Urga v. State

• Decision Date: 10 May 1963
• Docket Number: No. 3161,3161
• Citation: 155 So.2d 719
• Parties: Diamante URGA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 719

155 So.2d 719

Diamante URGA, Appellant, v. STATE of Florida, Appellee.

No. 3161.

District Court of Appeal of Florida, Second District.

May 10, 1963.

Rehearing Denied July 3, 1963.

Manuel M. Garcia and Wm. C. Pierce, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., Tallahassee, for appellee.

WHITE, Judge.

Diamante Urga was convicted on an information charging her with performing certain acts with intent to procure the miscarriage ¹ of prosecuting witness Helen T. Christman.

The defendant appeals her conviction and challenges the correctness of the trial court's rulings which (1) permitted an examining doctor to testify to statements made by the prosecuting witness out of the presence of the defendant, (2) held that a sufficient predicate had been laid for medical testimony of a pathologist with reference to the analysis of a specimen, and (3) limited the cross examination of the prosecuting witness with reference to her past domestic relations. Under protested ruling (1) we accept the premise that it was error to admit the hearsay testimony of the doctor, but we find the error harmless. With respect to rulings (2) and (3), we find no error.

The defendant first contends that it was prejudicial error to admit hearsay testimony given by Dr. Henry L. Wright who had examined the prosecuting witness. Dr. Wright's testimony included his opinion that an abortion had been effected. He was permitted to testify to conversations with the prosecuting witness in which she related the details and consequences of incriminating acts allegedly undertaken and performed by the defendant. We are constrained to the view that such testimony in criminal cases is not admissible under any recognized exception to the hearsay rule. The objectionable hearsay was, however, entirely cumulative and repetitious of other testimony in the record. The prosecuting witness testified to the same effect, and her testimony in combination with other competent evidence convincingly supports the conclusion that the defendant did perform the acts in question with the described results. See Fla. Stat. § 54.23 F.S.A.; ² Fla.Stat. § 924.33 F.S.A. ³ Cf. Sea Crest Corporation v. Burley, Fla.1949, 38 So.2d 434.

In Sea Crest Corporation v. Burley, supra, a civil case, the Supreme Court of Florida held that certain testimony was erroneously admitted but was not harmful since the matters testified to were independently attested by other competent witnesses. Other Florida decisions relative to the same general principle in criminal cases include Smith v. State, 1937, 129 Fla. 388, 176 So. 506, 508; and Chesser v. State, 1923, 85 Fla. 151, 95 So. 610, where the testimony of the accused was held sufficient to sustain his conviction notwithstanding the admission of incompetent evidence adduced by prosecution. See also Kelly v. State, 1941, 145 Fla. 491, 199 So. 764, citing Hopkins v. State, 1906, 52 Fla. 39, 42 So. 52, 55 in which it was held:

'Alleged errors in giving or refusing charges or instructions, and in the admission or rejection of testimony, which do not weaken the effect of the admitted testimony, and which do not reach the legality of the trial itself, will not be considered grounds for reversal where the evidence leaves no room for reasonable doubt of the defendant's guilt."

The present case differs significantly from Weightnovel v. State, 1903, 46 Fla. 1 35 So. 856, on which the defendant strongly relies. That was a manslaughter case in which a statement made by the deceased to a physician out of the presence of the defendant was held erroneously admitted since no predicate had been laid for its admission as a dying declaration or as part of the res gestae. The conviction was reversed. In that case, however, the physician's testimony would have been essential to a conviction since the victim was dead and there was no other appreciable evidence linking the defendant with the alleged crime. In the instant case, by contrast, the physician's testimony as to statements by the prosecuting witness was not essential to conviction in view of the fact that the prosecuting witness herself gave competent testimony as to the very same facts.

Reverting to Dr. Wright's medical opinion that an abortion had been induced, we find that his opinion was supported by evidence other than the objectionable hearsay. He testified that his personal examination of the prosecuting witness disclosed excessive bleeding, infection and expansion indicating recent pregnancy. There was no error in permitting this testimony to stand.

