          Supreme Court of Florida
                                   ____________

                                  No. SC13-1002
                                  ____________

                               VICTOR GUZMAN,
                                   Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                   [April 6, 2017]

PER CURIAM.

      Victor Guzman appeals his conviction of first-degree murder and sentence

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

explained below, we affirm Guzman’s conviction but reverse his sentence of death

and remand this case to the trial court for a new penalty phase.

                               I. BACKGROUND

      On December 9, 2000, Severina Fernandez was found stabbed to death in

her Miami apartment. The case went cold until 2004, when DNA from blood left

at the crime scene was determined to match Victor Guzman’s DNA. As a result,

Guzman was indicted for first-degree murder, stood trial, and was convicted. The
jury recommended a sentence of death by a vote of seven to five, and the trial court

followed the jury’s recommendation. This appeal follows.

                                  A. Guilt Phase

      Severina “Lola” Fernandez was an eighty-year-old widow who lived alone

in her Miami apartment. She was last seen alive around 3:30 p.m. on December 9,

2000, when she went out to retrieve her newspaper. At approximately 6:15 p.m., a

neighbor discovered Fernandez’s door was half open and, when Fernandez did not

answer, the neighbor entered the apartment where she found Fernandez stabbed to

death on her bed. Fernandez’s body was nude. Her dress was underneath her,

covered in blood with stab holes and a torn zipper. Her panties, which had been

pulled down and were dangling off of her right leg, also had stab holes in them.

The evidence suggested that Fernandez was killed shortly after she returned from

getting the newspaper.

      There was blood throughout the apartment, which was swabbed for DNA

analysis. A plastic cup, which appeared to be out of place on the recliner in the

living room, was also swabbed for DNA analysis.

      Initial DNA analysis conducted in 2000 revealed that a single male DNA

profile was present on swabs of blood obtained from inside the kitchen sink, the

floor of the bedroom to the west of the bed, and the bedroom dresser. That same

male DNA profile could not be excluded as a contributor to a mixture of DNA


                                        -2-
profiles obtained from the cup found on the recliner. Specimens from a sexual

battery kit done on Fernandez tested negative for the presence of sperm.

      In 2003, the case was assigned to Detective Andres Arostegui, a member of

the cold case homicide division. Detective Arostegui testified that he learned of

information1 in 2004 that led him to suspect that Guzman was responsible for

Fernandez’s murder. Based on this information, Detective Arostegui interviewed

Guzman several days later.

      After being advised of his constitutional rights, Guzman agreed to speak

with Detective Arostegui. Detective Arostegui told Guzman that he was

investigating a homicide. When shown pictures of Fernandez and her apartment

building, Guzman denied knowing her or ever having been to her building.

According to Detective Arostegui, Guzman’s demeanor was nervous and fidgety at

times during the three-hour interview but he repeatedly denied any involvement in

the homicide. During the last forty-five minutes of the interview, Guzman stated

that he was sorry two or three times, but he would not explain what he was sorry

for. Detective Arostegui kept talking to Guzman and saying to him, “I know you

did it.” Guzman then started asking for bathroom breaks, which struck Detective




      1. This “information”—which was not introduced at trial—was a “hit” from
the FBI’s Combined DNA Index System (CODIS), indicating that Guzman’s DNA
matched the male DNA found at the scene of Fernandez’s murder.

                                        -3-
Arostegui as “awkward.” Guzman eventually invoked his right to counsel, and

questioning ceased.

      After a DNA standard was obtained from Guzman, the crime lab confirmed

that the male DNA profile obtained from the sink and the cup found in Fernandez’s

apartment matched Guzman’s DNA profile. Further analysis in 2005 revealed that

two other bloodstains in Fernandez’s apartment also matched Guzman’s DNA

profile. At trial, evidence was presented that the chance of finding the same DNA

profile as the profile obtained from the male blood in Fernandez’s apartment in an

individual at random in the population at large is 1 in 153 trillion. The likelihood

of a random match between Guzman and the DNA mixture on the cup in

Fernandez’s apartment was 1 in 5,099,000.

      The medical examiner, Dr. Lew, testified regarding the results of the autopsy

performed on Fernandez. According to Dr. Lew, Fernandez was an eighty-year-

old woman with an enlarged heart, an artificial heart valve, and flat feet. The

autopsy revealed that “the cause of death was multiple stab wounds and trauma to

the neck or strangulation.” Fernandez suffered a total of fifty-eight stab and

incised wounds covering multiple areas of her body. Two of the wounds to her

chest penetrated the aorta and were individually fatal. There were also incised

wounds to both sides of Fernandez’s neck, which would have bled profusely.

