          Supreme Court of Florida
                                  ____________

                                  No. SC12-555
                                  ____________

                          BILL PAUL MARQUARDT,
                                 Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                [January 22, 2015]

PER CURIAM.

      Bill Paul Marquardt appeals his convictions and death sentences for the

March 2000 first-degree murders of Margarita Ruiz and Esperanza “Hope” Wells.

We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that

follow, we affirm Marquardt’s convictions and death sentences.

      We also reaffirm our commitment to the principles and procedures

articulated in Muhammad v. State, 782 So. 2d 343 (Fla. 2001), that require a trial

court to consider mitigation evidence even when the defendant waives mitigation.

However, recognizing the tension that may exist when a trial court appoints

standby counsel to present mitigation evidence in these circumstances, as was done
in this case, we prospectively modify the Muhammad procedures to the limited

extent that trial courts should utilize an independent, special counsel—rather than

standby counsel—to represent the public interest in bringing forth all available

mitigation for the benefit of the jury, the trial court, and this Court.

                      FACTS AND PROCEDURAL HISTORY

                                   Florida Murders

      On March 15, 2000, Ruiz and her adult daughter, Wells, were at their house

in Sumter County, Florida. That morning, Ruiz’s daughter-in-law brought her one-

year-old son and three-year-old daughter to the house. When Ruiz’s daughter-in-

law departed, she exited through a screen door at the back of the house, which

Wells then latched.

      Later that day, two Sumter County deputies went to the house in response to

a 911 call from Wells’s husband, who asked the sheriff’s department to attempt to

make contact with anyone in the house. When the deputies arrived, they

discovered that the screen door at the back of the house was open. The deputies

proceeded through the house and discovered the bodies of Ruiz and Wells inside a

bedroom. The children, who were hiding under the dining room table, were the

only survivors.

      Subsequently, the sheriff’s department requested that the Florida Department

of Law Enforcement (FDLE) respond to the house to process the crime scene. The


                                          -2-
FDLE crime scene technician noted that the latch to the screen door at the back of

the house had been broken. He also discovered fired cartridge cases on the back

porch area of the house, as well as blood and a bullet hole in the freezer door. A

bullet was embedded inside the freezer. The FDLE technician concluded that at

least one bullet was fired into the house from outside and that the bullet found in

the freezer struck a person before it lodged in the freezer.

      The medical examiner reconstructed the manner in which Ruiz and Wells

were killed based on their injuries and the evidence found at the house. Ruiz was

shot twice while in the kitchen. The bullet that was found in the freezer had first

penetrated her chest. She was shot a second time while she stood in front of the

back screen door. The bullet grazed her thumb and then punctured her chest,

which indicated that her arm was raised in front of her chest at the time she was

shot. Ruiz then fled the kitchen, ran through the dining room and living room, and

was shot a third time in the back as she fled into a bedroom. The bullet passed

through her spinal cord, causing her to collapse. She was then stabbed in the neck.

She died from multiple gunshot wounds, with a contributory factor of sharp force

injuries to the neck.

      Wells, found in the bedroom next to her mother’s body, had been shot once

in the head from a distance of less than eighteen inches. The injury would have

caused her to feel faint and collapse in seconds, quickly rendering her unconscious


                                         -3-
and causing her death. After Wells was shot, she was stabbed in the neck eight

times.

         An officer who had responded to the scene took the children outside and

asked the three-year-old girl if she knew who had committed the crime. She stated

that she did not know but responded, in part, that the killer left in a green car.

         The FDLE collected DNA and latent palm print evidence from the house. A

DNA swab taken from the living room revealed a mixed DNA profile that

contained DNA from at least three individuals. Two of the three profiles matched

Ruiz and Wells. The DNA of the third individual could not be identified at the

time. Additionally, a latent palm print was retrieved from a countertop in the

kitchen, which also could not be identified.

         The investigation into the murders then became dormant until June 2006,

when the Sumter County Sheriff’s Office received information regarding a

separate murder investigation in the state of Wisconsin. Wisconsin law

enforcement had investigated the murder of Mary Marquardt, who was killed on

March 13, 2000, two days before Ruiz and Wells were murdered, and the

investigation eventually led to Bill Paul Marquardt being charged with the murder

of his mother, Mary. Other than the evidence obtained from Wisconsin law

enforcement during their investigation, the murder of Mary Marquardt apparently

is unrelated to the murders of Ruiz and Wells.


                                          -4-
      During their investigation, Wisconsin law enforcement performed DNA

testing on items obtained from Marquardt. The testing revealed DNA from two

individuals who they could not identify, but determined to be related females who

were most likely mother and daughter. When Marquardt was acquitted of the

murder of Mary, a Wisconsin attorney involved in the case sought to identify the

women whose DNA was discovered on the items obtained from Marquardt. His

research revealed the unsolved murders of Ruiz and Wells, and he contacted

Sumter County law enforcement. The previously unidentified DNA from the items

obtained from Marquardt in Wisconsin matched that of Ruiz and Wells.

      Marquardt was subsequently indicted for the first-degree murders of Ruiz

and Wells and for burglary of a dwelling with a firearm. At the time, Marquardt

was incarcerated in a Wisconsin mental health facility pursuant to a guilty verdict

for animal cruelty charges in Wisconsin.

                             Wisconsin Investigation

      The majority of the evidence that connects Marquardt to the murders of Ruiz

and Wells was obtained in a series of searches by Wisconsin law enforcement

officials in the unrelated murder investigation of Mary Marquardt. On March 15,

2000, the same day as the Florida murders, Wisconsin law enforcement obtained a

warrant to search Marquardt’s cabin, located in Eau Claire County, Wisconsin.

During the search, officers found dead animals, which led them to obtain a warrant


                                        -5-
for Marquardt’s arrest for animal cruelty. On March 18, 2000, Marquardt was

arrested at his cabin. He was searched incident to his arrest, and a folding knife

was retrieved from his pocket. Officers subsequently collected the clothing he was

wearing at the time of the arrest, which included black jeans, a black shirt, a denim

jacket, and tennis shoes.

      The clothing and the knife were tested for DNA. A mixed DNA profile

from three individuals was found on the jacket. Marquardt was determined to be a

possible contributor, along with two unidentified females, who were labeled as

unidentified individuals one and two. The likelihood of the mixed profile on the

jacket coming from individuals other than Marquardt and unidentified individuals

one and two was determined to be one in eighty sextillion. A mixed DNA profile

from at least three individuals was also found on the pocket knife, again with

Marquardt as a possible contributor, along with unidentified individuals one and

two. The likelihood of the mixed profile on the knife coming from individuals

other than Marquardt and unidentified individuals one and two was determined

also to be one in eighty sextillion. A shoe recovered from Marquardt was found to

have DNA from a single-source profile that matched unidentified individual one.

Further DNA testing revealed that the two unidentified individuals were related

females, most likely mother and daughter.




                                        -6-
      The Wisconsin investigation revealed that Marquardt traveled from

Valdosta, Georgia, to Long Key, Florida, in his green Ford Thunderbird between

March 14 and March 15, 2000, the latter date being the date of the Ruiz and Wells

murders. Marquardt maintained a storage unit in Valdosta in which he stored his

green Ford Thunderbird. The storage facility required a person to input a unit-

specific gate code to enter and exit the property. The code assigned to Marquardt

was used on March 14, 2000, to enter and exit the facility.1 When the storage unit

was later searched, a red Mercury Tracer was in the unit rather than a green Ford

Thunderbird. Therefore, it appears that on March 14, 2000, Marquardt entered the

storage unit and removed his green Thunderbird, leaving the red Tracer. When the

Thunderbird was searched after Marquardt’s arrest, law enforcement discovered a

map of Florida and a receipt for Fiesta Key Resort KOA in Long Key, Florida.

The receipt reflected a check-in date of March 15, 2000 (the day Ruiz and Wells




       1. The storage unit records reflect that Marquardt’s code was used on March
15, 1999. However, the manager testified that the computer system did not register
the year 2000, and instead reflected 1999. Because 2000 was a leap year, and 1999
was not a leap year, unless the computer system had been recalibrated after
February 29, 2000, to reflect the correct date, March 15, 1999, on the computer
system was actually March 14, 2000. Although the storage facility manager could
not recall during trial whether he had recalibrated the system, a Wisconsin
detective testified that he spoke with the manager on March 31, 2000, and at that
time, the manager stated that the date on the system was wrong due to the leap
year.


                                       -7-
were murdered), and a check-out date of March 16, 2000. The receipt reflected the

name Dan Marquardt, but listed the license plate number for Marquardt’s vehicle.

      Law enforcement found a blood stain on the armrest of the Thunderbird.

The blood was tested for DNA and was determined to have a mixed DNA profile

with a major and a minor contributor. The major contributor was determined to be

an unknown female, and the likelihood that Marquardt was the minor contributor

was one in four.

