          Supreme Court of Florida
                                   ____________

                                  No. SC13-1004
                                  ____________

                        DERRAL WAYNE HODGKINS,
                                Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  [June 18, 2015]

PER CURIAM.

      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. Because we find that the record lacks competent, substantial

evidence to sustain the conviction, we reverse and vacate Hodgkins’ conviction

and sentence.

                   FACTS AND PROCEDURAL HISTORY

      Derral Hodgkins was convicted of the first-degree murder of Teresa Lodge.

The record reflects that in September 2006, Lodge lived alone in a first-floor unit

at the Lakeside Apartments complex of Land O’Lakes, Pasco County, Florida. At
that time, she worked primarily as a cook, manager, and dishwasher at Frank’s

Café, a breakfast restaurant that was located in a strip mall directly across the street

from her apartment. Lodge typically worked at Frank’s Café from 6 a.m. to

approximately 2 p.m. on weekdays.

      During the week of her death, Lodge worked full shifts at the restaurant on

Monday and Tuesday, September 25 and 26, 2006. Around 10 p.m. on that

Monday, Melanie Zakel visited Lodge at home. The two spent the evening talking,

joking, and cleaning Lodge’s apartment until approximately 2 or 3 a.m. on

Tuesday morning. At some point that evening, Hodgkins visited the apartment.

Zakel testified that Lodge’s voice became uneasy as Lodge and Hodgkins

conversed at the front door, but that at no point did Hodgkins enter the apartment

or make contact with Lodge. Hodgkins stayed for approximately five minutes, and

that was the first and last time before trial that Zakel saw him. According to Zakel,

Lodge appeared aggravated after Hodgkins left. Zakel left the apartment around

4:30 a.m. because Lodge needed to shower and get ready for work.

      Lodge worked a partial shift at Frank’s Café on Wednesday, September 27,

2006. She spent most of the morning training a new employee on the procedures

for cooking the food and running and cleaning the restaurant. Lodge left work

between 9 and 10 a.m. to attend a doctor’s appointment. She later called the




                                         -2-
restaurant at 2:23 p.m., and that was the last time anyone from the restaurant spoke

with Lodge.

      On Thursday, September 28, 2006, Leslie Thomas, Lodge’s coworker,

attempted to pick up Lodge for work. Thomas called Lodge’s cell phone around

5:30 a.m. and, upon arriving at the apartment, knocked on the door as well as the

bedroom and bathroom windows, but Lodge did not answer. The door was locked,

but Thomas noticed that both the light and television in the bedroom were on.

Thomas eventually left to open Frank’s Café.

      Other people subsequently stopped by Lodge’s apartment to check on her

but could not open the door. The State presented testimony that a spare key to the

apartment that was usually hidden outside was missing prior to these events.

Having not heard from Lodge, Thomas called Dawn Williams around noon and

instructed her to check on Lodge because Williams had another spare key to the

apartment.1

      At approximately 1 p.m., Williams summoned law enforcement to Lodge’s

apartment, and Sergeant Larry Engle of the Pasco County Sheriff’s Office (PCSO)

responded to the scene. Upon entering the apartment using Williams’ spare key,

Engle found Lodge’s body in the bedroom near the foot of the bed lying face up on



       1. Williams passed away before trial and, therefore, was unavailable to
testify.


                                        -3-
the floor. Lodge’s skin was discolored; her body had multiple injuries, including a

large, gaping wound on her neck; a pool of dried blood surrounded her head; and

there was blood on her face, shirt, and mouth. There also were eyeglasses adjacent

to Lodge’s body, multiple twenty-dollar bills underneath her body and the bed, and

a large quantity of cash in a purse sitting on the bed. Engle testified that the

apartment was orderly and well-kept, and that there were no signs of forced entry.

      Responding forensic investigators collected, among other things, scrapings

from underneath Lodge’s fingernails as well as her fingernail clippings. They also

collected from the kitchen a beer bottle bearing what was later identified as

Lodge’s blood. Additionally, twenty-one sets of fingerprints were lifted from the

crime scene, three of which belonged to Lodge; the remainder were unidentified.

No murder weapon was recovered.

      An autopsy of Lodge’s body was performed on September 29, 2006.

According to medical expert testimony, Lodge suffered thirty-two bodily injuries

during the commission of the crime. Lodge’s death was ruled a homicide caused

by sharp-force injuries, including seven stab wounds to the torso and abdomen and

three incised wounds to the neck resulting in the severance of the external jugular

vein. Medical expert testimony also indicated that manual strangulation was a

contributing factor of Lodge’s death. No injuries were found on her hands or arms,

indicating a lack of defensive wounds.


                                         -4-
      On or about November 1, 2007, the Florida Department of Law Enforcement

(FDLE) submitted a report to PCSO Detective Melborne Eckley, indicating that a

DNA profile type consistent with that of Hodgkins was detected underneath the

fingernails of Lodge’s left hand. On November 6, Eckley and his partner,

Detective Steve Foshey, obtained Hodgkins’ consent to interview him in the living

room of his house. Based on the transcript of the interview, which was recorded,

Hodgkins told Eckley and Foshey that he and Lodge dated sometime between 1985

and 1987. Hodgkins said that in 2004, he visited Lodge at her Lakeside apartment

and, at that time, Lodge told him that she was dealing cocaine and did not want

him to be involved if she were arrested for it. Hodgkins also told Eckley and

Foshey that he had not gone back to Lodge’s apartment since then, and that the last

time he saw Lodge was a month-and-a-half to two months prior to her death.

Hodgkins explained that he and Lodge encountered one another at a Circle K

convenience store down the street from Lodge’s apartment, and that they hugged

and kissed before parting ways.

