Lead Opinion
This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. OVERVIEW
David Byron Russ pleaded guilty to the first-degree murder of Madeleine Leinen. Prior to the penalty phase, Russ waived his right to present mitigation and waived his right to a penalty phase jury. The trial court accepted his waiver and sentenced Russ to death. On direct appeal, Russ raises two issues: (1) whether the trial court followed this Court’s procedures and considered all properly presented mitigation, and (2) whether the trial court erred in finding the aggravators and miti-gators, that the evidence is sufficient, and that the death sentence is proportionate. For the reasons expressed below, Russ is not entitled to relief.
II. FACTS AND PROCEDURAL HISTORY
On February 6, 2008, Russ, pleaded guilty to the May 7, 2007, first-degree murder of Madeleine Leinen.
Shortly before midnight on the evening of May 6, 2007, Longwood Police Officer Brad Tollas noticed a white Jeep Cherokee parked in the parking lot of a business on Bennett Road. He approached the vehicle and observed the Defendant, David Russ, asleep in the driver’s seat. Russ had been on a ten day crack binge, and had cocaine and a crack pipe in the center console of the jeep.
Officer Tollas knocked on the darkly tinted window of the jeep and the Defendant responded saying he was “okay.” When Officer Tollas asked him to roll down the window, the Defendant started the jeep and drove away at a high rate of speed. Officer Tollas pursued the jeep and caught up with it in the Meadows West subdivision. He observed the vehicle, which was traveling at 5-10 mph, come to an abrupt stop. No one was found in the vehicle, and the defendant was not located after a search of the area was conducted. The jeep was abandoned about one block from the victim Madeleine Leinen’s home ... in Longwood.
After fleeing on foot, David Russ spent the night on the rooftop of a house adjacent to the victim’s. Early the next morning, he observed Madeleine Leinen leave for work. It was at that precise moment she was selected as his victim.
Madeleine Leinen returned to her home shortly after 6:00 p.m. after stop*184 ping as Sam’s Club in Casselberry. At Sam’s Club, the victim purchased both perishable and nonperishable items. A Sam’s Club receipt detailing the items purchased and noting a checkout time of May 7, 2007, at 5:35 p.m. was on the kitchen counter. Frozen shrimp which were purchased were placed in the freezer and other items purchased were found on a box in the garage and on the kitchen counter.
After killing the victim, the defendant took her Toyota Camry and drove straight to the Fairwinds Credit Union in Apopka. There he attempted unsuccessfully to withdraw money from her account at an automatic teller machine. His efforts were captured by a video surveillance camera. The defendant then left Florida heading towards Texas.
Early on the morning of May 8, 2007, the victim’s lifeless body was found face-down on the floor in her hall bathroom by a friend. The victim’s hands and feet were tightly bound with rope and a rope ligature was around her neck.
The medical examiner observed injuries to the victim consistent with strangulation from the neck ligature. He also noted three lacerations to the victim’s scalp which he attributed to blunt force trauma. Four stab wounds, three to the victim’s back and one to the head were also found. Additionally, the victim suffered facial bruising, fractured ribs, and a dislocated clavicle in the attack. The cause of death was attributed to multiple injuries resulting from blunt force trauma, stab wounds, and strangulation with a ligature.
Enroute to Texas, the Defendant pawned various items of the victim’s jewelry and continued his crack binge by purchasing drugs along the way. The victim’s car was recovered in Gainesville, Texas. Items of her jewelry which had been pawned by the Defendant on May 11, 2007, were recovered at a pawn shop in Denton, Texas. The Defendant was arrested by the sheriffs department in Denton, Texas on May 16, 2007.