      Marquardt’s Wisconsin cabin was searched after his arrest for animal cruelty

on March 18, 2000, and again on March 29, 2000. During the March 29 search,

two boxes of ammunition were discovered under the refrigerator, as well as a

Stallard 9 mm model JS semiautomatic gun and 9 mm bullets.2

              Evidence Connecting Marquardt to Florida Murders

      In 2006, six years after the murders, a Wisconsin attorney contacted Sumter

County law enforcement regarding the murders of Ruiz and Wells. The DNA of

the two unidentified females found on the clothing and knife seized from


       2. Marquardt claimed that the handgun and bullets found under the
refrigerator were planted there by the killer after his arrest and that he was framed.
He emphasized that this evidence was not discovered by law enforcement during
the March 18 search, or by his father who went to the cabin after the March 18
search to secure the windows. However, Wisconsin law enforcement explained
that the evidence could not be seen on March 18 because there was a pile of
clothing in front of the refrigerator and, additionally, it was difficult to see in the
cabin on March 18 because law enforcement had shot tear gas into the cabin.


                                         -8-
Marquardt was compared to that of Ruiz and Wells. The DNA from unidentified

individual one matched the DNA from Wells, and the DNA from unidentified

individual two matched the DNA from Ruiz. Thus, Ruiz and Wells were the two

unidentified females whose DNA was in the mixed DNA profiles on the jacket and

knife recovered from Marquardt in Wisconsin. Additionally, the blood from

Marquardt’s shoe and the Thunderbird was determined to be from Wells.

      Further, a FDLE DNA analyst compared Marquardt’s DNA to DNA found

in the victims’ home. Marquardt’s DNA matched the DNA extract found in the

living room. The likelihood that the DNA came from any male other than

Marquardt was one in three billion. Additionally, a FDLE firearms analyst

examined the handgun that was found at Marquardt’s cabin. The analyst

determined that the casings and bullets found at the victims’ residence were fired

from the handgun recovered from Marquardt’s cabin.

                                   Defense Case

      Before trial, the Office of the Public Defender was appointed to represent

Marquardt. However, the Public Defender certified a conflict and was allowed to

withdraw. An attorney with the Office of Regional Criminal Conflict and Civil

Regional Counsel (CCCRC) was then appointed, but subsequently withdrew.

Although an attorney certified for capital cases was appointed on July 20, 2010,

Marquardt determined that he would prefer to represent himself. On September


                                        -9-
30, 2010, after a Faretta3 inquiry, the trial court allowed Marquardt to proceed pro

se. The previously appointed counsel was appointed as standby counsel.

      In his case in defense, Marquardt emphasized that no fingerprints were

found on the firearm or ammunition boxes, and there were no usable fingerprints

on the knife. He also presented evidence that the display carton for the knife had a

latent print that was not from Marquardt. Further, he presented witnesses who

testified to driving past the victims’ house on the morning of the murders. The

witnesses testified that they had seen a green vehicle, but none of the witnesses

described the vehicle as a green Thunderbird. He also presented evidence that the

FDLE located a latent print in the victims’ home that could not be identified, and

that green fibers located next to the victims also could not be identified but did not

match any fibers recovered from Marquardt’s vehicle.

                            Verdict and Penalty Phase

      On October 12, 2011, the jury convicted Marquardt of the first-degree

murders of Ruiz and Wells and of burglary of a dwelling with a firearm.

Marquardt waived a penalty-phase jury recommendation and elected to represent

himself during the penalty phase. Pursuant to the requirements delineated by this

Court in Muhammad v. State, 782 So. 2d 343 (Fla. 2001), the trial court appointed

the investigators that Marquardt had retained during the guilt-phase trial to


      3. Faretta v. California, 422 U.S. 806 (1975).

                                        - 10 -
investigate mitigation evidence for the penalty phase. The trial court also relieved

standby counsel from his duties as standby counsel and appointed him to present

mitigation evidence for the court. Finally, the trial court appointed the doctor who

had conducted a competency evaluation for Marquardt to evaluate Marquardt for

possible mental health mitigation.

      On February 1, 2012, the trial court held a combined Faretta and Spencer4

hearing. The State presented victim impact statements from Pam Ruiz, the

daughter-in-law of Ruiz and sister-in-law of Wells, and Robert Wells, the son-in-

law of Ruiz and husband of Wells. The State also presented the testimony of the

medical examiner. The medical examiner testified that Ruiz was shot twice in her

chest while in the kitchen, and that with immediate medical attention those injuries

would not have been fatal. The injuries would have caused her to cough up blood

almost immediately, would have decreased her respiratory capacity, and would

have caused her lung to collapse within several minutes. The medical examiner

stated that he could not speculate as to how this would affect her mental ability, but

that “generally speaking, she’s shot, she probably realized she was and ran, like

anybody else would.” With respect to Wells’s murder, the medical examiner

testified that she was shot in her face from a range of less than two feet. This

injury would have caused Wells to lose consciousness before Ruiz.


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

                                        - 11 -
      Marquardt chose not to present mitigation evidence during the Spencer

hearing. Although he maintained his innocence, he stated that it was in his best

interest to receive the death penalty. To that end, he asserted that several

aggravating circumstances were present, including that the murders were

especially heinous, atrocious, or cruel (HAC); that they were cold, calculated, and

premeditated (CCP); and that he had a prior felony conviction.

      The attorney appointed to assist the trial court presented mitigation. He first

presented the testimony of a Wisconsin investigator, who had spoken with

Marquardt’s family and the principal of his high school. The investigator testified

that Marquardt was a social and happy child. He was the youngest of three

children and grew up in a close-knit family that went on vacations together every

year and spent holidays together. Marquardt completed high school and was an

average student. During school, Marquardt enjoyed music and received several

musical awards within his school district. He also received several offers for

college scholarships for his musical abilities, which he declined. After high

school, Marquardt worked at a restaurant.

      The attorney raised two statutory mitigating circumstances: (1) that

Marquardt’s capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was substantially impaired; and (2)

Marquardt’s age at the time of the crime. As to the mental incapacity mitigator,


                                        - 12 -
before extradition to Florida, Marquardt was committed to a mental health facility

in Wisconsin following a guilty verdict in a Wisconsin criminal case. After the

verdict, Marquardt was found incompetent to assist in his defense, and the judge

entered a verdict of not guilty by reason of insanity due to mental disease or defect.

In his Florida proceedings, Marquardt would not sign releases for the doctor or the

investigator, and therefore no further information was available. With respect to

the statutory mitigating circumstance of young age, the attorney contended that the

trial court should consider this circumstance because Marquardt was twenty-four

years old at the time he committed the murders.

      The attorney raised as nonstatutory mitigating circumstances Marquardt’s

musical talent and close family ties, as well as that he did not have trouble with the

law until he was nineteen years of age, had multiple employments, was not a

management risk at the jail, and had no prior prison disciplinary record.

      On February 28, 2012, the trial court sentenced Marquardt to death for the

murders of Margarita Ruiz and Esperanza Wells, and sentenced Marquardt to life

in prison for burglary of a dwelling with a firearm. In pronouncing Marquardt’s

sentence, the trial court found that the State had proven beyond a reasonable doubt

the existence of four statutory aggravating circumstances: (1) HAC (assigned great

weight); (2) CCP (assigned great weight); (3) the capital felonies were committed

while Marquardt was engaged in the commission of a burglary (assigned great


                                        - 13 -
weight); and (4) Marquardt had previously been convicted of another felony

involving the use or threat of violence, based on a conviction for aggravated

burglary in Wisconsin (assigned some weight). See §§ 921.141(5)(b), (d), (h), (i),

Fla. Stat. (2011).

      The trial court found two statutory mitigating circumstances. First, the trial

court found that Marquardt’s capacity to appreciate the criminality of his conduct

or to conform his conduct to the requirements of the law was substantially

impaired, based on his commitment to a mental health facility for separate criminal

charges in Wisconsin (assigned some weight). See § 921.141(6)(f), Fla. Stat.

(2011). Second, the trial court found other factors in Marquardt’s background that

would mitigate against imposition of the death penalty, based on Marquardt being

a law abiding citizen who was close to his family before there were reported

instances of criminal activity (assigned minimal weight), and the fact that he was

never previously violent toward anyone (assigned minimal weight). See

§ 921.141(6)(h), Fla. Stat. (2011). The trial court found two nonstatutory

mitigating circumstances: (1) Marquardt’s good behavior during the proceedings

(assigned minimal weight); and (2) Marquardt’s good behavior while in jail

(assigned minimal weight).




                                       - 14 -
      The trial court concluded that the aggravating circumstances outweighed the

mitigating circumstances and imposed sentences of death for the murders of Ruiz

and Wells. This appeal followed.

                                    ANALYSIS

      On direct appeal to this Court, Marquardt raises five issues: (1) the trial

court erred by applying the doctrine of collateral estoppel and denying Marquardt’s

motion to suppress evidence without holding an evidentiary hearing; (2) the trial

court placed unreasonable restrictions on Marquardt’s presentation of his case; (3)

the prosecutor improperly commented on his guilt in front of the jury; (4) the trial

court erred in finding the aggravating circumstances of CCP and HAC; and (5) the

trial court violated the attorney-client privilege by appointing Marquardt’s standby

counsel and investigators to present mitigation. In addition to the claims raised by

Marquardt, we must consider whether there is sufficient evidence to support

Marquardt’s convictions and whether the death sentences are proportionate.