Many of the wounds to Fernandez’s torso were deep enough to penetrate the


                                        -4-
abdominal wall but not deep enough to penetrate the bowel or other internal

organs. Two of the torso wounds nicked the liver. There were at least five wounds

to the fingers, which were likely defensive wounds. Fernandez also suffered blunt

trauma to her head while she was still alive, consistent with being struck. Her

hyoid bone was fractured, indicating that a great deal of pressure was applied to

both sides of her neck. According to Dr. Lew, at least several minutes passed from

the time the attack began until Fernandez died.

      It appeared to Dr. Lew that Fernandez was either sexually assaulted or an

attempt to sexually assault her had been made because her clothing was torn off,

her panties were hanging off her right ankle, and bloodstain patterns on her body

indicated that her “left leg was raised up enough so that her thigh was contacting

her abdomen in order to pull her panties off her left leg.” There were also blood

smears on the insides of her thighs, which likely indicated that bloodied hands tried

to push her thighs apart. Although there was no trauma to the vaginal area, Dr.

Lew testified that the absence of trauma was not conclusive evidence that no

sexual assault occurred.

      Guzman did not testify at trial, and the defense rested without calling any

witnesses. The jury found Guzman guilty of first-degree murder.

                                 B. Penalty Phase




                                        -5-
      At the penalty phase, the State introduced a certified copy of the judgment

evincing Guzman’s prior convictions for attempted felony murder, lewd or

lascivious battery on a child twelve years of age or older but less than sixteen years

of age, and aggravated battery causing great bodily harm. The State also elicited

victim impact evidence and recalled Dr. Lew to testify further about the injuries

Fernandez received during the attack.

      Guzman presented testimony from a number of his family members. The

sum of their testimony established the following. Guzman was born into poverty

in Peru. Guzman’s father disciplined Guzman and his brother with whippings.

Guzman’s parents had a troubled relationship until his father left the family to

marry another woman when Guzman was around six or seven years old. After the

separation, Guzman’s mother started drinking, and the boys were sometimes sent

to live with their grandmother.

      When he was in his teens, Guzman started drinking and cutting himself. His

drinking eventually led to many negative consequences, including eviction,

deportation, termination of employment, and convictions for driving under the

influence. In the late 1990s, Guzman moved to California, where some of his

family members had relocated. He attempted to reunite with his father in

California, but his father rejected him.




                                           -6-
         Shortly before Fernandez’s murder, Guzman lived with his brother, Juan

Carlos, for a few months in Miami before Juan Carlos was deported. During that

time, Guzman began to drink heavily, appeared depressed, was cutting himself,

and was angry at his father. After his arrest in this case, Guzman “came to an

understanding of peace” about his relationship with his father, who died before the

trial.

         Guzman presented testimony from three expert witnesses. Two of the

experts opined that Guzman was under extreme emotional distress at the time of

the murder and discussed numerous points of nonstatutory mitigation, focused

mainly on Guzman’s upbringing, substance abuse, and cognitive functioning. The

third expert testified that he saw nothing in Guzman’s incarceration records to

indicate that Guzman would be dangerous during future incarceration.

         Three volunteer prison chaplains testified that Guzman is a man of faith who

conducts religious services in the jail. An inmate from Guzman’s pod at the jail

testified about the Bible study Guzman conducts in the pod and his belief that

Guzman is remorseful and rehabilitated.

         Guzman did not testify at the penalty phase. The jury recommended a

sentence of death by a vote of seven to five.

                                    C. Sentencing




                                         -7-
      The trial court concluded that four aggravating circumstances were proven

beyond a reasonable doubt: (1) the capital felony was especially heinous, atrocious,

or cruel (HAC) (extremely great weight); (2) Guzman was previously convicted of

another capital felony or of a felony involving the use or threat of violence (great

weight); (3) the capital felony was committed while Guzman was engaged in or

attempting to commit a sexual battery (some weight); and (4) the victim of the

capital felony was particularly vulnerable due to advanced age or disability

(considerable weight). And after having considered and rejected the extreme

mental or emotional disturbance mitigating circumstance and four nonstatutory

mitigating circumstances,2 the trial court found that no statutory mitigating

circumstances and twenty-five nonstatutory mitigating circumstances were

established.3 In following the jury’s recommendation and imposing a sentence of



       2. The four proffered and rejected nonstatutory mitigating circumstances
were: (1) Guzman has a brain that did not fully develop due to nutritional
deficiencies, hazardous environmental conditions and the extreme poverty he
experienced growing up; (2) Guzman has suffered malnutrition; (3) Guzman began
a change in his life before he dedicated his life to God and before he became aware
of the homicide charge; and (4) Guzman has a son and daughter who need his
parental guidance.