      One week later, Eckley and Foshey conducted a second recorded interview

with Hodgkins, again in his living room. After Eckley confronted Hodgkins with

the FDLE report concerning Hodgkins’ DNA, Hodgkins explained that his DNA

was under the fingernails because Lodge would scratch his back whenever they

hugged. Hodgkins further explained that Lodge scratched his back when they last


                                       -5-
saw each other and hugged at the convenience store a month-and-a-half before the

murder. Hodgkins initially told Eckley and Foshey that the last time he and Lodge

engaged in sexual intercourse was in the late 1980s when they dated. Hodgkins

later admitted that he lied, explaining that he and Lodge had sex two other times,

and that Lodge scratched his back during one of those times. Hodgkins first

indicated that the second sexual rendezvous occurred around the time of the Circle

K encounter—a month-and-a-half before the murder—but then changed the

timeframe to two weeks after that encounter—sometime in August. Upon further

questioning, Hodgkins again admitted that he lied, this time stating that he had sex

with Lodge three days before she was killed, and that Lodge left six scratches on

his back due to an orgasm. Hodgkins also explained that he lied because he did not

want his then-wife to learn of his infidelity. Hodgkins also reasoned that, because

he made contact with Lodge so close to her death, he did not want detectives

accusing him of murder. Despite the detectives’ repeated insistence, Hodgkins

denied killing Lodge.

      Hodgkins was arrested on November 18, 2007, and charged with the

premeditated first-degree murder of Lodge. During the August 2011 trial,2 after

the State closed its case, the court denied the defense’s motion for a judgment of

acquittal for failure to present evidence inconsistent with the theory that Hodgkins’

      2. Hodgkins was initially tried in January 2011, which ended in a mistrial.


                                        -6-
DNA was deposited underneath Lodge’s fingernails several days before her death

and remained there until it was collected. Subsequently, the jury returned a verdict

finding Hodgkins guilty as charged and, following the penalty phase and Spencer3

hearing, the court imposed a sentence of death.

      This appeal follows.4 Because we conclude that the State failed to introduce

competent, substantial proof that Hodgkins killed Lodge, we limit the following

discussion to the sufficiency of the evidence.

                            STANDARD OF REVIEW

      In every capital case involving the imposition of the death penalty, this

Court independently reviews the record to ensure there is legally sufficient

evidence to sustain the conviction. Dausch v. State, 141 So. 3d 513, 517 (Fla.

2014). There is sufficient evidence to sustain a conviction “if, after viewing the

evidence in the light most favorable to the State, a rational trier of fact could find

the existence of the elements of the crime beyond a reasonable doubt.” Johnston v.




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

       4. On appeal, Hodgkins raises five issues: whether (1) the State proved
Hodgkins committed the murder; (2) the State proved premeditation; (3) the trial
court erred by limiting cross-examination of a prosecution witness regarding a
pending criminal charge; (4) the trial court erred by ordering that Hodgkins remain
in visible, physical restraints during the penalty phase; and (5) Florida’s capital
sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).


                                          -7-
State, 863 So. 2d 271, 283 (Fla. 2003) (citing Banks v. State, 732 So. 2d 1065 (Fla.

1999)).

      However, purely circumstantial cases, such as this one, are reviewed

differently:

      A special standard of review of the sufficiency of the evidence applies
      where a conviction is wholly based on circumstantial evidence.
      Jaramillo v. State, 417 So. 2d 257 (Fla. 1982). Where the only proof
      of guilt is circumstantial, no matter how strongly the evidence may
      suggest guilt, a conviction cannot be sustained unless the evidence is
      inconsistent with any reasonable hypothesis of innocence. McArthur
      v. State, 351 So. 2d 972 (Fla. 1977); Mayo v. State, 71 So. 2d 899
      (Fla. 1954). The question of whether the evidence fails to exclude all
      reasonable hypotheses of innocence is for the jury to determine, and
      where there is substantial, competent evidence to support the jury
      verdict, we will not reverse. Heiney v. State, 447 So. 2d 210 (Fla.),
      cert. denied, 469 U.S. 920 (1984); Rose v. State, 425 So. 2d 521 (Fla.
      1982), cert. denied, 461 U.S. 909 (1983), disapproved on other
      grounds, Williams v. State, 488 So. 2d 62 (Fla. 1986).

Thorp v. State, 777 So. 2d 385, 389 (Fla. 2000) (quoting State v. Law, 559 So. 2d

187 (Fla. 1989)). Further,

      [i]n meeting its burden, the State is not required to “rebut
      conclusively, every possible variation of events” which could be
      inferred from the evidence, but must introduce competent evidence
      which is inconsistent with the defendant’s theory of events. Darling[
      v. State, 808 So. 2d 145, 156 (Fla.)] (quoting Law, 599 So. 2d at 189).
      Once the State meets this threshold burden, it becomes the jury’s duty
      to determine whether the evidence is sufficient to exclude every
      reasonable hypothesis of innocence beyond a reasonable doubt. Id.

Johnston, 863 So. 2d at 283. We reiterate, however, that “[a]lthough the jury is the

trier of fact, a conviction of guilt must be reversed on appeal if it is not supported


                                          -8-
by competent, substantial evidence.” Lindsey v. State, 14 So. 3d 211, 215 (Fla.

2009) (quoting Ballard v. State, 923 So. 2d 475, 482 (Fla. 2006)) (internal

quotation marks omitted).

      Finally, this Court has instructed that “[s]uspicions alone cannot satisfy the

State’s burden of proving guilt beyond a reasonable doubt[.]” Ballard, 923 So. 2d

at 482. In fact, we have held that “even a ‘deep suspicion the appellant committed

the crime charged is not sufficient to sustain [a] conviction.’ ” Lindsey, 14 So. 3d

at 216 (quoting Williams v. State, 143 So. 2d 484, 488 (Fla. 1962)).

