Carl Dausch v. State of Florida

POLSTON, C.J.,

dissenting.

Though I would find that Dausch is entitled to a new trial because the trial court reversibly erred by excluding certain evidence, I cannot agree with the majority’s decision to vacate his convictions on the ground that the evidence is insufficient to establish his identity as the perpetrator. In support of its decision, the majority holds — without citing any support — that admissible DNA evidence is not competent substantial evidence of identity. Majority op. at 518-19. Before today, we have never limited the jury’s ability to decide the weight to give to admissible DNA evidence or set a threshold for how conclusive DNA evidence must be to constitute competent substantial evidence. Moreover, the majority fails to explain why the jury cannot rely on the nonexclusion DNA evidence presented in this case as proof of Dausch’s identity as the perpetrator, together with the other competent evidence that corroborates that conclusion. Therefore, I respectfully dissent.

I admit that this is a more difficult case than some, in large part because the State’s case against Dausch is wholly circumstantial. Such a case places a more exacting burden on the State in terms of what it must show to survive a defendant’s motion for judgment of acquittal. Specifically, the State must “introduce competent evidence which is inconsistent with the defendant’s theory of events”:

[A] motion for judgment of acquittal should be granted in a case based wholly upon circumstantial evidence if the *520[S]tate fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. However, [t]he [Sjtate 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. Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence fails to exclude all reasonable hypotheses of innocence ..., and where there is substantial, competent evidence to support the jury verdict, [the Court] will not reverse.

Serrano v. State, 64 So.3d 93, 104 (Fla.2011) (alternations in original) (internal quotations and citations omitted). In conducting our sufficiency review, we must view the evidence in the light most favorable to the State. See Kocaker v. State, 119 So.3d 1214, 1225 (Fla.2013) (explaining that the standard of review applicable to a motion for judgment of acquittal in a wholly circumstantial case requires the court to “determine whether there is a prima facie inconsistency between the evidence, viewed in [the] light most favorable to the State, and the defense theory or theories” and, if so, “the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied” (emphasis added) (quoting Durousseau v. State, 55 So.3d 543, 556-57 (Fla.2010))).

In this case, Dausch’s hypothesis of innocence was that he was never with the victim and that his fingerprints were found on the victim’s car and on an item inside the victim’s car because he hitchhiked a ride with the actual killer after the murder occurred. Certain evidence outlined in the majority’s decision lent credence to this theory. However, Dausch’s theory was inconsistent with (i) DNA evidence that included him as a possible contributor to semen found inside the victim’s anus, and (ii) consciousness-of-guilt evidence that he attempted to commit suicide on the eve of his trial. When considered together with the other evidence viewed in the light most favorable to the State, this evidence “support[s] an inference of guilt to the exclusion of all other inferences” and is therefore sufficient to support his convictions. SeiTano, 64 So.3d at 105.

Specifically, by choosing to credit the DNA evidence, which our precedent clearly allows it to do, the jury could have reasonably inferred that Dausch was the last person with the victim and, therefore, the killer. The statistical probabilities associated with the DNA evidence in this case are admittedly not as conclusive as those we have seen in other cases. However, unlike the majority, I am not willing to say, as a matter of law, that it was improper for the jury to rely on the DNA evidence to place Dausch with the victim, especially in light of the fingerprints linking Dausch to the car where the victim was last seen alive, the suicide attempt demonstrating Dausch’s consciousness of guilt, and the witness testimony that placed a lone male matching Dausch’s general description — rather than a driver and a hitchhiking passenger — abandoning the victim’s car. Viewed this way — in the light most favorable to the State — the evidence is inconsistent with Dausch’s hitchhiking theory and sufficient to support his convictions.

In my view, the majority’s decision to take this case from the jury is the result of three critical errors. First, without explanation, the majority concludes that the no-nexclusion DNA evidence linking Dausch to the victim is not competent substantial *521evidence.3 Second, the majority ignores that Dausch’s suicide attempt is consciousness-of-guilt evidence that is probative of his identity as the perpetrator. Last, the majority fails to consider all of the identity evidence in its sufficiency analysis in the light most favorable to the State.