       3. The nonstatutory mitigating circumstances found by the trial court were:
(1) Guzman suffers from mild/moderate and severe cognitive deficits and
impairments (little weight); (2) Guzman has borderline intellectual functioning,
slightly higher than that of a fully intellectually disabled person (minimal weight);
(3) Guzman has mental impairments that prevent him from functioning
consistently in a job or maintaining appropriate social relationships (miniscule
weight); (4) Guzman witnessed the traumatic domestic abuse of his mother and

                                         -8-
death, the trial court concluded that the HAC and prior violent felony aggravators

each substantially outweighed all of the mitigation presented.

                                  II. ANALYSIS




brother (slight weight); (5) Guzman was repeatedly brutally and physically abused
by his father (little weight); (6) Guzman has a mother who became an alcoholic,
and drank during her pregnancy (slight weight); (7) Guzman was neglected by his
parents, abandoned by his father, and experienced a transient home life separated
by periods of homelessness (little weight); (8) Guzman was not allowed in his
father’s house when he moved to California, rejected a second time (minor
weight); (9) Guzman was angry and resentful towards his father, and that bitterness
affected his judgment (little weight); (10) Guzman has a serious and severe alcohol
and drug problem (slight weight); (11) Guzman has a personality character
disorder that prevents him from developing healthy attachments to others (little
weight); (12) Guzman suffers from depression, paranoia, cognitive impairment,
anger management issues, personality disintegration, mild to moderate
psychological distress, and exhibits symptoms of psychosis or inappropriate
emotions (minor weight); (13) Guzman lacks education, having dropped out of
school in the sixth grade (slight weight); (14) Guzman has a loving daughter who
wants to maintain a long-distance relationship with him (little weight); (15)
Guzman has a young son whose mother wants to maintain a long-distance
relationship with him (minimal weight); (16) Guzman has had excellent jail
behavior for ten years (little weight); (17) Guzman will not be a future danger to
inmates and correctional officers in the prison system (slight weight); (18) Guzman
is stable in a structured environment without alcohol (minor weight); (19) Guzman
has dedicated his life to ministering the word of God as a mentor and rehabilitator
for other inmates (slight weight); (20) Guzman has dedicated his life to God’s
service and has repented (slight weight); (21) Guzman has expressed remorse (little
weight); (22) Guzman grew up very poor and without running water and electricity
(miniscule weight); (23) Guzman has a mother who wants to maintain a long-
distance relationship with him (little weight); (24) Guzman has family from
California and Peru who want to maintain a long-distance relationship with him
(little weight); and (25) Guzman has emotional scars that will last a lifetime (slight
weight).

                                        -9-
      Guzman raises two guilt phase issues and six penalty phase issues on appeal.

We address both of Guzman’s guilt phase issues as well as the sufficiency of the

evidence, but as to the penalty phase, we address only the dispositive issue.

                 A. References to Jail and Possible DNA Match

      Guzman first argues that the trial court erred in denying his motions for

mistrial during the guilt phase after the State elicited testimony suggesting that

Guzman was in jail on other charges during the investigation of Fernandez’s

murder and that his DNA was in a database of offenders.

      At trial, Carolyn Grayer, a crime scene investigator, testified that on April

20, 2004, she collected buccal swabs from Guzman in order to obtain a DNA

standard for comparison to DNA left at the scene of Fernandez’s murder. During

her testimony, Grayer stated that she “went with Detective Arostegui to [M]etro

West jail.” Guzman objected, moved to strike the statement, and moved for a

mistrial, arguing that the jury had heard the statement and it would not be possible

to “unring the bell.” The trial court granted the motion to strike, denied the motion

for mistrial, and instructed the jury: “[P]lease disregard that last question and

answer. Where this incident occurred with regard to the DNA swab is of no

concern to you, and it shouldn’t be considered further by you.”

      After CSI Grayer’s testimony, Detective Arostegui was called to discuss the

steps he took in his investigation. At one point during his testimony, Detective


                                         - 10 -
Arostegui stated, “the next thing that occurred is on March 9, 2004, I was told that

there was a possible DNA match.” Guzman objected to hearsay and again moved

to strike the statement and for a mistrial. The trial court again granted the motion

to strike but denied the motion for mistrial. The court instructed the jury to

“disregard the last statement by Detective Arostegui.” The court also instructed

the State to proceed by asking Detective Arostegui, “Did you develop through your

investigation any other leads of individuals that you might want to speak to?” The

State complied.

      The denial of a motion for mistrial is reviewed for abuse of discretion.