Guilt Phase
The Plea Hearing
Russ was indicted on the following charges (count 1) first-degree premeditated murder, (count 2) kidnapping with a deadly weapon, (count 3) carjacking, (count 4) robbery with a deadly weapon, and (count 5) burglary with assault or battery. At his first appearance, Russ pleaded not guilty to the charges against him and was appointed a public defender. Subsequently, on February 6, 2009, the trial court conducted a plea hearing where Russ withdrew his pleas of not guilty and tendered a plea of guilty as charged to counts 1, 2, 4, and 5, and pleaded guilty to the lesser included offense of grand theft as to count 3. The plea did not contain any sentencing agreements between Russ and the State and Russ was aware that the State intended to seek imposition of the death penalty despite his plea. The trial court requested, and the State furnished, a factual basis for the plea. Trial counsel stipulated that the State could establish the proffered evidence by competent evidence and Russ agreed with the facts offered by the State. The trial court found that Russ was “alert and intelligent” and that the plea was “freely and voluntarily made with knowledge of the consequences after advice of competent counsel.”
Waiver
On April 9, 2008, at Russ’s request, trial counsel informed the trial court that Russ wanted to waive the presentation of all mitigation during the penalty phase and the penalty phase jury. On April 14, 2008, the trial court conducted a status conference and discussed Russ’s desire to waive
On April 30 and May 1, 2008, the trial court conducted a Koon
On May 14, 2008, Russ wrote a letter to Judge Alva. Among other things, the contents of the letter expressed Russ’s guilt, described the crime, stated that the crime was premeditated, and again requested that the trial court accept his waiver of the presentation of mitigation during the penalty phase.
The trial court conducted a status conference on August 7, 2008. At that time, special counsel requested that the trial court enter an order or ask Russ to cooperate so that he could be evaluated by a neuropsychologist. Special counsel informed the trial court that on various occasions, special counsel, investigators, and doctors had gone to the jail, but noted that each time they went, Russ refused to speak with any of them. The trial court asked Russ if he would cooperate, but Russ refused to undergo an evaluation and also refused to submit to a PET scan.
On August 27, 2008, the State filed a “Notice of Intent to Offer Evidence of Other Crimes, Wrongs, or Acts.” The State sought to introduce evidence regarding Russ’s criminal actions prior to and after the murder of Leinen. Specifically, the State sought to introduce the following evidence: (1) evidence that Russ broke into a woman’s home in Texas after the murder of Leinen with the intent to commit a felony therein; (2) Russ was in possession of cocaine on May 6, 2007; (3) Russ was in possession of drug paraphernalia on May 6, 2007; and (4) Russ was loitering or prowling on May 7, 2007. Russ filed a motion in limine requesting the trial court to prohibit the State from offering evidence related to the crimes listed in the notice of intent. The trial court reserved ruling on the motion until the evidence was proffered during the penalty phase.
On November 23, 2008, Russ wrote another letter to Judge Alva indicating his desire to waive the presentation of mitigation and jury during the penalty phase.
In response to Russ’s motion in limine, the State proffered the testimony of three witnesses. After argument, the trial court excluded the evidence regarding Russ’s convictions for fleeing and eluding a police officer and for possession of cocaine and drug paraphernalia. The trial court reserved ruling on the motion in limine re
Penalty Phase
Russ’s penalty phase trial was conducted on Januaiy 8 and 9, 2009. There, the State presented Russ’s May 14, 2008, letter to Judge Alva. The State also proffered evidence regarding the crime Russ committed in Texas shortly after the Leinen murder. However, the trial court later determined that that proffer was irrelevant and declined to consider it.
During the penalty phase, the State called seven witnesses. Special counsel participated in the penalty phase trial by (1) presenting prison medical records from previous incarcerations, (2) developing four witnesses’ testimony through cross-examination, and (8) arguing against imposition of the death penalty and noting a number of potentially mitigating factors.
Spencer
On January 15, 2009, the trial court conducted a Spencer hearing.