                              I. Motion to Suppress

      A significant amount of the physical and DNA evidence introduced during

trial was collected in Wisconsin as a result of the March 15, 2000, search warrant,

which was applied for and executed by Wisconsin law enforcement in connection

with the murder of Mary Marquardt. Evidence obtained during the March 15

search led to the issuance of a warrant for Marquardt’s arrest in Wisconsin, which


                                        - 15 -
was executed on March 18. Marquardt moved to suppress the evidence of the

March 15 search and a subsequent search that occurred on March 18 during two

separate criminal trials that occurred in Wisconsin.

      The Wisconsin Supreme Court consolidated the appeals of the two criminal

trials and ruled on the validity of the search warrant. See State v. Marquardt, 705

N.W.2d 878, 881 (Wis. 2005). The Wisconsin court concluded that although there

was insufficient probable cause for the March 15 search warrant, the good faith

exception established by the United States Supreme Court in United States v.

Leon, 468 U.S. 897 (1984), applied, and the evidence was therefore admissible.

Marquardt, 705 N.W.2d at 893. During pretrial proceedings in this case,

Marquardt sought to suppress the same evidence that was challenged in the

Wisconsin case, as well as evidence obtained during the March 29 search, the

warrant for which was supported by evidence obtained during the March 15 search.

      Before his Florida trial, Marquardt filed multiple motions to suppress the

evidence obtained during the Wisconsin searches of his cabin, vehicle, and person.

Marquardt also filed several motions to set a hearing on his motions to suppress.

The trial court ruled that the initial motion to suppress was legally insufficient and

dismissed several others as either moot or successive and redundant. However, the

trial court addressed one motion to suppress on the merits, and denied it under the

doctrine of collateral estoppel. The trial court stated that


                                         - 16 -
      collateral estoppel prevents this Court from relitigating a motion to
      suppress the evidence obtained from the search warrant issued on
      March 15, 2000 and obtained from the search of Defendant’s
      automobile. Brown v. State, 397 So. 2d 320 (Fla. 2d DCA 1981);
      Miller v. State, 545 So. 2d 343 (Fla. 2d DCA 1989). The Wisconsin
      Supreme Court upheld the submission of the exact same evidence
      obtained from Defendant’s residence and automobile that Defendant
      seeks to have excluded in this motion to suppress. See State v.
      Marquardt, 705 N.W.2d 878 (Wis. 2005).

      Marquardt filed a motion to reconsider, in which he claimed that collateral

estoppel did not apply because the issues presented in his motion to suppress were

not identical to those in the Wisconsin case and had not been previously raised. He

asserted that the magistrate who issued the warrant had been misled and therefore

requested a Franks5 hearing. He also contended that his Wisconsin counsel were

ineffective and that the Wisconsin Supreme Court incorrectly found inferences in

the affidavit that were not supported. The trial court denied the motion for

reconsideration on the basis of collateral estoppel and for the additional reason that

pursuant to Echols v. State, 484 So. 2d 568 (Fla. 1985), evidence that was validly

obtained in another state is admissible in Florida even if it was obtained through a

warrant that would be invalid in Florida.

      Marquardt next filed a “Motion to Suppress on New Information and Motion

to Reconsider,” in which he again asserted that the Wisconsin magistrate was

misled. The trial court denied this motion because it raised matters already


      5. Franks v. Delaware, 438 U.S. 154 (1978).

                                        - 17 -
considered by the court. Marquardt then filed another motion to suppress on the

basis of newly discovered evidence. Marquardt relied on a statement made during

a Florida deposition by the affiant of the Wisconsin search warrant, in which the

affiant stated that the affidavit did not give rise to the inferences found by the

Wisconsin Supreme Court. The trial court denied the motion as meritless. During

a hearing on pretrial motions, the trial court stated that the evidence was not newly

discovered, but was based on an affidavit presumably seen by the Wisconsin

Supreme Court. The trial court did not hold an evidentiary hearing on any of the

motions to suppress filed by Marquardt.

                               A. Wisconsin Decision

      Because the Florida trial court relied on the Wisconsin Supreme Court’s

decision in denying the motion to suppress, we provide a brief background on

Wisconsin search and seizure law and on the ruling issued by the Wisconsin

Supreme Court in Marquardt’s Wisconsin case.

      The Wisconsin Constitution mirrors the language of the Fourth Amendment

to the United States Constitution. See Wis. Const. art. I, § 11. Wisconsin

      generally [has] interpreted Article I, Section 11 to provide the same
      constitutional guarantees as the Supreme Court has accorded through
      its interpretation of the Fourth Amendment. . . . On only one occasion
      in [Wisconsin’s] development of Article I, Section 11 jurisprudence
      [has Wisconsin] required a showing different from that required by
      the Supreme Court’s Fourth Amendment jurisprudence. [Wisconsin]
      did so in regard to [its] development of a good faith exception under
      Article I, Section 11. State v. Eason, 2001 WI 98, 245 Wis. 2d 206,

                                         - 18 -
      629 N.W.2d 625 (creating two additional requirements under Article
      I, Section 11 for law enforcement before according a good faith
      exception to their reliance on a defective no-knock search warrant).

Wisconsin v. Ferguson, 767 N.W.2d 187, 194 n.6 (Wis. 2009). The Florida

constitutional provision on searches and seizures is construed in conformity with

the Fourth Amendment to the United States Constitution, as interpreted by the

United States Supreme Court. See art. I, § 12, Fla. Const. Therefore, Wisconsin

generally provides the same constitutional guarantees for searches and seizures as

Florida.

      However, Wisconsin provides two additional protections in the application

of the good faith exception articulated by the United States Supreme Court in

Leon. The two additional protections are that the State must show that the process

used to obtain the search warrant included: (1) a significant investigation, and (2) a

review by a police officer either trained in, or very knowledgeable of, the legal

vagaries of probable cause and reasonable suspicion, or a knowledgeable

government attorney. State v. Eason, 629 N.W.2d 625 (Wis. 2001).

      The Wisconsin Supreme Court concluded that the March 15, 2000, search

warrant for Marquardt’s cabin lacked sufficient facts to supply probable cause for

the search. Marquardt, 705 N.W.2d at 884. Thus, the Wisconsin Supreme Court

then considered whether the good faith exception to the exclusionary rule

articulated in Leon and Eason applied. Id. In Leon, the United States Supreme


                                        - 19 -
Court held that should officers reasonably rely upon a warrant issued by a detached

and neutral magistrate, and that warrant is later determined to be invalid, evidence

seized will not necessarily be suppressed. Id. at 885 (citing Leon, 468 U.S. at 913).

The Wisconsin Supreme Court recognized that Leon delineates certain

circumstances under which the good faith exception does not apply. Id. One

circumstance that prevents the application of the good faith exception is where the

warrant is so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable. Id. (citing Leon, 468 U.S. at 923). Specifically,

under Leon, the exception to the exclusionary rule will not apply where an officer

who has been reasonably well trained would have known, despite authorization by

a neutral and detached magistrate, that a search warrant was invalid. Id. at 886-87

(citing Leon, 468 U.S. at 922 n.23).

      The affidavit for the warrant application to search Marquardt’s cabin on

March 15, 2000, contained the following information:

             Investigator Price [of the Chippewa County Sheriff’s office]
      reports that after finding the body of Mary J. Marquardt, he spoke
      with her husband, Alfred E. Marquardt. Mr. Marquardt informed him
      that he and Mary have a son, Bill Marquardt, who, since the location
      of Ms. Marquardt’s body had not been seen or heard from. Alfred
      Marquardt further informed Investigator Price that Bill Marquardt
      owned with Alfred Marquardt a cabin in which Bill resided at E27505
      County Highway M, Town of Fairchild, County of Eau Claire,
      Wisconsin.
             Investigator Price further reports that in examining the body of
      Mary J. Marquardt and the scene where she was found, it appeared as
      though among the wounds incurred by her was a knife wound. Also

                                         - 20 -
       at the scene, officers were able to locate a number of footprints that
       may be suitable for comparison with the shoes that made them.
              Investigator Barnier reports that in checking Eau Claire County
       tax rolls, he learned that a cabin . . . located at E27505 [County]
       Highway M, Town of Fairchild, Eau Claire County, [is] owned by
       Alfred and Bill Marquardt.

Id. at 887 (alterations in original). The March 15 warrant application also

incorporated an affidavit that supported the March 13, 2000, search warrant of the

home of Alfred and Mary Marquardt, which stated:

              Inv. Price reports that on March 13, 2000, Chippewa County
       Sheriff’s Dispatch received a 911 call from 11766 State Hwy 178,
       Chippewa Falls, Township of Eagle Point. The caller identified
       himself as Alfred E. Marquardt, DOB 07/30/1946. Marquardt
       reported that his wife was apparently dead at the residence.
              Price continued that he responded to the Marquardt home and
       met with [Alfred] Marquardt. [Alfred] Marquardt relayed that he had
       left home at about 7 AM that morning and tried to call home about
       11:50. The phone was busy and remained so the remainder of the
       day. [Alfred] Marquardt stated that he left work early and returned
       home because of the busy phone and upon arrival, found his wife,
       Mary J. Marquardt covered with a blanket in the garage. She was
       cold and unresponsive and appeared to have a head wound.
              Price reports that a shell casing, tentatively identified as 9 mm,
       was observed on the premises.

