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Defendant appealed the denial of his postconviction motion filed under Florida Rule of Criminal Procedure 3.851 and petitioned the court for a writ of habeas corpus. The court addressed issues related to meaningful appellate review; ineffective assistance of counsel during the penalty phase; summarily denied claims; a motion to amend; and records requested. The court ultimately denied defendant's postconviction motion and his habeas petition.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
MICHAEL A. TANZI,
STATE OF FLORIDA,
MICHAEL A. TANZI,
KENNETH S. TUCKER, etc.,
[April 19, 2012]
Michael A. Tanzi appeals the denial of his postconviction motion filed under
Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
habeas corpus.1 For the reasons that follow, we affirm the denial of his motion and
deny his habeas petition.
Michael A. Tanzi pled guilty and was sentenced to death for the murder of
Janet Acosta. On direct appeal, this Court described the facts as follows:
During her lunch hour on April 25, 2000, Janet Acosta was
reading a book while seated inside her maroon van parked at the
Japanese Gardens in Miami. At that time, Tanzi was stranded in
Miami without a means of returning to Key West, where he had been
residing for the previous months. Tanzi saw Acosta sitting in her
vehicle with her window rolled down and approached her, asking for a
cigarette and the time. When Acosta was distracted, Tanzi punched
her in the face until he gained entry to the van. He then threatened her
with a razor blade and drove away with Acosta in the van. Tanzi held
Acosta by the wrist until he reached Homestead.
Upon reaching Homestead, Tanzi stopped at a gas station,
where he bound Acosta with rope that was in her van and gagged her
with a towel. Tanzi further threatened Acosta, telling her that if she
kicked or made noise he would cut her from ear to ear. Tanzi took
Acosta‘s fifty-three dollars in cash. He then bought some cigarettes
and a soda and attempted to use Acosta‘s bank card, which he had
obtained after rifling through her belongings. While still in
Homestead, Tanzi also forced Acosta to perform oral sex, threatening
to kill her with his razor if she injured him. However, he stopped her
from continuing because Acosta‘s teeth were loose as a result of the
Tanzi then continued to drive with Acosta bound and gagged in
the rear of the van until he reached Tavernier in the Florida Keys,
where he stopped at approximately 5:15 p.m. to withdraw money from
Acosta‘s bank account. He again threatened Acosta with the razor in
order to obtain Acosta‘s personal identification number. Tanzi
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
thereafter stopped at a hardware store to purchase duct tape and razor
Tanzi continued his journey until approximately 6:30 p.m.
when he reached Sugarloaf Key. He decided that he needed to get rid
of Acosta as she was getting in the way. He also knew he would get
caught quickly if he released her alive. Tanzi proceeded to Blimp
Road, an isolated area in Cudjoe Key. Tanzi told Acosta that he was
going to kill her and then crosslaced a piece of rope and began to
strangle her. He temporarily stopped to place duct tape over her
mouth, nose, and eyes in an attempt to stifle the noise. Tanzi then
continued to strangle Acosta until she died. Tanzi disposed of
Acosta‘s body in a wooded, secluded area where he thought she
would go unnoticed.
After the murder, Tanzi drove to Key West, where he shopped,
ate, smoked marijuana, visited with friends, and used Acosta‘s ATM
card. Tanzi had planned to access more of Acosta‘s money, sleep in a
hotel, purchase drugs, and alter the van‘s appearance. However, on
April 27, 2000, Tanzi‘s activities were interrupted when the police
observed him returning to Acosta‘s van, which the police had located
and placed under surveillance after Acosta‘s friends and coworkers
reported her missing. When the police approached Tanzi, he had
receipts in his pocket showing his ATM withdrawals and purchases.
Tanzi stated that he ―knew what this was about.‖ He also
spontaneously stated he wanted to talk about some bad things he had
After waiving his rights and while in a police car en route to the
Key West Police Department, Tanzi confessed that he had assaulted,
abducted, robbed, sexually battered, and killed Janet Acosta. Tanzi
repeated his confession with greater detail several times on audio and
video tape. Tanzi also showed the police where he had disposed of
Janet Acosta‘s body and where he had discarded the duct tape and
Tanzi was indicted for the first-degree murder of Janet Acosta. .
. . Initially, Tanzi pled not guilty; however, shortly before trial, Tanzi
entered a guilty plea to the first-degree murder, carjacking,
kidnapping, and armed robbery counts.
Tanzi v. State, 964 So. 2d 106, 110-11 (Fla. 2007).
During the penalty phase, Tanzi presented two mental health experts, a
forensics social worker specializing in sexual behavior problems, and a counselor
at a homeless shelter, who testified about Tanzi‘s long history of mental problems
and his stays in and diagnoses at various institutions. The social worker disclosed
that Tanzi, when eight years old, was fondled by a thirteen-year-old boy and that
the older boy later penetrated Tanzi anally. The sexual abuse continued for five
years, ending only when the perpetrator turned eighteen and enlisted in the
military. The social worker also explained that Tanzi acted out sexually in his
youth following the abuse.