During the Spencer hearing, special counsel presented the following mitigation evidence: (1) Russ suffered from a long-term severe addiction to illegal drugs; (2) the crimes of conviction were the result of a long history of drug abuse and a direct result of said addiction; (3) Russ was severely physically abused as a child by his father; (4) Russ was verbally abused as a child by his father; (5) Russ had the capacity to form and maintain loving relationships with family members, before and after incarceration; (6) Russ was a devoted brother; (7) Russ was a devoted son to his mother; (8) Russ suffered from multiple medical problems, including: (a) a thyroid condition, (b) hepatitis C, (c) head trauma, (d) severe headaches, (e) vertigo, (f) vision problems, (g) dental problems, (h) heart attack, (i) allergies, (j) kidney stones, (k) chronic acid reflux, (l) asthma, and (m) degenerative disc disease; (9) Russ made numerous attempts to cure his drug addiction by going to multiple drug rehabilitation programs; (10) Russ was spending $500-600 each week on cocaine prior to the crimes of conviction; (11) Russ suffered from undiagnosed mental illness due to his physical abuse and drug use; (12) Russ pleaded guilty to the crimes and accepted responsibility in this matter; (13) Russ behaved appropriately in the courtroom; (14) Russ obtained his high school GED; (15) Russ had the trade skill of being a roofer; (16) Russ suffered from
Sentencing Order
On May 13, 2009, the trial court entered its sentencing order. In the order, the trial court noted that Russ entered a plea of guilty to all charges and that he waived the penalty phase jury. The trial court relied on Russ’s description of the events surrounding the murder in addition to other evidence.
The trial court found the existence of the following aggravating circumstances: the capital felony was (1) committed while the defendant was engaged in the commission of a kidnapping (significant weight), (2) committed for pecuniary gain (moderate weight), (3) especially heinous, atrocious, or cruel (HAC) (great weight), and (4) was committed in a cold, calculated, and premeditated manner (CCP) (great weight). The trial court rejected the aggravating factor that the murder was committed to avoid lawful arrest, finding that the State failed to prove that aggravating factor beyond a reasonable doubt.
The trial court found the existence of the following statutory mitigators: (1) Russ had an abusive childhood (moderate weight), and (2) Russ suffered from severe, long-term addiction to drugs which he was unable to conquer despite numerous attempts at rehabilitation (some weight).
Finally, the trial court found the existence of the following nonstatutory miti-gators: (1) the defendant was remorseful for the homicide (moderate weight), (2) the defendant suffered from multiple medical problems (very little weight), (3) the defendant had the capacity to form and maintain loving and caring relationships with both family and nonfamily members (little weight), (4) the defendant had pursued higher education and was skilled in the roofing trade (little weight), (5) the defendant had no violent criminal history (little weight), (6) the defendant behaved appropriately in the courtroom (little weight), and (7) the defendant wrote thank-you notes to his scholarship donors at Texas Tech University in 1997 (very little weight).
Russ was sentenced to (1) death for first-degree murder, (2) life imprisonment for kidnapping with a weapon, (3) five years’ imprisonment for grand theft of a
III. ANALYSIS
Issue I: Waiver of Mitigation
Russ contends that (1) the trial court failed to require an additional investigation into the mitigation that it was on notice of, (2) the trial court failed to adequately fulfill its constitutional obligation to ensure that Russ receive individualized sentencing, and (3) the death penalty was unfairly and unconstitutionally imposed. We disagree.
We review a trial court’s decision to accept a defendant’s request to waive the presentation of mitigation during the penalty phase for an abuse of discretion. See Spann v. State,
Koon Requirements
It is well established that a competent defendant may waive the right to present mitigation during the penalty phase of a capital trial. See Spann,
When a defendant, against his counsel’s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.
Koon,
Here, the record reveals that the trial court complied with the three-part procedure outlined in Koon. Once trial counsel and Russ informed the trial court of Russ’s desire to waive the presentation of mitigation, the trial court conducted a Koon hearing. There, Russ maintained that he wanted to waive his right to present mitigating evidence during the penalty phase. Trial counsel indicated that a defense expert had previously found Russ competent, and trial counsel explained that Russ had not been evaluated since because there was no indication that Russ “had in any way lost his competency.”
To ensure that Russ was aware of the aggravators that the State intended to rely on as support for imposition of the death penalty, the State, at the trial court’s request, announced that it was seeking the following aggravators (1) CCP, (2) HAC, (3) pecuniary gain, (4) kidnapping, and (5) avoid arrest. At that time, Russ told the trial court that he did not want his lawyers to cross-examine or challenge the aggravation.
