Nelson v. State

Decision Date27 May 1999
Docket NumberNo. 89,540.,89,540.
Citation748 So.2d 237
PartiesJoshua D. NELSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella and Carol M. Dittmar, Assistant Attorneys General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Joshua D. Nelson. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. As explained below, we affirm Nelson's convictions and sentence of death.

The evidence presented at trial established the following facts. Nelson and Keith Brennan wanted to leave the city of Cape Coral. The two devised a plan to murder Tommy Owens and steal his car. Nelson and Brennan knew that Owens kept a baseball bat in his car. On the evening of March 10, 1995, Owens was lured under false pretenses to a remote street. Nelson and Brennan were able to convince Owens to exit his car, whereupon Nelson hit Owens with the bat. After a number of blows, Owens eventually fell to the ground. Nelson and Brennan tied Owens' legs and arms. Owens pleaded for his life, stating that the two could take his car. After a brief discussion, Nelson and Brennan concluded that to avoid being caught, they should kill Owens. Brennan attempted to slice Owens' throat with a box cutter. Owens was not unconscious when the attacks began and he begged Nelson to hit him again with the bat so as to knock him unconscious before the stabbing continued. Nelson did as Owens requested and Brennan continued to attack Owens with the box cutter. Nelson and Brennan also continued to strike Owens a number of times with the bat. The two eventually dragged Owens' body to nearby bushes, where Owens later died.

Nelson and Brennan picked up Tina Porth and Misty Porth and the four left the city in Owens' car. After stopping in Daytona Beach, the four left the state and drove to New Jersey. At different times during the trip, Nelson and Brennan informed Tina and Misty that they had murdered Owens. Both Tina and Misty testified at trial.

Nelson and Brennan were apprehended by law enforcement officers in New Jersey. Nelson gave a video- and audio-taped confession. In the confession, Nelson detailed his account of the murder, both at the crime scene and at the place where the bat was recovered. The video-taped confession was played to the jury. Additionally, an analyst for the Florida Department of Law Enforcement testified that blood stains on Nelson's shoes, the box cutter, and a pair of underwear that the box cutter was wrapped in all matched Owens' DNA.

Nelson was found guilty of first-degree murder and robbery with a deadly weapon. At the penalty phase, the jury recommenced death by a twelve-zero vote. The trial court found three aggravators: (1) the murder was committed in the course of a robbery; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification (CCP). The trial court also found that one statutory mitigator (age of eighteen at the time of the crime) and fifteen nonstatutory mitigators1 were established. The statutory mitigator was given great weight. The first nonstatutory mitigator was given substantial weight, and the remaining nonstatutory mitigators were given from moderate to little weight. The trial court concluded that Nelson failed to establish the following statutory mitigators: (1) that he acted under the effect of extreme emotional disturbance, (2) that he was an accomplice with minor participation, (3) that he acted under the domination of another person, and (4) that his capacity to appreciate the criminality of his conduct was impaired. The trial court followed the jury's recommendation and imposed the death penalty for the first-degree murder conviction. The trial court sentenced Nelson to 189 months in prison for the robbery conviction.

Nelson raises seven issues on appeal. He asserts the following: (1) the trial court erred by failing to properly determine the admissibility of testimony by the State's DNA expert Darren Esposito; (2) the trial court violated Nelson's right to confrontation by admitting evidence of his nontestifying codefendant's out-of-court statement; (3) the trial court failed to weigh Nelson's history of substance abuse as a mitigator; (4) the trial court improperly found CCP; (5) the trial court improperly found HAC; (6) the trial court gave the jury a vague instruction on the HAC aggravator; and (7) the death sentence is disproportionate in this case.

We address the guilt phase issues first. In issue one, Nelson argues that the trial court erred by failing to properly determine the admissibility of testimony by the State's DNA expert. State expert Darren Esposito testified that the DNA sample taken from Owens' body matched the DNA found on the box cutter, the underwear, and Nelson's shoes. Esposito stated that the same DNA match occurs in approximately 1 in 17,800 Caucasians. Esposito testified that he used a database published by the FBI to make this determination and that the FBI database is generally accepted in the scientific community. Defense counsel did not object to this assertion. However, during voir dire of Esposito, defense counsel established that Esposito did not use the FBI database for one of the figures. Esposito stated that one of the figures in the FBI database is reported as .000. Esposito stated that if he used this figure, it would give the analysis a frequency of 0—which Esposito stated would be too individualizing. Therefore, Esposito testified that he consulted his supervisor, who in turn consulted a population geneticist. The population geneticist suggested that a value of.03 should be used instead of 0 for that particular frequency. Esposito stated that he used the figure suggested by the population geneticist in determining his calculation of approximately 1 in 17,800. Defense counsel objected to Esposito's testimony, claiming that the population geneticist's figure was not generally accepted in the scientific community.

In Ramirez v. State, 651 So.2d 1164 (Fla.1995), this Court established that the admission into of evidence of expert opinion testimony of a new scientific principle is a four-step process, for the which the first three steps require determinations by the trial judge: (1) whether the expert testimony will assist the jury in understanding the evidence or in determining a fact in issue, (2) whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs" under the Frye2 test, (3) whether the particular expert witness is qualified to present opinion evidence on the subject in issue, and, if the first three steps are answered in the affirmative, then (4) the judge may allow the expert to present an opinion to the jury, for which the jury can determine the credibility of the expert's opinion, which it is free to accept or reject. 651 So.2d at 1166-67; see generally Charles W. Ehrhardt, Florida Evidence § 702.3 (1997 ed.). The objection in the present case goes to the second prong of the Ramirez test— whether Esposito's testimony, and specifically the figure given by the population geneticist, is based on a scientific principle that is "sufficiently established to have gained general acceptance in the particular field in which it belongs" under the Frye test. Ramirez, 651 So.2d at 1167. There was no evidence presented by the State in the present case to establish that the figure given by the population geneticist was generally accepted in the scientific community. The population geneticist did not testify and no evidence was presented to establish how he or she even arrived at the figure of .03. Therefore, we agree with Nelson that it was error for the trial court to permit Esposito to testify regarding a calculation derived from a particular source without first establishing that the source was generally accepted in the scientific community.

The parties are in disagreement as to whether the error standard enunciated in section 924.051, Florida Statutes (Supp. 1996), applies to this case. Section 924.051 was created as a result of the Criminal Appeal Reform Act of 1996, chapter 96-248, Laws of Florida. Section 924.051 became effective on July 1, 1996. The crime in this case was committed on March 10, 1995. Nelson's trial began on September 16, 1996.

Section 924.051 shifts the burden of establishing error to the moving party: "[T]he party challenging the judgment or order of the trial court has the burden of demonstrating that a prejudicial error occurred in the trial court." § 924.051(7), Fla. Stat. (Supp.1996). Prejudicial error is defined as "an error in the trial court that harmfully affected the judgment or sentence." § 924.051(1)(a), Fla. Stat. (Supp. 1996). Prior to this change, the burden was on the benefitting party to prove beyond a reasonable doubt that the error did not affect the verdict and was therefore harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986)

.

We leave this matter open for further briefing and consideration. We find that under either standard, the error in this case was harmless. Assuming the new standard applies, we find that Nelson has failed to carry his burden of "demonstrating that a prejudicial error occurred in the trial court." § 924.051(7), Fla. Stat. (Supp. 1996). Assuming the DiGuilio standard applies, we find that the State has met its burden of establishing beyond a reasonable doubt that the error did not affect the verdict.

We reach this conclusion for two reasons. First, had Esposito...

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