Dr. Vicary, a psychiatrist, testified that Tanzi suffered from bipolar disorder,
substance abuse, paraphilia, and antisocial personality disorder. Dr. Raphael, a
psychologist, testified that Tanzi suffered from polysubstance dependence, PTSD,
exhibitionism, sexual sadism, voyeurism, ADHD, a learning disability,
bereavement, and antisocial personality disorder. Dr. Raphael also stated that his
firm suspected one of (and could not rule out) schizophrenia, schizoaffective
disorder, or psychotic disorder.
Additionally, Tanzi‘s mother testified that she thought that Tanzi was a
normal three year old but that he was having trouble getting along with other
children by six years old. She also testified that Tanzi‘s father abused him verbally
and physically after Tanzi‘s father was diagnosed with pancreatic cancer. She
noticed changes in Tanzi‘s behavior when he was eight years old following his
father‘s illness and death and following sexual abuse at the hands of an older boy.
She sought treatment for Tanzi at various institutions throughout Tanzi‘s
Following the penalty phase, the jury returned a unanimous recommendation
of death, and the trial court followed the jury‘s recommendation. Tanzi, 964 So.
2d at 110.2 This Court affirmed the death sentence on direct appeal. Id.3
2. The trial court found the following aggravators:
(1) that the murder was committed by a person previously convicted
of a felony and under sentence of imprisonment or on felony
probation; (2) that the murder was committed during the commission
of a kidnapping; (3) that the murder was committed during the
commission of two sexual batteries; (4) that the crime was committed
for the purpose of avoiding arrest; (5) that the murder was committed
for pecuniary gain; (6) that the murder was especially heinous,
atrocious, or cruel (HAC); and (7) that the murder was committed in a
cold, calculated, and premeditated (CCP) manner. The court gave
each aggravator ―great weight‖ except the HAC aggravator, which the
court gave ―utmost weight.‖ The court found the following
mitigators: (1) that Tanzi suffered from ―axis two‖ personality
disorders; (2) that he was institutionalized as a youth; (3) that his
behavior benefited from psychotropic drugs; (4) that he lost his father
at an early age; (5) that he was sexually abused as a child; (6) that he
twice attempted to join the military; (7) that he cooperated with law
enforcement; (8) that he assisted inmates by writing letters and that he
enjoys reading; (9) [that] his family has a loving relationship for him;
and (10) that he had a history of substance abuse.
Tanzi, 964 So. 2d at 112 n.1.
3. In addition to a claim based on Ring v. Arizona, 536 U.S. 584 (2002),
Tanzi raised the following issues on direct appeal:
In February 2009, Tanzi filed a motion for postconviction relief. After
summarily denying several claims and after holding an evidentiary hearing on
Tanzi‘s claims alleging ineffective assistance of trial counsel during the penalty
phase, the postconviction court denied relief. Tanzi now appeals the denial of his
postconviction motion. He also petitions this Court for a writ of habeas corpus.
II. POSTCONVICTION MOTION
A. Meaningful Appellate Review
First, Tanzi asserts that he is being denied a meaningful appellate review
because the trial court did not render an order that included detailed findings of
fact and conclusions of law. Because the orders in this case are sufficient to
discern the trial court‘s reasoning for denying Tanzi‘s postconviction claims, we
conclude that Tanzi is not being denied meaningful appellate review.
(A) the trial court erred in denying Tanzi‘s motion to withdraw his
guilty plea; (B) the trial court erred in permitting questions regarding
lack of remorse; (C) the trial court erred in permitting impeachment of
Tanzi‘s expert witness by a specific and unrelated act of misconduct;
(D) the trial court erred in admitting Tanzi‘s confession to sexual
battery; (E) the trial court erred in assessing the murder in the course
of a felony aggravator twice; and (F) the trial court did not properly
consider and weigh mitigation evidence.
Id. at 112. This Court ruled that the trial court erred in assessing the committing
during the course of a felony aggravator twice. Id. at 117. However, this Court
determined that the error was harmless. Id.
Florida Rule of Criminal Procedure 3.851(f)(5)(D) sets forth the trial judge‘s
responsibilities in rendering a postconviction order:
Immediately following an evidentiary hearing, the trial court shall
order a transcript of the hearing which shall be filed within 30 days.
