Joseph Zieler v. State of Florida

Supreme Court of Florida
                             ____________

                          No. SC2023-1003
                            ____________

                          JOSEPH ZIELER,
                             Appellant,

                                 vs.

                       STATE OF FLORIDA,
                            Appellee.

                           April 16, 2026

PER CURIAM.

     The appellant, Joseph Zieler, was sentenced to death for the

1990 first-degree murders of R.C. and L.S. in Lee County. Zieler

was unknown to investigators of the double homicide until 2016,

when his DNA was entered into the Combined DNA Index System

(CODIS) and triggered an alert. This is Zieler’s direct appeal. We

have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain,

we affirm Zieler’s convictions and sentences.
                          BACKGROUND

                 Events Surrounding the Murders

     Jan C. lived in a condominium in Cape Coral with her

daughter, 11-year-old R.C., and a friend/colleague, 32-year-old L.S.

L.S. had recently moved into a spare bedroom in the condominium

to share living expenses. On the evening of May 9, 1990, Jan went

to her boyfriend’s home to watch a basketball game on television.

L.S. and R.C. encouraged her to do so while they remained at home.

Both were in their beds when Jan left.

     Jan, who had to get up early the next morning for work at a

local hospital, had intended to return home after the game

concluded. However, she fell asleep and did not wake up until

4 a.m. Jan then rushed home to get ready for work, and upon

arrival, discovered that the front door that had been locked only at

the deadbolt was also locked at the broken door handle. When the

broken door handle was locked, it prevented entry from the outside.

     Jan did not immediately sense that there was a problem;

instead, she thought that L.S. probably forgot about the broken

door handle and mistakenly locked it before going to bed. Jan then

walked around the unit to the patio and discovered that the sliding


                                -2-
glass door was open, and the vertical blinds were blowing out the

door.

        After Jan entered the previously organized unit, she began to

notice signs of disarray. She went upstairs and first reached the

door of L.S.’s room where she saw L.S.’s nude body on the bed.

When she called out to L.S., she did not get a response. Jan raced

to the other bedroom and found R.C. face down on the floor at the

foot of the bed. R.C.’s legs were spread apart, a vibrator was on the

floor between her legs, and a pillow was located underneath her

stomach. Jan called 911 as she began to administer CPR to R.C.

As Jan performed CPR on R.C., she observed nasal congestion that

suggested to her that R.C. had been crying a lot. Jan heard R.C.’s

lungs aspirate.

        When law enforcement arrived, evidence indicated that an

intruder entered the condominium, attacked, sexually battered, and

suffocated both victims, and ransacked the unit.

        L.S. was found lying in her bed on her right side with a pillow

partially covering her head. She sustained extreme injuries to her

anal cavity and significant bleeding. There were scratches on her

body, and a broken fingernail on her hand appeared to be a


                                   -3-
defensive wound. An open pornographic magazine was found on

her bed. Injuries to the mucosa of her lips and the presence of a

pillow suggested that she may have been smothered to death.

     The search of L.S.’s room revealed an empty wallet with items

missing, and an empty watch box that previously contained a watch

that L.S. recently bought as a present. The watch was never

located.

     R.C. had bruising and scrapes on her cheekbones and her lips

were purple, which indicated that she had been suffocated. There

was significant bleeding from her vaginal area. She had a cut in the

middle of her back, possibly caused by being dragged across sharp

wood at the foot of the bed. R.C. also had an abrasion on her left

thigh which was likely caused when her underwear was ripped off.

A pair of ripped underwear was found in the room. R.C.’s wounds

indicated that there was a struggle before her death.

                           The Autopsies

     Medical examiner testimony indicated that both victims died

as a result of asphyxiation. The bodies of both victims showed

signs of a struggle and signs of sexual battery. L.S. suffered

extreme anal injuries and bleeding, consistent with an object


                                -4-
penetrating her anus. R.C. suffered injuries to her vagina that

caused significant bleeding and were the result of penetration by an

object. The penetration of L.S. and R.C. occurred

contemporaneously with their deaths, but the medical examiner

was unable to determine with certainty whether penetration

occurred before or after their deaths. However, the initial lead

detective testified that in his experience, based on the amount of

bleeding from the anal cavity of L.S. and the vaginal area of R.C.,

they were likely both alive when they were penetrated.

     Various items of evidence including genital swabbings and

hair evidence were obtained from the victims’ bodies.

                           DNA Evidence

     During the investigation, DNA testing excluded many persons

of interest. Evidence submitted for DNA testing in 1990 revealed

the presence of sperm cells in the genital gauze swabbing, vaginal

slides, and anal slides obtained from R.C., the genital gauze

swabbing obtained from L.S., and a pillowcase and bedsheet that

were found in the bedroom with R.C.

     The bedsheet, the pillowcase, and the genital swabbing from

R.C. all tested positive for semen in a sufficient quantity to develop


                                 -5-
a DNA profile. These items were first tested using RFLP testing in

1990, then they were sent for additional testing in 2000 and again

in 2012 due to advancements in DNA technology.