Id. (alterations in original).

       The Wisconsin Supreme Court determined that although there was

insufficient probable cause for the warrant, the warrant was nonetheless supported

by sufficient indicia of probable cause to lead the officers to believe that the

warrant was valid, and therefore the Leon exception applied. Id. at 888. The

Wisconsin court stated that

                                         - 21 -
      [a] number of facts in the warrant application, along with reasonable
      inferences that law enforcement officers could draw from those facts,
      satisfy us that there is sufficient indicia of probable cause that the
      objects sought are linked with the commission of a crime, and that the
      objects sought will be found in the place to be searched.

Id. The Wisconsin court determined that four inferences could be drawn from the

warrant application: (1) because the application indicated Alfred Marquardt had

not seen or heard from Bill Marquardt since the location of the body two days

earlier, an officer could reasonably infer that Marquardt’s absence was suspicious;

(2) because the body was covered in a blanket, an officer could reasonably infer

that the killer was familiar with the victim; (3) because there was no indication in

the application of forced entry, sexual trauma, or missing valuables, an officer

could reasonably infer that the motive was not burglary or sexual assault; and (4)

because the phone had been off the hook all day, an officer could reasonably infer

that the killer had been inside the residence and was therefore someone the victim

knew. Id. Thus, the Wisconsin Supreme Court concluded that the good faith

exception applied and the evidence obtained during the March 15 and March 18

searches was admissible. Id.6

                          B. Admission of the Evidence




      6. The Wisconsin Supreme Court also found that the additional
requirements for application of the good faith exception in Wisconsin set forth in
Eason had been met. Marquardt, 705 N.W.2d at 889.

                                        - 22 -
      The ruling by a trial court on a motion to suppress is clothed with the

presumption of correctness. Murray v. State, 692 So. 2d 157, 159 (Fla. 1997). A

reviewing court must interpret the evidence and reasonable inferences and

deductions in the manner most favorable to sustaining the ruling of the trial court.

Id. “Appellate courts should accord a presumption of correctness to the trial

court’s rulings on motions to suppress with regard to the trial court’s determination

of historical facts, but appellate courts must independently review mixed questions

of law and fact that ultimately determine constitutional issues.” Schoenwetter v.

State, 931 So. 2d 857, 866 (Fla. 2006) (quoting Connor v. State, 803 So. 2d 598,

608 (Fla. 2001)).

      Marquardt alleged in his motion to suppress that the inference that there was

no forced entry could not be drawn based on the affidavit attached to the

application for the March 15 search warrant. Marquardt also alleged that the

magistrate who issued the warrant was misled because Alfred Marquardt said that

he had not seen Bill Marquardt since February 17, not that he had not seen him

since the discovery of the body. According to Marquardt, the good faith exception

to the exclusionary rule did not apply. In essence, Marquardt challenged the

conclusion of the Wisconsin Supreme Court on the applicability of the good faith

exception.




                                        - 23 -
      Evidence obtained in another state in conformity with the law of that state

and the federal constitution is admissible in a Florida court. See Echols, 484 So.

2d at 571. In Echols, evidence against the defendant was obtained in Indiana. Id.

The defendant alleged that the evidence was obtained in violation of Florida law,

and thus should be excluded. Id. This Court declined to apply the exclusionary

rule and stated that the interests of Florida would not be served by the exclusion of

relevant evidence that had been obtained lawfully in another state in conformity

with the law of that state and the United States Constitution. Id. This Court

explained that the primary purpose of the exclusionary rule is to deter police

misconduct, and that exclusion of the evidence in Florida would not have any

discernible effect on police officers in other states. Id. Therefore, the primary

purpose of the exclusionary rule would not be served by exclusion of the evidence.

      The March 15, 2000, search was conducted in Wisconsin by Wisconsin state

law enforcement.7 The Wisconsin Supreme Court determined that the evidence

Marquardt seeks to suppress was obtained in conformity with the good faith

exception articulated by the United States Supreme Court in Leon, and also in


      7. Wisconsin law enforcement again searched Marquardt’s cabin on March
18 and March 29, and searched Marquardt’s vehicle on March 18. Marquardt
alleges that the evidence obtained during these searches should also be suppressed
because they were supported by evidence obtained during the March 15 search.
Thus, the validity of these later searches is controlled by the determination with
respect to the March 15 search.


                                        - 24 -
conformity with the additional protections mandated by its decision in Eason.

Marquardt, 705 N.W.2d at 888.8 Thus, we hold that pursuant to Echols, the

evidence obtained by Wisconsin law enforcement was properly admitted. The

interests of Florida in the resolution of two cold murders would not be served by

the exclusion of relevant evidence that was lawfully obtained in Wisconsin because

application of the exclusionary rule in this case would not have any discernible

effect on deterring police misconduct, since Wisconsin law enforcement personnel

are not subject to Florida law.

                                  C. Franks Claim

      Marquardt next contends that the trial court should have held a Franks

hearing because the Wisconsin magistrate who issued the warrant was misled by

information in the affidavit that the affiant knew was false. Under Franks, a court

must grant a request for a hearing if the defendant makes a substantial preliminary


       8. We also note that Marquardt filed a petition for writ of habeas corpus in
the United States District Court for the Western District of Wisconsin. Marquardt
v. Dir., Mendota Mental Health Inst., 06-C-684-S, 2007 WL 528345, at *1 (W.D.
Wis. Feb. 14, 2007). The federal district court determined that Marquardt was
afforded a full and fair opportunity to litigate his Fourth Amendment claims in
Wisconsin. Id. at *2 (“In this case the record indicates that the Wisconsin Supreme
Court carefully addressed petitioner’s Fourth Amendment claim concerning the
search of his cabin finding that the good faith exception applied according to
United States v. Leon, 468 U.S. 897, 923 (1984), because the State had shown that
the process by which it obtained the search warrant included a significant
investigation. Petitioner had a full and fair opportunity to litigate his Fourth
Amendment claims in state court. Accordingly, petitioner’s petition for a writ of
habeas corpus must be dismissed. . . .”).

                                       - 25 -
showing that: (1) the affiant made a false statement either knowingly and

intentionally, or with reckless disregard for the truth; and (2) the false statement

was necessary to the determination that probable cause existed. 438 U.S. at 155-

56. Under Leon, the good faith exception cannot be applied if the affidavit that

supports the search warrant included knowing or reckless falsehoods. 468 U.S. at

914 (citing Franks, 438 U.S. at 155-56). Marquardt asserts that this issue was not

litigated in Wisconsin, and, therefore, the ruling of the Florida trial court that

collateral estoppel applied was erroneous.

      Marquardt requested a Franks hearing for the warrant in a Wisconsin trial

court. Marquardt, 705 N.W.2d at 885 n.8. During the review by the Wisconsin

Supreme Court, however, he did not request a remand for a Franks hearing, and the

Wisconsin Supreme Court held that Marquardt had conceded the issue, stating as

follows:

            Marquardt has not argued on appeal that the other three Leon
      disqualifying circumstances present a bar to the application of the
      good faith exception in this case. We take this as a concession that
      those disqualifying circumstances do not apply here.
            We note, however, that with respect to the Chippewa County
      case, Marquardt requested a hearing under Franks v. Delaware, 438
      U.S. 154 (1978), on the issue of whether the warrant application
      contained material misstatements and omissions. See State v.
      Marquardt, 635 N.W.2d 188. This issue corresponds to the first Leon
      disqualifying circumstance. See United States v. Leon, 468 U.S. 897,
      923 (1984) (citing Franks). The court of appeals did not reach the
      Franks issue, see Marquardt, 635 N.W.2d 188, and it appears that
      Marquardt has abandoned his argument on the applicability of the first
      Leon circumstance. Although he made minimal reference to Franks

                                         - 26 -
      and the first Leon circumstance in one of his briefs and at oral
      argument, he has not expressly argued that this court should decide
      whether the first Leon circumstance applies and he has not requested
      that this court remand for a Franks hearing.

Id. Marquardt now seeks a Franks hearing in Florida on the same warrant to

suppress the same evidence he sought to suppress in Wisconsin.

      Whether the magistrate was misled is part of the good faith analysis under

Leon. The Wisconsin Supreme Court engaged in a good faith analysis consistent

with Leon, determined that Marquardt had conceded the Franks issue, and held that

the good faith exception applied. Id. Thus, Marquardt abandoned this claim in

Wisconsin, where he had an opportunity to litigate it, and the Wisconsin Supreme

Court held that the evidence obtained as a result of the warrant was admissible

under Wisconsin law and the United States Constitution. Id. at 890. As a result,

the evidence was admissible in Florida pursuant to Echols.9

                         D. “Tipsy Coachman” Doctrine

      The trial court denied Marquardt’s motion to suppress based on collateral

estoppel and relied on Echols only as a secondary basis for the denial of the motion


       9. Additionally, a Wisconsin Court of Appeals considered the good faith
issue in an unpublished opinion that affirmed the denial of a postconviction motion
filed by Marquardt. State v. Marquardt, 776 N.W.2d 288, 2009 WL 3273234, at
*3-5 (Wis. App. Oct. 14, 2009) (unpublished opinion). The Wisconsin Court of
Appeals determined that the statements in the warrant affidavit were accurate and
concluded that the record did not support the allegation that the affiant intended to
mislead the magistrate. Id. at *4. The Wisconsin appellate court concluded that no
Franks violation occurred. Id.