Gosciminski v. State, 132 So. 3d 678, 695 (Fla. 2013). “The granting of a motion

for mistrial is not based on whether the error is ‘prejudicial.’ ” Scott v. State, 66

So. 3d 923, 931 (Fla. 2011). “Rather, the standard requires that a mistrial be

granted only ‘when an error is so prejudicial as to vitiate the entire trial,’ such that

a mistrial is ‘necessary to ensure that the defendant receives a fair trial.’ ”

Gosciminski, 132 So. 3d at 695-96 (citations omitted). “Under the abuse of

discretion standard of review, a ruling will be upheld unless the ruling is ‘arbitrary,

fanciful, or unreasonable, which is another way of saying that discretion is abused

only where no reasonable person would take the view adopted by the trial court.’ ”

Banks v. State, 46 So. 3d 989, 997 (Fla. 2010) (quoting Lugo v. State, 2 So. 3d 1,

19 (Fla. 2008)).


                                         - 11 -
      Guzman asserts that CSI Grayer’s reference to the jail gave the jury the

impression that Guzman was incarcerated for a different crime at the time that the

buccal swabs were obtained. While Grayer’s statement did indicate that Guzman

was in jail at the time the buccal swabs were obtained, and he was indeed in jail,

the only charge for which he was in custody at that time was Fernandez’s murder.

There is no reason to believe that the jury speculated that Guzman was in jail on

another charge rather than Fernandez’s murder. There was no testimony during the

guilt phase that Guzman was charged with or convicted of any other crimes, and “a

reasonable juror would know that [the defendant] had been in jail for at least some

period of time prior to trial because he was charged with first-degree murder.”

Snipes v. State, 733 So. 2d 1000, 1005 (Fla. 1999). Even if the jurors might have

inferred that Guzman was jailed for a different crime, the reference to the jail was

brief, isolated, inadvertent, and not so prejudicial as to vitiate the entire trial. See

Fletcher v. State, 168 So. 3d 186, 207 (Fla. 2015) (“A comment [regarding a

defendant’s prior imprisonment] that is brief, isolated, and inadvertent may not

warrant a mistrial.”), cert. denied, 136 S. Ct. 980 (2016). Thus, the trial court did

not abuse its discretion in denying the motion for mistrial.

      Guzman argues that the reference made by Detective Arostegui to “a

possible DNA match” “had the unmistakable effect of telling the jury that Mr.

Guzman’s DNA was already in a database of criminal offenders.” We disagree.


                                          - 12 -
As previously stated, there was no evidence introduced at the guilt phase that

Guzman was charged with or convicted of any prior crimes, nor was there any

evidence that his DNA was in a database of criminal offenders. Further, the

comment was brief, isolated, inadvertent, and the jury was instructed to disregard

it.

      In Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012), the defendant moved for

a mistrial based on a detective’s testimony regarding the events leading up to

Braddy’s arrest:

      [W]hen I noticed Mr. Braddy’s demeanor, how it changed, and for our
      safety, due to the circumstances, I placed handcuffs on him. I advised
      him I was going to handcuff him, he wasn’t under arrest at the
      moment, but it was for his safety and my safety dealing with the
      history that I had of him.

(Alteration in original.) Braddy argued that the statement improperly informed the

jury of his violent criminal past. We disagreed, explaining:

             Prior to the challenged testimony, Detective Milito had testified
      that he was dispatched to Braddy’s home after learning that Braddy
      had been implicated in a violent kidnapping, attempted murder, and
      possible murder of a child. Given this information and the change in
      Braddy’s demeanor upon being confronted, Detective Milito’s
      reference to Braddy’s history could most reasonably be interpreted in
      context as referring to the facts of the crime that was being
      investigated. The trial court therefore did not abuse its discretion in
      denying Braddy’s motion.

Braddy, 111 So. 3d at 837.




                                       - 13 -
      At the point in Guzman’s trial when Detective Arostegui mentioned “a

possible DNA match,” the jury had already learned from earlier witnesses that

Guzman’s DNA matched the male DNA found in blood and on the cup at the

crime scene, and that DNA analysis was conducted more than once in this case.

As in Braddy, Detective Arostegui’s testimony did not implicate Guzman in prior

criminal activity but would “most reasonably be interpreted in context as referring

to the facts of the crime that was being investigated.” Thus, the trial court did not

abuse its discretion in denying the motion for mistrial.

        B. Improper Comments During the State’s Closing Arguments

      In his second guilt phase claim, Guzman asserts that he is entitled to relief

based on improper arguments made by the State during closing arguments.

Guzman alleges that the State improperly inflamed the jury, shifted the burden of

proof, and commented on Guzman’s right to remain silent. Because Guzman

concedes that he failed to object to any of these statements, we review each only

for fundamental error. See Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000)

(“As a general rule, this Court has determined that failing to raise a

contemporaneous objection when improper closing argument comments are made

waives any claim concerning such comments for appellate review. The sole

exception to the general rule is where the unobjected-to comments rise to the level

of fundamental error, which has been defined as error that reaches down into the


                                        - 14 -
validity of the trial itself to the extent that a verdict of guilty could not have been

obtained without the assistance of the alleged error.”) (citations omitted)).