     RFLP DNA testing performed on the pillowcase and on the

genital swabbing from R.C. yielded DNA profiles that were

consistent with one another. The sample size from the genital swab

indicated that the semen was deposited onto R.C. as opposed to

being transferred onto her. At the time, the results of these tests

were not entered into CODIS, which only accepts STR DNA test

results. The genital swabbing obtained from L.S. and the anal

swabs obtained from R.C. were insufficient for further testing.

     STR DNA testing was conducted in 2000. The genital

swabbing obtained from R.C. and the pillowcase retrieved from

R.C.’s bedroom yielded partial DNA profiles, and a cutting from the

bedsheet yielded a complete DNA profile. The three DNA profiles

were consistent with one another. The profile from the bedsheet

was entered into CODIS.

     In 2008, STR DNA testing was conducted on hairs obtained

from L.S.’s body. Among several hairs and debris or fibers, the

analyst found four hairs suitable for DNA testing. Two of the hairs


                                 -6-
were very light in color and yielded no DNA. The other two hairs

were darker in color and yielded partial DNA profiles that were

consistent with one another. Each of the four hairs was less than

15 millimeters long and, due to the small size, completely

consumed during the DNA testing.

     In 2012, in response to further advancements in DNA

analysis, the bedsheet was resubmitted for STR DNA testing. The

results revealed a complete DNA profile that was consistent with the

profile obtained in 2000. The profile was entered into CODIS.

     In 2016, law enforcement received a CODIS hit, or lead, in the

L.S. and R.C. double homicide case. Zieler’s DNA, obtained as a

DNA sample in an unrelated case, was determined to be a match to

DNA obtained from the bodies of L.S. and R.C. and the crime scene.

     DNA analysts testified that when comparing the DNA obtained

from R.C.’s bedsheet to Zieler’s DNA profile, one would expect to see

that profile in one in 83 quintillion people. As to the comparison

between the DNA obtained from R.C.’s pillowcase and Zieler’s DNA

profile, one would expect to see that profile in one in 450 million

people. The statistics were one in 16 million with respect to the

hair obtained from the body of L.S., and one in 360,000 with


                                 -7-
respect to the genital swabbing from R.C.

  Zieler Identified as a Suspect and Interviewed by Detectives

     Once Zieler was identified as a suspect in the murders,

detectives conducted an interview during which he was described as

“nervous” and “evasive.” Zieler stated that he could not make

decisions for himself and that he could not remember anything due

to a head injury he sustained in an accident. When shown

photographs of L.S. and R.C., Zieler denied having seen either of

them before.

     After Zieler’s interview concluded and an officer offered to get

him a soda, Zieler said, “It’ll probably be the last one I ever get.”

Before the interview, no one had mentioned to Zieler that he was a

suspect in the murders, and Zieler had only been identified as a

suspect via the CODIS hit the day before.

     In contrast to the memory challenges Zieler asserted during

the September 2016 interview, a detective testified at trial that

following Zieler’s arrest on an unrelated charge in August 2016,

Zieler demonstrated good memory and gave very detailed responses

to all questions. During that interview, Zieler discussed how he

was raised by his parents, and he specifically recalled an event that


                                  -8-
occurred in 1991. He explained that he had been in a relationship

with his girlfriend Bonnie for 25 years and that he had previously

worked in a boatyard until he suffered an injury.

     Similar to the testimony from the detective, the trial testimony

of Zieler’s long-time partner, Bonnie, also contradicted Zieler’s

purported significant memory loss. She also stated that over the

years, Zieler vaguely referred to his past and described himself

without explanation as “dirty.” Additionally, she recalled that when

having intercourse with Zieler, he preferred to place a pillow

underneath her pelvis.

                            Charges Filed

     In addition to the indictments for first-degree murder, Zieler

was initially charged with sexual battery on a child under 12 years

of age, sexual battery with a deadly weapon or great force, and first-

degree burglary. The sexual battery and burglary counts were

dismissed in 2022. However, evidence of sexual battery as to both

victims and of the burglary was introduced during the guilt phase

and relied on by the State during the penalty phase as proof of

aggravating factors.




                                 -9-
                  Zieler’s First Jury Selection
            and the Subsequent Amendment to the
        Statute Requiring Jury Unanimity in Sentencing

     Zieler’s first jury selection lasted from February 27 to March 2,

2023, and it ended with the prospective jurors being dismissed

because they were given an incorrect statement of the law as it

stood at the time of the murders in 1990. The jurors were

incorrectly told that if convicted, Zieler would be subject to a

minimum sentence of life imprisonment without the possibility of

parole instead of life imprisonment with the possibility of parole

after 25 years.

     Before Zieler’s trial began anew in May 2023, the Legislature

amended the statute governing capital sentencing in Florida, set

forth in section 921.141, Florida Statutes. The amendment

changed the then-existing requirement of jury unanimity in capital

sentencing to allow a judge to impose a sentence of death upon the

recommendation of eight or more jurors. See ch. 2023-23, § 1,

Laws of Fla. (amending § 921.141(2)(c), Fla. Stat.); § 921.141(2)(c),

Fla. Stat. (2023).

