Schwarz v. State
| Decision Date | 04 June 1997 |
| Docket Number | No. 95-3171,95-3171 |
| Citation | 695 So.2d 452 |
| Parties | 22 Fla. L. Weekly D1384 Jessica SCHWARZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Glenn H. Mitchell, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
Jessica Schwarz was charged with second degree murder, as well as child abuse and other offenses, after her ten year old stepson, Andrew, was found dead in the family pool. She waived her right to a jury trial on the murder charge, which was severed from the other charges, and was found guilty of second degree murder by the court. We affirm her conviction.
We address two issues: whether there was sufficient evidence for a conviction, and whether the pathologist who testified about the cause of death could testify, on direct examination, that he had consulted with other pathologists about the cause of death.
Defendant's husband found Andrew dead in the family swimming pool around 6:30 a.m. He was nude, and his body was covered with bruises. The pool was less than four feet deep, and Andrew, who was taller than that, was a good swimmer. Defendant, who would normally have slept late on Sunday, the morning that Andrew's death was discovered, awakened her husband around 6:00 a.m. when she couldn't find Andrew.
In her trial, defendant's counsel attempted to show that Andrew's death was either a suicide, an accident, or that defendant's husband, Andrew's father, murdered him. She argues that the largely circumstantial evidence of her involvement was insufficient, and that the court should have granted her motion for judgment of acquittal.
Although Andrew's life had been made miserable by the defendant, who had abused him physically and mentally on many occasions, the pathologist who performed an autopsy on Andrew, Dr. Burton, testified that "there's a medical certainty that this is not a suicide." Dr. Burton testified that Andrew had bruises on his buttocks, the insides of his thighs and one arm, and in the small of the back, none of which could have resulted from falling down. He also had other soft tissue injuries, including to his lip and cheek. More specifically, he had lacerations behind each ear almost in the same place, which were consistent with pressure from fingers having forced him into the pool and holding him underwater.
The State produced seventeen witnesses who testified about defendant's physical and mental abuse. 1 In addition, one witness testified that defendant had told her one or two years prior to Andrew's death that she did not know what to do with Andrew and that she was going to kill him. When this witness tried to persuade the defendant that she did not really mean that, the witness testified that the defendant asserted decisively that she was going to do it. During the night of Andrew's death, a neighbor heard a child's voice say "I won't do it again, I won't do it again" and then heard a "muffled crying type noise." Other witnesses testified that they had heard defendant say that she hated Andrew, that he was basically "no good."
Dr. Burton testified that there was every likelihood that this was a homicide, and that he "felt very strongly that it probably" was a homicide.
The State is not, as defendant argues, required to rebut every possible scenario which could be inferred from the evidence. Rather it must introduce competent evidence which is inconsistent with the defendant's theories. State v. Law, 559 So.2d 187 (Fla.1989). We find that there was ample evidence introduced by the State which was inconsistent with the defendant's theories of suicide, accident, or murder by Andrew's father, and ample evidence that she did commit the crime.
Defendant also argues that Dr. Burton, the State's expert forensic pathologist, should not have been able to testify that he had discussed the case with other pathologists in his field. Dr. Burton, who specializes in forensic pathology, is the chief medical examiner for five counties in the metropolitan Atlanta area. He testified that when he gets involved in an unusual case he does not rely solely on his own opinions, but regularly consults other pathologists. In this case he consulted two pathologists on his staff, and three others from Pennsylvania, South Carolina and Miami, Florida, and so testified over defendant's objection.
The precise issue raised by defendant's objection--whether experts can testify that they discussed the case with other experts in the same field in order to arrive at their opinion--is one on which we find no precedent. We do know that experts can rely, in forming their opinions, on information which is not itself admissible, under section 90.704, Florida Statutes (1995), which provides:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.
The purpose behind the adoption of this statute as part of our evidence code was to allow experts to use information when rendering an opinion in court, just as they would rely on opinions of, for example, nurses, technicians, other physicians, and hospital records, when they are rendering opinions out of court. Law Revision Council Note (1976), 6C Fla. Stat. Ann. § 90.704, at 216 (1979).
Our statute is modeled after Federal Rule of Evidence 703. Under the federal statute, as well as our statute, experts may testify as to the things on which they rely. Bender v. State, 472 So.2d 1370 (Fla. 3d DCA 1985) (citing, 3 J. Weinstein & M. Berger's Weinstein's Evidence p 703 (1982)).
In Bender the trial court had precluded the defendant from having his expert psychiatrist testify as to the results of a C.A.T. scan, on which the expert relied in diagnosing the defendant's organic brain syndrome, and the third district reversed for a new trial. We agree entirely with the analysis of the third district in Bender. The present case, however, differs from Bender and the cases cited therein, in that the expert in the present case consulted with other experts in his same...
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