Within 30 days of receipt of the transcript, the court shall render its
order, ruling on each claim considered at the evidentiary hearing and
all other claims raised in the motion, making detailed findings of fact
and conclusions of law with respect to each claim, and attaching or
referencing such portions of the record as are necessary to allow for
meaningful appellate review. The order issued after the evidentiary
hearing shall resolve all the claims raised in the motion and shall be
considered the final order for purposes of appeal. The clerk of the
trial court shall promptly serve upon the parties and the attorney
general a copy of the final order, with a certificate of service.
In Mendoza v. State, 964 So. 2d 121, 129 (Fla. 2007), this Court determined
that the circuit court had, after an evidentiary hearing, rendered an order denying
postconviction relief that did not provide sufficient findings of facts and
conclusions of law to provide meaningful appellate review. This Court stated that
―the circuit court neither stated on the record nor rendered an order detailing its
factual findings and the reasons for its decision on the postconviction motion.‖ Id.
at 128. Specifically, this Court explained that ―[t]he circuit court denied
Mendoza‘s postconviction motion claims in a very brief, two-page order, which
simply set out the standards from case law . . . and held: ‗This Court finds that the
Defendant‘s petition did not meet nor did it overcome the requirements of the
above-mentioned case law.‘ ‖ Id. at 127. And because the judge was deceased,
this Court remanded for a new evidentiary hearing before a new judge. Id. at 128.
In contrast to the order in Mendoza, the order following the evidentiary
hearing in this case is nine and one-half pages and includes forty-nine findings of
fact and nine conclusions of law. And importantly, one can discern from the order
the trial court‘s reasoning for denying Tanzi‘s various ineffectiveness of counsel
during the penalty phase claims. For example, it is apparent from the order that the
trial court concluded that Tanzi was not prejudiced by trial counsel‘s failure to call
Tanzi‘s abuser to testify during the penalty phase because the abuser‘s testimony
during the evidentiary hearing actually served to minimize the sexual abuse that
Tanzi had suffered.
Tanzi also mentions that the order following the evidentiary hearing did not
address his claims that were summarily denied. Tanzi‘s statement is accurate in
this regard. However, the trial court did issue an order after the Huff4 hearing that
provides the court‘s reasoning for summarily denying Tanzi‘s other claims.
Accordingly, because the orders included sufficient findings of facts and
reasoning for the trial court‘s denial of Tanzi‘s claims, Tanzi is not being deprived
of meaningful appellate review.
B. Ineffective Assistance of Counsel During the Penalty Phase
Next, Tanzi asserts that trial counsel was ineffective during the penalty
phase for (1) failing to present consistent mental health testimony; (2) failing to
4. Huff v. State, 622 So. 2d 982 (Fla. 1993).
investigate and present Tanzi‘s XYY abnormality; (3) presenting Dr. Vicary‘s
testimony; and (4) failing to present additional mitigation witnesses. Because
Tanzi has failed to establish the requirements necessary for relief, we disagree.
After the United States Supreme Court‘s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court explained that for ineffective
assistance of counsel claims to be successful, two prongs must be satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)).
Regarding the deficiency prong of Strickland, there is a strong presumption
that trial counsel‘s performance was not ineffective. Strickland, 466 U.S. at 690.
Moreover, ―[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel‘s challenged conduct, and to evaluate the conduct from
counsel‘s perspective at the time.‖ Id. at 689. The defendant carries the burden to
―overcome the presumption that, under the circumstances, the challenged action
‗might be considered sound trial strategy.‘ ‖ Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
Regarding the prejudice prong of Strickland, the defendant ―must show that
but for his counsel‘s deficiency, there is a reasonable probability he would have
received a different sentence. To assess that probability, we consider ‗the totality
of the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the [postconviction] proceeding‘—and ‗reweig[h] it against the
evidence in aggravation.‘ ‖ Porter v. McCollum, 130 S. Ct. 447, 453-54 (2009)
(quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000)). ―A reasonable
probability is a ‗probability sufficient to undermine confidence in the outcome.‘ ‖
Henry v. State, 948 So. 2d 609, 617 (Fla. 2006) (quoting Strickland, 466 U.S. at
Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the trial court‘s factual
findings that are supported by competent, substantial evidence, but reviewing the
trial court‘s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 77172 (Fla. 2004).
1. Consistent Mental Health Testimony
Tanzi argues that trial counsel was ineffective for presenting the testimony
of mental health experts who did not collaborate and, therefore, diagnosed Tanzi
with varying mental disorders. This Court disagrees.
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Tanzi has failed to demonstrate deficiency. At the evidentiary hearing, trial
counsel testified that his strategy was to ―compartmentalize‖ his mental health
experts to avoid any charge of collusion and any lessening of the experts‘
credibility. And ―strategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected and counsel‘s
decision was reasonable under the norms of professional conduct.‖ Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000).
