 1997) (brackets and emphasis in original).

Notwithstanding the guidance offered by this Court in

Hitchcock, and a jury instruction providing the acceptable language

to be presented to the jury, the resentencing judge inexplicably gave

the following off-the-cuff explanation to the panel of prospective

jurors in Kaczmar’s new penalty phase proceeding:

This case has a little history to it so let me explain

your duty today. It’s different than most trials we ever

have.

The defendant was found guilty of murder in the

first degree on 8/12/2010, sentenced on 11/5/10 to

life—to death in this case. Anyway, the Supreme Court

always reviews any type of death case so the case went to

the state Supreme Court, Florida State Supreme Court.

They affirmed his conviction, that is they confirmed his

conviction for the first degree murder. However, the

Supreme Court sent the case back here with instructions

that the defendant is to have a new trial to decide what

sentence should be imposed.

Kaczmar, 42 Fla. L. Weekly at S851-52 (Pariente, J.,

dissenting).

- 83 -Thus, the prospective jurors were advised that Kaczmar was

sentenced “to death in this case” on November 5, 2010, and that

“the Supreme Court sent the case back here with instructions that

the defendant is to have a new trial to decide what sentence should

be imposed.” Id. at S851. As a direct result of this disclosure, the

actual jurors seated for Kaczmar’s new penalty phase, who were

responsible for rendering a recommendation of life imprisonment or

death, instantly learned that a judge had previously sentenced

Kaczmar to death in this case.

In my view, given the prejudice caused by the resentencing

judge’s revelation, the circuit court properly found that Kaczmar

was prejudiced by defense counsel’s failure to object to the

resentencing judge’s statement and properly ordered a new penalty

phase. Defense counsel should have objected as soon as the

statement was made and requested the court excuse the entire

panel of prospective jurors and start again with a new panel—the

common practice when the entire panel has been tainted.

Moreover, the trial court’s statement was “clear reversible

error” and the failure to raise the issue before the rehearing

- 84 -constitutes “ineffective assistance of appellate counsel that is

apparent on the face of the record.” Id. (citations omitted).

While acknowledging that Hitchcock “generally forbids telling a

resentencing jury that the defendant was previously sentenced to

death,” majority op. at 17, the majority nonetheless concludes that

Kaczmar cannot establish a Strickland violation because he was not

prejudiced by the court’s statement. Id. at 14, 21-22. I strongly

disagree.

First, the majority concludes that the statement itself was not

as prejudicial as Kaczmar claims. Id. at 18. The majority presumes

that because the circuit court ordered a new penalty phase, “the

jury knew that the prior sentence was no longer valid, and it had no

reason to regard the vacated sentence as somehow deserving

continued respect or deference.” Id. This is contrary to the

reasoning in Hitchcock, where this Court cautioned that “[m]aking

the present jury aware that a prior jury recommended death and

reemphasizing this fact as the trial judge did here could have the

effect of preconditioning the present jury to a death recommendation.”

Hitchcock, 673 So. 2d at 863 (emphasis added).

- 85 -Second, the majority “underscore[s] that the judge instructed

the jury to consider only the evidence it received at the penaltyphase hearing in determining the proper sentencing

recommendation.” Majority op. at 19. Because “no evidence of

Kaczmar’s prior sentence was introduced at the penalty phase,” the

majority argues that “we may presume that the jury followed that

instruction and based its sentencing verdict on the penalty-phase

evidence alone, not an isolated statement uttered prior to jury

selection.” Id. However, I could not disagree more strongly with the

characterization of the judge’s comment as just “an isolated

statement.” Id. Moreover, the timing of the statement during jury

selection—as opposed to during the presentation of evidence—does

not mitigate the prejudice. In fact, the harm is even more blatant

because the jury was aware of the prior death sentence throughout

the new penalty phase. Indeed, according to Hitchcock, it is a

resentencing jury’s awareness of a prior death sentence that may

precondition the jurors to recommend death. 673 So. 2d at 863.

The instruction to consider only evidence did not remedy the

prejudicial effect the statement had because the jury remained

aware of Kaczmar’s prior death sentence as it heard the evidence,

- 86 -considered the evidence, and rendered its sentencing

recommendation. This is not to suggest that the jury felt bound by

the prior death sentence. Rather, the danger is the jury’s sheer

awareness of the prior sentence as it contemplated Kaczmar’s

penalty. In a situation of this magnitude, that is enough to satisfy

the prejudice requirement under Strickland.

Third, the majority further reasons that the statement’s

brevity and lack of clarity diminish its prejudicial effect. Majority

op. at 18-19. However, the statement framed the penalty phase

proceedings and purported to explain the jurors’ duty in the new

proceedings. The fact that the court jumbled its words and engaged

in minor self-correction in delivering the statement does not

diminish its prejudicial effect. Simply put, the resentencing jury

heard the statement and thus became aware that Kaczmar had

previously been sentenced to death in the case. This awareness,

according to Hitchcock, is exactly what may precondition a jury to

recommend death.

At the outset of Kaczmar’s resentencing, the jurors became

aware that Kaczmar had previously been sentenced to death in the

case they were about to consider. Additionally, as the resentencing

- 87 -proceedings progressed, the jury undoubtedly deduced that the

previous death sentence imposed by the trial judge was preceded by

a death recommendation from a jury. Given the magnitude of this

information, it is highly likely that the jury was preconditioned to

recommend death—the prejudice Hitchcock sought to avoid. It is

therefore inconceivable that Kaczmar failed to satisfy the Strickland

prejudice standard. The prejudice here is insurmountable and the

only remedy is a retrial of the penalty phase.

I would affirm the findings and conclusions of the circuit court

and remand the case for a new penalty phase.

An Appeal from the Circuit Court in and for Clay County,

Michael S. Sharrit, Judge

Case No. 102009CF000233000AMX

James Uthmeier, Attorney General, and Jason W. Rodriguez, Senior Assistant Attorney General, Tallahassee, Florida,

for Appellant/Cross-Appellee/Respondent

Dawn B. Macready, Capital Collateral Regional Counsel, and Elizabeth Spiaggi, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida,

for Appellee/Cross-Appellant/Petitioner

- 88 -