      Evidence which furnishes nothing stronger than a suspicion, even
      though it would tend to justify the suspicion that the defendant
      committed the crime, [ ] is not sufficient to sustain [a] conviction. It
      is the actual exclusion of the hypothesis of innocence which clothes
      circumstantial evidence with the force of proof sufficient to convict.
      Circumstantial evidence which leaves uncertain several hypotheses,
      any one of which may be sound and some of which may be entirely
      consistent with innocence, is not adequate to sustain a verdict of guilt.
      Even though the circumstantial evidence is sufficient to suggest a
      probability of guilt, it is not thereby adequate to support a conviction
      if it is likewise consistent with a reasonable hypothesis of innocence.

Dausch, 141 So. 3d at 518 (quoting Ballard, 923 So. 2d at 482) (alterations in

original).

      We have reversed first-degree murder convictions even where the State’s

circumstantial case involved more forensic evidence than that introduced at

Hodgkins’ trial. Ballard, in particular, involved two neighbors and long-time

friends of Ballard who were found robbed and beaten to death in their apartment.


                                        -9-
The evidence of guilt consisted of Ballard’s fingerprint on the bedframe near the

body of one of the victims, and a hair found on the victim’s hand that was

consistent with Ballard’s telogen-phase arm hair. Ballard, 923 So. 2d at 483. In

concluding this evidence was insufficient to sustain Ballard’s convictions, we

noted the lack of direct evidence showing when the hair and print were left or how

they came to be left in their locations. Id. We further determined that, while

“prov[ing] that Ballard was in [the victims’] apartment at some point in time,” the

State’s evidence “did not refute the possibility of his prior innocent presence in the

bedroom as accounting for the hair and print.” Id. at 484. Additionally, the

following circumstances were important to our determination: there were no

eyewitnesses to the crime; the murder weapon was never recovered; none of the

other recovered fingerprints were identified as Ballard’s; the State presented no

evidence of Ballard having hatred or ill feelings towards the victims; nor was there

any evidence that Ballard had any interest in robbing the victims; Ballard made no

admissions about the crimes; and no one testified about any suspicious conduct on

his part. Id. at 484-85. Accordingly, we reversed Ballard’s convictions, vacated

his death sentences, and remanded for the entry of a judgment of acquittal. Id. at

486.

       As the circumstances in Ballard are substantially similar to those found in

this case, we again conclude “that the State’s evidence, while perhaps sufficient to


                                        - 10 -
create some suspicion, is simply not strong enough to support a conviction.” See

id. at 483 (citing Jaramillo, 417 So. 2d 257).

                                    THIS CASE

      To prove first-degree premeditated murder, the State was required to

establish that: (1) the victim, Lodge, is dead; (2) Lodge’s death was premeditated;

and (3) Lodge’s death resulted from the criminal act of the defendant, Hodgkins.

See Dausch, 141 So. 3d at 517 (citing Fla. Std. Jury Instr. (Crim.) 7.2).

      At trial, the State’s entire circumstantial case encompassed the following

evidence: (1) statements from Hodgkins wherein he lied to detectives about his last

time seeing and engaging in sexual intercourse with Lodge; (2) medical testimony

explaining the manner of death, including manual strangulation followed by sharp-

force injuries; (3) Lodge’s cleaning habits at home and at work, including washing

her hands and nails for three minutes each time; (4) observations of Lodge’s

cleaning and handling raw foods at Frank’s Café on Monday, Tuesday, and

Wednesday the week of her death; (5) DNA material found underneath Lodge’s

fingernails matching Hodgkins’ DNA; and (6) expert testimony that the DNA

material was robust when collected, it would have significantly degraded since the

Monday before Lodge’s death, and based on Lodge’s hygienic activities and

factors likely to degrade DNA material, the foreign DNA found underneath

Lodge’s fingernails on that Thursday would not have been “under there for one,


                                        - 11 -
two, or three days[.]” While this evidence may serve to establish that Hodgkins

made contact with Lodge at some point before her death, it fails to prove he killed

Lodge.

      When reduced to its core, the evidence connecting Hodgkins to the murder

consists only of proof that his DNA was detected within scrapings collected from

Lodge’s left fingernails. See Jaramillo, 417 So. 2d at 257 (“Proof that Jaramillo’s

fingerprints were found on certain items in the murder victims’ home was the only

evidence offered by the State to show that Jaramillo was involved in these

murders.”). However, the State presented no direct evidence of how the DNA

came about being in its location. See Ballard, 923 So. 2d at 483. Rather, in

theorizing that Hodgkins’ DNA was transferred when Lodge scratched him during

strangulation, during oral arguments the State hesitantly described the sample

removed from Lodge’s fingernails as being bloody skin cells. This was a

mischaracterization of the evidence.

      First, whether we assume the supposed skin cells were covered by either

Lodge’s blood or Hodgkins’ blood, nothing in the record indicates that any blood

was detected on the sample collected from Lodge’s left fingernails. More to this

point, the State presented no evidence showing that Hodgkins’ blood was found

anywhere on Lodge’s body or in her apartment. Secondly, the State’s expert

witness described the DNA itself as being “robust,” meaning there was “a


                                       - 12 -
considerable amount of DNA present that [was] completely intact” and not

significantly degraded for purposes of developing a complete profile. In other

words, it was “high-level DNA.” The expert further agreed that the actual sample

collected from Lodge’s left fingernails was not “a big chunk of skin[.]” Rather, it

was visible pieces of “material[] that look[ed] consistent with something scraped

out from under [one’s] fingernails.” Interpreting this description in a light

favorable to the State, this 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. And, as expounded upon

below, the record evidence equally generates the theory that Hodgkins’ DNA was

transferred to Lodge through innocent contact.