Additionally, Tanzi has not demonstrated prejudice. The jury benefited
from extensive testimony regarding Tanzi‘s serious mental health problems,
including his diagnoses and stays at various institutions in his youth. This mental
health evidence served as compelling mitigating evidence. Further, Dr. Vicary
testified during the penalty phase that Tanzi had been diagnosed as bipolar by
personnel at the Key West jail; therefore, the bipolar diagnosis did not stand out
during the penalty phase as an inconsistent diagnosis. In fact, during the
evidentiary hearing, Dr. Raphael explained that he considered bipolar elements of
Tanzi‘s personality and stated that he could not rule out the possibility that Tanzi
suffered from schizoaffective disorder bipolar type. Therefore, the non-identical
diagnoses of Dr. Vicary and Dr. Raphael are not sufficient to undermine our
confidence in the outcome.
Accordingly, we affirm the trial court‘s denial of relief.
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2. XYY Abnormality
Further, Tanzi claims that counsel was ineffective during the penalty phase
for failing to investigate and present evidence of Tanzi‘s XYY genotype. We
During the evidentiary hearing, Dr. Muench testified that having an extra Y
chromosome does not cause criminal or antisocial behavior. While the XYY
abnormality is statistically associated with developmental problems, Dr. Muench
agreed with a study concluding that as a general condition XYY boys develop
normally during childhood. Dr. Muench also explained that when he advised
parents in cases where their child was going to be born XYY, he advised them
―that more than likely their child would be normal.‖ Furthermore, Dr. Raphael
testified during the evidentiary hearing that the knowledge that Tanzi had an extra
Y chromosome would not have changed any of the opinions he expressed during
the penalty phase. Additionally, to the extent that XYY is statistically associated
with developmental issues, trial counsel during the penalty phase presented
evidence of Tanzi‘s childhood developmental problems, including diminished
socialization and a learning disorder. Therefore, there is not a reasonable
probability that investigating and presenting evidence of Tanzi‘s XYY genetic
abnormality would have led to a different result. The mitigating evidence adduced
at the evidentiary hearing combined with the mitigating evidence presented at the
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penalty phase would not outweigh the evidence in aggravation as this case
included six aggravating circumstances given great and utmost weight. Our
confidence in the outcome is not undermined.
Accordingly, we affirm the trial court‘s denial of relief.
3. Dr. Vicary
Tanzi also claims that trial counsel was ineffective for presenting the
testimony of Dr. Vicary as a mental health expert and for failing to provide Dr.
Vicary with a videotape of Tanzi‘s confession. However, we affirm the trial
court‘s denial of this claim.
First, Tanzi has failed to demonstrate that the decision to present Dr.
Vicary‘s testimony during the penalty phase was deficient. Although Dr. Vicary‘s
testimony was subject to impeachment based upon Dr. Vicary‘s misconduct in
altering his notes during the Menendez brothers‘ trial in California, Dr. Vicary was
the only defense mental health expert that had diagnosed Tanzi with bipolar
disorder, a serious mental health disorder that could serve as mitigating evidence.
Furthermore, trial counsel sought to minimize the damage to Dr. Vicary‘s
credibility by first filing a motion in limine to exclude this evidence and then by
addressing the misconduct issue during direct examination. Therefore, the
presentation of Dr. Vicary‘s testimony appears to have been a reasonable strategic
decision. See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).
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Additionally, Tanzi has failed to establish prejudice. Both Dr. Vicary and
Dr. Raphael testified that Tanzi suffered from serious mental health issues
throughout his life. However, as explained above, Dr. Vicary‘s testimony was
particularly helpful in establishing mitigation due to his diagnosis of bipolar
disorder and his description of the difficulties facing bipolar children. While Dr.
Vicary‘s credibility may have been lessened by the disclosure of his misconduct in
the Menendez case as well as Dr. Vicary‘s admission that, although he had read a
transcript, he had not viewed Tanzi‘s videotaped confession, the overall
presentation of Dr. Vicary‘s testimony does not undermine confidence in the
outcome. Given the aggravation and mitigation evidence in this case, there is not a
reasonable probability that the result would have been different absent Dr. Vicary‘s
Accordingly, because Tanzi has not shown either deficiency or prejudice, we
affirm the trial court‘s denial of this claim.
4. Additional Mitigation Witnesses
Tanzi further argues that trial counsel was ineffective during the penalty
phase because his abuser, two former neighbors, an additional mental health
expert, and a former camp counselor were available but never called to testify.