We trust juries to decide hard cases every day, and before today the evidence in this case — when viewed as a whole and in the light most favorable to the State— would have been sufficient to get to the jury.

I. The DNA Evidence

In Florida and across the country, “DNA evidence is an important scientific tool that can assist in the identification of perpetrators of criminal offenses[.]” Brim v. State, 695 So.2d 268, 271 (Fla.1997). In fact, Florida has been credited with issuing “[t]he first reported case in which DNA evidence was held admissible.” Roberson v. State, 16 S.W.3d 156, 165 (Tex.Ct.App.2000) (citing Andrews v. State, 533 So.2d 841 (Fla. 5th DCA 1988)).

Today’s decision is a different kind of first. It is the first decision that I have been able to find which holds that admissible DNA evidence is not competent substantial evidence upon which the jury may rely to conclude that the defendant is the perpetrator. Although cases involving DNA evidence generally have more conclusive probabilities than those at issue here, nonexclusion DNA evidence exhibiting random match probabilities comparable to those in this case has been accepted as sufficient evidence of identity.4 For example, in Roberson, a Texas state appellate court rejected the defendant’s argument that “DNA evidence standing alone does not show that he was the person who committed the [aggravated sexual assault].” 16 S.W.3d at 159. There, the defendant “could not be excluded as a donor of the sperm found on the vaginal swab,” and the “likelihood that [the DNA came from the African-American defendant] as opposed to another random person in the [African-American] population [was] 1 in 1800.” Id. at 162. Importantly, unlike this case, in Roberson, the DNA evidence was the sole evidence of the defendant’s guilt. See id. at 158-59.

Similarly, though in the context of admissibility rather than sufficiency, both federal and state courts generally recognize that it is for the jury to decide how much weight to give nonexclusion DNA evidence, even where its statistical significance is relatively low. For example, the United States District Court for the District of Columbia has explained that nonex-clusion DNA evidence “remains probative, and helps to corroborate other evidence and support the Government’s case as to the identity of the relevant perpetrators.” United States v. Morrow, 374 F.Supp.2d 51, 65 (D.D.C.2005). In Morrow, the random match probabilities of the challenged nonexclusion DNA evidence exhibited “a relatively low level of statistical significance, ranging from a 1:12 probability of selecting an unrelated individual in the *522relevant population to a 1:1 probability of selecting an unrelated individual.” Id. at 62; see also United States v. Graves, 465 F.Supp.2d 450, 458-59 (E.D.Pa.2006) (holding admissible nonexclusion DNA matches with random match probabilities of 1:2900 and 1:3600, but holding inadmissible a no-nexclusion match with a random match probability of only 1:2 after concluding the probative value of admitting this evidence would be “substantially outweighed by the danger of unfair prejudice and confusion of the issues” because “half of the relevant population cannot be excluded as a contributor to the DNA sample”).

More recently, the United States District Court for the District of New Mexico explained that “[cjourts are reluctant to set a threshold on the level of statistical significance, and have admitted DNA evidence when its statistical significance was relatively low.” United States v. McCluskey, 954 F.Supp.2d 1224, 1273 (D.N.M.2013). Finding decisions such as Morrow and Graves persuasive, the federal district court held admissible nonexclusion DNA matches with random match probabilities of 1:9268,1:21, and 1:12. Id. at 1273,1275.

State court decisions are in accord with federal decisions generally holding that the jury should decide the weight to give to nonexclusion DNA evidence. For example, in Commonwealth v. Mattei, 455 Mass. 840, 920 N.E.2d 845, 848 (2010), the Supreme Judicial Court of Massachusetts held that the trial court erred in admitting “expert testimony that DNA tests could not exclude the defendant as a potential source of DNA found at the crime scene, absent testimony regarding statistical findings explaining the import of such a result.” In so holding, the court reasoned that, “[wjithout reliable accompanying evidence as to the likelihood that the test could not exclude other individuals in a given population, the jury ha[s] no way to evaluate the meaning of the result.” Id. at 855-56 (emphasis added); cf. Brim, 695 So.2d at 269 (explaining that “the DNA testing process consists of two distinct steps” — a first step based on molecular biology and chemistry that “simply indicate[s] that two DNA samples look the same” and “[a] second statistical step [that] is needed to give significance to a match”).