      In addition, similarly to Ballard, the record shows that eighteen unidentified

fingerprints were lifted from the crime scene, but none belonged to Hodgkins. See

id. at 484 (“[W]hile there was one hair identified as Ballard’s from Jones’ hand,

there were other hairs not traced to Ballard on the hand, and literally hundreds of

other unidentified hairs at the scene that were never DNA-tested.”). The State’s

medical expert also testified that, of her thirty-two bodily injuries, Lodge had

abrasions on her face that were consistent with blunt trauma from a fist or bottle.

The record reflects that a beer bottle bearing her blood was recovered from the

crime scene. Viewing this evidence favorably to the State, we find that the


                                        - 13 -
assailant likely used, at least, that beer bottle to beat Lodge’s face. But, the State

presented no direct evidence of Hodgkins’ fingerprints being on the bottle or, much

less, that any additional measures were taken to establish a link between the bottle

and whomever used it as a weapon. In fact, there is no evidence in this record that

the murder weapon was recovered. See id. at 485 (“The murder weapon was never

discovered, and, although the curl bar and weight found at the scene had bloody

fingerprints, none of them were identified as Ballard’s.”).

      Also like Ballard, no eyewitnesses placed Hodgkins in or around Lodge’s

apartment at the time of the murder. Other than lying about the last time he and

Lodge engaged in sexual intercourse and stating that he did not want his wife to

learn about his infidelity, Hodgkins made no admissions concerning the murder.

Likewise, the only indication in this record concerning Hodgkins’ interest in

killing Lodge includes the interrogating detectives’ repeated insistence that

Hodgkins became upset when Lodge finally decided not to comply with his sexual

advances. We have not encountered any evidence in the record concerning, for

instance, Hodgkins’ animosity towards Lodge to substantiate this theory.

Although direct testimony shows that, on the evening of Monday, September 27,

Lodge appeared aggravated after conversing with Hodgkins at her apartment door

for five minutes, no evidence was introduced corroborating the substance of the

conversation or confirming that the conversation later incited Hodgkins to kill


                                         - 14 -
Lodge. And, we refuse to surmise that Lodge’s manifested demeanor somehow

denotes Hodgkins’ criminal intent towards her. See id. at 482 (reiterating that “the

circumstantial evidence test guards against basing a conviction on impermissibly

stacked inferences” (quoting Miller v. State, 770 So. 2d 1144, 1149 (Fla. 2000))

(internal quotation marks omitted). If anything, it merely demonstrates Lodge’s ill

feelings towards Hodgkins at that moment—not necessarily the inverse.

Nevertheless, Hodgkins’ admissions that he and Lodge used to date in the late

eighties, remained friends since then, and were sexually active as recent as the

Monday5 before the murder belies the notion that Hodgkins harbored any hatred

towards Lodge. See id. at 484-85.

      This is not a case like Washington v. State, 653 So. 2d 362 (Fla. 1994),

where the first-degree murder conviction was supported by not only forensic

evidence from the crime scene, but also evidence of the defendant’s possession and

selling of the victim’s belongings after the murder, and records establishing his

proximity to the crime scene around the time of the murder. Id. at 366. Nor are

the circumstances here reminiscent of Thorp, 777 So. 2d at 390, where, in addition

to DNA evidence, the State introduced direct evidence linking the defendant to the

      5. During his second interview with PCSO, Hodgkins indicated that he last
had sex with Lodge “three days before her death.” While this timeframe is unclear
from the record, viewing the evidence in a light favorable to the State, it appears
Hodgkins meant he engaged in sexual intercourse with Lodge sometime on
Monday, September 25, 2006.


                                        - 15 -
first-degree murder of a prostitute in a park, including the defendant’s admissions

to his cellmate, and observations from the night in question of blood on his

clothing and injuries consistent with a physical struggle. In 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.

      Furthermore, we find that the State’s evidence is wholly consistent with

Hodgkins’ hypothesis of innocence that someone else killed Lodge. Preliminarily,

we conclude that the timeframe within which Lodge could have been killed was far

too lengthy to reasonably infer that only Hodgkins made contact with Lodge. The

record reflects that Lodge worked at Frank’s Café the morning of Wednesday,

September 27, but left around 10 a.m. to attend a doctor’s appointment. The State

presented testimony and phone records showing that she called the restaurant that

day at 2:23 p.m.—which establishes she was still alive. However, the State did not

introduce any other evidence concerning Lodge’s activity following the phone call.

Nor was there any evidence of Hodgkins’ activity or whereabouts that day.

Additionally, Leslie Thomas, Lodge’s coworker, testified that she attempted to

pick up Lodge for work on Thursday, September 28. Thomas testified that Lodge

did not answer her 5:30 a.m. phone call or respond when she knocked on the

apartment door and bathroom and bedroom windows fifteen minutes later.

Thomas recalled that the front door was locked, but that both the light and


                                        - 16 -
television in the bedroom were on. PSCO Sergent Larry Engle testified that when

he arrived at the apartment at 1 p.m. that afternoon, Lodge was dead and her head

was lying in a pool of dried blood. The fact that the blood was dry, Engle

explained, indicated that the murder did not occur immediately before he found

Lodge.

      These circumstances evince that Lodge was murdered between

approximately 2:30 p.m. that Wednesday and 5:30 a.m. the following day—a

fifteen-hour window. Cf. Washington, 653 So. 2d at 363, 366 (evidence

introduced in support of first-degree murder conviction established that victim was

killed in her home within a four-hour window, and that defendant was imprisoned

at a work release center about two miles from victim’s home but, on the day of the

murder, was absent from the center for over three continuous hours within that

four-hour window).

