BRYAN CARLOS RODRIGUEZ

v.

THE STATE OF FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed November 24, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D19-2371 Lower Tribunal No. F16-15265

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Bryan Carlos Rodriguez,

Appellant,

vs.

The State of Florida,

Appellee. An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward, Judge. Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee. Before EMAS, LOGUE and SCALES, JJ. SCALES, J. Bryan Rodriguez appeals his conviction for second-degree murder, claiming the trial court erred in denying his motion for judgment of acquittal. Based on the authority of Hodgkins v. State, 175 So. 3d 741 (Fla. 2015), we agree with Rodriguez that the State failed to present competent, substantial evidence at trial from which the jury could conclude, beyond a reasonable doubt, that Rodriguez committed the crime. We, therefore, reverse Rodriguez’s conviction and remand to the lower court with directions to enter a judgment of acquittal on the charge. We certify to the Florida Supreme Court the question of great public importance of whether, in light of its recent decision in Bush v. State, 295 So. 3d 179, 201 (Fla. 2020), that portion of Hodgkins upon which we rely remains good law.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND A. The Victim’s Death and the Initial Police Investigation On Friday, May 29, 2013, Elsa Dominguez (“the victim”) was found dead on the floor of her apartment bedroom, in a pool of blood, with a kitchen knife stuck in her throat. A broken drinking glass was found on the floor next to her body, and a fishtail was found on the kitchen counter. There was no sign of forced entry. Because the police readily found a letter from the victim stating how she wished her body to be handled upon her death, the police, initially suspecting the wounds were self-inflicted, did not immediately suspect foul play.

The police permitted the victim’s family to enter the victim’s apartment and clean up the scene. The family members cleaned up the blood and threw the broken drinking glass away in a dumpster. At some point during the cleanup, the victim’s family realized that the victim’s purse, wallet, and cellphone were missing and notified the police. The police returned to the scene and retrieved the broken drinking glass from the dumpster. While the victim’s purse, wallet and cellphone were never located, in the eight-hour period following the victim’s death, her cellphone pinged off a cellphone tower (tower 123) located approximately six to seven miles from the victim’s apartment. For these eight hours, the cellphone remained stationary and pinged off the tower until either the phone battery was depleted or someone turned the phone off.

The victim’s body was taken to the medical examiner for an autopsy, during which the victim’s fingernail clippings were taken from both her hands. The knife was extracted from the victim’s neck and sent to forensics, along with the fingernail clippings. Forensic analysis found no fingerprints on either the knife or the broken drinking glass. DNA analysis, however, revealed at least four contributors of DNA on a broken shard of the drinking glass and at least three contributors of DNA on the victim’s fingernail clippings. No DNA match was found in the criminal database. The case remained unsolved. B. The DNA Match and the Subsequent Police Investigation Three years later, a criminal database revealed that Bryan Rodriguez’s DNA matched one of the DNA contributors found on the shard of the broken drinking glass, and one of the DNA contributors on the victim’s fingernail clippings. The police then learned that Rodriguez’s home was located within a quarter to one-half mile of the cellphone tower where the victim’s cellphone had pinged for eight hours following the victim’s death. With this information in hand, the police went to question Rodriguez. Rodriguez told the police that he knew the victim well because the victim was his mother’s godmother. Rodriguez’s mother was also the niece of the victim’s late husband. Rodriguez knew where the victim lived and had, on occasion, been to her apartment with other family members. Rodriguez denied ever visiting the victim alone.

Rodriguez told the police that he could not remember the last time he had seen the victim because “[i]t was a very long time ago.” When, however, the police informed Rodriguez that his DNA had been found at the scene, Rodriguez speculated that his DNA must have been found because Rodriguez had hugged the victim when he visited the victim’s home prior to her death.

The police later arrested Rodriguez and the State charged him with the second-degree murder of the victim.¹

C. The Trial

The State presented purely circumstantial evidence at the trial, positing no motive for the killing. The circumstantial evidence included: • Testimony from a neighbor that the victim kept a very neat home, and that the victim washed her hands meticulously before preparing a meal. • When the victim’s body was found, there was a fishtail on the kitchen counter, suggesting that the victim had prepared food the day of her death. • Rodriguez’s DNA was found both on a shard of the broken drinking glass and on the victim’s fingernail clippings. • Markings on the victim’s face were consistent with the assailant striking the victim with the assailant’s left hand. • Rodriguez is left-handed. • The medical examiner testified that the victim was hit with a blunt object, asphyxiated by hand, and stabbed in the neck with a kitchen knife. The knife, which had an eight-inch blade, went through the victim’s windpipe and through a vertebral artery. • The medical examiner testified that the DNA found on the victim’s fingernails was consistent with a struggle.