Indeed, the Supreme Court of Indiana likens the jury’s evaluation of DNA match probabilities to its evaluation of an eyewitness’s testimony that she is less than one hundred percent sure that it was the defendant whom she saw commit the crime: “[The witness’s] statement that she is ‘ninety-eight percent’ positive of the identification goes to the credibility of her testimony. Expert testimony of a ‘high statistical probability’ in matching DNA is much the same. That the DNA match may not be absolute goes to the weight and credibility of the evidence.” Hampton v. State, 961 N.E.2d 480, 493 (Ind.2012); see also State v. Lang, 129 Ohio St.3d 512, 954 N.E.2d 596, 616-17 (2011) (recognizing that expert testimony that “1 of 3,461 people could possibly be included as a potential source of the DNA” and that “the statistic has to be more than 1 in 280 billion to say to a reasonable degree of scientific certainty [that] this person is a source” “weakened the certainty of the DNA evidence,” but concluding that “the jury remained free to assign this evidence whatever weight it deemed proper in arriving at the verdict”) (internal quotation marks omitted); Commonwealth v. O’Laughlin, 446 Mass. 188, 843 N.E.2d 617, 633 (2006) (rejecting defendant’s challenge to the admissibility of DNA evidence that “only demonstrated that the likelihood that any individual contributed to the mixture of DNA was one in two” and concluding that “[t]he probative value of the evidence is for the jury to decide”); Com*523monwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 403 (1994) (“[T]he relevant, though inconclusive, DNA evidence was admissible in this case; its weight and persuasiveness were properly matters for the jury to determine.”).

And at least one Florida district court has recognized that the jury may properly rely on nonexclusion DNA evidence as proof of identity. See Mickens v. State, 121 So.3d 563, 565-66 (Fla. 4th DCA 2013). Only last year, in the context of a robbery case, our Fourth District Court of Appeal held in Mickens that “[a]ny concerns about the probative value of the DNA evidence [go] to the weight of the evidence and not its admissibility.” Id. at 566 (citing Walker v. State, 707 So.2d 300, 313 (Fla.1997)). Accordingly, the Fourth District rejected the defendant’s argument that the trial court erred by admitting nonexclusion DNA evidence that showed “a one in 2600 chance [that] an unrelated African-American male was the source of the DNA on the ski mask [worn by one of the robbers] instead of [the defendant]” because this evidence “did not conclusively identify him as one of the participants in the robbery.” Id. at 564, 565.

More importantly, the Fourth District’s decision in Mickens is in line with — and indeed expressly relies on — this Court’s precedent allowing the use of test results that are much less conclusive than the probabilities normally associated with a true DNA match to help establish the defendant’s identity as the perpetrator. See id. at 565 (citing our decision in Walker, 707 So.2d 300, for the proposition that “the Florida Supreme Court has been more lenient in allowing the admission of scientific tests which do not conclusively identify a defendant”).

For example, in Walker, this Court rejected the defendant’s argument that the trial court erred by denying his motion to suppress expert testimony concerning DNA evidence that was recovered from a cigarette filter found in the victim’s car because it “was not relevant to any fact at issue in the case” since the test results were “not probative, by themselves,” of the defendant’s or his brother’s presence in the victim’s car. 707 So.2d at 313. The DNA expert testified that the DNA on the filter was “shared by [the defendant], his brother[,] and 12.2 percent of the African-American population, 6 percent of the Caucasian population, and 4.8 percent of the Hispanic population.” Id. This Court held that the defendant’s concerns went “to the weight of the DNA evidence — which [he] had an opportunity to argue was low — and not to its admissibility.” Id.; see also Mann v. State, 420 So.2d 578, 580 (Fla.1982) (holding the trial court properly admitted blood type evidence even though the defendant’s “bloodtype and type of enzymes [were] the same as those of the victim”); Williams v. State, 143 Fla. 826, 197 So. 562, 564-65 (1940) (holding blood type evidence admissible because “[a]ny evidence tending to identify defendant as the guilty person, and show his presence at the scene of the crime, is relevant and competent”); cf. United States v. Cuff, 37 F.Supp.2d 279, 281 (S.D.N.Y.1999) (explaining that “the results of PCR [DNA] testing are much like the results of blood type or hair sample type testing” because, like these tests, “ ‘PCR testing is generally not used as a method to establish a statistical “match” between a sample and an individual, but, rather, is used as a technique to exclude certain individuals as possible contributors to a particular sample’ ” (quoting United States v. Hicks, 103 F.3d 837, 845 (9th Cir.1996))).

