Fassi v. State, s. 90-914

• Decision Date: 12 December 1991
• Docket Number: Nos. 90-914,90-915,s. 90-914
• Citation: 591 So.2d 977
• Parties: Eugene FASSI and Ann Marie Fassi, Appellants, v. STATE of Florida, Appellee. 591 So.2d 977, 16 Fla. L. Week. D3051
• Court: Florida District Court of Appeals

Page 977

591 So.2d 977

Eugene FASSI and Ann Marie Fassi, Appellants, v. STATE of Florida, Appellee.

Nos. 90-914, 90-915.

591 So.2d 977, 16 Fla. L. Week. D3051

District Court of Appeal of Florida,

Fifth District.

Dec. 12, 1991.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

Appellants appeal their judgments and sentences for arson of a dwelling and burning to defraud an insurer. We reverse because of the trial court's erroneous admission of a handwriting examiner's trial testimony.

The facts show that appellee called an examiner of documents at trial for the purpose of comparing appellant's, Eugene Fassi's, handwriting on two letters to spray painted graffiti on the walls of his burned home. Defense counsel objected to the introduction of the examiner's testimony on the ground that a comparison of spray painted graffiti to handwriting samples was too speculative to place before the jury as scientific evidence and on the ground that the subject matter of the testimony was not beyond the common understanding of the average juror. He further argued that the Florida Department of Law Enforcement had been unable to compare the spray painted graffiti to the handwritten letters. He explained that although FDLE had concluded in its report that there was a "strong probability" that appellant was the draftsman of the graffiti, it had encountered a problem in comparing arm writing to hand and finger movements. The trial court deemed the examiner an expert in the area of questioned documents and permitted him to testify.

The examiner testified that some people maintain the same basic arm and hand movements whether they are writing on paper or with spray paint on the side of a wall. He concluded that this was true of the samples in the present case. He observed that the spray painted graffiti had been executed in a smooth, flowing manner and that it was not splotchy. He testified additionally that the class characteristics of the graffiti and the handwriting samples agreed. He concluded that the letters and the graffiti had been written by the same person.

Appellants contend on appeal that the trial court's admission of the examiner's self-authenticating testimony was erroneous because a comparison of graffiti to handwritten documents has not gained a sufficient indicia of reliability in the field of questioned document comparison to be deemed trustworthy. They contend that the examiner's testimony fails to meet the relevancy standard of admissibility as set forth in Andrews v. State, 533 So.2d 841 (Fla. 5th DCA 1988), rev. den., 542 So.2d 1332 (Fla.1989).

In Andrews this court determined that the relevancy test found in the evidence code is "the linchpin of admissibility." Id., 533 So.2d at 846. This test requires that opinion evidence be helpful to the trier of fact and that the danger of prejudice not outweigh the value of the evidence. This court qualified its finding by stating that the proper standard should ensure that "only reliable scientific evidence" be admitted. Id. Relying upon United States v. Downing, 753 F.2d 1224 (3d Cir.), affirmed, 780 F.2d 1017 (1985), it further noted that where scientific expertise does not have an established track record, courts may consider the novelty of the technique, its relationship to established methods of scientific analysis, specialized literature discussing the technique, an expert witness's qualifications and stature and any nonjudicial uses of the technique. Andrews, 533 So.2d at 847.

Appellee contends that the admission of the examiner's testimony comports with those factors set forth by the supreme court in Glendening v. State, 536 So.2d 212 (Fla.1988), cert. den., 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1988) in which the admission of expert testimony in a sexual abuse case was addressed. Those factors are that (1) the expert opinion must aid the trier of fact; (2) the expert must be qualified as such; (3) the opinion must be applicable to evidence presented at trial; and (4) the danger of unfair prejudice must not outweigh the probative value of the opinion. Appellee concludes by stating that any error deemed to have occurred is harmless because of the absence of a reasonable possibility that the error affected the jury's verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We agree with appellants that the admission of the examiner's trial testimony was reversible error on the ground that a comparison of spray painted graffiti on a wall to the writing contained in a handwritten letter is too speculative. While the admission of expert testimony is generally within the trial court's discretion, a comparison of such completely different mediums should be viewed skeptically. Because the examiner's testimony was critical to a determination of appellants' guilt or innocence, there is more than a reasonable possibility that the error affected the jury's verdict. DiGuilio.

Appellants raise one additional point which merits discussion. The facts show that appellee charged appellants with arson of a dwelling and burning to defraud an insurer. Appellee later nolle prossed the charges and refiled the same charges. Appellants filed a motion to dismiss on double jeopardy and due process grounds. They alleged in their motion that a jury venire had been empaneled at which time appellee had represented to the court that it was ready to proceed. A lengthy voir dire had followed and a jury had been selected. After the court had recessed for lunch, appellee had nolle prossed all charges because of alleged witness problems. Appellants alleged that appellee had acted in bad faith and that its actions were violative of both the double jeopardy and due process clauses of the United States Constitution. They alleged that they were prejudiced by its actions because they were deprived of their right to be tried by a regularly constituted jury which they had participated in selecting and of which they had approved.

The record shows that at the hearing on appellants' motion to dismiss, the prosecutor admitted that he had said that he was prepared for trial when appellants' case was called. Upon questioning he expressed two reasons for nolle prossing the charges against appellants after the jury had been selected. The first reason is that one of his chief witnesses, an arson expert, James Bowman, was unwell and was not prepared to proceed. The prosecutor said that he had not discovered this fact until a break on the morning of trial. He said that Bowman had driven in from out of town that morning and had not been present when the voir dire proceedings had begun. The second reason the prosecutor said that he had nolle prossed the charges against appellants is that he had received some information at 9:30 p.m. the night before trial which he had not had time to review. He explained that the information provided to him consisted of transcripts of appellants' statements taken at the Fire Prevention Office.

Defense counsel argued in response that on the day of trial, the prosecutor had informed him, during a hearing in chambers, of the statements which he had received the night before but had failed to indicate that there was a problem at the time. He argued that the prosecutor had been aware of this information before the jury had been selected. Regarding Bowman, he argued that the parties had allotted three days for trial and that the prosecutor would not have had time to question all of his witnesses during the first day. He argued additionally that there was no evidence from Bowman himself that he had been sick on the day of trial. He argued further that Bowman's testimony was merely cumulative of the testimony provided by another witness testifying for appellee. He argued finally that the prosecutor could have moved for a continuance of the proceedings rather than aborting the entire trial. He concluded his argument by saying that the prosecutor's bad faith actions had violated appellants' double jeopardy and due process rights. He requested that the original jury be repaneled to hear the case if his motion to dismiss was denied.

The prosecutor argued in response that jeopardy does not attach until a jury is empaneled and sworn. He argued additionally that appellee's right to nolle pros the charges against a defendant are within its discretion. The trial court denied appellants' motion to dismiss finding that defense counsel's due process argument was...