      Next, the State highlights its expert witness’s testimony for support that

Hodgkins was the last person to make contact with Lodge, and that such contact

was contemporaneous with the murder. Crime laboratory analyst Lisa Thoomas

testified that in the DNA mixture collected from Lodge’s left fingernail scrapings,

she detected no foreign profile other than that consistent with Hodgkins’. She

acknowledged that “one explanation” for this finding was that Hodgkins was the




                                       - 17 -
last person to come into contact with Lodge before she died. However, she could

not definitively rule out other explanations for this finding.

      Moreover, Thoomas testified that a complete profile could not be created

from foreign DNA found on Lodge’s left fingernail clippings, but that a male

indicator was detected. Thoomas agreed on cross-examination that cellular

material could transfer from one person to another’s fingernails through constant,

everyday contact, such as hand-shaking or sexual intercourse. Based on Hodgkins’

recorded interviews, he and Lodge always hugged and kissed before departing

from encounters with one another. Particularly while hugging, Lodge would put

her hands under Hodgkins’ shirt and lightly rake his back with her fingernails.

According to Hodgkins, on several occasions before the day of the murder, the two

engaged in consensual intercourse in Lodge’s apartment. Finally, as previously

discussed, the State presented no evidence showing that Hodgkins left any of the

eighteen unidentified fingerprints, or that his fingerprints were on the beer bottle

with which Lodge likely was beaten.

      This evidence leaves unrefuted the possibility that Hodgkins was merely one

of the last persons to make contact with Lodge but the only one to leave detectable

forensic evidence. In other words, the State’s evidence is equally susceptible to the

theory that, after Hodgkins made innocent contact with Lodge, the perpetrator then

killed her but left either no detectable forensic evidence or no evidence at all at the


                                         - 18 -
crime scene. This is true regardless of whether Hodgkins encountered Lodge at

her apartment or out in public, and likewise whether they embraced each other

with a friendly hug or engaged in sexual intercourse. See Jaramillo, 417 So. 2d at

257 (“The State failed to establish that Jaramillo’s fingerprints could only have

been placed on the items at the time the murder was committed.”); see also Miller

v. State, 107 So. 3d 498, 501-02 (Fla. 2d DCA 2013) (“Th[e] [State’s] theory,

however, ignores the State’s own evidence that someone could have touched the

gun after the ‘major contributor’ and simply left no detectable DNA. Moreover,

the State’s expert clearly testified that there was no way to determine from the

mere presence of DNA on the gun when it was deposited.”).

      This theory is bolstered by evidence that: (1) a spare key to Lodge’s

apartment that was hidden outside was missing on the day of the murder and has

yet to be recovered; (2) there were no signs of forced entry in the apartment; (3)

Lodge lived directly across the street from Frank’s Café and several coworkers had

been inside her apartment on numerous occasions; (4) Lodge sometimes hosted

parties and cookouts at her apartment; (5) she dealt drugs to various people out of

her apartment; and (6) her drug dealer and ex-husband used to beat her. We find

this evidence to be consistent with the possibility that anyone who knew the hidden

location of the spare key could have used it to gain access to Lodge’s apartment

and kill her. In fact, the evidence, and especially the lack of forced entry into the


                                        - 19 -
apartment, generates the theory that the unidentified assailant was invited into the

apartment with Lodge’s consent, killed her, and then locked the apartment on the

way out using the spare key.

                                  CONCLUSION

      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.” Johnston, 863 So. 2d at 283 (quoting Darling, 808

So. 2d at 156). 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.

Accordingly, we reverse and vacate the conviction and sentence of death, and

remand with directions that a judgment of acquittal be entered.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
LABARGA, C.J., concurs with an opinion, in which PARIENTE, J., concurs.
CANADY, J., dissents with an opinion.

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

LABARGA, C.J., concurring.




                                        - 20 -
      I concur that reversal is proper in this case, but write separately to remind

trial judges of the proper standard for shackling a defendant during trial. A judge

generally has the discretion to determine when, for the security and safety of those

in the courtroom, a defendant should be in physical restraints during trial. See

Smith v. State, 7 So. 3d 473, 493 (Fla. 2009). However, putting a defendant in

physical restraints, such as shackles or waist restraints, during a criminal trial is

inherently prejudicial because visible, physical restraints interfere with the

defendant’s presumption of innocence and the fairness of the fact-finding process.

Knight v. State, 76 So. 3d 879, 886 (Fla. 2011).

      Related concerns arise when a defendant is shackled during the penalty

phase when the jury is deciding whether to recommend a sentence of life or death.

Deck v. Missouri, 544 U.S. 622, 632 (2005). This decision is no less important

than guilt given the severity and finality of the punishment. Id. For these

important reasons, restraints must only be used “when ‘justified by an essential

state interest’ specific to the defendant on trial.” Knight, 76 So. 3d at 886 (quoting

Deck, 544 U.S. at 624). However, the right to be free from restraints can be

overcome by a showing of necessity because of physical security, escape

prevention, or courtroom decorum. Hernandez v. State, 4 So. 3d 642, 656 (Fla.

2009). Therefore, the analysis is unique to each defendant according to the

circumstances.