                             Guilt Phase

     Zieler’s new jury selection took place May 8-11, 2023, followed


                                 - 10 -
by the guilt phase May 15-18, 2023. At the conclusion of the

State’s case-in-chief, Zieler was the only defense witness. He

maintained his innocence and asserted that he was in Maryland at

the time of the murders. Before trial, he sent letters to the state

attorney’s office stating that he was in jail at the time of the

murders. However, the prosecutor confronted Zieler with evidence

that the state of Maryland certified that there was no record of

Zieler ever being arrested there.

     Zieler also claimed that his DNA could only have been in the

condominium where the murders occurred if, in 1989, he had sex

with R.C.’s mother or her friend Leeann. Zieler also admitted to

sending letters to R.C.’s family, in which he made the same

allegation. The State called R.C.’s mother in rebuttal, who denied

ever meeting or having any contact with Zieler.

     The jury convicted Zieler of the first-degree murders of R.C.

and L.S.

                            Penalty Phase

     The State and the defense presented testimony and other

evidence during the penalty phase. The State sought to prove four

aggravating factors: (1) Zieler was previously convicted of a felony


                                 - 11 -
involving the use or threat of violence to the person; (2) the capital

felony was committed while the defendant was engaged in the

commission of a burglary; (3) the capital felony was especially

heinous, atrocious, or cruel (HAC); and (4) the capital felony was

committed in a cold, calculated, and premeditated manner without

any pretense of moral or legal justification (CCP).

     To prove the prior violent felony aggravating factor, the State

relied on evidence of the contemporaneous murders of R.C. and

L.S., as well as a stipulation that Zieler was previously convicted of

resisting an officer with violence and felony battery. To set forth a

factual basis for the resisting with violence conviction, the State

also presented a portion of the offense report detailing the

officer/victim’s statement.

     To prove the aggravating factor that the capital felony was

committed while Zieler was engaged in the commission of a

burglary, the State relied on evidence of the condition of the

condominium as observed by investigators and Jan, including

descriptions of missing property.

     To prove the CCP aggravating factor, the State referred to the

testimony of the medical examiner who testified that deaths


                                 - 12 -
through asphyxia by suffocation take three to five minutes to occur,

before which there is a 60- to 70-second period of loss of

consciousness.

     To prove the HAC aggravating factor, the State referred to the

testimony of the medical examiner who testified that the cause of

death for one victim was asphyxia by suffocation and that the cause

of death for the other victim was asphyxia suggestive of suffocation.

The State discussed the various physical injuries suffered and the

evidence that both victims struggled and resisted being attacked.

     The State also presented victim impact evidence on behalf of

L.S. and R.C.

     The defense presented the testimony of a forensic psychologist

and a neurologist. Dr. Julie Harper, a clinical and professional

psychologist who works as a forensic psychologist, testified based

on her review of the records that as a child, Zieler showed

symptoms of what is now diagnosed as ADHD.

     Additionally, Dr. Harper testified regarding Zieler’s

recollections of his unstable childhood, which included Zieler being

verbally and physically abused, and Zieler witnessing his father

physically abuse his mother and brothers. Dr. Harper concluded


                                - 13 -
that Zieler’s unstable home life contributed to his history of low

self-esteem and depression. Zieler also indicated to Dr. Harper that

he had been sexually abused as a child.

     Dr. Harper noted Zieler’s recall of a childhood memory where

he slipped on the first day of school and injured his head, “which

[Zieler] feels impaired his concentration and ability to focus during

school.” She also testified regarding her review of Zieler’s hospital

and disability records documenting a vehicle accident-related closed

head injury in 1998 and another accident-related head injury in

2014. She opined that the 1998 accident particularly affected

Zieler’s memory and ability to carry out activities of daily living.

     Dr. Harper administered to Zieler an Inventory of Legal

Knowledge and testified that there was no evidence that Zieler was

malingering. She also administered the Wechsler Adult Intelligence

Scale, fourth edition (WAIS-IV), and determined that Zieler has a

low average overall I.Q. score.

     Zieler’s performance on the Kaplan Baycrest Neurocognitive

Assessment, also administered by Dr. Harper, demonstrated

adequate ability in attention and concentration and average

immediate recall. Zieler demonstrated delayed recall and


                                  - 14 -
recognition memory, as well as difficulty with reasoning, conceptual

shifting, spatial processing, and the verbal recall aspect of verbal

fluency.

     Dr. Harper diagnosed Zieler, who was previously diagnosed

with adjustment disorder, with major depressive disorder recurrent

and mild neurocognitive disorder. She indicated that Zieler has a

tremor and that the tremor and Zieler’s difficulties in verbal fluency

are symptoms consistent with a diagnosis of Parkinson’s disease.

     Dr. Mark Rubino, a neurologist, testified that Zieler does not

have Parkinson’s disease, but he has Parkinsonism, which differs

from Parkinson’s disease in that it does not respond to Parkinson’s

treatment.