Accordingly, before today, this Court has never limited the jury’s ability to decide the weight to give to otherwise admissible DNA evidence or purported to set a *524threshold for how conclusive DNA evidence must be to constitute competent substantial evidence. Not only does the majority fail to acknowledge this, but it also fails to explain why the jury cannot rely on the nonexclusion DNA evidence presented in this case as proof of identity.

II. The Suicide Attempt

The majority also fails to address that the jury could have properly relied on Dausch’s suicide attempt in support of its conclusion that he murdered the victim. Like the DNA evidence, proof of Dausch’s consciousness of guilt is competent evidence that is inconsistent with his hypothesis of innocence.

This Court has explained that “[e]vi-denee that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post facto indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.” Penalver v. State, 926 So.2d 1118, 1183-34 (Fla.2006) (quoting Sired v. State, 399 So.2d 964, 968 (Fla.1981)). For the first time, in Penalver, we applied this standard to an alleged suicide threat. Id. Based on the specific facts of Penalver’s case — which included an ambiguous threat by a defendant who ultimately turned himself in — we held that the trial court erred in admitting the alleged suicide threat since it “was not an ‘endeavor to evade threatened prosecution’ because at the time [the defendant] made the threat, he was not under arrest and had not been threatened with prosecution.” Id. at 1134.

However, as the Fourth District Court of Appeal recently explained, this Court’s decision in Penalver set the “ground rules” for when a suicide threat or attempt is admissible to prove the defendant’s consciousness of guilt. Sloan v. State, 104 So.3d 1271, 1273-74 (Fla. 4th DCA 2013). In Sloan, the Fourth District held that the trial court did not abuse its discretion in admitting the defendant’s suicide attempt as evidence of his consciousness of guilt because “there was a sufficient nexus between the defendant’s suicide attempt and the crime to render it admissible.” Id. at 1274. There, the defendant attempted suicide before “the issuance of the arrest warrant, [but] after [he] was aware that law enforcement had been notified of the [crime].” Id. at 1273.

Further, as we recognized in Penalver, other states “have allowed evidence of a suicide threat as proof of consciousness of guilt.” 926 So.2d at 1133 (citing People v. O’Neil, 18 Ill.2d 461, 165 N.E.2d 319, 321 (1960) (explaining that the threat of suicide is similar to flight because it tends to show consciousness of guilt); Commonwealth v. Sanchez, 416 Pa.Super. 160, 610 A.2d 1020, 1028 (1992) (recognizing that “manifestations of mental distress tend to demonstrate a defendant’s consciousness of guilt”); State v. Seffens, No. 01-C01-9107CR00190, 1992 WL 75831, at *4 (Tenn.Crim.App. Mar. 16, 1992) (finding admissible evidence that the defendant threatened to kill himself and his wife because “[s]ome courts have held this evidence is analogous to evidence of flight to show a consciousness of guilt”)); see also State v. Brown, 128 N.H. 606, 517 A.2d 831, 838 (1986) (“Just as a jury may consider flight after a crime as showing consciousness of guilt, it may also consider attempted suicide, as an ‘attempt to flee and escape forever from the temporal consequences of one’s misdeed.’ ” (citation omitted; quoting 2 J. Wigmore, Evidence § 276, at 131 (Chadbourn rev. 1979))); Charles W. Ehrhardt, Florida Evidence § 403.1 (2013 ed.) (“Evidence of conduct or speech of the accused which demonstrates a consciousness of guilt is relevant *525since it supplies the basis for an inference that the accused is guilty of the offense.”).