Additionally, Tanzi argues that his mother‘s testimony during the penalty phase
was incomplete. However, because Tanzi has not demonstrated either the
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deficiency or prejudice prongs of Strickland, we affirm the trial court‘s denial of
The trial record reflects that trial counsel sought and was granted the
appointment of multiple mental health experts to assist with the defense. Further,
during the evidentiary hearing, trial counsel explained that he sought out lay
witnesses, school records, medical records, and psychological records. Trial
counsel also explained that he and an investigator traveled to Massachusetts to
uncover information regarding Tanzi‘s background and possible mitigation
evidence. And during the penalty phase, trial counsel presented the testimony of
two mental health experts to support the proposed mitigator that Tanzi‘s ability to
appreciate the criminality of his conduct and to conform it to the requirements of
the law was impaired. The mental health experts, a social worker, and a homeless
shelter counselor testified during the penalty phase about Tanzi‘s history of mental
problems and his stays in and diagnoses at various institutions. The witnesses also
addressed the sexual abuse Tanzi suffered as a young child. Further, in an effort to
humanize Tanzi, trial counsel presented the testimony of Tanzi‘s mother along
with photographs of Tanzi growing up. Thus, Tanzi has failed to demonstrate that
trial counsel‘s decision to not present all possible witnesses was deficient. See
Strickland, 466 U.S. at 691 (―[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
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unnecessary.‖); see also Everett v. State, 54 So. 3d 464, 474 (Fla. 2010) (―This
Court has also consistently held that a trial counsel‘s decision to not call certain
witnesses to testify at trial can be reasonable trial strategy.‖).
Additionally, Tanzi has failed to establish prejudice. Presenting the abovementioned witnesses who testified during the postconviction hearing ―would barely
have altered the sentencing profile presented to the sentencing judge.‖ Strickland,
466 U.S. at 700. This is because the mitigation evidence Tanzi presented through
these witnesses was largely cumulative of the mitigation evidence presented during
the penalty phase. For example, while Shawn Martin testified during the
evidentiary hearing that he had a sexual relationship with Tanzi when Tanzi was a
child, multiple witnesses testified during the penalty phase that Tanzi had been
sexually abused by an older boy and that the abuse began when Tanzi was eight
and continued for years. And although Shawn Martin also testified during the
evidentiary hearing that Tanzi had been exposed to pornography and had watched
his mother having sex, Dr. Vicary testified during the penalty phase that Tanzi had
been exposed to pornography at an early age and had witnessed his mother having
sex in an aggressive manner with various boyfriends. Moreover, witnesses at both
the postconviction hearing and the penalty phase testified that Tanzi‘s father
became abusive after becoming ill and that Tanzi exhibited behavioral issues
following his father‘s death and following sexual abuse. Tanzi‘s mother even
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acknowledged on cross-examination during the evidentiary hearing that there was
nothing that she could add that was not provided to the defense originally.
Therefore, because the additional evidence presented during the postconviction
hearing was largely cumulative of the evidence presented during the penalty phase,
Tanzi has not established a reasonable probability of a different result had trial
counsel presented this additional evidence during the penalty phase. See Atwater
v. State, 788 So. 2d 223, 234 (Fla. 2001) (―There is no reasonable probability that
re-presenting virtually the same evidence through other witnesses would have
altered the outcome in any manner.‖). Confidence in the outcome is not
Accordingly, this Court affirms the trial court‘s denial of Tanzi‘s claim that
trial counsel was ineffective during the penalty phase.
C. Summarily Denied Claims
Tanzi argues that the trial court erred in denying several of his
postconviction claims without an evidentiary hearing. However, because the
claims were either facially insufficient, procedurally barred, or without merit, this
Court affirms the trial court‘s summary denial.
An evidentiary hearing must be held on an initial 3.851 motion whenever the
movant makes a facially sufficient claim that requires a factual determination. See
Amendments to Fla. Rules of Crim. Pro. 3.851, 772 So. 2d 488, 491 n.2 (Fla.
- 17 -
2000). ―A summary or conclusory allegation is insufficient to allow the trial court
to examine the specific allegations against the record.‖ Ragsdale v. State, 720 So.
2d 203, 207 (Fla. 1998). Because a court‘s decision whether to grant an
evidentiary hearing on a rule 3.851 motion is ultimately based on written materials
before the court, its ruling is tantamount to a pure question of law, subject to de
novo review. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003).
First, Tanzi argues that the trial court should have granted a hearing on his
claim that the jury improperly considered lack of remorse. He also alleges that the
trial court improperly denied his request to interview the jurors. However, this
claim was properly denied without a hearing because it is procedurally barred.
According to Tanzi, it was reported in a newspaper in April 2003, shortly after the
penalty phase, that a juror had commented about Tanzi‘s lack of remorse for his
crimes. Tanzi did not raise the issue in the trial court after the juror‘s alleged
comment first came to light in 2003. Moreover, Tanzi did not raise the issue on
direct appeal even though the direct appeal followed the entry of a written order
denying his motion to withdraw his plea, an order that was issued in January 2005.
Therefore, Tanzi‘s juror misconduct claim is procedurally barred.