     Dr. Rubino also reviewed hospital and disability records

regarding Zieler’s 1998 and 2014 accidents and noted that after the

1998 accident, Zieler began displaying symptoms typical of those

caused by a head injury. Dr. Rubino also testified to Zieler’s

account of falling and hitting his head at school, stating, “I don’t

think [Zieler] really remembers [any effects from the fall], other than

he said he didn’t do very well after that.”




                                 - 15 -
     Dr. Rubino administered a PET scan and the Montreal

Cognitive Assessment. He testified that the PET scan results

indicated low metabolic activity in Zieler’s brain, and he opined that

Zieler’s score on the Montreal Cognitive Assessment indicated that

Zieler is “very impaired.”

     Dr. Rubino suggested that Zieler’s PET scan results could be

indicative of a concussion, a brain injury, or frontotemporal

dementia.

     During rebuttal, the State presented the testimony of two

psychologists. Dr. Karim Yamout testified to administering to Zieler

at least 20 cognitive tests. The results of six tests designed to

detect malingering did not reveal malingering by Zieler. However,

Dr. Yamout evaluated the reliability of Zieler’s self-reports via a

symptom validity test, which evaluated whether Zieler was reporting

in a valid manner. Zieler failed the test, which indicated that

Dr. Yamout could not assume at face value the accuracy of

anything Zieler claimed related to his mental disorders.

     Dr. Yamout concluded that Zieler’s memory is not impaired,

he does not have dementia, his intellect falls in the low average to

average range, and his I.Q. score is in the normal range.


                                 - 16 -
Dr. Yamout diagnosed Zieler with mild neurocognitive impairment,

similar to Dr. Harper’s diagnosis of minor neurocognitive disorder,

but said that this diagnosis would not cause a person to be

disabled. Based on the evidence, Dr. Yamout opined that Zieler did

not have a traumatic brain injury.

     Dr. Keegan Culver, a psychologist, administered to Zieler the

Minnesota Multiphasic Personality Inventory. However, the test

was invalidated because Zieler “endorsed so many atypical,

nonrealistic symptoms that it invalidated the entire protocol.”

Zieler also admitted to “play[ing] up my head injury when it suits

my situation.” Zieler denied being actively anxious or depressed

but was taking a typical antidepressant at the time.

   Jury Recommendation, Spencer Hearing, and Sentencing

     At the conclusion of the two-day penalty phase, the jury

recommended by a vote of 10-2 that Zieler be sentenced to death for

each murder.

     The State and the defense submitted sentencing memoranda

but neither presented additional evidence at the Spencer 1 hearing.



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


                                - 17 -
However, Zieler testified again at the Spencer hearing and denied

committing the murders.

     Upon determining that sufficient aggravating factors existed to

impose a sentence of death for each murder and that the

aggravating factors outweighed the mitigating circumstances found

to exist, the trial court sentenced Zieler to death for the murders of

R.C. and L.S. The court found that each of the four aggravating

factors argued by the State applied to both murders: (1) Zieler was

previously convicted of a felony involving the use or threat of

violence to the person (great weight); (2) the capital felony was

committed while the defendant was engaged in the commission of a

burglary (great weight); (3) HAC (great weight); and (4) CCP (great

weight).

     The trial court also considered 42 nonstatutory mitigating

circumstances, finding the existence of and affording weight to 36 of

them. 2 The court rejected three statutory mitigating



      2. The trial court considered the following 42 nonstatutory
mitigating circumstances and assigned weight as indicated:
(1) Zieler’s age (61 years) (minimal weight); (2) Zieler suffers from
anxiety (minimal weight); (3) Zieler suffers from symptoms of
Parkinson’s disease, including a neurocognitive disorder, tremors,
memory loss, and head jerking (minimal weight); (4) Zieler

                                - 18 -
sustained a traumatic closed-head injury as a result of a severe
motorcycle accident (moderate weight); (5) Zieler sustained a right
leg fracture and a “degloving” injury to his foot (established but no
weight); (6) Zieler has a neurodegenerative disorder, manifesting in
mildly reduced uptake in the bilateral frontal lobes, which raises
the possibility of frontotemporal dementia per FDG/PET scan
(minimal weight); (7) Zieler suffers from vascular disease
(established but no weight); (8) Zieler has a history of traumatic
brain injury (minimal weight and duplicative with other
nonstatutory mitigating circumstances); (9) Zieler has been
diagnosed with cognitive impairment, manifesting as a borderline
score on processing speed (minimal weight); (10) Zieler suffered
from a heart attack and stent surgery (established but no weight);
(11) Zieler has high blood pressure (established but no weight);
(12) Zieler was diagnosed with adjustment disorder with a
depressed mood (minimal weight); (13) Zieler was diagnosed with an
amnestic disorder (minimal weight); (14) Zieler has strengths in
testing, with variable performance (minimal weight); (15) Zieler
exhibits significant weakness in conceptual shifting (minimal
weight); (16) Zieler falls in the low average to average range of
intellectual disability (minimal weight); (17) Zieler has experienced
episodic depression throughout his life and suffers from a major
depressive disorder (not established; no weight); (18) Zieler suffers
from adaptive functioning deficits (established but no weight);
(19) Zieler had symptoms of inattention during middle school,
which resulted in poor grades (established but no weight);
(20) Zieler was never referred for remedial services, retained, or
tested for services by the school system for academic assistance
(partly established but no weight); (21) Zieler had good attendance
at school (partly established but no weight); (22) Zieler did not
graduate high school and had a 10th grade education (established
but no weight); (23) Zieler was exposed to drugs at an early age and
was smoking marijuana when he was nine years old (established
but no weight); (24) Zieler sustained head trauma as a child when
he slipped on ice, which resulted in a scar and a permanent lump
on the back of his head (minimal weight); (25) Zieler has witnessed
domestic violence between his father and his mother (minimal
weight); (26) Zieler was physically and emotionally neglected by his