Russ indicated that he wanted trial counsel to continue representing him with the understanding that trial counsel would
Trial counsel also announced that he had a forensic pathologist who would present testimony rebutting the CCP and HAC aggravators. The trial court asked Russ whether he would allow trial counsel to cross-examine the State’s expert to minimize the aggravators. Russ said that he would not. The trial court also asked Russ if he would allow trial counsel to present any mitigating evidence and specifically referred to each of the mitigating factors trial counsel had announced. Again, Russ said that he would not. Again, the trial court explained to Russ the trial court’s duty to address mitigation and that the trial court might call its own witnesses if necessary.
On May 1, 2008, Russ was found competent to waive the penalty phase jury and the presentation of mitigation. Russ indicated that he still intended to waive the penalty phase jury and the presentation of mitigation. Thus, the trial court complied with the requirements set forth in Korn.
Muhammad
As articulated in Muhammad, when a defendant waives the right to present mitigation evidence, the trial court must order the preparation of a PSI and, in its discretion, may call witnesses to present mitigation evidence to the extent that the PSI alerts the court to the existence of significant mitigation. See id. at 363-65.
In the instant case, the trial court ordered a comprehensive PSI to be completed by June 30, 2008. The trial court granted Russ’s request to waive the presentation of mitigation and the penalty phase jury and again informed Russ that the trial court was obligated to independently weigh the aggravating and mitigating factors. Although Russ was still represented by trial counsel, the trial court appointed special counsel to present mitigation to the trial court.
The reason for trial counsel’s proffer of possible mitigating evidence during the Koon hearing was to inform Russ of the potential mitigation to ensure that his waiver was made knowingly, intelligently, and voluntarily. “Mitigating evidence must be considered and weighed when contained ‘anywhere in the record, to the extent it is believable and uncontroverted,’ ” LaMarca v. State,
Second, Russ contends that the PSI report revealed the existence of significant mental mitigation and that the trial court’s failure to consider all of the mitigation that was present in the PSI report violated the requirements articulated by this Court in Muhammad. See Muhammad,
A review of the record reveals the following: (1) Russ “is [being] or was previously treated” for various illnesses, including “psychiatric Hx”; (2) Russ suffered from “major depression” for one month while incarcerated at the John E. Polk Correctional Facility in October 2007; (3) Russ was first prescribed the Sinequan antidepressant on June 17, 2007, after he met with a psychiatrist; (4) on August 4 and August 17, 2007, Russ requested that his dosage of Sinequan be increased “if [he] was still struggling with depression and lack of sleep”; (5) Dr. Westhead met with Russ on August 21, 2007, and noted that Russ suffered from “major depression”; (6) Russ said he was “extremely depressed” because he “had a good life and now it’s gone due to the drugs”; (7) the only mention of Russ’s diagnosis of “psychiatric Hx” is from a questionnaire filled out in June 2007, which asked “do you now have or have you ever had” “psychiatric Hx” and the box for “psychiatric Hx” was checked; (8) the mental health intake form noted that Russ was oriented, had a normal mood temperament, was able to use relevant speech, did not display abnormalities in his thought pattern although he was having problems sleeping; (9) Russ denied any history of psychiatric illness or treatment; and (9) a psychological evaluation was taken in 1978, when Russ was 16 years old. Further, the PSI provides:
The mother stated he has no mental health illnesses diagnosed. She thinks he does, though. She stated that his father beat him half his life. The sub*191 ject’s mother stated that the father was a mean man. The Texas Department of Criminal Justice Health Summary dated 10/1/93 lists the subject was never treated for mental illness. The Denton County Medical Intake Information form of 5/16/07 lists chest congestion as being the only illness he was suffering from at that time.
The form also states medical was notified of the condition. There is no listing of any mental health problem and no medical attention was required on 5/16/07.
Additionally, the PSI report indicates that Russ was “treated for head trauma.”
Once the comprehensive PSI is complete, the trial court must determine whether it suggests the existence of mitigation. See Barnes v. State,
As articulated in Muhammad, “if the PSI and the accompanying records alert the trial court to the probability of significant mitigation, the trial court has the discretion to call persons with mitigating evidence as its own witnesses.”