                                1. Inflaming the Jury

       Guzman asserts that the State improperly inflamed the jury in order to gain

an emotional response by the manner in which it began and ended its guilt phase

closing argument. The State began its initial closing argument by stating:

“Members of the jury, horrific, an atrocity, gruesome, ghastly, grizzly. What word

would you use to describe this indescribable and unthinkable murder?” At the end

of the argument, the prosecutor stated: “And Lola unwittingly opened that door to

death, destruction, torture, and pain, and his name is Victor Guzman, and he knows

it.”

       Assuming that these arguments were improper, we conclude that they do not

rise to the level of fundamental error and therefore Guzman is not entitled to relief.

                                  2. Burden Shifting

       Guzman next argues that the State improperly shifted the burden to the

defense by stating that defense counsel should answer some questions, including:

“What evidence is there . . . that mistakes are made in this case?”; “What evidence

in this case is there of contamination?”; and “Why did Defendant Guzman

apologize to Detective Arostegui?”

             “It is well settled that due process requires the [S]tate to prove
       every element of a crime beyond a reasonable doubt.” “For that

                                          - 15 -
      reason, it is error for a prosecutor to make statements that shift the
      burden of proof and invite the jury to convict the defendant for some
      reason other than that the State has proved its case beyond a
      reasonable doubt.”

Warmington v. State, 149 So. 3d 648, 652 (Fla. 2014) (citations omitted).

                                a. DNA Evidence

      In opening statement and during cross-examination throughout the trial,

Guzman put forth a theory that the match between his DNA and the male DNA left

at the crime scene might have been the result of a mistake or contamination, rather

than a valid match. Guzman asked the jury in his opening statement to keep in

mind that the processing of evidence for DNA analysis is done by “imperfect

human beings.” He told the jurors that it will be up to them to decide whether the

State proved that it was truly his DNA in Fernandez’s apartment.

      The evidence presented at trial was that Guzman’s DNA profile matched the

male DNA found in blood in Fernandez’s apartment and that the probability of a

random match of that DNA profile in the population at large is 1 in 153 trillion.

The crime scene investigators and DNA analysts testified extensively about the

processes used in collecting and processing DNA and the care that is taken and

procedures that are in place in order to avoid contamination or mistake in the

collection and analysis of DNA. The head of the crime lab, Commander Stoiloff,

testified that any mistake or violation of standard operating procedures would have




                                       - 16 -
been brought to her attention, but no mistake or violation that had any relation to

this case was brought to her attention.

      In its closing argument, the State addressed the theory that the DNA match

was the result of a mistake, arguing:

      I’ll call it the imperfect human being theory. Human beings are
      imperfect. They make mistakes. DNA analysts are human. And,
      therefore, it’s possible that the DNA analysts made a mistake in this
      case according to this theory, but you’ve got to look at the evidence.
      Where in the evidence is it that Commander Stoiloff even possibly
      made a mistake? Where is it in the evidence that Supervisor Wolson
      even possibly made a mistake in this case. And it’s not in the body of
      evidence that you follow this case. It’s imaginary, it’s speculative,
      and it’s forced. It doesn’t give you a reasonable doubt whether
      Defendant Guzman left his blood behind by the bed, on the floor in
      front of the kitchen sink, and at the kitchen sink.
The State then discussed the theory that the DNA match was the result of

contamination of the evidence. The State recounted the manner in which the DNA

evidence was collected and analyzed and then referenced testimony elicited from

one of the DNA analysts at trial, stating:

             And then [defense counsel] asked Commander Stoiloff about
      this molecular biology science trying to assess the validity of it before
      you, and he said something to the effect of Commander Stoiloff, well
      these molecules [of DNA] aren’t they just floating all around and they
      can get contaminated with all the other stuff? Commander Stoiloff
      was very clear about that. These molecules aren’t just floating
      around. This DNA analysis is done in a controlled environment[],
      special care is taken, the evidence is not touched with other evidence
      in this case, they wear these white lab coats, they make sure
      everything is sterile in there, they use controls, negative controls,
      positive controls. No. These molecules aren’t just flying around.



                                          - 17 -
         There is no contamination in this case. There’s no evidence in the
         body of evidence for your consideration of contamination.
                 . . . State’s exhibit 61 . . . . This was the DNA swabs from the
         recliner[,] . . . the west side of the bedroom, the armrest, and the
         backrest. This evidence is taken in the year 2000. Sealed. And
         Defendant Guzman’s DNA, his standard was taken four years later by
         Detective Arostegui with Crime Scene Investigator Grayer. It’s in a
         separate sealed envelope. When did these worlds collide? When was
         there any co-mingling with this stuff? There was not contamination
         of this evidence. Defendant Guzman[’s] standard didn’t slip into this
         other evidence. It’s not the evidence in this case.