                                       - 27 -
for reconsideration. Marquardt alleges that collateral estoppel does not apply. We

agree, although we nevertheless conclude that he is not entitled to relief on this

claim.

         Collateral estoppel applies when identical parties or their privies have

previously litigated the same issue. State v. McBride, 848 So. 2d 287, 290-91 (Fla.

2003) (citing Gentile v. Bauder, 718 So. 2d 781, 783 (Fla. 1998)). Collateral

estoppel requires that: (1) the identical issue was presented in a prior proceeding;

(2) the issue was a critical and necessary part of the prior determination; (3) there

was a full and fair opportunity to litigate the issue; (4) the parties to the prior action

were identical to the parties of the current proceeding; and (5) the issue was

actually litigated. Cook v. State, 921 So. 2d 631, 634 (Fla. 2d DCA 2005). The

parties in this case are the State of Florida and Marquardt. However, the parties in

the Wisconsin case were the State of Wisconsin and Marquardt. Thus, identity of

the parties is lacking, and collateral estoppel does not apply.

         Under the “tipsy coachman” doctrine, however, a trial court ruling that is

based on improper reasoning will be upheld if there is any basis in the record to

support the ruling. See State v. Hankerson, 65 So. 3d 502, 505 (Fla. 2011) (citing

Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)).

Thus, if the trial court reached the correct result based on the wrong reason, the

ruling may be affirmed. Here, the record supports the conclusion that the evidence


                                          - 28 -
was admissible pursuant to Echols, an additional basis asserted by the trial court

for its denial of the motion for reconsideration. Thus, the trial court correctly

denied the motion to suppress, and we affirm this ruling.

                           II. Actions of the Trial Court

      Marquardt next alleges that the trial court placed unreasonable restrictions

on him that entitle him to a new trial. When the State approached the close of its

case-in-chief, the trial court requested that Marquardt provide a list of witnesses

that he expected to present during his defense. The trial court stated:

      COURT: Okay. Jurors have left the courtroom. And as they leave
      the courthouse, they’ll be going in that direction? Okay. Mr.
      Marquardt, are you in a position to kind of give us an idea of what
      these witnesses that are coming up, at least for, let’s say, Friday
      morning?

      MARQUARDT: Um, um, you want to know the list of the witnesses?

      COURT: Well, let’s go ahead and let’s get a list of your witnesses
      again, and just if you could—and go slowly so I can write them down
      so I have notes here to go through.

Marquardt then began to list the witnesses that he expected to present. When he

finished, the trial court stated, “Okay. And Mr. Magrino [the prosecutor], are you

aware of basically what these witnesses are about, since these are the Florida

witnesses that may be available for Friday morning[?]” The prosecutor responded

that he was unaware of the legal relevance of some of the witnesses listed by

Marquardt. As a result, the trial court then asked Marquardt who the other


                                        - 29 -
witnesses were and what testimony they would offer. Ultimately, the trial court

stated: “Okay. Then subject, of course, to [the prosecutor] getting to talk to these

people, I realize that’ll make things move slower but soon enough, right and

correct.” The trial court did not request that the State prosecutor list which

witnesses he intended to present or what testimony they would offer.

      Marquardt admits that no objection was raised at the time the trial court

made the above-mentioned request, but contends that the inquiry created a

threatening atmosphere for Marquardt and resulted in fundamental error.

Marquardt asserts that the trial court placed additional requirements on him, and

that this exacerbated the handicaps he already experienced while representing

himself—a right which exists under Faretta and the Sixth Amendment.

      Because the issue was not preserved for appellate review by

contemporaneous objection, it is reviewed for fundamental error. F.B. v. State,

852 So. 2d 226, 229 (Fla. 2003). An error is fundamental only if it reaches down

into the validity of the trial itself to such an extent that a guilty verdict could not

have been obtained in the absence of the alleged error. Brooks v. State, 762 So. 2d

879, 899 (Fla. 2000).

      Every litigant is entitled to a neutral and impartial judge. State ex rel. Davis

v. Parks, 194 So. 613, 614 (Fla. 1939). A judge may not step away from the

appearance of neutrality and advocate for either party or interject himself or herself


                                          - 30 -
into the proceedings. See Williams v. State, 967 So. 2d 735, 750-51 (Fla. 2007).

To determine whether the Faretta rights of a defendant have been respected, a court

must focus primarily on whether the defendant had a fair opportunity to present his

or her case in his or her own way. McKaskle v. Wiggins, 465 U.S. 168, 177

(1984). Although a defendant ordinarily will lack the skill to conduct the trial as

neatly and competently as an attorney, this does not circumscribe the right of self-

representation. Bowen v. State, 677 So. 2d 863, 866 (Fla. 2d DCA 1996), app’d,

698 So. 2d 248 (Fla. 1997). At the same time, the authority and power of the trial

court to control the courtroom is not to be diminished by the defendant’s exercise

of his constitutional right of self-representation. Id.

      The record reflects that the trial court sought to maintain an orderly

courtroom and ensure that Marquardt presented only witnesses with legally

relevant testimony. The trial court originally asked Marquardt what witnesses he

planned to present during the first day of his defense and asked about their

testimony only when the State raised concerns about their relevancy or the

admissibility of their testimony. The prosecutor expressed concern that Marquardt

intended to present the witnesses in an effort to reinvestigate the case before the

jury. Indeed, in one exchange, Marquardt admitted that he did not know what one

of his witnesses would say:

      COURT: Do you really believe that [the proposed witness] is gonna
      come in here and say he’s the murderer?

                                         - 31 -
      MARQUARDT: Oh, no, I’m just going to question him and see if he
      was at the murder at the time of the murder and general questions.

      COURT: Right. Well, that would make [the proposed witness] under
      Florida law one of the murderers. You believe that he’s going to
      come in and say that or are you going on a fishing expedition?

      MARQUARDT: No. Well, I was just going to question him and
      general questions like that pretty much. I don’t know what he’s going
      to say on the stand, Your Honor.

      COURT: Well, then he’s not going to come in here unless you have
      talked to him and find out what he’s going to say. That’s your job not
      mine, so.

This exchange demonstrates the trial court was concerned that Marquardt sought to

conduct discovery on the witness stand. Shortly thereafter, in response to an

explanation by Marquardt of the testimony of another witness, the trial court

stated:

      But I guess what I’m trying to let you know but I can—there’s two
      things I’m trying to avoid. One, and this is not picking on you in any
      way. I do not want a case of this serious nature to be turned into a
      circus, and that’s quite frankly what could happen. I’m stepping past
      what I should as a neutral person to be telling you things that in a way
      are protecting you from making certain mistakes, but I’ve mentioned
      them.
             And 98.9 percent of what you’ve told me is not going to be
      admissible from this individual. And you need to understand that this
      person comes in here and testifies, I’m going to hold you to that
      standard, and if you—as I might have to do to a lawyer, if you step
      out of that, this is not meant to threaten you, then there may have to be
      some statement in front of the jury as to what you’re doing. That’s
      not going to create a great appellate issue. And quite frankly, I have a
      lot of defense attorneys come in and think they can do something
      bizarre in court and get some reaction from the judge that creates their

                                       - 32 -
      great, great appellate issue. And this was something that was
      upsetting me. It’s taught in seminars in this state, and it’s wrong. It’s
      horribly wrong and it’s part of the problem with the attorneys in this
      state. They don’t understand that is horribly wrong, and I can go into
      a lecture about what’s going on there, but nonetheless, if he comes on
      the stand and your questions are not correct, if foundation is not
      established, or if it calls for what would be a hearsay answer, and I do
      understand that the old saying is what questions can you ask and are
      not objected to. But if they’re objected to, they’ll be ruled on. Unless
      you hear overruled, that would be the end of it.
             And hopefully that’s explanatory enough to say you can have
      him here, but I don’t know what you’re going to get out of that.
      That’ll be your own—we’re not just going to keep calling people in
      here and send them right back out the door because questions are not
      correct. At some point, I will stop and again, we’ll have to send the
      jury home or let them out and have further discussion on that. That is
      not meant to be threatening in any way. That’s just to let you know
      how these cases work in Florida.

Again, this demonstrates that the trial court sought to ensure that the trial

proceeded in an orderly fashion, and also that Marquardt understood that if the

State objected, then some testimony he sought to present might not be admissible.