Accordingly, we conclude that the trial court did not abuse its discretion.
Issue II: Proportionality
Aggravating Circumstances
In the second issue, Russ first argues that the State failed to prove the CCP and HAC aggravators beyond a reasonable doubt. We disagree.
In reviewing the trial court’s finding of an aggravating circumstance, this Court’s “task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” McWatters v. State,
CCP
Russ’s argument that the trial court erred in finding that the CCP aggra-vator applied to the murder is without merit. This Court has opined:
*192 To establish the CCP aggravator, the State must prove beyond a reasonable doubt that (1) the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); (2) the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) the defendant exhibited heightened premeditation (premeditated); and (4) the murder was committed with no pretext of legal or moral justification.
McWatters,
In the instant case, the trial court applied the correct rule of law and made the following findings:
In his letter to the Court, [Russ] stated that after eluding pursuit by Officer Tollas, he spent the night on the rooftop of a house adjacent to Leinen’s home. He wrote, “At dawn, I awakened. I saw the victim leaving for work. I choose my victim at that exact moment.” Further in the letter, he states, “Was the murder premeditated? Yes, your Honor it was. Did I believe I was capable of such a crime while on a drug crime spree? No, I did not. I was no doubt a cold blooded killer on that day.”
[Russ] remained in the victim’s home the entire day, waiting for her to return. Crime scene Investigator Ohlson found rope similar to the rope used to bind [Leinen’s] feet in the trash can behind the washer and dryer in the garage. A different type of rope was used for the neck ligature and to bind [Leinen’s] hands using a complex series of knots.
[Leinen’s] home was neat and tidy without any signs of a struggle. Blood droplets were found in the garage, but the actual killing appeared to take place in the hall bathroom. Common sense and the evidence at the scene indicate [Russ] likely first encountered the victim in the garage, subdued her with an initial blow, and walked her through the house to the hall bathroom.
The evidence indicates the victim’s murder was not a spontaneous or impulsive act. Nor was it done in a frenzy or rage. While the evidence establishes [Russ] had been using crack cocaine heavily in the days preceding May 7, 2007, there was no evidence that [Russ] was under the influence of drugs at the time of the murder. Rather, ... Leinen’s murder was the product of [Russ’s] prearranged design. He had selected her as his victim early that morning. He waited hours for her to return home. Prior to the murder he procured two types of rope and a knife to execute his plan. The absence of any signs of a struggle and the lack of defensive wounds on the victim indicate she offered no resistance. Once in the bathroom, [Russ] meticulously tied Leinen’s hands and feet and used three different means to ensure her death. Undoubtedly, many of the victim’s wounds occurred as she lay bound and helpless on the floor. No evidence of moral or legal justification was presented or argued.
The Court finds the above stated evidence establishes this aggravating circumstance beyond a reasonable doubt, and it is given great weight.
As a preliminary matter, Russ contends the trial court’s finding of the
Russ challenges the trial court’s finding that the evidence satisfied the first “cold” element of the test for CCP — that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage. Russ presents two arguments in support of this claim: (1) Russ alleges that the State failed to prove this element beyond a reasonable doubt because the evidence suggests that the murder was the result of an emotional frenzy, panic, or fit of rage, and (2) Russ alleges that, because the murder occurred within a 25-30 minute time span, he did not have adequate time for reflection. We disagree.
The first element, “cold,” is supported by competent substantial evidence. Russ admitted that the murder was premeditated and described how he selected Leinen that morning, waited in her house for her return, and then murdered her. We have found CCP where the defendant only had a few minutes to murder the victim. See Durocher v. State,
Next, Russ challenges the trial court’s finding that the evidence supported the second “calculated” element of the test for CCP — that the defendant had a careful plan or prearranged design to commit murder before the fatal incident. Russ contends that the absence of any signs of struggle makes it reasonable to conclude that the murder was not calculated, because the lack of struggle indicates that Leinen was immediately tied up and mur
We have held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of “calculated” is supported. See Lynch v. State,
Additionally, Russ challenges the trial court’s finding that the third prong — that the defendant exhibited heightened premeditation — was satisfied. Russ contends that the trial court’s reliance on his admission in his letter that he “chose [his] victim at that exact moment” to conclude that the heightened premeditation requirement was satisfied is erroneous. Russ claims that his statement merely meant that he intended Leinen as the victim of his burglary and theft or robbery, not as the victim of a murder. This argument is without merit.