II. ANALYSIS

A. This Court’s Standard of Review 1. The current standard of review When the defendant in a criminal appeal challenges the sufficiency of the State’s evidence, the appellate court conducts a de novo review of the trial record to ensure that the guilty verdict is supported by competent, substantial evidence regarding each element of the charged crime. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).4 Because Rodriguez was

B. Preservation

As a threshold matter, the State argues that we cannot reach the merits of Rodriguez’s sufficiency argument because he failed to preserve the argument at trial. See Young v. State, 141 So. 3d 161, 165 (Fla. 2013) (“[A] ‘technical and pro-forma’ motion which requests a judgment of acquittal without further argument is ‘totally inadequate to preserve a sufficiency of the evidence claim for appellate review.’” (quoting Brooks v. State, 762 So. 2d 879, 895 (Fla. 2000))). To preserve his sufficiency issue for appellate review, Rodriguez was required, in moving for judgment of acquittal below, to identify the element(s) of second-degree murder for which he contended the evidence was lacking. See Bradwell, 300 So. 3d at 328. A boilerplate objection would not suffice. See Brooks, 762 So. 2d at 895; Fla. R. Crim. P. 3.380(b) (providing that a motion for judgment of acquittal “must fully set forth the grounds on which it is based”).

The State claims that Rodriguez made only a boilerplate objection below and, therefore, waived appellate review of this issue. We disagree. When Rodriguez’s counsel moved for a judgment of acquittal, counsel stated: The objection at this time attend to any motion or objection of acquittal I ask the Court to take into account the evidence of – presented by the State, in the States [sic] face of their case as specifically ask to the fact that there’s – From the date of the DNA expert testified how she testified which is consistent with the defense, that the Defendant was not there, and there is no evidence linking him to the scene, besides that DNA and ask the court to look at the entire evidence and consider it judge won’t hold against the Defendant, even though you may be looking at it most favorable to the state [sic] at this point. What appears to be inarticulate language by defense counsel, coupled with a poor transcription by the court reporter, makes the objection somewhat difficult to decipher. We conclude, however, that defense counsel adequately challenged the sufficiency of the evidence regarding seconddegree murder’s second element: i.e., whether Rodriguez caused the victim’s death. Specifically, defense counsel argued to the trial court that acquittal was required because the only evidence connecting Rodriguez to this crime was the DNA evidence from the fingernail clippings and the broken glass, and that this was not enough to establish that Rodriguez had killed the victim. Thus, Rodriguez preserved this issue for appellate review. See Murray v. State, 3 So. 3d 1108, 1117 (Fla. 2009) (“While no magic words are needed to make a proper objection, the articulated concern must be ‘sufficiently specific to inform the court of the perceived error.’” (quoting State v. Stephenson, 973 So. 2d 1259, 1262 (Fla. 5th DCA 2008))). C. The Legal Sufficiency of the Evidence Presented at Trial – the Hodgkins Case Having concluded that Rodriguez adequately preserved his sufficiency objection, we now address whether, in light of Hodgkins v. State, 175 So. 3d 741 (Fla. 2015), the State presented competent, substantial evidence that the victim’s death was caused by Rodriguez’s criminal conduct. Relying exclusively on this pre-Bush case, Rodriguez argues that the State failed to meet its burden. 1. Did Hodgkins survive Bush?

Before we delve into Hodgkins and compare it to this case, though, we must address the State’s argument that Hodgkins is no longer good law because it was overruled, sub silencio, by the Florida Supreme Court’s Bush decision. Hodgkins, like Bush and this case, was a purely circumstantial evidence case in which the Florida Supreme Court applied the thenapplicable special appellate review standard, and determined then that the State had failed to meet its burden of presenting evidence that was inconsistent with Hodgkins’ reasonable hypothesis of innocence. See Hodgkins, 175 So. 3d at 749.