         Guzman argues that the State shifted the burden of proof to the defense by

posing the question to defense counsel “[W]hat evidence in this case is there of

contamination?” and pointing out that the defense counsel “didn’t take out any of

this evidence and show you, ah, this is what happened, this is where the

contamination took place, because there’s no evidence of contamination in this

case.”

         Here, the State did not invite the jury to convict Guzman for some reason

other than that the State proved its case beyond a reasonable doubt by arguing that

there was no evidence of contamination introduced during the trial. The State’s

case included evidence regarding the methods used in collecting and analyzing the

evidence in this case and the care taken by those who processed the crime scene

and analyzed the evidence to ensure that no mistakes were made and the evidence

was not contaminated. And even if we were to assume that the State improperly

directed a question to defense counsel and commented on the defense’s failure to



                                          - 18 -
produce evidence of contamination, any such impropriety would not constitute

fundamental error rising to the level that the conviction could not have been

obtained without the assistance of the alleged error. Thus, Guzman is not entitled

to relief.

                                    b. Apology

       During the trial, Detective Arostegui testified that when he interviewed

Guzman in 2004, Guzman denied any involvement in Fernandez’s murder but

stated that he was “sorry” two or three times and would not explain why he said he

was sorry. On cross-examination, Guzman asked Detective Arostegui if he knew

why Guzman said he was sorry during the interrogation. Detective Arostegui

admitted that he did not. During closing arguments, the State posed “another

question for [defense counsel]: Why did Defendant Guzman apologize to Detective

Arostegui?” Even assuming that this question improperly shifted the burden

because it was posed directly to defense counsel, any impropriety did not rise to

the level of fundamental error such that the conviction could not have been

obtained without the error.

       To the extent that Guzman argues that the prosecutor’s question was an

improper comment on Guzman’s right to remain silent, we disagree. Prior to his

interview with Detective Arostegui, Guzman was advised of his constitutional

rights and expressly waived his right to remain silent. He thereafter freely


                                        - 19 -
conversed with Detective Arostegui, refusing only to tell him why he said he was

sorry. We therefore conclude that the prosecutor’s argument was not an improper

comment on Guzman’s right to remain silent. See Downs v. Moore, 801 So. 2d

906, 911-12 (Fla. 2001) (holding that the State is not precluded from admitting

evidence of defendant’s refusal to answer one question of many where defendant

has not invoked his Fifth Amendment rights); Ragland v. State, 358 So. 2d 100,

100 (Fla. 3d DCA 1978) (holding that where defendant waived his Fifth

Amendment rights and freely and voluntarily conversed with police, comment on

the failure to answer one question of many is not a violation of defendant’s right to

remain silent).

              3. Use of Jury Hypothetical as a Comment on Silence

      Guzman asserts that the State twice commented on his right to remain silent

during closing argument by referencing a hypothetical used by Guzman during voir

dire. During voir dire, Guzman asked one of the veniremen, a retired teacher, if he

would want to hear from “both sides” regarding a disruption in his classroom. The

juror stated that he would. Guzman took that opportunity to explain to the venire

that the way the retired teacher felt is a natural way to feel, but in the context of a

criminal trial, “we have to train ourselves” away from wanting to hear both sides of

a story. Guzman then gave the venire a hypothetical situation in which one student

said another student hit him, and the second student denied it. Guzman asked the


                                         - 20 -
retired teacher: if the accused student refused to talk, would he automatically

believe the first student’s claim that he was hit or would he “have to look at the

student who was talking and . . . weigh their credibility?” Guzman’s point in

asking the question was that even if the State presents “some evidence, but if you

weigh the evidence and it doesn’t meet the burden [of proof beyond a reasonable

doubt], then the verdict is not guilty.”

      During its closing argument, the State referenced this portion of Guzman’s

voir dire, saying:

      During the voir dire when you jurors were beginning to get selected in
      this case, there[ was] a discussion by opposing counsel about
      credibility. Defense counsel used the example of two kids in a
      classroom. One kid hits the other, the teacher asks the students, all
      right, did you hit him, and the student says no. And then he changes
      that example a little bit and he says, then what do you do with the
      student who doesn’t say anything? In this case, what you have are the
      DNA analysts, and they’re not saying one thing. I mean, the[ir]
      testimony doesn’t conflict, it complements each other. It corroborates
      each other. There’s no conflict in the testimony. This is not a case
      about credibility.

