Hudson v. State, 5D01-1461.
| Decision Date | 12 July 2002 |
| Docket Number | No. 5D01-1461.,5D01-1461. |
| Citation | 820 So.2d 1070 |
| Parties | Oscar F. HUDSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Hudson appeals his convictions for sexual battery upon a person under 12 years of age. He argues that the trial court erred in denying his motion for mistrial after the prosecutor referred to him in closing argument as a pedophile. He also argues that the trial court erred in admitting the testimony of the state's DNA expert regarding population frequencies. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140. We remand, but only for a limited evidentiary hearing consistent with Miles v. State, 694 So.2d 151 (Fla. 4th DCA 1997).
Hudson argues that the trial court erred in failing to grant his motion for mistrial based on the prosecutor's reference to him as a pedophile in closing argument. The prosecutor in her closing argument argued that Hudson asserts this comment was unfairly prejudicial because it could be interpreted as suggesting that he had a history of criminal sexual activity with children.
A trial court's ruling on a motion for mistrial is within its sound discretion and should only be granted when necessary to ensure that the defendant receives a fair trial. Gore v. State, 784 So.2d 418 (Fla.2001). It is well established, however, that the use of "pedophile profile" testimony as substantive evidence of guilt constitutes error. Flanagan v. State, 625 So.2d 827 (Fla.1993). In the instant case, while the prosecutor did not attempt to introduce pedophile profile testimony into evidence, her comment in closing argument was nonetheless prejudicial because, in addition to suggesting Hudson had committed prior illegal sexual acts involving children, it also improperly suggested a profile-type argument, namely, that if Hudson has certain traits which fit the offender profile, he must have abused the victim. See Flanagan at 828.
As in Flanagan, however, we find the error in this case harmless. Initially, we note that the prosecutor did not repeatedly refer to Hudson as a pedophile. Rather, she made a single reference to the word pedophile in her closing argument. See Flanagan at 830. Additionally, the state presented overwhelming evidence of Hudson's guilt. The 11 year old victim testified in detail about how Hudson digitally penetrated her and choked her. At the first opportunity, she reported this crime to her grandfather. When her grandfather confronted the defendant, the defendant told him that he had "just used my finger to her." The physical examination of the victim revealed bruising on the victim's neck and abrasions and lacerations to her vaginal and anal areas. This physical evidence corroborated the victim's testimony. Moreover, Hudson admitted to police that the victim was inside his house on the day of the incident. When the detective told him he needed fingernail scrapings, Hudson began trying to clean his fingernails. Despite Hudson's efforts, the fingernail scrapings revealed DNA consistent with the victim. In sum, we conclude that there was no reasonable possibility that the prosecutor's sole reference to the word pedophile in closing argument affected the verdict.
Hudson also argues that the trial court erred in allowing the state's DNA expert to testify about population frequencies because the expert was not qualified to testify in the field of population genetics. In Murray v. State, 692 So.2d 157 (Fla.1997), the supreme court explained that the DNA testing process consists of two distinct steps—a methodology for determining DNA profiles, as well as the statistical calculations used to report the test results—both of which are subject to the Frye test.1 Murray at 161. When testifying about the statistical analysis, the "expert must, at the very least, demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources." Id. at 163. However, it is "not absolutely necessary for an expert witness to demonstrate practical experience in the field in which he will testify" or is it required that the expert "helped to assemble the database." Id. The trial judge has the sole responsibility to make this determination. Id.
In the instant case, defense counsel stipulated that the state's DNA analyst, Emily Booth, was an expert in serology and DNA analysis, but when she began testifying about population frequencies, the defense objected on the basis that she wasn't qualified as an expert in population genetics. The trial court overruled Hudson's objection without inquiring into Booth's expertise in this area.
The state makes three arguments in support of the trial court's ruling. First, the state argues that based on Booth's experience, including a B.S. in forensic science, nine months of training in conventional serology, ten months of training in DNA analysis, completing over 400 DNA profiles and testifying as an expert 11 times, it is "common sense that this includes not only the forensic serology component of establishing a DNA profile, but applying that information to an underlying database." While the state's argument may be true, the trial court must specifically determine if the expert can "demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources." Booth did not do this before she was allowed to testify.
Second, the state argues that Booth's testimony demonstrates that she was "well grounded in how the statistics were developed and applied." On de novo review, there is some testimony to support this argument. Specifically, Booth testified as follows:
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