The third element, “heightened premeditation,” is supported by competent and substantial evidence. Notably, in his letter to Judge Alva, Russ admitted that the murder was premeditated. Russ was aware that he was charged with first-degree premeditated murder and entered a knowing, intelligent, and voluntary plea to that charge. Further, we have “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Lynch,
Moreover, we have upheld a finding of CCP where a defendant lay in wait for the victim’s arrival. See Dennis v. State,
Russ also contends that he was intoxicated on crack-cocaine at the time of the murder and thus was unable to establish the requisite intent to satisfy the heightened premeditation standard. The trial court rejected this argument, finding that “there was no evidence that [Russ] was under the influence of drugs at the time of the murder.” Rather, the trial court considered Russ’s long-term addiction as a statutory mitigator and assigned it some weight. Russ claims that this is clear from the language of his letter which states, “The last 10 days leading up to the murder I was 24-7 non-stop getting high, smoking crack.” In his letter Russ explains that his motivation for running from the police and committing the subsequent crimes was because he “was willing to do anything to continue getting high.” However, in his other letter to Judge Alva, Russ stated, “Do I believe I would have murdered anyone had I not [sic] been sober? I’ve never harmed anyone physically. I have a very serious and lengthy record (criminal history). I do not have any aggervated [sic] crimes past, I would never have hurt or murdered the victim had I been sober.” In his letter, he also noted that he was on a “drug and crime spree.”
Russ’s reliance on White v. State,
As we explained in Turner, “[e]ven if the trial court had found that [the defendant] was addicted to crack cocaine, such a finding would not necessarily preclude the CCP aggravator from being found.” Id. at 224. “[A] chronic drug abuser can still act in accordance with a deliberate plan where the evidence indicates that the person ‘was fully cognizant of his actions on the night of the murder.’ ” Id. (quoting Guardado v. State,
Here, Russ was fully cognizant of his actions the night before the murder and on the morning of the murder. The night before the murder, Russ ran from the police, abandoned his vehicle, and slept on a roof to avoid being arrested by the police. Russ watched as his car was towed and decided that he needed to obtain another vehicle. The next morning, he saw Leinen leave her home and selected her as his victim. Once inside of her home, Russ spent the day doing laundry, showering, eating, and collecting valuable items that he intended to steal. Russ was able to immobilize Leinen and proceeded to beat, strangle and stab her. At some point,
Finally, Russ did not present evidence or argument to satisfy the fourth element before the trial court and does not now challenge the fourth element. However, it is clear that the fourth element— that the murder was committed with no pretense of legal or moral justification— was satisfied. The record is devoid of any evidence of a threatening act by Leinen prior to the murder that would constitute a pretense of legal or moral justification. See Williamson v. State,
HAC
Russ challenges the trial court’s finding of the HAC aggravator. Russ contends that because the evidence was inconclusive regarding whether Leinen was conscious, the finding of the HAC aggravator was improper. Russ claims that the absence of signs of a struggle or defensive wounds precludes a finding that Leinen endured prolonged suffering or foreknowledge of her impending death and submits that this aggravator was based on pure speculation. We disagree.