Not only did the Hodgkins court conclude that the State had failed to disprove Hodgkins’ hypothesis of innocence, but the Hodgkins court also determined that the State had not proven the elements of the crime with competent, substantial evidence: In this purely circumstantial case, we must determine not only whether the State has proven the “elements of the crime beyond a reasonable doubt,” but also whether the record contains “competent evidence which is inconsistent with the defendant’s theory of events.” The analysis set forth above compels us to find that the State has failed to meet these burdens. We, therefore, conclude that the evidence before us is insufficient to sustain Derral Hodgkins’ first-degree murder conviction. Id. at 751 (emphasis added) (citations omitted). Additionally, in the opinion’s main text, the Court begins its analysis by discussing the sufficiency of the State’s evidence, and then shifts its focus to the special standard analysis, preceding such analysis with the following sentence: “Furthermore, we find that the State’s evidence is wholly consistent with Hodgkins’ hypothesis of innocence that someone else killed (the victim).” Id. at 749 (emphasis added).

The State argues that, notwithstanding the plain dual holdings of the Hodgkins opinion as evidenced by the opinion’s language and structure, the opinion’s special appellate review analysis and its seemingly separate general sufficiency analysis are inextricably intertwined, so that neither holding survives Bush. The State suggests that because the State’s evidence in Hodgkins was purely circumstantial, the Florida Supreme Court necessarily applied the now-abandoned special appellate review standard throughout the entire opinion, so that it is impossible to meaningfully differentiate the two holdings, much less apply only one of the case’s holdings to this case.

We are persuaded, however, that the Hodgkins opinion contains two discrete, albeit related, holdings, concluding that the State’s evidence was insufficient to both: (i) establish Hodgkins’ guilt beyond a reasonable doubt; and (ii) refute Hodgkins’ reasonable hypothesis of innocence. We conclude that the Bush opinion overruled only that portion of Hodgkins relating to whether the State’s evidence was sufficient to overcome Hodgkins’ reasonable hypothesis of innocence, while leaving intact Hodgkins’ conclusion that the evidence in that case was legally insufficient to prove Hodgkins’ guilt beyond a reasonable doubt.⁶ 2. Certification of Hodgkins’ continued validity as a question of great public importance

3. The facts of Hodgkins

Having concluded that Hodgkins’ general sufficiency hoIding survived Bush, we now compare the facts and circumstances of Hodgkins to the instant case. In Hodgkins, on September 28, 2006, the victim’s body was found on the floor of her apartment bedroom. 175 So. 3d at 744. The victim had been beaten with a blunt instrument, strangled, and stabbed numerous times; the victim suffered three stab wounds to the neck that severed her jugular vein. Id. There was no sign of forced entry. Id. No murder weapon was ever recovered. Id. Twenty-one sets of fingerprints were lifted from the scene. Id. Three sets of fingerprints matched the victim, but the remainder was never identified. Id.

Over a year later, on November¹, 2007, the police received a report “indicating that a DNA profile type consistent with that of Hodgkins was detected underneath the fingernails of [the victim’s] left hand.” Id. The police then interviewed Hodgkins on two occasions, with Hodgkins giving multiple stories as to when he had last seen the victim. Id. at 745. During the first police interview, Hodgkins stated that he had last seen the victim a month-and-a-half to two months prior to her death, at a convenience store. Id. In the second interview, when the police confronted Hodgkins with the fact that his DNA was found underneath the victim’s fingernails, Hodgkins stated that the victim had scratched his back during a hug at the convenience store. Id. On further questioning, Hodgkins then admitted that he had also met the victim for sex two weeks after the convenience store encounter, only to then admit that he had lied, “this time stating that he had sex with [the victim] three days before she was killed and that [the victim] left six scratches on his back due to an orgasm.” Id. In addition to the DNA evidence, the State presented a myriad of circumstantial evidence at trial, including: (i) Hodgkins’ inconsistent stories to the police, (ii) the victim, who worked as a cook and a dishwasher, cleaned her hands meticulously at home and at work; (iii) expert testimony that, based on the victim’s handwashing habits, DNA would not remain under the victim’s fingernails for two or three days; and (iv) medical testimony that the victim had died due to “manual strangulation followed by sharp-force injuries.” Id. at 747.

