Sybers v. State

• Decision Date: 28 February 2003
• Docket Number: No. 1D02-129., No. 1D01-1609
• Citation: Sybers v. State, 841 So.2d 532 (Fla. App. 2003)
• Parties: William SYBERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

841 So.2d 532

William SYBERS, Appellant, v.STATE of Florida, Appellee.

Nos. 1D01-1609, 1D02-129.

District Court of Appeal of Florida, First District.

February 28, 2003.

Nathan Z. Dershowitz and Amy Adelson of Dershowitz, Eiger & Adelson, P.C., New York, NY; Alan M. Dershowitz, Cambridge, MA; Lorence Jon Bielby of Greenberg Traurig, P.A., Tallahassee; and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, for Appellant.

Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee; and Harry L. Shorstein, Special Assistant Attorney General, Jacksonville, for Appellee.

WEBSTER, J.

In these consolidated appeals, appellant seeks review of his conviction, following a jury trial, for first-degree murder and the denial of his motion for postconviction relief.On direct appeal, appellant contends that the trial court committed reversible error when it admitted, following a Frye hearing, expert testimony based on tests purportedly establishing the presence of succinylmonocholine in the victim's embalmed tissue nine years after the victim's death; and when it allowed the state to establish a motive for murder through the use of inadmissible testimony.We agree.Accordingly, we reverse, and remand for a new trial.This disposition moots appellant's postconviction claims.

I.

A.

At all relevant times, appellant was the medical examiner for the Fourteenth Judicial Circuit of Florida.On the morning of May 30, 1991, appellant's wife was found dead in their home.Appellant had asked one of his employees to check on his wife because, according to appellant, his wife had been complaining of chest and shoulder pains that morning, and nobody was answering the telephone at home.Appellant's wife was found in her bed, with the covers over her and a heating pad on her leg.She had no pulse.There were no signs of a struggle, but there was a gauze bandage on her arm.When appellant was told of his wife's death, he said that no autopsy should be performed because his wife "wouldn't want that."The next morning, appellant's medical partner persuaded him that an autopsy would be appropriate.However, by that time, the body had already been embalmed by the funeral home.Appellant had not sought to expedite the embalming.An associate medical examiner from the First Judicial Circuit performed the autopsy on June 1, 1991.He noted two injection marks on the right arm.(Appellant had told at least two people that he had tried unsuccessfully to draw blood from his wife early on the morning of her death, because she had not been feeling well.)The only drug discovered by a toxicology screen was a sleeping pill.The medical examiner was unable to find any signs of disease or injury that might explain the death.On October 16, 1991, he issued a death certificate listing "sudden unexpected death due to undetermined natural causes."Two weeks later, he issued another death certificate, this time listing "sudden unexpected death due to undetermined causes."On April 20, 2000, he issued a final death certificate listing the death as a homicide due to succinylcholine poisoning.The final death certificate was based on reports received from National Medical Services and the Federal Bureau of Investigation.

Appellant was indicted for first-degree murder on February 18, 1997.The indictment charged that appellant had murdered his wife "by injecting her with an unknown substance."On April 9, 1997, in response to a story in the local newspaper quoting the prosecutor, appellant filed a motion in limine seeking to exclude"any evidence concerning or reference to potassium or alleged potassium poisoning, and any novel scientific evidence."In that motion, appellant maintained that, in Florida, "[t]he proponent of scientific evidence must satisfy the test announced in Frye v. United States,293 F. 1013(D.C.Cir.1923), ... [as] further refined by the Florida Supreme Court ... in Brim v. State,663 So.2d 629(Fla.1995)[sic]"; that "[t]he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used"; and that he was "entitled to a pretrial hearing to determine the admissibility of any proposed novel scientific evidence."On November 19, 1998, following a Frye hearing, the trial court held that opinion testimony offered by the state from Dr. Frederic Rieders, of National Medical Services (NMS), a private laboratory in Pennsylvania, was inadmissible because it was "based upon methods and processes that [we]re not generally accepted... in the scientific community and therefore d[id] not meet the Frye test."The state sought certiorari review in this court.On October 20, 1999, we issued a short opinion, in which we agreed "that the state failed to establish the necessary scientific acceptance as to some of the principles and methods on which [Dr. Rieders] relied" and, accordingly, denied the petition for a writ of certiorari.State v. Sybers,743 So.2d 619(Fla. 1st DCA1999).