                               - 19 -
circumstances. 3 This direct appeal of Zieler’s convictions and

sentences follows.



parents as a child growing up (minimal weight); (27) Zieler was
physically and verbally abused by his father (minimal weight);
(28) Zieler witnessed the physical and verbal abuse of his brothers
by his father (minimal weight); (29) Zieler often sought refuge at the
home of his maternal grandmother after school to avoid his father’s
abuse (minimal weight); (30) Zieler’s father relocated the family to
an Illinois town that was farther away from his grandmother,
preventing Zieler from going to her house and avoiding his abusive
home environment (minimal weight); (31) Zieler is uncertain of his
paternity and believes his uncle may be his biological father (not
established); (32) Zieler never received grief counseling or other
services after the loss of his maternal grandmother, mother, and
other close relatives (minimal weight); (33) Zieler’s father was fired
from the Cape Coral Police Department for conduct unbecoming an
officer after he admitted to burglarizing a restaurant (not
established); (34) Zieler got married when he was 20 years old (not
established; no weight); (35) Zieler became a father at 21 years of
age when his eldest son was born (established but no weight);
(36) Zieler was divorced when he was 23 years old, and Zieler was
not allowed to see his son (not established; no weight); (37) Zieler
held several jobs prior to his motorcycle accident, including working
for a family-owned business, Goodwill Industries, Silco Industries,
and Marine Concepts, and working with boats (minimal weight);
(38) Zieler attempted to stop an armed gunman and called the
police to protect his family (not established; no weight); (39) Zieler
has low self-esteem (established but no weight); (40) Zieler told
Bonnie not to worry about visitation to take the stress off of her
(moderate weight); (41) Zieler cooperated with law enforcement and
did not resist them (minimal weight); and (42) Zieler is capable of
redemption (not established; no weight).

     3. The trial court rejected the following statutory mitigating
circumstances: (1) the capital felony was committed while Zieler
was under the influence of extreme mental or emotional

                                - 20 -
                              ANALYSIS

                        I. Fundamental Error

     Zieler argues that after the original jury panel was dismissed,

defense counsel failed to realize the urgency of resetting a new trial

in light of the then-potential change to the statute requiring juries

to unanimously recommend the death penalty. He maintains that

defense counsel provided ineffective assistance of counsel resulting

in fundamental error when his trial was held after the statutory jury

unanimity requirement was eliminated. However, we proceed

without further discussion, as Zieler’s claim is not cognizable in this

direct appeal. See Steiger v. State, 328 So. 3d 926, 932 (Fla. 2021)

(stating that to raise and prevail on any unpreserved claim of error

on direct appeal, the defendant must demonstrate fundamental

error).

                    II. Prosecutorial Comments

     Zieler argues that during his second jury selection, the

prosecutor made constitutionally impermissible comments to



disturbance; (2) Zieler’s capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired; and (3) Zieler’s age at the time of the crime.


                                 - 21 -
prospective jurors that diminished the jury’s responsibility for its

verdict. He argues that in doing so, the prosecutor violated the rule

set forth in Caldwell v. Mississippi, 472 U.S. 320 (1985). We review

this question of law de novo. See Davis v. State, 136 So. 3d 1169,

1201 (Fla. 2014). Moreover, the fundamental error standard

applies because it was incumbent upon defense counsel to object

again to comments made during the second jury selection that

began anew more than two months after the first panel of jurors

was dismissed entirely. We hold that there was no Caldwell

violation.

     Zieler’s second jury selection began with instructions from the

trial court in which the trial court explained that if the jury found at

least one aggravating circumstance, it would be required to make a

recommendation on sentencing. The court explained the weighing

on which the recommendation must be based and that a vote of

eight to four or greater would result in a recommendation of death.

The jury’s recommendation would be life imprisonment with the

possibility of parole after 25 years if fewer than eight jurors

determined that Zieler should be sentenced to death.