Next, Tanzi asserts that an evidentiary hearing should have been held on his
claim that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
timely disclose evidence that Tanzi may have the XYY genotype. But since Tanzi
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acknowledges that the State in fact disclosed this possibility to the defense before
the penalty phase, summary denial was proper. As part of establishing a Brady
violation, the defendant must show that favorable evidence was willfully or
inadvertently suppressed by the State. See Strickler v. Greene, 527 U.S. 263, 28182 (1999); see also United States v. Ziperstein, 601 F.2d 281, 291 (7th Cir. 1979)
(―As long as ultimate disclosure is made before it is too late for the defendant to
make use of any benefits of the evidence, Due Process is satisfied.‖); White v.
State, 816 A.2d 776, 778 (Del. 2003) (finding no Brady violation where materials
were disclosed a week prior to trial and defense counsel did not object or ask for a
Tanzi also alleges that the trial court erred in summarily denying his claim
that counsel was ineffective at the Spencer5 hearing. However, Tanzi did not
allege specific facts explaining how additional testimony (primarily from unnamed
sources) at the Spencer hearing would have established prejudice. Accordingly,
the motion did not sufficiently allege prejudice, and we affirm the summary denial
of this claim. See Ragsdale, 720 So. 2d at 208 (finding that trial judge properly
denied evidentiary hearing where defendant provided insufficient facts as to ―how
the outcome would have been different had counsel acted otherwise‖); see also
Doorbal v. State, 983 So. 2d 464, 484 (Fla. 2008) (―Counsel for Doorbal appears to
5. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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operate under the incorrect assumption that conclusory, nonspecific allegations are
sufficient to obtain an evidentiary hearing on claims of ineffective assistance of
counsel, and specific facts and arguments need not be disclosed or presented until
the evidentiary hearing.‖).
Further, Tanzi argues that the trial court erred in summarily denying his
claim that trial counsel was laboring under a conflict of interest. However, Tanzi
bases this postconviction claim upon allegations that were known during the direct
appeal. Thus, this conflict of interest claim could have and should have been
raised on direct appeal and is now procedurally barred.
Finally, Tanzi argues that the trial court erred in summarily denying his
claim that Florida‘s lethal injection statute and existing lethal injection procedures
violate the U.S. and Florida Constitutions. However, the trial court did not err in
denying Tanzi‘s claim without an evidentiary hearing as this Court has repeatedly
rejected similar lethal injection challenges. See, e.g., Everett v. State, 54 So. 3d
464, 486 (Fla. 2010); Tompkins v. State, 994 So. 2d 1072, 1081 (Fla. 2008); Power
v. State, 992 So. 2d 218, 220-21 (Fla. 2008).
Accordingly, because the claims Tanzi mentions were facially insufficient,
procedurally barred, or without merit, we affirm the trial court‘s summary denial.
D. Motion to Amend
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Under this claim, Tanzi contends that his motion for leave to amend his
postconviction motion should have been granted. Tanzi‘s motion for leave, which
sought to add two claims, was filed more than thirty days before the evidentiary
hearing. However, because good cause was not shown, the trial judge did not
abuse its discretion in denying Tanzi‘s motion for leave to amend. See Doorbal,
983 So. 2d at 484 (―The refusal of a trial court to grant a party leave to amend a
3.851 motion is reviewed under an abuse of discretion standard.‖).
Florida Rule of Criminal Procedure 3.851(f)(4) provides the following in
A motion filed under this rule may be amended up to 30 days prior to
the evidentiary hearing upon motion and good cause shown. The trial
court may in its discretion grant a motion to amend provided that the
motion sets forth the reason the claim was not raised earlier and
attaches a copy of the claim sought to be added.
A trial court does not abuse its discretion in refusing to grant leave to amend when
the facts asserted in the amended motion are vague, nonspecific, and fail to suggest
how relief may be warranted. Doorbal, 983 So. 2d at 485. Additionally, a trial
court does not abuse its discretion when the facts in the amended motion ―were
readily available to postconviction counsel at the time that [the defendant] filed his
initial 3.851 motion and, therefore, these claims should have been raised in that
motion.‖ Lugo v. State, 2 So. 3d 1, 19 (Fla. 2008).
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Here, with regard to his claim based upon a 2009 National Academy of
Sciences (NAS) report on forensic science, Tanzi‘s amended motion asserted facts
that were vague and that failed to suggest how relief may be warranted. The
amendment describes some of the NAS report‘s recommendations for and issues
with DNA evidence and asserts that this information somehow provides a basis for
attacking the State‘s DNA expert‘s testimony that Tanzi‘s blood was found on the
inside pocket of the victim‘s jeans. Tanzi then argues that, because the report
undermines this DNA expert‘s testimony, the trial court‘s finding of the aggravator
that the murder was committed during sexual batteries would be discredited.