Our courts generally have been careful to assure fair trials to defendants in criminal cases, but obviously there are some errors that do not render a trial basically unfair. Consequently the doctrine of 'harmless error' has been developed by judicial decision and adopted by statute ⁴ to avoid reversal in cases where it appears that justice has been served and that in all probability a new trial with the same admissible evidence would not alter the end result. That is the situation here where the erroneous admission of Dr. Wright's hearsay testimony was not so grievous as to justify a new trial. Cf. Bowden v. State, Fla.App.1962, 137 So.2d 621, 625; Breen v. State, 1922, 84 Fla. 518, 94 So. 383. For a brief and interesting commentary on the evolution of the harmless error doctrine see O'Steen v. State, 1927, 92 Fla. 1062, 111 So. 725, 729-730.

The defendant next contends that it was prejudicial error to permit Dr. Robert J. Davis, a pathologist, to testify to the results of his analysis of tissue purportedly taken from the body of the prosecuting witness to ascertain whether she had been pregnant. The defendant submits that the State's evidence did not establish that the specimen was taken from the prosecuting witness and did not show an unbroken chain of possession of the specimen from the time of the taking to the time of analysis.

It appears that Harriet Ward, a registered technician at St. Joseph's Hospital, assisted Dr. Frank Moorehead in taking a tissue specimen from the prosecuting witness. She testified that the specimen was placed in a container and sealed and that Helen Christman's name and age, the date, and the doctor's name were all inscribed on the container and that she took the specimen to the laboratory for analysis. She testified that she personally delivered the container to a girl in the laboratory, and that such was the customary procedure for handling specimens. Similar testimony was given by Dr. Frank Moorehead.

Dr. Robert J. Davis, pathologist in charge of the laboratory, testified that the various specimens come to him in sealed containers, that he gives them distinctive numbers which he enters in a session book corresponding to 'their name' and then he examines each specimen and has it processed by his technician. Dr. Davis testified that he personally analyzed the specimen labeled 'Helen Christman.' At this point defense counsel objected on the ground that it appeared from the State's own evidence that there was no continuity of possession of the specimen. The objection was overruled. Continuing his testimony Dr. Davis stated that he personally removed the tissue from the container, examined it and placed a portion of it in a slide container for microscopic examination marked with the number entered in his book, and that he analyzed it as 'partly product of placental tissue.' The presence of placental tissue would be indicative of recent pregnancy. On cross examination Dr. Davis testified that he did not personally participate in obtaining the specimen.

In Novak v. District of Columbia, 1947, 82 U.S.App.D.C. 95, 160 F.2d 588, cited by the defendant, Bernard Novak was convicted of driving an automobile while under the influence of intoxicating liquor. A police officer obtained a specimen from the defendant while he was under arrest. The defendant was not advised that this could be used as evidence against him, but he was told that if the sample was right it would be to his benefit. The defendant also was not advised that he could refuse to have the specimen taken. An expert witness testified that in his opinion the test showing .24 of 1% alcohol indicated that the defendant was intoxicated at the time of his arrest. In reversing judgment of conviction and remanding the cause for a new trial the court said:

'It is our holding that the laboratory records and the chemist's testimony respecting the analysis were not properly admissible in evidence because the District of Columbia failed sufficiently to identify the sample from which the analyses were made as being that sample taken from appellant. The police officer who secured the sample was present in court and testified to the manner in which he labeled the flask containing appellant's urine and how he placed his initials on the label. The chemist, when he testified, had beside him the bottle of urine on which he had made an analysis. But no effort was made to hand to the police officer, who was present in court, the bottle the chemist had used to see if he could identify it as the bottle he had labeled and initialed. There is missing a necessary link in the chain of identification.' (Emphasis added)

It is apparent that the Novak holding is not authority for the proposition that every person who handles a specimen container is required to give testimony precedent to the admission in evidence of the analysis report. The case turned on the fact that the officer, who supposedly placed the specimen in the bottle, did not so testify. Thus there was no affirmative...