      Thus, we conclude that the request of the trial court that Marquardt provide a

list of his witnesses and explain their relevance was not an attempt by the trial

court to interject itself into the proceedings. Despite concerns that Marquardt may

not be able to elicit admissible testimony from the witnesses, the trial court did not

prevent Marquardt from presenting any witnesses, and Marquardt was allowed to

develop his defense in his own way. Additionally, this discussion took place

outside the presence of the jury and, therefore, did not taint the jury’s perception of

Marquardt’s defense. Thus, because the trial court did not depart from its neutral

                                         - 33 -
role or impede Marquardt’s right to self-representation, and the jury was not

exposed to these discussions, there is no way they impacted the verdict.

Accordingly, we hold that no fundamental error occurred.

      Marquardt also asserts that a comment made by the trial court while

Marquardt listed his witnesses created a threatening atmosphere. The trial court

made the following statement:

              Well, my concern with these folks is it looks like, and I hate to
      do this, and I’m not trying—and I’ll do it outside the presence of the
      jury, but each one of them will have to be informed of the penalties
      for perjury, that they fully understand, because there’s too many
      people that I’ve dealt with in the court system that do not understand.
      And well, I’m going to ask them just because I believe it was before
      you came to Hernando County, Mr. Magrino [the prosecutor], that
      your office got so aggressive on perjury cases in the court, but at one
      point there was—witnesses were getting arrested right and left that
      were committing perjury, which is what I think should happen. I
      mean, if they lie in a court, they should be arrested. And in fact, I
      would have no problem, they could say maybe someone with a greater
      mind that mine on legal knowledge may say, that’s not right to have
      them arrested right there when they lie, but I think it is. If they want
      to lie on this stand, they should be arrested on this stand.
              And I’m not doing that threatening, but we’re naming a lot of
      people here that, at least they’re risking it, and that’s five years. And
      just for knowledge here in Sumter County, somebody lied twice in
      this court and they got ten years because that’s two charges. So
      they’re now serving a ten-year sentence. And it happened to be in a
      case where they probably hadn’t lied, they wouldn’t have gotten but
      about the same so it ended up working out, I guess.

Marquardt did not object to this statement, and therefore it is also reviewed for

fundamental error. See F.B., 852 So. 2d at 229.




                                        - 34 -
      This statement was made outside the presence of the jury and any witnesses.

There is no evidence that Marquardt communicated the statement to any of the

witnesses, and the trial judge did not in fact warn any of the witnesses presented by

Marquardt of the penalties for perjury. As a result, none of the witnesses presented

by Marquardt could have been threatened by the statement. Additionally, the trial

court did not prevent Marquardt from presenting any of his witnesses. Therefore,

there is no evidence in the record that this statement had any effect on the trial or

created a threatening atmosphere, let alone reached down into the validity of the

trial. Accordingly, we hold that no fundamental error occurred.

                         III. Statement by the Prosecutor

      During direct examination of the medical examiner, the State offered several

autopsy photos of Ruiz and Wells into evidence. Marquardt objected to the photos

for being too explicit. The following exchange occurred:

      PROSECUTOR: Judge, I’d offer R for identification into evidence.

      COURT: That would be, I think at this point would be State’s—

      THE CLERK: Fifteen.

      COURT: Any objection?

      MARQUARDT: Yes, Your Honor. I don’t like autopsy photos being
      admitted, they’re too explicit or not.

      PROSECUTOR: Judge, if he’s got a legal objection, that’s fine.
      That’s evidence involved in this case as a result of what he did, and
      that’s something that I have to prove to these members of the jury.

                                         - 35 -
      COURT: As to the objection then, is overruled and that will be
      State’s 15 in evidence.

(Emphasis supplied.) Marquardt contends that the prosecutor improperly

expressed his personal belief as to Marquardt’s guilt. While he admits that no

objection was made to this comment, Marquardt asserts on appeal that this

statement was nevertheless improper and constitutes fundamental error.

      We hold that the statement by the prosecutor was not improper. Notably,

after the prosecutor stated that the autopsy photos were “a result of what

[Marquardt] did,” the prosecutor concluded with the statement “and that’s

something that I have to prove to these members of the jury.” Thus, the prosecutor

actually maintained that he was required to prove that Marquardt was guilty based

on the evidence and sought to do so through the introduction of autopsy photos.

Autopsy photos are relevant evidence that may be presented during a murder trial.

See Henderson v. State, 463 So. 2d 196, 200 (Fla. 1985).

      Marquardt relies upon three cases as examples of improper prosecutorial

statements. However, the statements in these cases were evidently improper and

not accompanied by an acknowledgement that the burden of establishing the guilt

of the defendant is on the State. See Martinez v. State, 761 So. 2d 1074, 1081 (Fla.

2000) (holding that the prosecutor improperly asked a detective his opinion on the

defendant’s guilt, and then commented on the detective’s opinion during closing


                                        - 36 -
argument); Gore v. State, 719 So. 2d 1197, 1201 (Fla. 1998) (holding that the

prosecutor made numerous improper, accusatory, and sarcastic statements to the

defendant during cross-examination); State v. Ramos, 579 So. 2d 360, 362 (Fla.

4th DCA 1991) (holding that the prosecutor intentionally created the impression

that the defendant was a suspect in an ongoing narcotics investigation and a

kingpin supplier of narcotics). In contrast, the statement by the prosecutor in this

case affirmatively recognized that the State has the burden of proof of guilt and did

not place in jeopardy Marquardt’s right to be tried solely based on the evidence

presented to the jury. Thus, we hold that no fundamental error occurred.

                         IV. Sufficiency of the Evidence

      This Court is required to independently review the sufficiency of the

evidence in every case for which a sentence of death has been imposed. See Blake

v. State, 972 So. 2d 839, 850 (Fla. 2007); see also Fla. R. App. P. 9.142(a)(5). To

determine the sufficiency of the evidence, this Court reviews the evidence

presented in the light most favorable to the State and determines whether a rational

trier of fact could have found the existence of the elements of the crime beyond a

reasonable doubt. Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001) (citing Banks

v. State, 732 So. 2d 1065, 1068 n.5 (Fla. 1999)).

      Here, the killer began shooting from outside of the victims’ house. He

injured Ruiz, then entered the house when she fled in order to complete the killing.


                                        - 37 -
Although the record contains no evidence with respect to motive, the record

reflects that DNA from Marquardt was found inside the victims’ house, mixed with

the victims’ blood. Additionally, the victims’ blood was found on clothes, shoes,

and a knife seized from Marquardt upon his arrest in Wisconsin, as well as in

Marquardt’s car. Further, the gun that killed the victims was found in Marquardt’s

cabin. Finally, the evidence suggested that Marquardt, who lived in Wisconsin at

the time of the murders, was in Florida on the date the victims were killed.

      Accordingly, we conclude that the record provides sufficient evidence from

which a rational trier of fact could convict Marquardt of the first-degree murder of

Ruiz and Wells, as well as burglary of a dwelling with a firearm. We therefore

affirm his convictions.

                          V. Aggravating Circumstances

      Marquardt next challenges the trial court’s finding of two aggravating

circumstances during the penalty phase. We first set forth the applicable standard

of review for this claim, then analyze each aggravator in turn.

                              A. Standard of Review

      This Court will uphold the finding of the trial court with respect to an

aggravating circumstance if it is supported by competent, substantial evidence.

Guardado v. State, 965 So. 2d 108, 115 (Fla. 2007). We do not reweigh the

evidence to determine whether each aggravating circumstance was proven by the


                                       - 38 -
State beyond a reasonable doubt. Rather, we review the record and determine

whether the correct law was applied for each aggravating circumstance and

whether the finding of that aggravating circumstance is supported by competent,

substantial evidence. Aguirre-Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009)

(citing Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)).

                                       B. CCP

      Marquardt’s first penalty-phase challenge is to the trial court’s finding of the

CCP aggravating circumstance. For a finding of CCP by the trial court to be

considered legally sufficient, the evidence must satisfy a four-part test:

      (1) [T]he killing must have been the product of cool and calm
      reflection and not an act prompted by emotional frenzy, panic, or a fit
      of rage (cold); and (2) the defendant must have had a careful plan or
      prearranged design to commit murder before the fatal incident
      (calculated); and (3) the defendant must have exhibited heightened
      premeditation (premeditated); and (4) there must have been no
      pretense of moral or legal justification.

Lynch v. State, 841 So. 2d 362, 371 (Fla. 2003) (citing Evans v. State, 800 So. 2d

182, 192 (Fla. 2001)). For CCP to apply, the defendant must have committed the

murder in a deliberate, professional, and coldly calculating manner. Williams v.

State, 37 So. 3d 187, 197 (Fla. 2010) (citing Mahn v. State, 714 So. 2d 391, 398

(Fla. 1998)). Facts such as advance procurement of a weapon, lack of resistance or

provocation by the victim, and the appearance of a killing conducted as a matter of




                                        - 39 -
course support the CCP aggravator. Franklin v. State, 965 So. 2d 79, 98 (Fla.

2007).

      The cold element of CCP is established where the murder is not committed

in the heat of passion. See Wright v. State, 19 So. 3d 277, 299 (Fla. 2009). Here,

the record is devoid of any evidence that Marquardt acted out of frenzy, panic, or

rage. Indeed, the record reflects that Marquardt began shooting Ruiz even before

he entered the house and, thus, there was no opportunity for provocation. We

conclude that the cold element of CCP is supported by the record.