Guzman then raised a general objection stating, “Objection, Your Honor: [r]eserve

a motion.” After the State’s initial closing and Guzman’s closing but prior to the

State’s rebuttal closing, Guzman explained to the court the basis for the objection

he made when the State referenced the student hypothetical. Guzman argued that

because the State “was commenting on the credibility of the other side,” and

Guzman did not testify or present any evidence in his case, the State was actually



                                           - 21 -
commenting on Guzman’s failure to testify and present evidence. Guzman also

moved for a mistrial at that time. In overruling the objection and denying the

motion for mistrial, the trial court concluded that the State’s comment was not a

comment on Guzman’s credibility but a response to “a perceived argument from

[Guzman] of contrasting the credibility of the two DNA experts that testified.”

Guzman concedes that he failed to properly preserve this argument for review. We

therefore review it only for fundamental error.

      It is clear from the entire context of the trial that the student hypothetical

was not used by the State to comment on Guzman’s failure to testify at trial.

During voir dire, the example was used not only to discuss a defendant’s right to

remain silent but also to explain to the jury that even if the defense presents no

evidence, the jury must still weigh the credibility of the State’s evidence. In

closing, the State used the example to argue that the jury should find the testimony

of the State’s DNA analysts credible because their testimony was consistent. Even

if the State’s use of the student hypothetical in closing could be construed as a

comment on silence, it would not rise to the level of fundamental error. Moreover,

even if Guzman’s objection were preserved through his subsequent motion for

mistrial and explanation for the basis of the objection, we would conclude that the

trial court did not abuse its discretion in denying the motion for mistrial in the

context of this case.


                                         - 22 -
                           C. Sufficiency of the Evidence

      Although Guzman does not challenge the sufficiency of the evidence to

sustain his conviction for first-degree murder, this Court independently reviews the

record in death penalty cases to determine whether competent, substantial evidence

supports the conviction. Fla. R. App. P. 9.142(a)(5) (“On direct appeal in death

penalty cases, whether or not insufficiency of the evidence or proportionality is an

issue presented for review, the court shall review these issues and, if necessary,

remand for the appropriate relief.”). Our duty on appeal is “to review the record in

the light most favorable to the prevailing theory and to sustain that theory if it is

supported by competent[,] substantial evidence.” Orme v. State, 677 So. 2d 258,

262 (Fla. 1996). However, if the State’s evidence of guilt is wholly circumstantial,

“not only must the evidence be sufficient to establish each element of the offense”

but it must also be “inconsistent with any reasonable hypothesis of innocence

proposed by the defendant.” Twilegar v. State, 42 So. 3d 177, 188 (Fla. 2010).

“The [S]tate 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.” Kocaker v.

State, 119 So. 3d 1214, 1225 (Fla. 2013) (quoting Durousseau v. State, 55 So. 3d

543, 557 (Fla. 2010)).




                                         - 23 -
      Guzman’s conviction is based on the fact that the DNA profile obtained

from the male blood discovered in multiple areas around Fernandez’s apartment

matched Guzman’s DNA profile, with the chances of a random match in the

population at large being 1 in 153 trillion, and the fact that Guzman denied

knowing Fernandez or having even been to her apartment building. There was no

connection established between Guzman and the victim other than the fact that

they both lived in Miami at the time of the murder. There were no eyewitnesses,

no confession, and no fingerprints or other forensic evidence. The murder weapon

was never identified. Although the evidence was wholly circumstantial, Guzman

offered no reasonable hypothesis of innocence at trial other than to argue the

possibility that a mistake was made or contamination occurred during the

collection and processing of the DNA evidence, which led to an error in the

analysis and a false “match.” But the detailed testimony about the steps taken to

avoid any mistake or contamination from those who collected the evidence from

the crime scene and processed the evidence at the crime lab—which was

unimpeached and unrebutted—provided competent, substantial evidence of a valid

DNA match, which was inconsistent with Guzman’s theory of events.

      Further, although the State presented no direct evidence or testimony

regarding how Guzman’s blood came to be in Fernandez’s apartment or the age of

the bloodstains matching Guzman’s DNA profile, the effect of the blood evidence


                                       - 24 -
in this case went beyond merely placing Guzman at the scene at some unknown

time and, for the following reasons, actually implicated him in the murder. First,

Guzman’s blood was located in several areas throughout the apartment, in large

enough amounts to be clearly visible to the naked eye. Fernandez was stabbed or

cut fifty-eight times, and the wounds had clean edges, consistent with the blade of

a knife. Blood was found on the hose in the kitchen sink and blood matching

Guzman’s DNA profile was visible inside the kitchen sink. From these facts it can

be inferred that Guzman cut himself while stabbing Fernandez and cleaned up in

the kitchen sink after the murder. It can be inferred that Guzman’s blood was not

deposited inside the kitchen sink at some time remote to the murder since it had not

washed down the drain. It could also be inferred based on testimony that

Fernandez’s apartment was otherwise “neat and tidy” that the other blood matching

Guzman’s DNA profile was deposited at the time of the murder.