In this case, Dausch did not merely threaten to commit suicide. He attempted to do so on the eve of his original trial date. Under the standard set forth in Penalver, Dausch’s suicide attempt is plainly evidence of his consciousness of guilt. The majority does not hold to the contrary, and indeed specifically recognizes Dausch’s suicide attempt and the State’s reliance on it as proof of his consciousness of guilt in its recitation of the facts. However, in analyzing the sufficiency of the evidence, the majority omits any reference to Dausch’s suicide attempt and fails to acknowledge that this consciousness-of-guilt evidence is inconsistent with his theory of innocence and one more link in the circumstantial chain establishing his identity as the perpetrator. Our precedent requires us to view all of the evidence — including consciousness-of-guilt evidence — in the light most favorable to the State. See Kocaker, 119 So.3d at 1225. Viewed this way, Dausch’s suicide attempt evinces his consciousness of guilt and is therefore probative of — even if insufficient alone to establish — his identity as the perpetrator.

III. Viewed as a Whole and in the Light Most Favorable to the State, the Evidence is Sufficient

Lastly, the majority’s erroneous treatment of the DNA evidence and suicide attempt is compounded by its failure to collectively view this evidence with other competent evidence from which the jury may infer that Dausch is the perpetrator, and to do so in the light most favorable to the State. Specifically, the other evidence implicating Dausch consists of his fingerprints on the victim’s car and on an item in the victim’s car, as well as a witness’s testimony that he saw a lone Caucasian male matching Dausch’s general description abandoning the victim’s car.

The majority is correct that the evidence against Dausch is circumstantial because it does not prove — without inference — that he was the person who murdered the victim. See Thorp v. State, 777 So.2d 385, 390 (Fla.2000) (“DNA evidence, like fingerprint evidence, does not conclusively prove that [the defendant] committed the murder!.]”); see also Hampton, 961 N.E.2d at 493-94 (“The DNA evidence in this case was direct evidence only of the defendant’s presence with the victim at some prior time, but only circumstantial as to the defendant’s criminal conduct!.]”). However, the majority is wrong to view the evidence in the light most favorable to Dausch instead of viewing the evidence as a whole in the light most favorable to the State.

As illustrated in Washington v. State, 653 So.2d 362, 365-66 (Fla.1994), all of the evidence must be considered in determining whether “to allow the issue of [the defendant’s] guilt to be submitted to a jury.” Accordingly, in holding that the State met its burden in Washington’s case, we considered “DNA test results that matched [Washington’s] semen with those found at the murder scene; microscopic tests that matched his hair characteristics with hairs found at the murder scene; his possessing and selling the victim’s watch; and his proximity to the victim’s home.” Id. at 366. And we held that, “[b]ased on this evidence, the jury had sufficient basis to exclude all reasonable hypotheses of Washington’s innocence.” Id.

Just as the identity evidence in Washington was not limited to DNA evidence, this is simply not a case where the only proof of Dausch’s identity as the perpetrator is a 1 in 290 probability that someone else in the Caucasian population was the source of the semen recovered from the *526victim’s anus. Instead, the DNA evidence in this case helps to corroborate other competent evidence that, when considered together, proves Dausch’s identity as the perpetrator — i.e., the fingerprints, the witness testimony of a lone man matching the defendant’s general description abandoning the victim’s car, and the suicide attempt. Cf. Hicks, 103 F.3d at 846 (recognizing that even though a PCR DNA test “did not result in a statistical probability that [the defendant] contributed to the sample [and] only concluded that [the defendant] could not be excluded as a contributor to the sample” and therefore “was almost certainly not sufficient evidence to identify [the defendant] as one of the carjackers, [it] helped to corroborate other evidence of identity to build a wall of evidence supporting that conclusion”), overruled, on other grounds by United States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir.2008).