                                         - 21 -
      The law is clear that a court cannot place a defendant into visible, physical

restraints merely as a routine matter. Id. at 658. Inquiry into the reasons behind

the restraining of a defendant is essential even in the penalty phase where “it may

be that a lesser showing of necessity is required to permit the shackling of the

defendant.” Bello v. State, 547 So. 2d 914, 918 (Fla. 1989) (“In this case, although

defense counsel objected to the shackling and requested that an inquiry be made,

the trial judge refused to do so, deferring to the sheriff’s apparent judgment that

such restraint was necessary without inquiring into the reasons behind that

decision.”). This Court has repeatedly held that if counsel timely objects and

requests an inquiry into the necessity of the restraints, the court must conduct a

hearing on the matter. See Hernandez, 4 So. 3d at 657; Bryant v. State, 785 So. 2d

422, 429 (Fla. 2001); Bello, 547 So. 2d at 918. The trial court must review the

circumstances surrounding the case and the particular defendant and determine, on

the record, whether the restraints are necessary for that particular defendant. The

trial court should consider a number of circumstances, including but not limited to

a defendant’s prison records, testimony of witnesses, testimony of correctional and

law enforcement officials, a defendant’s threats of harm or escape, and a

defendant’s conduct during the instant case proceedings. See Bryant, 785 So. 2d at

429-30; Bello, 547 So. 2d at 918.




                                        - 22 -
      That inquiry did not occur in this case. Before the penalty phase began, the

trial judge ordered Hodgkins to remain in the “lockbox” with handcuffs, a waist

chain, and leg irons. Counsel timely objected to the restraining of Hodgkins, and

particularly objected to the lockbox, stating that Hodgkins had behaved

appropriately in the proceedings and that there was no likelihood of disruption.

The judge explained that his deputy, under the direction of the Sheriff’s Office of

Pasco County, had a standard security protocol of shackling defendants. The judge

also noted that the jail viewed Hodgkins as a suicide and escape risk, which was

considered normal procedure after a conviction in a capital case, and that it was

alleged that Hodgkins had a prior serious violent felony. Therefore, the judge

deferred to the jail’s security protocol even though the judge said Hodgkins

exemplified past good behavior and conducted himself like a gentleman in the

proceedings. It appears that the judge felt obligated to follow the deputy’s security

protocol when he said, “I’m not going to direct the jail to violate their security

protocols” and “I wish . . . I could take the lockbox off [Hodgkins], but I cannot.”

While a deputy’s job in the courtroom to protect the safety and well-being of the

people in attendance is an important one, the policy of the sheriff’s office is not

determinative of the matter.

PARIENTE, J., concurs.




                                        - 23 -
CANADY, J., dissenting.

      Because I disagree with the Court’s conclusion that there is insufficient

evidence to support the jury’s verdict of guilt in this case, I respectfully dissent.

While the verdict of guilt rests on circumstantial evidence, the permissible

inferences from the evidence are sufficient for a rational trier of fact to conclude

that the State proved Appellant’s guilt beyond a reasonable doubt. As we have

said many times, whether the evidence “exclude[s] all reasonable hypotheses of

innocence is for the jury to determine.” State v. Law, 559 So. 2d 187, 188 (Fla.

1989). The majority has in effect reweighed the evidence and substituted its

judgment on the weight of the evidence for that of the jury.

      The associate medical examiner testified that the immediate cause of death

was “sharp force injury.” The victim suffered a stab wound that severed her aorta

and another that severed her jugular vein. There were bruises on the victim’s neck

showing she was also strangled manually. There were no defensive knife wounds.

These findings supported the conclusion that the manual strangulation was

inflicted first, rendering the victim unconscious, and then the fatal stab wounds

were inflicted. The autopsy showed that the victim suffered a fractured hyoid bone

and there was petechial and subconjunctive hemorrhaging in the eyes. These

findings, in the pathologist’s opinion, indicated that the victim was conscious and

struggled against the attack before losing consciousness due to oxygen deprivation.


                                         - 24 -
       Material was scraped from under the fingernails of the murder victim,

Teresa Lodge. Upon examination, some of the material from under the fingernails

on Lodge’s left hand was found to be human tissue containing DNA. Whether the

material was skin, blood, or some other human tissue is immaterial. Any DNA

found there that was not her own had to have come from someone else. A forensic

pathologist testified that normal activities such as bathing and washing can remove

foreign DNA from the body and that DNA is subject to degradation from contact

with moisture, bacteria, chemicals, and other material in the environment. When

DNA is present but degraded, it provides a less than complete profile. The

material removed from under the fingernails of the decedent’s left hand was

described as “robust,” by which the examiner meant that it was not degraded and it

provided an intact length of DNA that could be examined on all thirteen loci. The

DNA material obtained from the body of Teresa Lodge matched Appellant’s DNA

on all thirteen loci.

       Teresa Lodge worked as a restaurant manager and cook. Several employees

of the restaurant—including some who had worked with her for years—testified

that Lodge was very conscientious about keeping the cooking implements and food

preparation surfaces clean. Her routine included washing pots and pans by hand

throughout the day. There were three sinks for washing pots and pans by hand.

First Lodge would scrub the pots and pans in very hot water and detergent, making


                                       - 25 -
sure to scrape off any adhered bits of food. Then they were submerged in a second

sink filled with hot water containing a sanitizing solution. Finally they were rinsed

in a third sink filled with clean hot water. Each step required submerging the pot

or pan completely. The witnesses also testified that Lodge cleaned the grill and

other work surfaces numerous times throughout the work day using a sanitizing

cleanser and washed her hands repeatedly throughout the day. She never wore

rubber gloves when performing these kitchen cleaning tasks.