     Zieler cites several but not all of the instances during


                                 - 22 -
individualized questioning where the prosecutor referred to the

jury’s duty to make a “recommendation.” Indeed, the prosecutor

consistently questioned similar to the following: “And will you give a

fair chance to either the death penalty or the life without possibility

of parole for 25 years as the jurors—as your recommendation as a

juror and as the jury’s recommendation?”; “Do you appreciate that

although you might make a death recommendation or you might

make a possibility of parole—of life without parole for at least 25

years, the judge is actually the person who sentences the

defendant?”; “And you feel comfortable with that recommendation?”

     Additionally, Zieler highlights comments made to two

prospective jurors that were ultimately seated on his jury: jurors

1221 and 1372. To prospective juror 1221, the prosecutor asked,

“And you understand that what you’re asked to do between those

two options [of either death or life without the possibility of parole

for 25 years] is a recommendation to the Court? . . . And that the

sentencing is actually done at the discretion of the Court?” To

prospective juror 1372, the prosecutor asked, “Do you understand

that that’s a recommendation and really, the sentence is ultimately

determined by the court?”


                                 - 23 -
     There is a significant distinction between what the prosecutor

said in Caldwell and what was said in Zieler’s case. In Caldwell,

the United States Supreme Court reversed a death sentence and

remanded the case for further proceedings because the prosecutor’s

penalty phase closing argument lessened the jurors’ sense of their

responsibility in determining sentencing by improperly assuring

them that their decision was “automatically reviewable” by the state

supreme court. Caldwell, 472 U.S. at 341.

     The comments that Zieler complains of—particularly their

mention of a jury’s recommendation—are substantively different

from those in Caldwell. Unlike Caldwell, there was no mention of

automatic appellate review by this Court that would have lessened

jurors’ sense of their responsibility with respect to Zieler’s

sentencing. See Allen v. State, 322 So. 3d 589, 597 (Fla. 2021)

(concluding that a prosecutor’s statement asking the jury to return

a “recommendation” of death was not error “because the statement

did not ‘improperly describe[] the role assigned to the jury by local

law’ ”) (alteration in original) (quoting Romano v. Oklahoma, 512

U.S. 1, 9 (1994)). Importantly, “[u]nder the plain text of Florida’s

death penalty statute, a sentencing ‘recommendation’ is precisely


                                 - 24 -
what the penalty-phase jury provides.” Id. at 597-98 (citing

§ 921.141(2), Fla. Stat. (2018)).

     Moreover, to properly evaluate Caldwell claims, we must “look

to the ‘total trial scene,’ including jury selection, the guilt phase of

the trial, and the sentencing hearing, examining both the court’s

instructions and counsel’s arguments to the jury.” Id. at 600

(quoting Barrientes v. Johnson, 221 F.3d 741, 777 (5th Cir. 2000)).

Here, the jury was told from the beginning of jury selection that it

would be responsible for making a recommendation to the court.

During the penalty phase, the jury heard evidence in both

aggravation and mitigation, and it was instructed on four

aggravating circumstances and 42 nonstatutory mitigating

circumstances. Further, Zieler’s jury received thorough

instructions that explained, consistent with Florida law, its

responsibility and the process for determining whether to

recommend that Zieler receive life imprisonment with the possibility

of parole in 25 years or the death penalty. As we observed in Allen:

     [T]he jury was properly informed as to its role in [the
     defendant’s] sentencing, including that if the jury found
     [the defendant] guilty of first-degree premeditated
     murder, a separate penalty-phase trial would occur in
     which the jury’s role would be to determine [the


                                    - 25 -
     defendant’s] eligibility for the death penalty and
     recommend the appropriate sentence.

Id. As in Allen, significant jury selection discussion was “devoted to

addressing the jury’s role should the case proceed to a penalty

phase, including the death qualification of the jury, and the trial

court properly instructed the jury regarding its role during the

penalty phase.” Id.

     Thus, Zieler is not entitled to relief.

                  III. Admission of Hair Evidence

     Zieler also argues that the absence of evidence in four paper

folds contained in State’s exhibit 110 is evidence of probable

tampering that should have prevented the admission of the hair

DNA evidence linking him to L.S.’s murder. Before trial, Zieler filed

a motion in limine seeking to exclude hairs and related DNA

evidence that linked him to the body of L.S., contending that other

hairs had been collected but “were either lost or mishandled by the

investigating agency and not subject to DNA testing.” The trial

court denied the motion, noting that the matter was suitable for

cross-examination.

     The admissibility of evidence is within the discretion of the



                                  - 26 -
trial court, and this Court reviews the trial court’s ruling for an

abuse of discretion. See Armstrong v. State, 73 So. 3d 155, 171

(Fla. 2011) (citing Ray v. State, 755 So. 2d 604, 610 (Fla. 2000);

Zack v. State, 753 So. 2d 9, 25 (Fla. 2000)).

     Additionally, “[r]elevant physical evidence is admissible unless

there is an indication of probable tampering.” Peek v. State, 395 So.