      The jury was instructed on theories of both premeditated murder and felony

murder, with the underlying felony being attempted sexual battery. The jury

returned a general verdict of guilty of first-degree murder without specifying

whether the State proved first-degree murder, felony murder, or both.

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

prove the following elements: (1) Severina Fernandez is dead; (2) the death was

caused by the criminal act of Guzman; and (3) there was a premeditated killing of


                                       - 25 -
Severina Fernandez. Fla. Std. Jury Instr. (Crim.) 7.2. “Premeditation is a fully

formed conscious purpose to kill that may be formed in a moment and need only

exist for such time as will allow the accused to be conscious of the nature of the act

he is about to commit and the probable result of that act.” Asay v. State, 580 So.

2d 610, 612 (Fla. 1991). “Premeditation is a factual issue to be determined by the

jury and, like other factual matters, may be established by circumstantial

evidence.” Twilegar, 42 So. 3d at 190. The deliberate use of a knife to stab a

victim multiple times in vital organs is evidence that can support a finding of

premeditation. Jackson v. State, 180 So. 3d 938, 956 (Fla. 2015), cert. denied, 136

S. Ct. 2015 (2016). The evidence established that Fernandez was an eighty-year-

old woman who suffered fifty-eight stab and incised wounds to her neck, abdomen,

hands, arms, and chest—two of which were individually fatal—as well as blunt-

force trauma to her head, and that the attack started in another room before ending

in the bedroom. The whole of these facts provides competent, substantial evidence

to support a finding of premeditation.

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

following three elements: (1) Severina Fernandez is dead; (2) the death occurred as

a consequence of and while Guzman was attempting to commit sexual battery on

Severina Fernandez; and (3) Guzman was the person who actually killed Severina

Fernandez. Fla. Std. Jury Instr. (Crim.) 7.3. The evidence presented established


                                         - 26 -
that Fernandez’s dress was forcibly removed during the attack, and her panties

were pulled down and left hanging off of one ankle. Bloodstain pattern evidence

on Fernandez’s body indicated that her left leg was raised up during the attack high

enough to contact her abdomen. There were also blood smears on the insides of

her thighs, which indicated that bloodied hands were used to push her legs apart.

The absence of trauma to the genital area and of sperm on the vaginal swabs did

not conclusively establish that no sexual battery occurred. The totality of this

evidence provides competent, substantial evidence to support a finding that

Fernandez’s death occurred as a consequence of and while Guzman was attempting

a sexual battery and therefore to sustain a felony-murder conviction.

                                      D. Hurst

       During the pendency of Guzman’s appeal, the United States Supreme Court

issued its decision in Hurst v. Florida, 136 S. Ct. 616, 619 (2016), in which it held

that Florida’s former capital sentencing scheme violated the Sixth Amendment

because it “required the judge to hold a separate hearing and determine whether

sufficient aggravating circumstances existed to justify imposing the death penalty”

even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.” On remand in Hurst v. State, 202 So. 3d

40, 57 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017), we held

that


                                        - 27 -
      before the trial judge may consider imposing a sentence of death, the
      jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose
      death, unanimously find that the aggravating factors outweigh the
      mitigating circumstances, and unanimously recommend a sentence of
      death.
      In light of the nonunanimous jury recommendation to impose a death

sentence, it cannot be said that the failure to require a unanimous verdict was

harmless. See Franklin v. State, 41 Fla. L. Weekly S573, S575 (Fla. Nov. 23,

2016) (“In light of the non-unanimous jury recommendation to impose a death

sentence, we reject the State’s contention that any Ring[ v. Arizona, 536 U.S. 584

(2002)]- or Hurst v. Florida-related error is harmless.”). We therefore reverse

Guzman’s death sentence and remand for a new penalty phase.

                               III. CONCLUSION

      For the foregoing reasons, we affirm Guzman’s conviction of first-degree

murder, vacate Guzman’s death sentence, and remand for a new penalty phase.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur as to the conviction but dissent as to the
sentence.
LAWSON, J., did not participate.

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

An Appeal from the Circuit Court in and for Miami-Dade County,
     Dennis James Murphy, Judge - Case No. 132004CF0153890001XX


                                        - 28 -
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps and Berdene B.
Beckles, Assistant Attorneys General, Tallahassee, Florida,

      for Appellee




                                     - 29 -