      Lodge worked at the restaurant on Monday, Tuesday, and Wednesday,

September 25-27, 2006. On Wednesday, she trained a new kitchen employee. The

employee testified that Lodge trained her in the food-handling and kitchen hygiene

requirements of the restaurant. The new employee testified that Lodge

demonstrated the use of the three sinks for washing and sanitizing pots and pans

and showed her how to clean the cooking and work surfaces in the kitchen. These

tasks were to be done repeatedly throughout the day. And most importantly,

Lodge trained her new employee in the importance of hand washing, which was

required before and after touching any raw or cooked food product, to avoid

“cross-contamination,” and after performing any washing or cleaning task. There

was a separate sink in the kitchen for hand washing. Hand washing was done with

soap and hot water. Lodge trained the new employee to wash between the fingers,




                                       - 26 -
to scrub under the fingernails, and to wash all the way up to the elbows. Lodge

washed her hands repeatedly that Wednesday morning using these methods.

      On the morning of Wednesday, September 27, Lodge not only trained the

new employee in these cleaning methods, but demonstrated them because there

were several pans in which prepared food had been refrigerated overnight. The

pans were to be used with a steam table for serving soups, chili, and gravy. The

food from the day before had to be removed and the pans cleaned. Some of the

pans had food stuck to them that had to be scrubbed off using hot water and

detergent. That morning, Lodge and her new assistant cooked bacon, sausage,

potatoes, grits, biscuits, and eggs, cleaning their work surfaces and implements as

they worked. Lodge cleaned the inside of the microwave. When a surface had

adhered food or debris not accessible to a scraping or scrubbing tool, Lodge

scraped the material off with her fingernails. Of course, after any such task, she

washed her hands. Later that morning, Lodge left the restaurant for a doctor’s

appointment. Although she was expected to return to the restaurant that day, she

did not. She did not show up for work on Thursday, the day her body was found.

As the majority opinion states, Lodge was probably killed some time between 2:30

p.m. on Wednesday and 5:30 a.m. Thursday.

      When detectives first interviewed Hodgkins, he admitted that he knew

Lodge, claimed to have dated her in the mid-1980s, and said he had only seen her a


                                        - 27 -
few times since then. He said that the last time he had seen her was about six to

eight weeks before the murder, when she greeted him at a Circle K convenience

store/gas station with a friendly hug. Other than seeing her briefly a few times at

the restaurant where she worked, he said the only other times he had seen her were

in 2004, when he stopped by to see her, accompanied by his adult son, and found

she was staying in a different apartment than previously because her apartment had

been damaged by a water leak. He saw her again in late 2004, he said, when she

was back in her original apartment, but he did not go inside. He visited her out in

front of the building. He denied ever entering the apartment where Lodge was

living at the time of her death. He claimed their relationship was always friendly.

      When detectives interviewed Hodgkins a second time, they confronted him

with information they had obtained from the apartment complex manager that the

water damage repairs to Lodge’s apartment were done in the summer of 2006, not

in 2004. Hodgkins responded that he might have been mistaken about the dates.

When the detectives told him his DNA had been found under Lodge’s fingernails,

he told them that when he saw her at the Circle K and she hugged him, she put her

hand up the back of his shirt and scratched his back. After the detectives suggested

that casual contact like that would not cause a transfer of DNA, Hodgkins admitted

that he had seen Lodge a month to a month and a half before her death, they had

sex, and she scratched his back hard enough that he felt stinging later when he


                                        - 28 -
showered. He admitted that he had seen her both at the other apartment where she

was staying temporarily and at the apartment where she was living at the time of

her death and that these visits were in the months preceding her death, not in 2004.

When the detectives told him the DNA would not remain on her hands that long

because of her habit of keeping her hands clean, he finally stated that he had sex

with her “three days prior to her being killed” and that she scratched his back “real

hard.” Hodgkins told the officers he had learned of Lodge’s death on the television

news. The body was discovered on September 28. As the majority opinion

indicates, presumably he meant their last contact was on or about Monday,

September 25. When the detectives asked Hodgkins why he had lied, he said he

did not want his wife to find out about his having sex with Lodge and because he

was afraid he would be suspected of the murder.

      Melanie Zakel testified that she visited Lodge the night of Monday,

September 25. Some time after midnight, there was a knock at the door. Lodge

opened the door, and from the tone of her voice in speaking to the person at the

door, Zakel detected “a little bit of uneasiness,” so she moved to where she could

see who was at the door. She identified Hodgkins as the person she saw at Lodge’s

front door. Hodgkins looked at Zakel and seemed displeased that she was there.

Lodge did not invite him in, and after he left it seemed to Zakel that Lodge “was a

little bit aggravated” by the visit. Except for the identification of Hodgkins,


                                        - 29 -
Zakel’s testimony about this incident was based on her perceptions of tone of voice

and facial expressions. The credibility and weight of this evidence was for the jury

to determine. If the jurors believed it, they could have found it was in conflict with

Hodgkins’ claim that he and Lodge were on friendly terms and had consensual sex

at her apartment on or around that day as he claimed in his final statement. This

inference from the evidence is inconsistent with the factual claim in Hodgkins’

final statement and provides a basis for the jury to reject his hypothesis of

innocence.

      As we stated in Law, “[t]he state is not required to ‘rebut conclusively every

possible variation’ of events which could be inferred from the evidence, but only to

introduce competent evidence which is inconsistent with the defendant’s theory of

events.” 559 So. 2d at 189 (footnote omitted) (quoting State v. Allen, 335 So. 2d

823, 826 (Fla. 1976)). The theory of events asserted by Appellant, based on his

final statement to the police, is that his DNA was found on the victim’s body

because of their interaction three days before her death and that he lied to the

police about how recently and how frequently he had seen the victim because he

did not want his wife to find out and was afraid he would be accused of the

murder. However, if Hodgkins had told the officers his final story when they first

questioned him, there is no reason his wife would have found out. He also

clarified that he was not married at the time of the murder and had only been


                                        - 30 -
married a few weeks when the police first questioned him, which was over a year

after the murder. It is still plausible that he did not want his wife to find out, but

the import of this information and its weight were for the jury to determine.