2d 492, 495 (Fla. 1981). The mere possibility of tampering is

insufficient to shift the burden to the State to rebut any evidence of

tampering. See Murray v. State, 838 So. 2d 1073, 1082-83, 1082

n.8 (Fla. 2002). Here, Zieler did not meet his burden of

demonstrating probable tampering, and we conclude that the trial

court did not abuse its discretion by admitting the hair DNA

evidence over Zieler’s objection.

     Moreover, any potential error is harmless given the other

physical evidence in this case. The evidence found at the

condominium demonstrated that in a single series of events, L.S.

and R.C. were sexually battered and murdered in their bedrooms.

Substantial and conclusive DNA evidence linked him to the murder

and sexual battery of R.C. Thus, we conclude beyond a reasonable

doubt that excluding the challenged evidence would not have


                                 - 27 -
affected Zieler’s guilty verdicts. See State v. DiGuilio, 491 So. 2d

1129, 1135, 1138-39 (Fla. 1986).

                           IV. Sentencing Order

     Zieler argues that the trial court made an error in the

sentencing order that may have affected the weight accorded to the

jury’s recommendation that he be sentenced to death. However, the

trial court did not err.

     In section G, paragraph 43 of its sentencing order, the trial

court said the following:

           Defendant submitted no statutory mitigating
     circumstances under Fla. Stat. 921.141(7). The jury
     found that no mitigating circumstances had been proven
     by a greater weight of the evidence. However, the Court
     has independently considered some statutory mitigating
     factors that may apply in this case. Moreover, the Court
     considered the possibility that other factors may exist in
     the Defendant’s character, record, or background that
     would mitigate against the imposition of the death
     penalty. Specifically, the Court has considered the
     following mitigating factors, beginning with the statutory
     mitigating factors under Fla. Stat. § 921.141(7) that may
     be applicable.

Zieler claims the trial court’s statement that “[t]he jury found that

no mitigating circumstances had been proven by a greater weight of

the evidence” constitutes reversible error. We conclude that this

claim is meritless.


                                  - 28 -
     When viewed in context, the court’s statement is not

ambiguous, let alone erroneous. The statement appears between

two sentences where the court specifically discusses statutory

mitigating circumstances. The jury was not presented with any

statutory mitigating circumstances, only the 42 nonstatutory

mitigating circumstances, which means that it did not have the

opportunity to find the existence of any statutory mitigating

circumstances by a greater weight of the evidence. Moreover, a

later portion (paragraph 53) of the sentencing order states as

follows: “No statutory mitigating factors were raised or established,

but the Court considered the non-statutory mitigating factors

presented by Defendant. Out of 42 enumerated non-statutory

mitigating factors, the Court found that 36 have been established.”

     Moreover, any error here is harmless because the record is

clear that the trial court independently considered 42 nonstatutory

mitigating circumstances, found 36 of them, and assigned varying

weights. The court also stated that it gave great weight to the jury’s

recommendation “by a vote of ten to two . . . that the death penalty

be imposed.” The court ultimately found that death was warranted

upon concluding that the aggravating factors it described as


                                - 29 -
“horrific” “greatly outweigh[ed] the comparatively insignificant

mitigating factors.”

         V. Constitutionality of Florida’s Death Penalty

     Zieler also challenges the facial constitutionality of Florida’s

capital sentencing scheme. In particular, he argues that the

current death penalty violates the Eighth Amendment due to

Florida’s elimination of comparative proportionality review, the

elimination of the statutory requirement that a jury unanimously

recommend a death sentence, and a lack of a sufficient narrowing

of the class of individuals subject to the death penalty. We reject

Zieler’s argument as these factors, neither individually nor

cumulatively, render Florida’s capital sentencing scheme

unconstitutional.

     “We have repeatedly rejected the argument that the death-

penalty statute violates the Eighth Amendment because it fails to

sufficiently narrow the class of murderers eligible for the death

penalty.” Wells v. State, 364 So. 3d 1005, 1015 (Fla. 2023)

(rejecting a claim of insufficient narrowing after the addition of a

sixteenth statutory aggravating factor). Moreover, we have

concluded that the “abandonment of comparative proportionality


                                 - 30 -
review [in Lawrence v. State, 308 So. 3d 544, 548-50 (Fla. 2020)]

does not alter our analysis.” Id.

     Nor does the absence of a requirement that a jury

unanimously recommend death further Zieler’s argument of

unconstitutionality. “[N]either the Eighth Amendment nor any

provision in our state constitution requires jury sentencing in

capital cases, or a unanimous jury recommendation, or indeed any

jury recommendation at all.” Herard v. State, 390 So. 3d 610, 622-

23 (Fla. 2024) (citing State v. Poole, 297 So. 3d 487, 503-05 (Fla.

2020)).