      The calculated element of CCP is established where the killer arms himself

in advance, kills execution-style, and has time to coldly and calmly decide to kill.

See Hertz v. State, 803 So. 2d 629, 650 (Fla. 2001); see also Knight v. State, 746

So. 2d 423, 436 (Fla. 1998). This Court has stated that calculation means to plan

beforehand, to think out, design, prepare, or adopt by forethought or careful plan.

Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987). The record reflects that

Marquardt procured two weapons before he arrived at the victims’ house. He then

travelled to the house and began to shoot into the house from outside. This

supports the conclusion that Marquardt approached the house with the prearranged

design to shoot and kill any occupants. Therefore, we conclude that competent,

substantial evidence supports the calculated prong of CCP.




                                        - 40 -
      Finally, the heightened premeditation element of CCP requires

premeditation over and above what is required to prove the crime of first-degree

murder. Farina v. State, 801 So. 2d 44, 54 (Fla. 2001). Heightened premeditation

requires that the murderer fully contemplate effecting the victim’s death. See

Smith v. State, 28 So. 3d 838, 867 (Fla. 2009) (citing Geralds v. State, 601 So. 2d

1157, 1163 (Fla. 1992)). In this case, the evidence demonstrates that Marquardt

armed himself with both a firearm and a knife before he arrived at the victims’

house. He then approached the house and shot Ruiz through the screen door. He

pursued her through the house and ensured that she died by shooting her again and

stabbing her multiple times. After doing so, he shot and stabbed Wells. There is

no evidence that Marquardt intended to do anything other than murder the

occupants of the house. We have previously held that such actions may support

the heightened premeditation element of CCP. See Turner v. State, 37 So. 3d 212,

226 (Fla. 2010). Accordingly, we reject this claim.

                                      C. HAC

      Marquardt next contends that the HAC aggravating circumstance is not

supported by the evidence for the murders of either Ruiz or Wells. For the HAC

aggravating circumstance to apply, the crime must have been conscienceless or

pitiless and unnecessarily torturous to the victim. Francis v. State, 808 So. 2d 110,

134 (Fla. 2001). “[T]he HAC aggravator focuses on the means and manner in


                                        - 41 -
which death is inflicted and the immediate circumstances surrounding the death.”

Hernandez v. State, 4 So. 3d 642, 669 (Fla. 2009) (quoting Brown v. State, 721 So.

2d 274, 277 (Fla. 1998)). Although the HAC aggravating circumstance normally

does not apply if the victim died instantaneously, events preceding the death that

cause the victim fear, emotional strain, and terror may render an otherwise quick

death especially heinous, atrocious, and cruel. James v. State, 695 So. 2d 1229,

1235 (Fla. 1997). We have consistently upheld the HAC aggravator where the

victim was repeatedly stabbed. Francis, 808 So. 2d at 134.

      Ruiz was shot twice in the chest while she was in the kitchen of her house.

The shots punctured her lung and would have caused her to cough up blood within

seconds. She would have had difficulty breathing. One of the gunshots fired in the

kitchen first grazed her thumb before it punctured her chest, as though she had her

hand raised in front of her chest to open the door. The medical examiner could not

speculate on her mental capacity, but stated, “generally speaking, she’s shot, she

probably realized she was and ran, like anybody else would.” After the first two

shots, Ruiz ran through the dining room and living room before she was shot a

third time in her back. This shot severed her spinal cord and caused her to

collapse. After she had been shot three times, she was stabbed three times in the

neck while still conscious. Therefore, the record supports the conclusion of the




                                       - 42 -
trial court that Ruiz suffered extreme physical pain as well as severe emotional

distress due to her wounds.

      Moreover, Ruiz knew that her daughter, granddaughter, and grandson were

all in the house at the time of the attack. Ruiz knew that she had been shot and

stabbed, and was likely going to die, and undoubtedly experienced extreme fear for

what would happen to her family. See Francis, 808 So. 2d at 135 (“[A]lthough the

evidence did not establish which of the two victims was attacked first, the one who

was first attacked undoubtedly experienced a tremendous amount of fear, not only

for herself, but also for what would happen to her twin.”). Thus, competent,

substantial evidence exists to demonstrate that HAC was properly found with

respect to Ruiz.

      In contrast, Wells died quickly. The medical examiner testified as follows

during the Spencer hearing:

              Well, the whole dying process for Ms. Ruiz is longer. She’s got
      two wounds, she moves, she’s dropped and then stabbed. I think Ms.
      Wells was probably quicker, at least as far as her brain is concerned,
      because it’s just one gunshot wound, intermediate range, hits her left
      carotid artery, pretty much destroys the carotid artery. She’s going to
      go down in five to eleven seconds. Once she’s down, there may be a
      period of consciousness for a period of time, but not very long.
              As opposed to her mom probably would have lived a little bit
      longer. There is going to be a little better blood flow to her brain, so
      if the incidents occurred at the same time, within moments, I think
      that the older woman probably lived a little longer than the younger
      woman.
              You can almost see that from the blood that spilled. The blood
      spilled underneath the younger woman is a bigger pool, and that’s

                                       - 43 -
      blood that should be going to her brain. While the older woman, Ms.
      Ruiz, does have internal bleeding, but, again, it’s not a destroyed
      major artery to her brain. So as far as the brain is concerned probably
      consciousness left Ms. Wells before Ms. Ruiz, if that’s your question.

The record does not contain any evidence with respect to whether Wells witnessed

her mother being shot and stabbed, whether she was aware that her mother was

pursued through the house by a shooter, or whether she was aware that she would

be attacked after her mother. She was shot once at a close range and would have

lost consciousness shortly thereafter. Although the medical examiner testified that

Wells would have experienced a short period of consciousness, he did not testify as

to how long she was conscious, or whether she was conscious while she was

stabbed. Therefore, the record does not contain competent, substantial evidence

that Wells’s murder was unnecessarily tortuous, or that she experienced sufficient

fear, emotional strain, and terror to justify the application of HAC. Accordingly,

we conclude that the trial court erred when it found the HAC aggravating

circumstance with respect to Wells.

      Nonetheless, we conclude that this error is harmless beyond a reasonable

doubt. See Hall v. State, 107 So. 3d 262, 278 (Fla. 2012) (“When an aggravating

factor is stricken on appeal, the harmless error test is applied to determine whether

there is no reasonable possibility that the error affected the sentence.”). Despite

striking HAC, three weighty aggravating circumstances remain with respect to the

murder of Wells: CCP, murder committed during the course of a burglary, and a

                                        - 44 -
prior violent felony conviction. Based on the aggravation and mitigation found

and weighed by the trial court, we conclude that there is no reasonable possibility

that the error in finding HAC as to Wells affected the jury’s recommendation or

the ultimate sentence imposed by the trial court for her murder.

                           VI. Attorney-Client Privilege

       Marquardt next challenges the appointment of his standby counsel, Charles

Vaughn, along with the investigators retained by Marquardt during the guilt phase,

to assist the trial court during the penalty phase. Vaughn was counsel for

Marquardt from July 29, 2010, through September 30, 2010, and then became

standby counsel after Marquardt elected to proceed pro se. He remained standby

counsel for the duration of the trial.

       When Marquardt chose not to present evidence in mitigation during the

penalty phase, the trial court appointed Vaughn, as well as the investigators

retained by Marquardt during the guilt phase, to assist the trial court during the

penalty phase. Marquardt objected to their appointment, alleging that this posed a

conflict of interest.

       On appeal, Marquardt contends that his attorney-client privilege was

violated when Vaughn was appointed over his objection to present evidence in

mitigation to aid the trial court. Further, Marquardt asserts that because the

attorney-client privilege extends to investigators who assist counsel, the privilege


                                         - 45 -
was also violated by the appointment of Marquardt’s investigators to assist the trial

court.

         We conclude that no reversible error occurred and that Marquardt is unable

to demonstrate any prejudice from the presentation of mitigation evidence during

his sentencing proceedings. Under this Court’s decision in Muhammad v. State,

782 So. 2d 343, 363-65 (Fla. 2001), which authorized trial courts to use standby

counsel for the “limited purpose” of informing the court of and presenting

mitigation, the trial court followed the law when it appointed standby counsel and

Marquardt’s investigators to assist the court in its obligation to consider mitigation

evidence, as the trial court is required to do even when the defendant refuses to

present mitigation. See id. at 363.

         As a remedy for the alleged violation of his attorney-client privilege,

Marquardt seeks a new penalty phase before a new judge. However, he has no

right to this type of relief. Marquardt waived the presentation of mitigation

evidence and is unable to demonstrate how the death sentence that was imposed,

based in part on the trial court’s consideration of the mitigation evidence presented

through standby counsel, was compromised by the procedure the trial court

followed.

         In fact, Marquardt does not explain why a new penalty phase would be

warranted, where he could either reverse course and present mitigation that he


                                          - 46 -
previously made a knowing and voluntary decision to waive, or have no mitigation

evidence considered by the trial court in violation of the requirements this Court

has articulated for death penalty cases. In other words, Marquardt is not entitled to

a new penalty phase where he can present mitigation because he has already made

a knowing and voluntary waiver of mitigation, and he is not entitled to a new

penalty phase without the trial court’s consideration of any mitigation because trial

courts are required to consider mitigation evidence during the penalty phase of a

capital trial, even when the defendant waives the presentation of mitigation.