However, it is unclear how the report‘s discussion of DNA evidence could
discredit the committed during sexual batteries aggravator given the other evidence
supporting this aggravator, namely Tanzi‘s confession to forcing the victim to
perform oral sex and the medical examiner‘s testimony that the victim had a
laceration to the labia shortly before death.
The other claim in Tanzi‘s amended motion concerned an alleged
confrontation clause violation based upon Crawford v. Washington, 541 U.S. 36
(2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). However,
no good cause was shown for Tanzi‘s failure to raise this claim in his original
3.851 motion as the trial testimony sought to be challenged has always been
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Accordingly, we conclude that the trial court did not abuse its discretion in
denying Tanzi‘s motion for leave to amend.
E. Records Request
Next, Tanzi argues that the trial court erred in denying his request for the
Monroe County Sherriff‘s Department to produce its rights advisory card, used in
providing warnings to suspects under Miranda v. Arizona, 384 U.S. 436 (1966), as
well as the personnel file of Detective James Norman. However, we affirm the
The scope of requests made pursuant to Florida Rule of Criminal Procedure
3.852(g) and (i) are governed by Florida Rule of Criminal Procedure 3.852(l),
which provides that the records must not be privileged or immune from production
and that the records are ―either relevant to the subject matter of the proceeding‖ or
―reasonably calculated to lead to the discovery of admissible evidence.‖ In
reviewing a trial court‘s denial of public records requests, this Court applies an
abuse of discretion standard. Diaz v. State, 945 So. 2d 1136, 1149 (Fla. 2006).
The trial court did not abuse its discretion in denying Tanzi‘s request for the
Monroe County Sherriff‘s Department‘s Miranda card since the card was not used
in this case. Tanzi acknowledges that officers from the Monroe County Sheriff‘s
Department were not the officers who gave him Miranda warnings. Therefore, the
card used by that department has no relevance here.
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Regarding Detective Norman, the trial court ordered the production of his
internal affairs file and training records. And the Monroe County Sheriff‘s Office
filed a notice of compliance indicating that it had produced the records as ordered.
No other portion of Detective Norman‘s personnel file appears to be reasonably
calculated to lead to the discovery of admissible evidence.
Accordingly, the trial court did not abuse its discretion with regard to these
III. HABEAS PETITION
In his habeas petition, Tanzi alleges that his appellate counsel was
ineffective on direct appeal for failing to raise a claim regarding misstatements of
law during voir dire and for failing to raise a Crawford claim. For the reasons that
follow, we deny his petition.
Claims of ineffective assistance of appellate counsel are appropriately
presented in a petition for a writ of habeas corpus. See Freeman v. State, 761 So.
2d 1055, 1069 (Fla. 2000). Consistent with the Strickland standard, to grant
habeas relief based on ineffectiveness of counsel, this Court must determine:
[F]irst, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine the confidence in
the correctness of the result.
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Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So.
2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000).
―If a legal issue ‗would in all probability have been found to be without
merit‘ had counsel raised the issue on direct appeal, the failure of appellate counsel
to raise the meritless issue will not render appellate counsel‘s performance
ineffective.‖ Schoenwetter v. State, 46 So. 3d 535, 563 (Fla. 2010) (quoting
Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). ―In fact, appellate counsel
is not necessarily ineffective for failing to raise a claim that might have had some
possibility of success; effective appellate counsel need not raise every conceivable
nonfrivolous issue.‖ Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002) (citing Jones
v. Barnes, 463 U.S. 745, 751-53 (1983); Provenzano v. Dugger, 561 So. 2d 541,
549 (Fla. 1990)).
Tanzi contends that appellate counsel was ineffective for failing to raise a
claim on direct appeal based upon allegedly incorrect statements of law during voir
dire. More specifically, Tanzi‘s habeas petition alleges that prospective juror
Covina and prospective juror Plowden were improperly instructed upon whether a
death sentence is required in certain circumstances. But neither of these
prospective jurors in fact served on Tanzi‘s jury. Therefore, the allegedly
defective statements of the law could not have affected Tanzi‘s trial, and appellate
counsel cannot be considered ineffective for failing to raise this meritless claim.
