Brim v. State

Decision Date11 October 2000
Docket NumberNo. 2D97-4559.,2D97-4559.
PartiesRobert James BRIM, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

ORDER RELINQUISHING JURISDICTION TO THE TRIAL COURT TO CONDUCT ADDITIONAL EVDENTIARY HEARING

ALTENBERND, Acting Chief Judge.

Robert James Brim appeals the trial court's order denying his motion for new trial and declining to set aside his judgments and sentences for two criminal episodes involving sexual battery. This order was entered on remand from the Supreme Court of Florida after its decision in Brim v. State, 695 So.2d 268 (Fla.1997). On remand, the trial court conducted an evidentiary hearing, relying partially on telephonic testimony, and determined that certain DNA statistical evidence was properly admitted at Mr. Brim's trial in early 1993.

The supreme court has instructed this court to conduct a de novo review of the trial court's order, describing such a Frye1 "determination" as a question of law. See Brim, 695 So.2d at 274

. In this de novo review, we are to examine "expert testimony, scientific and legal writings, and judicial opinions" to decide whether the scientific principles and procedures relied upon to create such evidence are generally accepted by a relevant scientific community both at the time of trial and today. See Hadden v. State, 690 So.2d 573, 578 (Fla. 1997).

After considerable research and deliberation, this court concludes that the hearing on remand was insufficient. Moreover, because we are not adopting a rule of evidence in a rule-making proceeding, but are making a case-specific determination affecting Mr. Brim's liberty interests, we further conclude that due process requires specific constraints upon this unusual de novo review. Although the supreme court described this de novo review as addressing an issue of law, our experience with this review convinces us that this "determination" is actually a mixed question of fact and law. See Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App.2000)

. See also State v. Baity, 140 Wash.2d 1, 991 P.2d 1151 (2000); State v. Copeland, 130 Wash.2d 244, 922 P.2d 1304 (1996) (en banc).

While this case has been pending on appeal, we have reviewed many published legal writings and judicial opinions. This is a process that we are trained to perform and with which we have great experience.2 This traditional research establishes that DNA evidence is now routinely admitted in trial courts in many states.3 As a result of this research, we are inclined to believe that the statistical evidence in this case probably meets the Frye standard and was properly admitted.4 Therefore, our hesitancy to conclude this case today should not be construed as a signal that DNA testing is not admissible in Florida trial courts.

On the other hand, we have experienced extreme difficulty with the process of reviewing scientific literature. Without expert assistance, we question our competence even to locate, much less to comprehend fully, the current technical, peer-reviewed literature relevant to this de novo review. The parties did not include in the record any of the existing scientific documents needed for this review, nor has either party filed any recent scientific literature as supplemental authority. We have obtained and read scientific literature outside our legal record. We confess that we are not entirely clear whether the supreme court intends this court to read this factual literature (1) to assess the scientific content as science, or (2) merely to obtain a general understanding of the science and then measure levels of acceptance or dissonance within the relevant scientific community. We have concluded that the latter approach is correct under a Frye standard.

Although other courts have conducted such independent, fact-intensive, extra-record reviews of technical literature beyond the trained expertise of the judges,5 we are deeply concerned that this method does not permit full supreme court review of a district court's work and would not provide the parties with notice of the fact information relied upon by this court to decide their case. We have concluded that it is inappropriate for this court to evaluate or determine the scientific acceptability of such principles and procedures by examining extra-record, nonlegal materials. As a result of this decision, our record is currently inadequate for this court to complete its task.

Accordingly, we relinquish jurisdiction to the trial court for an additional evidentiary hearing and for the preparation of a revised order. At the conclusion of this painfully long order, we provide specific guidance to the trial court concerning the issues that should be addressed and the materials that should be included in the record at the evidentiary hearing. Upon entry of the trial court's revised order, this court will conduct an expedited review and conclude this appeal.