The jury convicted Hodgkins of premediated first-degree murder and Hodgkins was sentenced to death. 4. Hodgkins’ relevant holding As alluded to earlier, on direct appeal, the Florida Supreme Court reversed Hodgkins’ conviction. The Court began its analysis by explaining that “[w]hen reduced to its core, the evidence connecting Hodgkins to the murder consists only of proof that his DNA was detected within scrapings collected from [the victim’s] left fingernails.” Id. at 748. The Court went on observe that “this [DNA] evidence does not show that the sample in which Hodgkins’ DNA was embedded was anything more than scrapings of dirt, oil or other debris that naturally accumulates under the nail.” Id. Next, noting that Hodgkins had made no admissions concerning the murder and that there was no evidence to suggest that Hodgkins had a motive for killing the victim, the Court determined “[i]n this circumstantial case, the State simply has not pointed to legally sufficient evidence establishing a nexus between Hodgkins’ DNA and any criminal conduct on his part.” Id. at 749. 5. Applying Hodgkins to this case We conclude that Hodgkins compels us to reverse Rodriguez’s second-degree murder conviction. It is inescapable that the quantum and quality of the evidence presented by the State that Rodriguez killed the victim is strikingly similar to the evidenced presented by the State in Hodgkins. Among other things, these similarities include: the victims’ manner of death, the meticulous hygiene habits of the victims, each case’s dearth of physical evidence, and each case’s lack of motive. The most important similarity in the two cases is that the only evidence connecting the defendants to the murders is DNA detected at the scene. Indeed, the only evidence in this case that Rodriguez killed the victim consisted of Rodriguez’s DNA on the victim’s fingernails and on a broken shard of the drinking glass found next to the victim’s body.

As in Hodgkins, the nature of the DNA recovered at the victim’s apartment is relatively mundane because it did not come from blood, other bodily fluids, or skin tissue.⁷ Id. at 748. Rather, expert testimony confirmed that Rodriguez’s DNA found at the scene was of the type that is commonly transferred through innocuous circumstances by simple touch. Rodriguez’s DNA was also one of at least four DNA contributors on the drinking glass,

III. CONCLUSION

To convict Rodriguez of second-degree murder the State shouldered the burden of presenting legally sufficient evidence that the victim’s death was caused by Rodriguez’s criminal conduct. Viewing the evidence in the A. Yeah. If that – they were on that side of the tower, then yes. That’s a high possibility. Q. Likewise, if they were going northbound? A. That is correct. light most favorable to the State, and following the Florida Supreme Court’s decision in Hodgkins, we conclude the State failed to meet its burden. Because the State failed to introduce competent, substantial evidence below from which the jury could find, beyond a reasonable doubt, that Rodriguez killed the victim, we reverse and remand this case with directions for the trial court to enter a judgment of acquittal on the charge of second-degree murder. We also certify a question of great public importance to the Florida Supreme Court as to the continued validity of Hodgkins in light of Bush. Reversed and remanded with instructions; question certified.

Rodriguez v. State

3D19-2371

LOGUE, J., concurring.

I fully concur in the majority opinion. I only write to state my understanding of what part of Hodgkins v. State, 175 So. 3d 741 (Fla. 2015), survived Bush v. State, 295 So. 3d 179 (Fla. 2020). One of the rationales for the reversal of the conviction in Hodgkins was Florida’s “special appellate standard” for review of convictions in circumstantial evidence cases. That standard required the reviewing court to find that the evidence was inconsistent with the defendant’s reasonable theory of events. Hodgkins, 175 So. 3d at 749–51. Obviously, this rationale did not survive elimination of that special appellate standard in Bush. 295 So. 3d at 199–201. In Hodgkins, however, prior to discussing the special appellate standard, the Supreme Court first concluded: “the State simply has not pointed to legally sufficient evidence establishing a nexus between Hodgkins’ DNA and any criminal conduct on his part.” 175 So. 3d at 749. In other words, circumstances exist where DNA evidence that merely places a defendant at a location is not sufficient, without more, to support an inference beyond a reasonable doubt that the defendant committed a crime that occurred at that location. I think this commonsense aspect of the rationale of Hodgkins was the law before Hodgkins and remains good law. See McDuffie v. State, 970 So. 2d 312, 330 (Fla. 2007) (“Although McDuffie’s DNA was found on a Pepsi bottle sitting on a box that also bore a spot of Schneider’s blood, no evidence indicated when the bottle was placed there, and the fact that McDuffie worked in the store all week militates against that DNA on the Pepsi bottle being probative of these crimes.”).⁹ Here, the State produced no evidence reasonably tending to indicate that Rodriguez’s DNA at the crime scene evinced anything more than the fact that he was present there at some point before the crime occurred. The State’s argument that, due to the victim’s cleanliness, Rodriguez’s DNA could only have been deposited during an attack on the victim is supported by less direct evidence than was adduced in Hodgkins and, more importantly, is contradicted by the fact that Rodriguez’s DNA was one of a mixture of at least three contributors on the victim’s fingernails, and at least four contributors on the broken drinking glass found near the victim. The majority opinion fully and ably explains why the State’s other evidence at trial