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Tanzi also argues that appellate counsel was ineffective for failing to raise
an unpreserved Crawford claim on direct appeal because the error constitutes
fundamental error. Tanzi contends it was fundamental error for the State‘s DNA
analyst to testify to others‘ findings about the presence of Tanzi‘s blood on the
inside of the victim‘s pocket because this evidence supported the commission
during the course of sexual batteries aggravator. ―A fundamental error is error that
‗reach[es] down into the validity of the trial itself to the extent that a verdict of
guilty could not have been obtained without the assistance of the alleged error.‘ ‖
Rodriguez v. State, 919 So. 2d 1252, 1282 (Fla. 2005) (quoting Brown v. State,
124 So. 2d 481 (Fla. 1960)).
Under the circumstances of this case, the Crawford violation relating to
evidence supporting the during the course of sexual batteries aggravator cannot
amount to fundamental error because this Court concluded on direct appeal that it
was harmless error for the trial court to find two separate during the course of a
felony aggravators, one for kidnapping and one for sexual batteries. See Tanzi,
964 So. 2d at 117. Additionally, the evidence associated with the Crawford
violation only pertained to forced vaginal penetration, and the during the course of
sexual batteries aggravator was assessed by the trial court for forced oral sex as
well as forced vaginal penetration. See Brown v. State, 473 So. 2d 1260, 1266-67
(Fla. 1985) (where multiple felonies were stated as supporting the during the
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course of a felony aggravator, the validity of the aggravator would not undermined
even if one of the felonies were eliminated). Moreover, in addition to the
testimony of the State‘s DNA expert that violated Crawford, the forced vaginal
penetration portion of the aggravator was also supported by the medical examiner‘s
testimony that the victim had suffered a laceration to her labia shortly before death.
Consequently, the error does not reach down into the validity of the penalty phase
itself. And because the unpreserved Crawford error does not constitute
fundamental error, Tanzi is not entitled to relief.
For the foregoing reasons, we affirm the denial of Tanzi‘s postconviction
motion and deny his habeas petition.
It is so ordered.
CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ.,
PARIENTE, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
I concur in affirming the denial of postconviction relief and rejecting Tanzi‘s
ineffective assistance of counsel claim, but I would focus only on Tanzi‘s failure to
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establish prejudice. Simply stated, even when considering counsel‘s questionable
actions in calling Dr. Vicary as an expert and in failing to provide him with Tanzi‘s
videotaped confession, Tanzi is unable to establish prejudice in this case.
As the facts recited by the majority opinion reveal, this murder is
unquestionably one of the most aggravated murders—not just as compared to all
other murders, but as compared to all death penalty cases. The fact that the trial
court correctly found six separate statutory aggravators, all deservedly given
greatest weight, reinforces this conclusion—as does the jury‘s unanimous
recommendation of death. None of the testimony put forth at the evidentiary
hearing casts any doubt whatsoever on the existence or strength of these
aggravators. Further, while the trial court found mitigators that were entitled to
some weight or small weight, including mental health mitigation, it is difficult to
imagine any additional mitigation that would serve to outweigh the aggravation.
The reason I would focus on prejudice is because I question counsel‘s
performance, and more specifically, his decision to call Dr. Vicary as an expert in
the case. Counsel knew that Dr. Vicary would be, and in fact was, subject to
significant impeachment based on his admission to altering his notes in another
murder case—the infamous Menendez brothers‘ murder trial in California.
Although counsel claimed that the decision was based on the fact that Dr. Vicary
was the only expert to testify to a bipolar disorder, Tanzi clearly had other experts
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who could and did testify to the serious mental health issues Tanzi suffered
throughout his life. Coupled with not providing Dr. Vicary with Tanzi‘s
videotaped confession, I have concerns as to counsel‘s deficient performance in
this regard. However, I ultimately conclude that in no way does this failure
undermine confidence in the outcome of the penalty phase, given the facts of this
crime, the six statutory aggravators, and the ―new‖ mitigation now presented.
In addition, I agree with the majority that Tanzi failed to establish prejudice
regarding his other ineffective assistance of counsel claims. Tanzi claims that his
counsel was ineffective for failing to present evidence of Tanzi‘s XYY genotype, a
claim that at first blush seemed a fruitful avenue. However, after considering all of
the evidence submitted in support of this claim, the genetic abnormality did not
amount to a change in the evaluation of the mental health mitigation because no
expert could link the abnormality to any specific mental illness that Tanzi might
have suffered, nor could it otherwise explain his unfathomable actions in
committing this horrendous crime.
Further, Tanzi suggests his counsel was ineffective in failing to present the
testimony of Tanzi‘s abuser. However, as the trial court observed, presenting
testimony from the individual who abused Tanzi would have weakened the
mitigation because this witness minimized the nature of the sexual abuse that he
committed against Tanzi.
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In short, based on the total absence of demonstrated prejudice, I concur in
affirming the denial of postconviction relief.
An Appeal from the Circuit Court in and for Monroe County,
Luis Manuel Garcia, Judge - Case No. 2000-CF-573-K
And an Original Proceeding – Habeas Corpus
Neal A. Dupree, Capital Collateral Regional Counsel, Paul Edward Kalil, Assistant
CCR Counsel and Scott Gavin, Staff Attorney, Region South, Fort Lauderdale,
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne,
Assistant Attorney General, Tampa, Florida,
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