B.

On January 11, 2001, appellant filed another motion in limine, this time seeking to exclude "any evidence concerning or reference to succinyl choline poisoning or succinyl monocholine poisoning, and any novel scientific evidence."A pre-trial Frye hearing was held on February 14 and 15, 2001.At that hearing, Dr. Kevin Ballard testified for the state.He said that he was the director of research and development at NMS.Although he had never practiced medicine, he had a medical degree as well as a Ph.D. in pharmacology.He had been declared in other courts to be an expert in tandem mass spectrometry (MS/MS).He had no formal training in testing embalmed tissue, but had been involved in the testing of embalmed tissue specimens since 1998.He initially became involved in appellant's case in December 1999, at the request of Dr. Rieders.

According to Dr. Ballard, he had developed a "bench procedure" for quaternary ammonium compounds in biological specimens which he used to test embalmed tissue from appellant's deceased wife for the presence of succinylcholine, a neuromuscular blocking agent commonly used during surgery, which is lethal in sufficient doses.The testing procedure was a multi-step process.The first step was to homogenize the tissue sample in water to render it in a form that could be worked with.The second step was to begin the extraction of the analyte of interest from the homogenized sample through use of the Bligh-Dyer method, a liquid-liquid extraction procedure dating back to the 1930's, which removed lipids and left only water-soluble components.The final step was a solid phase extraction procedure which used an ion pairing reagent, heptafluorobutyric acid, to isolate peptides from biological samples, yielding a final liquid matrix suitable for liquid chromatography.

Dr. Ballard testified that his bench procedure was unique insofar as it combined the Bligh-Dyer method and the ion-pairing solid phase approach during the extraction process.Once the final liquid matrix was extracted, the matrix was injected into a liquid chromatograph-tandem mass spectrometer (LC-MS/MS).The chromatograph separated the compound, and the mass spectrometer identified it.On February 17, 2000, Dr. Ballard reported that succinylmonocholine (a metabolite formed by the decay of succinylcholine) was detected in the victim's kidney, brain, and lung samples using LC-MS/MS on a tandem quadrupole mass spectrometer.On March 22, 2000, he prepared another report which detected succinylmonocholine in the victim's spleen, kidney, brain, lung, and fat samples again using LC-MS/MS on a tandem quadrupole mass spectrometer.On November 7, 2000, he issued a supplemental report reflecting an additional analysis of the tissue samples using LC-MS/MS on a tandem quadrupole-time-of-flight instrument.This procedure showed the presence of succinylmonocholine in the kidney and brain specimens.In June 2000, he made a "poster" presentation to the American Society for Mass Spectrometry entitled "Analysis of Quaternary Ammonium Neuromuscular Blocking Agents in Forensic Tissue and Fluid Specimens by LC-MS/MS."It involved taking questions from any peers who came by to examine the presentation.The presentation did not detail the bench procedure used, but did identify the concepts for extracting and identifying the compounds.

Dr. Ballard testified, further, that he did not perform method validation on the victim's specimen samples, as that term was traditionally used, because it was impossible to do a true validation study on unique specimens.Method validation was intended for routine testing.Instead, he validated his methodology by using the "standard addition" method, which was generally accepted in the scientific community.This involved taking a portion of a specimen and "spiking" it with the analyte of interest to show the capability of pulling that analyte out of the matrix.This was called the positive control.The standard addition method also involved the use of a negative control, i.e., a "blank" sample known not to have the analyte in it, to ensure against false positives.One cause of false positives was "carryover," in which traces of analytes injected into or extracted from high level samples would remain in the equipment and contaminate subsequent samples.The solution to this problem was to run a number of "blank" samples between runs to make sure that the system had been properly purged.They never experienced any carryover with succinylcholine or succinylmonocholine.Another source of contamination was "interference," in which some unknown compound could potentially mimic or mask the analyte being targeted.This was controlled by use of the standard addition method.Interference would not cause a false positive unless there was another precursor, other than succinylcholine, that could break down and give rise to succinylmonocholine.Theoretically, there...