      A jury is permitted to draw reasonable inferences from the evidence. See,

e.g., Walker v. State, 957 So. 2d 560, 578 (Fla. 2007). False statements to the

police can be material evidence because of what they tell the jury about a

defendant’s state of mind when making the statements. See, e.g., United States v.

Holbert, 578 F.2d 128, 129 (5th Cir. 1978) (“[A] long line of authority . . .

recognizes that false exculpatory statements may be used . . . as substantive

evidence tending to prove guilt.”); Simpson v. State, 562 So. 2d 742, 745 (Fla. 1st

DCA 1990) (observing that a defendant’s false statement “would have been

admissible in the State’s case as substantive evidence tending to affirmatively

show a consciousness of guilt”), review denied, 574 So. 2d 143 (Fla. 1990). The

way Appellant’s story changed in response to the detectives’ statements to him is a

circumstance the jury could properly take into consideration in weighing the

evidence. Appellant’s final statement to the police is the source for his theory or

hypothesis of innocence, and the inconsistencies in his statements are a valid basis

for the jury to discount the credibility of that final statement. See Orme v. State,

677 So. 2d 258, 262 (Fla. 1996).




                                         - 31 -
      The majority opinion notes that Hodgkins’ fingerprints were not found in the

victim’s apartment, even though eighteen prints were lifted and not identified. The

absence of his fingerprints does not detract from the evidentiary basis for the jury’s

verdict, since a perpetrator can take steps to avoid leaving prints. There was

testimony that Lodge’s friends and coworkers frequently visited her apartment, so

it is not surprising that there were a variety of unidentified prints. If Hodgkins had

recently visited the apartment with Lodge’s consent as he claimed, it would be

surprising for his prints not to be found there. This too is a factual circumstance

the jury could have considered.

      The majority opinion refers to the cross-examination of the State’s DNA

expert, in which she conceded the validity of an article published in a scientific

journal. The article described a study in which test subjects self-reported their

routine daily activities over a forty-eight-hour period and then their fingernails

were tested for the presence of DNA. The study concluded that DNA can be

transferred through a variety of activities, including interpersonal relations ranging

from casual to intimate contact, and can remain despite washing and bathing. The

fact that DNA can be transferred by ordinary daily activities and can remain under

the fingernails for days despite routine hand-washing does not compel the

conclusion that Hodgkins’ DNA could remain under Lodge’s fingernails for three

days despite her extraordinary activities. This was a matter for the jury, and the


                                        - 32 -
jury could have concluded that the intensity and frequency of Lodge’s hand-

washing and dishwashing activities and the evidence that she engaged in these

activities for three days before she died made her situation different from the

routine hand-washing discussed in the article. In any event, if foreign DNA is so

easily transferred through casual contact and can remain for days despite frequent

hand-washing, the jury might have expected to find other DNA under Lodge’s

fingernails, not just Hodgkins’ and Lodge’s.

      For three days before she died, including the morning of the day she was last

heard from by coworkers, Teresa Lodge washed pots and pans in detergent and hot

water, submerged them in more hot water and sanitizing solution, and rinsed them

in hot water. She cleaned a grill and work surfaces with hot water and a sanitizing

solution. She handled raw food, and she washed her hands repeatedly throughout

the day. She was known for washing her hands thoroughly before and after

handing food and after performing a cleaning task and was seen doing so

repeatedly that morning. The expert testimony that contact with moisture,

chemicals, or bacteria degrades the condition of DNA and that the DNA sample

collected from the body was intact, combined with testimony that Lodge engaged

in the work routines described above for the three days immediately before her

death, would justify a jury’s conclusion that the DNA under her fingernails was

deposited there after the last morning she worked at the restaurant and not three


                                        - 33 -
days before as posited by the defense hypothesis of innocence. This evidence was

sufficient to rebut the theory that, as Appellant claimed in his final statement to

police, his last interaction with Lodge was three days before her death and

involved scratching during sex, because it was reasonable for the jury to conclude

it was highly unlikely that an intact, “robust” amount of his DNA would have

remained under her fingernails for that period of time under the circumstances.

      Teresa Lodge was left-handed. It was reasonable for the jury to infer that

she would have used her left hand to try to defend herself. The biological material

from which an intact sample of DNA was obtained was scraped from under the

fingernails of her left hand. The jury could reasonably conclude that the biological

material found under her fingernails after her death was deposited there when she

struggled against the attack that ended her life. In light of the evidence that Lodge

was conscious when her attacker began to strangle her, it was reasonable for the

jury to infer that DNA from Hodgkins’ body got under her fingernails when she

tried to fend off the attack. It was reasonable for the jury to conclude that the

person she scratched was the one who strangled her into unconsciousness and then

stabbed her. The reasonable conclusion is that Appellant was with her at the time

of her death and he was her killer.

      The nature of the acts that caused Teresa Lodge’s death were a sufficient

basis for the jury to find that the murder was premeditated.


                                        - 34 -
      I find that Appellant’s other claims on appeal are without merit and would

affirm the conviction of first-degree murder. I also would uphold the trial court’s

sentencing findings and the sentence of death, which is proportional to the offense

in light of all the circumstances.

An Appeal from the Circuit Court in and for Pasco County,
     Pat Edward Siracusa, Jr., Judge - Case No. 512007CF006351A000ES

Howard L. Dimmig, II, Public Defender, and Matthew David Bernstein, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Sara Elizabeth
Macks, Assistant Attorney General, Tampa, Florida,

      for Appellee




                                       - 35 -
