Ramirez v. State, 78386

Decision Date05 January 1995
Docket NumberNo. 78386,78386
Citation651 So.2d 1164
Parties20 Fla. L. Weekly S19 Joseph Jerome RAMIREZ, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Richard L. Hersch of the Law Offices of Richard Hersch, and David B. Honig of David B. Honig, P.A., Coconut Grove, for appellant.

Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

OVERTON, Justice.

Ramirez appeals his conviction of first-degree murder and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. This is Ramirez's second appeal to this Court. In his first appeal, this Court reversed Ramirez's murder conviction and vacated the death sentence imposed at his first trial. We did so because the State failed to establish a sufficient predicate for its expert's assertion that Ramirez's knife was the only knife in the world that could have caused the victim's wounds. Ramirez v. State (Ramirez I ), 542 So.2d 352 (Fla.1989). In the instant case, the State endeavored to comply with our instructions in Ramirez I by attempting to establish the reliability of the scientific tests supporting the expert's assertion at a hearing conducted immediately preceding Ramirez's second trial. Because we find that Ramirez was denied his due process right to present evidence refuting the State's evidence of reliability at the pretrial hearing, we must once again reverse his conviction.

The relevant facts surrounding this murder are reported in our previous opinion. See Ramirez, 542 So.2d at 352-54. Testimony at the first trial revealed that the murder victim had been stabbed twelve times and beaten in the head with a heavy object. At that trial, the State introduced into evidence a knife linked to Ramirez. Thereafter, an expert offered his opinion that, based on his scientific examination and comparison of a cast made from Ramirez's knife and a cast made from knife marks found on the victim's cartilage, Ramirez's knife was the only knife in the world that could have been used in the murder. On appeal, this Court stated: "[W]e find that no scientific predicate was established from independent evidence to show that a specific knife can be identified from the marks made on cartilage." 542 So.2d at 354-55. We found that the error in admitting the expert's testimony was not harmless and remanded for a new trial.

The record of the instant case indicates that the State requested a special hearing before Ramirez's retrial to present testimony and evidence to the trial judge relating to the reliability of knife-mark comparison evidence and its admissibility in the upcoming trial. The judge granted this request and the State presented documentary evidence as well as depositions and live testimony concerning the theory, practice, and procedures involved in knife-mark comparisons. Much of the testimony was challenged by the defense through vigorous cross-examination. At the close of the State's presentation at the pretrial hearing, defense counsel proffered an expert to testify against the scientific reliability of knife-mark comparisons. The trial judge refused to allow the defense to call the witness. The trial judge stated that any evidence presented by the defense to refute the reliability of knife mark-comparisons could be presented to the jury as the finder of fact, but such evidence was simply not relevant to the issue of basic admissibility. 1 Ramirez has challenged both the admissibility of this evidence and the trial judge's refusal to allow him to present his own expert at the admissibility hearing.

The admission into evidence of expert opinion testimony concerning a new or novel scientific principle is a four-step process. See generally Charles W. Ehrhardt, Florida Evidence Sec. 702.1 (1992 Edition); Michael H. Graham, Handbook of Florida Evidence Sec. 90.702 (1987 Edition). First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. Sec. 90.702, Fla.Stat. (1993) (adopted by the Florida Supreme Court in In re Florida Evidence Code, 372 So.2d 1369 (Fla.1979)). Second, the trial judge must decide 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." Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). This standard, commonly referred to as the "Frye test," was expressly adopted by this Court in Bundy v. State, 471 So.2d 9, 18 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), and Stokes v. State, 548 So.2d 188, 195 (Fla.1989). The third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue. Sec. 90.702, Fla.Stat. (1993). All three of these initial steps are decisions to be made by the trial judge alone. See Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); Rose v. State, 506 So.2d 467 (Fla. 1st DCA), review denied, 513 So.2d 1063 (Fla.1987). Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject. Wuornos v. State, 644 So.2d 1000, 1010 (Fla.1994) ("[T]he finder of fact is not necessarily required to accept [expert] testimony."); Walls v. State, 641 So.2d 381, 390 (Fla.1994) ("[E]xpert opinion testimony [is] not necessarily binding even if uncontroverted.").

The second step, concerning whether to allow expert opinion testimony on a new or novel subject, is especially important to the process. As Professor Ehrhardt has explained:

When a novel type of opinion is offered, the proffering party must demonstrate the requirements of scientific acceptance and reliability. The most widely adopted test has been that of Frye v. United States which involved the admissibility of an early polygraph. The court held the evidence inadmissible because the underlying scientific principle was not "sufficiently established to have gained general acceptance in the particular field in which it belongs."

Ehrhardt, supra, Sec. 702.2 (footnotes omitted). 2 The principal inquiry under the Frye test is whether the scientific theory or discovery from which an expert derives an opinion is reliable. We have not hesitated to utilize the Frye test to reject expert testimony concerning subjects that have not been proven to be sufficiently reliable. See, e.g., Ramos v. State, 496 So.2d 121, 123 (Fla.1986) (testimony of dog-handler and police officer insufficient, by itself, to establish reliability of dog scent-discrimination lineups); Bundy v. State, 471 So.2d 9, 18 (Fla.1985) (hypnotically refreshed testimony per se inadmissible), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), modified Morgan v. State, 537 So.2d 973 (Fla.1989) (defendant's refreshed testimony may be admissible); Walsh v. State, 418 So.2d 1000, 1002 (Fla.1982) ("[P]olygraph evidence is inadmissible in an adversary proceeding in this state."); Zeigler v. State, 402 So.2d 365, 373 (Fla.1981) ("The results of a sodium butathol test are not admissible in a criminal prosecution."), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).

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," where there was not a proper predicate to establish the scientific reliability, was error, and noted that "the only evidence presented was of noncontrolled experimentation by the crime analyst." In Page v. Zordan, 564 So.2d 500, 502 (Fla. 2d DCA 1990), the Second District Court of Appeal held that it was error to permit an expert clinical psychologist to rely upon a "sexual abuse legitimacy scale" because no predicate was established concerning the acceptance of the test in the scientific community. In ...

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