Copeland v. State, 89-106
| Citation | 566 So.2d 856 |
| Decision Date | 30 August 1990 |
| Docket Number | No. 89-106,89-106 |
| Parties | 15 Fla. L. Weekly D2164 Clarence COPELAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender and Nancy L. Showalter, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.
The appellant challenges his conviction of attempted first degree murder, two counts of sexual battery by use or threat to use a deadly weapon, two counts of kidnapping, and one count of robbery. The appellant raises a number of points, only two of which need to be addressed herein: 1) Whether the trial court erred in not conducting a Richardson inquiry upon notice that results of scientific tests conducted by a state's expert, which revealed the age of spermatozoa found on the victim's vaginal swab, were not disclosed to the appellant during discovery, and 2) whether the trial court erred in allowing the witness to testify as to the age of the spermatozoa where there was insufficient predicate established for the admission of said evidence. We find that there is merit to both of these contentions and we, therefore, reverse.
The victim, who is a newspaper carrier, and her young daughter were abducted in the early morning hours of April 19, 1988. A man carrying what appeared to be a firearm forced the victim to drive her car to a dirt road. The man committed several acts of sexual battery on the victim. The incident culminated when the man stabbed the victim numerous times and left in her car. The car was found later that day with the child, who was unharmed. The victim was transported by the police to the hospital.
The principal issue before the trial court was the identity of the perpetrator.
Appellant challenges the admission of the results of certain tests on vaginal swabs obtained from the victim, performed by Suzanne Livingston, an FDLE senior crime laboratory analyst. The results of the tests would indicate that the appellant was among the 16 percent of the black population who could have been the perpetrator.
At the hospital, the victim told a doctor that she did not think that her assailant had ejaculated. The emergency room physician collected vaginal swabs from the victim, and both he and the pathologist at the hospital indicated that the swabs did not contain spermatozoa.
The FDLE crime laboratory analyst, using a more sophisticated microscope, detected the presence of spermatozoa on the vaginal swab. Based upon examination and tests, the analyst was able to determine that the donor of the semen was a secretor and had type B blood. Both the appellant and the victim's husband fit the description.
The victim and her husband had sexual relations approximately 48 hours prior to the taking of the swab. Over objection, the crime laboratory analyst testified that based on the condition and age of the semen it was her opinion that the semen had been placed there more recently than 48 hours, and, therefore, she excluded the victim's husband as the donor of the sperm. At the time of the testimony, the only objection raised by the defense related to the expertise of the witness to render an opinion on this subject.
The next morning, prior to any further testimony being taken, the defense raised further objections to the testimony concerning the age of the sperm. One objection was that there was a lack of "any predicate in the law of this state for the admissibility of such an opinion, much less as the opinion of a forensic serologist." The other objection concerned a potential discovery violation:
MR. ELLIS (defense attorney): Furthermore, Your Honor, I traveled to Tallahassee and took her deposition, and I asked her what if the husband's blood type was the same as this defendant's, would she not be able to exclude him. And she led me to believe that was the case. And now she's surprised me with this sudden research of hers. She never mentioned that in her deposition. That's the other thing. I had no way of preparing for it. I could have had a urologist here to tell us that this lady is way beyond any known science. But I was misled on that, and that's the part that really frustrates me.
The trial judge overruled both objections.
Where a trial court is reasonably apprised of a discovery violation, the court must conduct a full inquiry into all of the surrounding circumstances. Raffone v. State, 483 So.2d 761 (Fla. 4th DCA 1986). There are no exact "magic words" or phrases which must be used by the defense in order to necessitate the inquiry but only the fact that a ...
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Smith v. State
...used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met. Copeland v. State, 566 So.2d 856, 858 (Fla. 1st DCA 1990); In re F.R., 539 So.2d 588, 589 (Fla. 1st DCA 1989). In support of the motion for a mistrial in the instant case, the d......
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Ramirez v. State, 78386
...The district courts of appeal have likewise refused to permit unreliable expert testimony to reach the jury. In Copeland v. State, 566 So.2d 856, 858 (Fla. 1st DCA 1990), the First District Court of Appeal found that the admission of expert testimony based on the "spermatozoa age test," whe......
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State v. Evans
...was required to conduct a Richardson hearing upon being advised of a possible discovery violation. See, e.g., Copeland v. State, 566 So.2d 856, 858 (Fla. 1st DCA 1990) ("There are no exact `magic words' or phrases which must be used by the defense in order to necessitate the inquiry but onl......
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State v. Burke, 91-2555
...tests are admissible if they are demonstrated to be sufficiently reliable. Ramirez v. State, 542 So.2d 352 (Fla.1989); Copeland v. State, 566 So.2d 856 (Fla. 1st DCA 1990). Reliability may be proven by a showing of general acceptance within the scientific community. Stokes v. State, 548 So.......