      Moreover, there is no evidence that any confidential attorney-client

information or communications were divulged. As the State points out, standby

counsel was “not required to disclose confidential information about his former

client, use confidential information in a way that disadvantaged his former client,

or act in a manner that was against his former client’s objective best interest.”

Marquardt v. State, No. SC12-555, Answer Br. of Appellee at 78 (Fla. Aug. 12,

2013). Instead, the evidence presented to the trial court was evidence that the trial

court was required to consider in order to fulfill its sentencing obligation under

Muhammad.

      Nevertheless, while no error occurred, we recognize the tension that may

exist when standby counsel is appointed by the trial court, even as an “officer of

the court” and not as counsel for the defendant, to assist the court in its


                                         - 47 -
consideration of mitigation evidence. Muhammad, 782 So. 2d at 364 & n.15. In

order to avoid any appearance or potential of a conflict of interest, and to foster

uniformity in the procedures to be followed in all cases where the defendant

waives mitigation, we take this opportunity to prospectively modify Muhammad in

one important respect.

      Rather than utilizing standby counsel to present mitigation, the trial court

should appoint an independent, special counsel to represent the public interest in

bringing forth all available mitigation for the benefit of the jury, the trial court, and

this Court, in order to assist the judiciary in performing its statutory and

constitutional obligations in death penalty cases. This procedure will ensure that

all available mitigation evidence is placed in the record at the time of the original

sentencing proceeding, but will not prevent the defendant himself or herself from

arguing in favor of the death penalty. We therefore recede from Muhammad to the

extent we stated that the trial court could utilize standby counsel to present

mitigation. See Muhammad, 782 So. 2d at 364 (“[T]he trial court has the

discretion . . . to utilize standby counsel for th[e] limited purpose [of presenting

mitigation].”).

      In all other respects, we adhere to the procedures set forth in Muhammad,

which have served this state well for over a decade in ensuring “reliability,

fairness, and uniformity in the imposition of the death penalty in these rare cases


                                         - 48 -
where the defendant waives mitigation.” Id. at 363. Accordingly, trial courts must

continue to require the preparation of a meaningful, comprehensive presentence

investigation report (PSI) in every case where the defendant is not challenging the

imposition of the death penalty and refuses to present mitigation evidence. The

PSI “should include information such as previous mental health problems

(including hospitalizations), school records, and relevant family background.” Id.

The trial court should also require the State “to place in the record all evidence in

its possession of a mitigating nature such as school records, military records, and

medical records.” Id. at 363-64. If the PSI and the accompanying records alert the

trial court to the probability of significant mitigation, the trial court has the

discretion either to call its own witnesses or, in light of our modification today, to

appoint an independent, special counsel, who can call witnesses to present

mitigation evidence. This procedure will continue to help ensure that every death

sentence in this state is reliable, proportionate, and imposed in accordance with all

constitutional and statutory directives, while avoiding any tension that may exist if

standby counsel is used for the limited purpose of presenting mitigation.

                        VII. Proportionality of the Sentence

      Finally, this Court is required to conduct a comprehensive review of each

death sentence to determine whether the murder falls within the category of both

the most aggravated and the least mitigated of murders. See Anderson v. State,


                                          - 49 -
841 So. 2d 390, 407-08 (Fla. 2003). This review assures uniformity in the

application of the death sentence. See id. We review the totality of the

circumstances and compare the case to other capital cases. Williams, 37 So. 3d at

205 (citing Offord v. State, 959 So. 2d 187, 191 (Fla. 2007)). This analysis does

not involve a quantitative comparison between the number of aggravating and

mitigating factors, but rather requires a qualitative review of the underlying basis

for each aggravating factor and mitigating factor. Id.

      This case involves a double homicide, where Marquardt was convicted of

the murders of Ruiz and Wells. The trial court found four statutory aggravating

circumstances, which we have upheld, as to the murder of Ruiz: (1) HAC (great

weight); (2) CCP (great weight); (3) the murders were committed while Marquardt

was engaged in the commission of a burglary (great weight); and (4) Marquardt

had previously been convicted of another felony involving the use or threat of

violence (aggravated burglary) (some weight). See §§ 921.141(5)(b), (d), (h), (i),

Fla. Stat. The trial court found the same four aggravating circumstances as to the

murder of Wells, except that we have stricken HAC.

      These aggravating circumstances were weighed against various mitigating

circumstances. The trial court found two statutory mitigating circumstances: (1)

the capacity of Marquardt to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law was substantially impaired


                                        - 50 -
(some weight); and (2) the existence of any factors in Marquardt’s background that

would mitigate against imposition of the death penalty based on Marquardt being a

law abiding citizen who was close to his family before there were reported

instances of criminal activity (minimal weight) and was never previously violent

toward anyone (minimal weight). See §§ 921.141(6)(f), (h), Fla. Stat. The trial

court additionally found two nonstatutory mitigating circumstances: (1)

Marquardt’s good behavior during the proceedings (minimal weight); and (2)

Marquardt’s good behavior while in jail (minimal weight).

      The trial court’s finding of the statutory mitigating circumstance that

Marquardt’s capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was substantially impaired was based

entirely on Marquardt’s earlier commitment to a mental health facility by a court in

Wisconsin. This was the only evidence offered with respect to Marquardt’s mental

health. In this regard, the trial court noted as follows:

      The Defendant was examined by a psychologist on two different
      occasions, in September, 2010, and July, 2011, in which he was found
      competent to proceed. . . . The record appears to support the finding
      that Defendant was committed to a mental health facility in the animal
      mistreatment case in lieu of being incarcerated. Neither the
      Defendant nor the State has proffered any additional evidence that the
      Defendant did not have the capacity to appreciate the criminality of
      his conduct or that his ability to conform his conduct to the
      requirements of the law was substantially impaired. Based upon the
      minimal evidence presented to this Court, this mitigator is given some
      weight.


                                         - 51 -
      In contrast, the evidence supports four aggravating circumstances with

respect to the murder of Ruiz, and three aggravating circumstances with respect to

the murder of Wells. HAC, CCP, and a prior violent felony conviction are among

the weightiest aggravating circumstances. See Kocaker v. State, 119 So. 3d 1214,

1232 (Fla.), cert. denied, 133 S. Ct. 2743 (2013); see also Wright, 19 So. 3d at 304

(“[T]he CCP aggravator is one of the most serious aggravators provided by the

statutory sentencing scheme.”).

      Prior precedent of this Court supports the death sentence as a proportionate

punishment for both killings. This Court has previously found the death sentence

proportionate in cases of double homicides. See Robards v. State, 112 So. 3d

1256, 1273 (Fla. 2013) (finding the death sentences proportionate in a double

homicide where three aggravating circumstances—prior violent felony based on

the contemporaneous murder of the second victim, pecuniary gain, and HAC—

were weighed against ten nonstatutory mitigating circumstances, including mental

health issues); see also Francis, 808 So. 2d at 141 (finding death sentences

proportionate in a double homicide where four statutory aggravating

circumstances—prior violent felony based on the contemporaneous murder of the

second victim, murders committed during the commission of a robbery, HAC, and

the victims were particularly vulnerable due to advanced age—were weighed

against two statutory mitigating circumstances and three nonstatutory mitigating


                                       - 52 -
circumstances, including that the defendant was mentally ill or emotionally

disturbed, and his ability to conform his conduct to the requirements of the law

may have been impaired).

      Further, this Court has determined a death sentence to be proportionate even

where the statutory mental health mitigators have been established. See Brant v.

State, 21 So. 3d 1276, 1285, 1287 (Fla. 2009) (concluding that the defendant’s

“impairment due to abnormal brain functioning and drug use, while mitigating, is

not so mitigating as to make his death sentence disproportionate,” where two

aggravating circumstances—HAC and the murder was committed during a sexual

battery—were weighed against three statutory mitigating circumstances and ten

nonstatutory mitigating circumstances); see also Diaz v. State, 860 So. 2d 960, 971

(Fla. 2003) (finding death sentence proportionate where two aggravating

circumstances—CCP and prior violent felony—were weighed against five

statutory mitigating circumstances, including extreme mental or emotional

disturbance); Rogers v. State, 783 So. 2d 980, 987, 1002-03 (Fla. 2001) (holding

death sentence proportionate where the trial court found pecuniary gain and HAC

aggravating circumstances, six nonstatutory mitigating circumstances, and the

statutory mitigating circumstance of impaired ability to appreciate criminality of

conduct or conform conduct to the requirements of the law based on psychosis,

brain damage, psychological disease, and alcohol abuse).


                                       - 53 -
      Thus, we conclude that the death sentence is proportionate in this case for

both murders.

                                 CONCLUSION

      Based on the foregoing, we affirm Marquardt’s convictions and sentences.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Sumter County,
     William Henry Hallman, III, Judge - Case No. 602006CF000768CFAXFX

James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida,

      for Appellee




                                       - 54 -
