Marco A. Rodriguez v. State, 210 So. 3d 750

Background

Rodriguez was convicted by a jury of lewd or lascivious molestation based on allegations that he molested a child when she was five; the prosecution introduced extensive evidence including victim and mother testimony, recorded calls, Appellant’s pretrial statements, and Williams-rule evidence about separate misconduct a decade later at a motel.
During rebuttal closing, the prosecutor repeatedly used inflammatory characterizations (e.g., calling Rodriguez a “pedophile”), urged “justice for the victim,” misrepresented the record, and used sarcastic and nationalistic appeals.
Defense trial counsel did not object to any of the prosecutor’s rebuttal remarks. Appellate counsel was different from trial counsel.
The court concluded the cumulative closing-argument misconduct amounted to fundamental error that deprived Rodriguez of a fair trial, requiring reversal and remand for a new trial.
The opinion directs the clerk to refer the prosecutor’s conduct and the trial transcript to the Florida Bar (and local professionalism panel) for possible action and admonishes both prosecutors and defense counsel about proper trial practice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s rebuttal closing remarks amounted to fundamental error despite no contemporaneous objection	State: closing was proper review and comment on evidence; not reversible given sufficiency of evidence	Rodriguez: prosecutor’s repeated inflammatory labels, appeals to sympathy, misstatements of evidence, and other misconduct so prejudiced jury that fairness was vitiated	Court: Yes — cumulative prosecutorial misconduct reached critical mass and constituted fundamental error; conviction reversed and remanded for new trial
Whether calling defendant a “pedophile” and other labels were permissible argument	State: characterization reflected argument about credibility and conduct	Rodriguez: labels improperly appealed to prejudice and propensity reasoning	Court: Improper; repeated use (seven times) was inflammatory and impermissible
Whether “justice for the victim” appeals and sympathy arguments are allowed	State: such appeals are part of advocacy about victim’s interests	Rodriguez: appeals to juror sympathy for victim are improper and risk inflaming passions	Court: Improper; such arguments are uniformly condemned and require objection and curative instruction to avoid prejudice
Whether trial court or defense counsel had duty to stop or object to misconduct	Rodriguez: defense counsel should have contemporaneously objected; trial judge should rebuke even without objection	State: failure to object generally waives review	Court: While failure to object normally waives error, the misconduct here amounted to fundamental error that excuses waiver; trial courts also have duty to act even without objection

Key Cases Cited

Ruiz v. State, 743 So.2d 1 (Fla. 1999) (trial is a neutral arena; closing reviews evidence and inferences)
Merck v. State, 975 So.2d 1054 (Fla. 2007) (duty to contemporaneously object to improper argument to allow cure)
Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983) (prosecutor must avoid appeals to sympathy, bias, passion)
Crew v. State, 146 So.3d 101 (Fla. 2014) (defining fundamental error in closing arguments)
Cardona v. State, 185 So.3d 514 (Fla. 2016) (condemning inflammatory prosecutorial argument; requiring fairness)
Gonzalez v. State, 786 So.2d 559 (Fla. 2001) (prosecutorial comments must not vitiate trial or poison jurors’ minds)
Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993) (new trial warranted where prejudicial conduct pervades trial)
Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000) (misrepresenting facts in evidence can profoundly mislead a jury)
Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998) (improprieties must be viewed cumulatively)
Petruschke v. State, 125 So.3d 274 (Fla. 4th DCA 2013) (use of pejorative labels is impermissible general attack on character)