To decide whether sufficient evidence supports the jury’s verdict, we do not just view the evidence collectively; we also must view it in the light most favorable to the State. McDuffie v. State, 970 So.2d 312, 332 (Fla.2007) (“We conclude that the totality of the evidence ... was sufficient to overcome the motion for judgment of acquittal made at the conclusion of all the evidence and to support the verdicts of the jury.”) (emphasis added); Kocaker, 119 So.3d at 1225 (explaining that the evidence must be viewed in the light most favorable to the State); see also Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357, 360 (2001) (“[T]he DNA evidence when considered with the additional circumstantial evidence adduced at trial was sufficient evidence to support [the defendant’s] convictions.”); Gallien v. State, Nos. 01-09-00968-CR, 01-09-00969-CR, 2011 WL 1530859, at *3 (Tex.Ct.App. Feb. 24, 2011) (holding that the defendant’s fingerprints on an item in the victim’s car and expert testimony that he “could not be excluded as a contributor to the DNA mixture found on the steering wheel of [the victim’s] car and that the chance that an unrelated person selected at random could be such a contributor would be 1 in 1000” was sufficient evidence of the defendant’s identity as the perpetrator).

Contrary to our precedent, the majority improperly views the evidence through the lens of the defendant’s hitchhiking theory. However, because the State met its burden to introduce competent evidence inconsistent with that theory (i.e., the DNA and suicide attempt), the majority’s focus should not be on whether it would have accepted the defendant’s theory but, instead, on whether the evidence is sufficient to support an inference of guilt to the exclusion of the defendant’s hypothesis of innocence. See Kocaker, 119 So.3d at 1225 (explaining that inconsistencies in the evidence are for the jury).

Accordingly, in analyzing whether competent substantial evidence supports the verdict in this case, the fingerprints may be viewed as evidence that connects the defendant to the victim’s car, where the victim was last seen alive. Similarly— though the majority entirely omits this evidence from its analysis — the witness’s testimony that a lone male generally matching Dausch’s description abandoned the car supports the reasonable inference that Dausch abandoned the victim’s car as a driver rather than a hitchhiker. Regardless of whether any of this evidence would be sufficient — i.e., competent and substantial — when considered individually, when viewed together in the light most favorable to the State, the DNA, plus the suicide attempt, plus the fingerprints, plus the witness testimony, support a reasonable inference that Dausch is a murderer rather than a hitchhiker. Therefore, the evidence is sufficient to support his con*527victions. See Serrano, 64 So.3d at 105 (holding the evidence sufficient where it “support[ed] an inference of guilt to the exclusion of all other inferences”).

IV. Conclusion

Contrary to the majority’s holding, after being informed about the statistical significance of admissible DNA evidence, it should be for the jury to decide how much weight to give the evidence. The majority strips the jury of this critical function and improperly ignores consciousness-of-guilt evidence that contributes to the defendant’s identity as the perpetrator. Viewed together and in the light most favorable to the State, the DNA evidence, suicide attempt, fingerprints, and witness testimony are sufficient to support Dausch’s convictions for aggravated battery and premeditated first-degree murder. Accordingly, he is not entitled to a judgment of acquittal.

Nevertheless, there were reversible errors in this case. Specifically, I would find dispositive the trial court’s refusal to allow Dausch to offer what he claims is a suicide letter — under the state-of-mind exception to the hearsay rule — to rebut the State’s argument that Dausch’s suicide attempt demonstrated his consciousness of guilt. See § 90.803(3), Fla. Stat. (2011). Because consciousness of guilt was a significant piece of the State’s circumstantial case against the defendant, I am not convinced that this error was harmless beyond a reasonable doubt. However, instead of setting the defendant free, I would remand for a new trial.

I respectfully dissent.

. Although the majority takes issue with the conclusiveness of the DNA evidence, it does not attempt to explain how conclusive DNA evidence must be to constitute sufficient evidence of identity. Consequently, it is impossible to gauge the significance of the majority's decision — both to those who were convicted as a result of DNA evidence and to those who seek to be exonerated by it.

. A random match probability denotes the chance of selecting, at random, a person in the relevant population unrelated to the defendant whose DNA would also match the sample. As explained in the majority’s opinion, the probabilities at issue here are 1 in 290 Caucasians, 1 in 790 African Americans, and 1 in approximately 500 Southeastern Hispanics. Majority op. at 518-19.