              VI. Unanimous Jury Recommendation

     As a separate matter, Zieler urges this Court to reconsider our

conclusion in Poole; that is, a jury must unanimously determine

that death is the appropriate sentence before the death penalty can

be imposed. However, we have conclusively rejected Zieler’s

argument that the United States Constitution or the Florida

Constitution requires that a jury unanimously recommend the

death penalty, and we decline to revisit this issue. See Poole, 297

So. 3d at 504-05 (rejecting unanimity argument on Sixth and

Eighth Amendment grounds and under the Florida Constitution);


                                - 31 -
Zack v. State, 371 So. 3d 335, 350 (Fla. 2023) (stating that “the

Supreme Court’s Eighth Amendment precedent to which we are

bound does not require a unanimous jury recommendation for

death during the penalty phase”).

     As to Zieler’s sentences of death involving the

contemporaneous first-degree murders of the two victims, where the

aggravating factors in this case included the finding that Zieler “was

previously convicted of another capital felony or of a felony involving

the use or threat of violence to the person,” 4 there is no dispute that

his sentences satisfy the constitutional requirements we explained

in Poole.

                  VII. Sufficiency of the Evidence

     Although Zieler does not challenge the sufficiency of the

evidence supporting his convictions, this Court has an independent

obligation to review the record to determine whether there is

sufficient evidence to support Zieler’s murder convictions. See

Miller v. State, 379 So. 3d 1109, 1120, 1129 (Fla. 2024). “In

determining the sufficiency of the evidence, the question is whether,



     4. § 921.141(6)(b), Fla. Stat.


                                 - 32 -
after viewing the evidence in the light most favorable to the State, 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,

1067 n.5 (Fla. 1999)). Competent, substantial evidence supports

Zieler’s convictions.

     Zieler was not a suspect until 26 years after the murders,

when his DNA sample was obtained in an unrelated case. That

sample led to a CODIS hit, and upon further testing, Zieler’s DNA

profile was determined to be a one-in-83 quintillion match to the

DNA samples obtained from R.C.’s bedsheet, a one-in-450 million

match to the pillowcase that was located under R.C., a one-in-16

million match to hairs obtained from the body of L.S., and a one-in-

360,000 match to the genital swabbing from R.C. A DNA analyst

testified that the DNA obtained from the genital swabbing of R.C.

could not have been transferred onto her. Zieler attempted to

explain the presence of his DNA at the crime scene by stating that

he had visited the condominium the year before, but R.C.’s mother

rebutted this claim. Additionally, Zieler’s claim that he was in jail

in another state at the time of the murders was shown to be false.


                                - 33 -
                            CONCLUSION

     For these reasons, we affirm Zieler’s convictions and sentences

of death.

     It is so ordered.

MUÑIZ, C.J., and COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
TANENBAUM, J., concurs with an opinion.
LABARGA, J., concurs in result with an opinion.

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

TANENBAUM, J., concurring.

     There simply cannot be a cognizable, “unpreserved” claim on

appeal from a judgment that a criminal defendant received

ineffective assistance of trial counsel, even if that ineffectiveness

purports to appear “on the face of the record.” See Steiger v. State,

328 So. 3d 926, 928, 932 (Fla. 2021). As far back as writ-of-error

days, this court has said that the purpose of direct review is to

consider “the different rulings made by a trial court, whether upon

the pleadings or during the trial of the action,” it being “incumbent”

on the appellant “to show that the different rulings of the trial court,

or certain of them, are so infected with error as to call for and

compel a reversal of the judgment.” McKinnon v. Lewis, 53 So. 940,


                                 - 34 -
942 (Fla. 1910) (emphases supplied).

     An unpreserved claim regarding counsel’s ineffectiveness

necessarily is unrelated to any opportunity for a trial court ruling.

Notably, there could be any number of tactical reasons, known only

to trial counsel, for the purported action or inaction by counsel. It

is unclear, then, where in a proceeding a trial court might intervene

to head off or correct a decision made by trial counsel. It is a

misnomer to call any ineffectiveness “error” in the absence of any

clear opportunity for the trial court to have acted. This court’s

suggestion in Steiger—that there could possibly be consideration of

an unpreserved claim of ineffectiveness of counsel in an appeal—

makes no sense and should be revisited.

     In this appeal, I agree with the majority’s full analysis

supporting affirmance, save for its reliance on Steiger. On that

excepted point, I instead would reject the argument as non-

cognizable on direct review.

LABARGA, J., concurring in result.

     I fully agree that competent, substantial evidence supports

Zieler’s convictions for the first-degree murders of R.C. and L.S.




                                - 35 -
     I concur in result, however, because I continue to adhere to

the views expressed in my dissenting opinion in Lawrence v. State,

308 So. 3d 544 (Fla. 2020) (abandoning this Court’s decades-long

practice of conducting comparative proportionality review in cases

involving the direct appeal of a sentence of death).

An Appeal from the Circuit Court in and for Lee County,
    Robert Joseph Branning, Judge
    Case No. 362016CF000455000ACH

Blair Allen, Public Defender, and Steven L. Bolotin, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,

     for Appellant

James Uthmeier, Attorney General, Jeffrey Paul DeSousa, Acting
Solicitor General, and Christina Pacheco, Senior Assistant Attorney
General, Tallahassee, Florida,

     for Appellee




                                - 36 -