In order for the HAC aggravator to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim. See Rogers v. State,
The victim’s mental state may be evaluated in accordance with commonsense inferences from the circumstances. See Hernandez v. State,
In the present case, Leinen was beaten, stabbed, and strangled. We have explained, “Because strangulation of a conscious victim involves foreknowledge and the extreme anxiety of impending death, death by strangulation constitutes prima facie evidence of HAC.” Barnhill,
Here, the medical examiner testified that abrasions on Leinen’s neck indicated she was moving from right to left, pulling away from the ligature around her neck and that she would have been in a “significant amount of discomfort, both physically and ... mentally.” Moreover, Leinen sustained multiple blunt force trauma injuries and stabbing injuries, each of which would have been painful. It does not logically follow that Russ would have employed so many different methods to kill Leinen had she been rendered unconscious prior to the attack. Further, based on the evidence, common sense indicates that the absence of defensive wounds on Leinen’s body resulted from either her cooperation or being bound prior to being murdered — it does not, as Russ contends, preclude a finding of HAC. Thus, we conclude that the trial court’s finding of the HAC aggravator is supported by competent substantial evidence.
Proportionality
Russ challenges the proportionality of his death sentence. As explained below, Russ is not entitled to relief on this claim.
First, Russ argues that the trial court abused its discretion in the weighing process itself. Russ initially phrases this argument to imply that the trial court failed to consider valid mitigation in violation of Eddings v. Oklahoma,
“We review the weight the trial court ascribes to mitigating factors under the abuse of discretion standard.” Smith v. State,
Russ claims that the trial court should have explained its findings and cites to Merck v. State,
Russ also argues that the trial court failed to properly document the requisite findings of fact for mitigating circumstances and that the existence of mitigation regarding his long-term substance abuse renders the death sentence disproportionate. Russ cites to numerous cases in support of this argument. See Mahn v. State,
Next, this Court must conduct a qualitative analysis and comparison of other capital cases to determine whether the death sentence is proportionate. Russ contends that regardless of the aggravation present in his case, imposition of the death sentence is disproportionate because his case is among the most mitigated of cases. “In reviewing a death sentence for proportionality, we ensure that the death penalty is ‘reserved only for those cases where the most aggravating and least mitigating circumstances exist.’ ” McGirth v. State,
A qualitative review of the totality of the circumstances in this case and a comparison between this case and other capital cases reveals that the death penalty here is proportionate. We have concluded that the death sentence was proportionate in cases where there was less aggravation and similar mitigation. See Boyd v. State,
Moreover, we have found the death sentence proportionate in the face of fewer aggravators and significantly more miti-gators. See Johnston v. State,
We have also found the death sentence proportionate where there was similar aggravation and more mitigation. See Willacy v. State,
Russ’s assertion that his case is among the most mitigated is without merit. Because the trial court did not abuse its discretion, we will not reweigh the trial court’s assignment of weight below. Accordingly, we find that Russ’s death sentence is proportionate.
Issue III: Sufficiency of the Evidence
Russ does not challenge the trial court’s acceptance of his guilty plea in this appeal. Nevertheless, we have a mandatory obligation to review the basis of Russ’s conviction for first-degree murder. See Barnes v. State,
Based on the plea colloquy, the trial court found that Russ was alert and competent. The trial court also found “the plea to be freely and voluntarily made with knowledge of the consequences after advice of competent counsel with whom [Russ was] satisfied. [The trial court also found a] sufficient factual basis for the plea based on the proffer of the State [and the] stipulation of defense counsel and the defendant.” The trial court then accepted Russ’s plea of guilty in open court. See Fla. R.Crim. P. 3.172(b).
We conclude that Russ’s guilty plea in this case was knowing, intelligent, and voluntary. Russ was made aware of the consequences of his plea and was apprised of the constitutional rights he was waiving as a result. Therefore, the plea and conviction were properly entered. Further, the factual basis for the plea, which was confirmed by defense counsel and Russ and was proven by the forensic evidence and Russ’s confessions, provides competent, substantial evidence to support the conviction for first-degree murder and Russ’s other convictions in this case. Accordingly, we affirm Russ’s convictions and sentences.
It is so ordered.
Notes
. Russ was 45 years old at the time of the murder.
. Koon v. Dugger,
. Among other things, special counsel noted the existence of Russ's: (1) substance abuse addiction, (2) physical and verbal abuse that he experienced as a child, (3) relationship with his brother, (4) multiple attempts to cure his addiction, (5) acceptance of responsibility for the crimes, (6) courtroom behavior, (7) obtaining a GED, (8) employment as a roofer, (9) depression, (10) training as a counselor, (11) relationship with his fiancée’s son and with his 80-year-old aunt, (12) lack of violent criminal history, and (13) desire to spare people from the penalty phase proceedings.