I. A Brief Procedural History of this Complex Case.

In 1990, several women were sexually attacked in Tampa, Florida. The police believed that one man was responsible for these attacks. Mr. Brim was eventually arrested and charged with three of these crimes. The cases were designated as circuit court case numbers 91-14399, 92-799, and 92-875.

Only case number 92-875 was actually tried. DNA evidence became the central focus of this case. Mr. Brim sought to exclude the DNA evidence on grounds that this new scientific method was not generally accepted. The trial court conducted a hearing on Mr. Brim's motion in limine to determine whether this evidence was admissible under the Frye test. The trial court denied the motion. The State then presented DNA evidence as a critical portion of its case. The jury found Mr. Brim guilty of burglary of a dwelling with an assault or battery, robbery, and two counts of sexual battery with slight force. The trial court sentenced Mr. Brim on February 18, 1993, to multiple concurrent sentences, the longest of which is life imprisonment as a habitual felony offender.

At sentencing in case number 92-875, Mr. Brim also entered open nolo contendere pleas in case numbers 91-14399 and 92-799.6 In case number 91-14399, Mr. Brim did not reserve his right to appeal any issue. He received a fifteen-year sentence of imprisonment as a habitual offender, followed by fifteen years' probation. During our deliberations in this case, we severed the appeal in case number 91-14399 and affirmed that sentence. See Brim v. State, 754 So.2d 823 (Fla. 2d DCA 2000). Thus, Mr. Brim is currently serving his sentence in that case while these appellate proceedings remain pending.

In case number 92-799, Mr. Brim entered a plea reserving the right to appeal the denial of his motion in limine, which was identical to the motion in case number 92-875.7 Thus, the outcome of the appeal concerning case number 92-799 will be determined by the outcome of the appeal concerning case number 92-875.

In 1993, Mr. Brim appealed all of his judgments and sentences to this court.8 In 1995, we affirmed the admission of the DNA evidence, essentially ruling that the results of this specific type of DNA testing were admissible under a Frye analysis and that the statistical presentation of these results did not require any separate Frye analysis. See Brim v. State, 654 So.2d 184 (Fla. 2d DCA 1995)

.9 Thereafter, the supreme court reversed our decision and held that the statistical presentation of the evidence did require a separate Frye analysis. See Brim v. State, 695 So.2d 268, 275 (Fla.1997).

The supreme court did not, however, reverse Mr. Brim's judgments and sentences when it disagreed with this court. Instead, it ordered that the case be remanded for another Frye hearing to reconsider the admissibility of the DNA statistical evidence. Upon receipt of the supreme court's mandate, this court remanded the case to the trial court. The trial court conducted a limited evidentiary hearing on the admissibility of the DNA statistical evidence and determined that the evidence had been properly admitted in case number 92-875.

At that point, Mr. Brim's counsel attempted to appeal the trial court's ruling directly to the supreme court. Because the trial court's new order had been entered on instructions from the supreme court and that court had not fully resolved the issues on appeal, that decision was not entirely illogical. The supreme court, however, had not merely relinquished jurisdiction; it had issued its mandate. Thus, it transferred the case to this court as a new appeal in which this court must decide whether the trial court satisfied the supreme court's mandate. Today, we rule that the trial court must conduct an additional hearing because it did not make a sufficient record of the "exact methods used by the State in calculating its population frequency statistics" as required by the supreme court. See Brim, 695 So.2d at 275

. Indeed, the record currently provides little to assist this appellate court with the unusual de novo review of this issue as mandated by the supreme court. This is not intended as criticism of the trial court, which clearly has attempted in good faith to accomplish an unusual and difficult task.

II. The Importance of DNA Evidence in this Case.

At the outset of our analysis, it is worthwhile to emphasize the critical role DNA played in this case. During the trial in case number 92-875, no one disputed that an African-American male, probably in his late twenties or earlier thirties, who was of average height and weight, had entered the victim's home during the night. He then raped and robbed her. The victim had the presence of mind not to disturb or destroy important physical evidence. A small sample of semen was discovered on her house...

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