. Spencer v. State,
. Muhammad v. State,
Concurrence Opinion
concurring.
I agree with the majority’s affirmance of both the conviction for first-degree murder and the death sentence. When a defendant waives mitigation, as he did in this case, the trial judge’s obligation under Muhammad v. State,
In my specially concurring opinion in Muhammad, I fully explained the basis for imposing additional obligations upon the trial court when faced with a defendant who decides to waive the presentation of mitigation during the penalty phase of a capital proceeding:
This issue [of a defendant’s waiver of mitigation] “involves the friction between an individual’s right to control his destiny and society’s duty to see that executions do not become a vehicle by which a person could commit suicide.” Hamblen v. State,527 So.2d 800 , 802 (Fla.1988). We recognized in Hamblen, that “[t]his does not mean that courts of this state can administer the death penalty by default. The rights, responsibilities and procedures set forth in our constitution and statutes have not been suspended simply because the accused invites the possibility of a death sentence.” Id. at 804.
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... [P]ursuant to Florida’s statutory scheme, whether or not the death penalty should be imposed must be determined by an independent review of the aggravating circumstances and mitigating factors to ensure that the death penalty is fairly, reliably and uniformly imposed. In all capital cases, this Court is constitutionally required “to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases.” Porter v. State,564 So.2d 1060 , 1064 (Fla.1990); see, e.g., Urbin v. State,714 So.2d 411 , 416 (Fla.1998); Tillman v. State,591 So.2d 167 , 169 (Fla.1991). We cannot permit this constitutional obligation to be thwarted by the defendant’s own actions or inac-tions.
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As with an appeal, during the penalty phase of a capital trial, the defendant has already been convicted. At this point, the State has an overriding interest in the integrity of the process by which the death penalty is imposed. As the United States Supreme Court has emphasized, the difference between the imposition of the death penalty and any other penalty gives rise to “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina,428 U.S. 280 , 305,96 S.Ct. 2978 ,49 L.Ed.2d 944 (1976) (plurality opinion). We have already recognized this interest when we have required the trial court to consider any evidence of mitigation in the record, even if the defendant asks the court not to consider mitigating evidence.
Muhammad,
I also explained my position in Muhammad to take a trial court’s waiver obligations one step further and endorsed a prospective rule providing for the appointment of special counsel to present available mitigation:
Because of the tremendous responsibilities placed on the trial court and this Court in death penalty cases, rather than leave the appointment of counsel to the trial court’s discretion on a case-by-case basis, I would thus adopt a prospective rule that would provide for the ap*202 pointment of special counsel to present available mitigation for the benefit of the jury, the trial court and this Court in order to assist the judiciary in performing our statutory and constitutional obligations. This procedure, of course, would not prevent the defendant himself or hei’self from arguing in favor of the death penalty.
Adoption of this procedure would serve to promote several important interests critical to the integrity of the process: (1) it would assist any advisory jury in making a more informed sentencing recommendation of either death or life and in fulfilling its statutory obligation to weigh mitigating and aggravating circumstances under section 924.141(2)(b); (2) it would assist the trial court in making a more informed decision as to whether to impose the death sentence by ensuring that the court has before it the available mitigating evidence; and (3) it would facilitate this Court’s constitutionally mandated obligation to review each death sentence for proportionality.
Id. at 370-71.
In this case, the trial judge took the extra measure of appointing special counsel to investigate and present mitigating evidence to assist her in sentencing Russ, and special counsel did, in fact, present the court with additional mitigation to consider. I commend the trial judge for faithfully complying with the obligations imposed by our precedent when there is a waiver of mitigation and also for taking the extra step of appointing special counsel to further ensure the reliability of Russ’s sentence. As evidenced by her sentencing order, the trial judge found both statutory and nonstatutory mitigation. In turn, these findings assisted this Court in performing its constitutional obligation to review the proportionality of Russ’s sentence of death.