Summary
finding no abuse of discretion in admitting detective's opinion on blood splatter where, prior to rendering opinion, detective testified as to his education, training, and experience in blood pattern analysis
Summary of this case from Larocca v. StateOpinion
No. 3D15-2368
11-06-2019
Peter Erik HEDVALL, Appellant, v. The STATE of Florida, Appellee.
Michael Ufferman Law Firm, P.A., and Michael Ufferman (Tallahassee), for appellant. Ashley Moody, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
Michael Ufferman Law Firm, P.A., and Michael Ufferman (Tallahassee), for appellant.
Ashley Moody, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
Before SCALES, LINDSEY, and MILLER, JJ.
Judge Miller did not participate in oral argument.
LINDSEY, J. Peter Erik Hedvall appeals his conviction and sentence for the murder of Jonathan Perez. For the reasons set forth below, we affirm.
I. BACKGROUND AND FACTS
A. The Investigation and Events Leading to Trial
Jonathan Perez (the "Victim") was brutally murdered in 2011 in Key West during Fantasy Fest. He was found lying on a driveway under a vending truck parked approximately 100 feet from Don's Place, a bar in downtown Key West. A pool of blood was flowing from the Victim's head toward the street. There was a large wound just above his right ear. Glittery costume wings were wrapped tightly around his neck. A large coral rock, stained with blood, was discovered near the Victim's body. The injuries were consistent with a time of death between 4:00 a.m. and 4:15 a.m. the morning of October 28, 2011.
According to the website that bills itself as "The Official Fantasy Fest Website":
Fantasy Fest is an annual 10-day party in paradise for grown-ups. Started in 1979 by a small group of Key West locals, the party was created to bring visitors to the island in what was a typically quiet, but beautiful season. It worked. Fantasy Fest has grown every year since its inception and is now the wildest extravaganza around! Fun-loving revelers from around the globe bring their creativity and imaginations as they descend upon Key West each year in October for 10 days filled with costuming, parades, libations, and excitement!
The Official Fantasy Fest Website, https://www.fantasyfest.com (last visited October 2, 2019).
A medical examiner's autopsy of the Victim revealed that a firm metal wire covered in cloth, which was part of the costume wings, was wrapped around the Victim's neck. The wire had been twisted very tightly. The Victim had bruising on his face, hand, wrist, elbow, and chest. The Victim also had lacerations on his scalp. In addition, the Victim had suffered skull fractures and bruising to the brain. The injuries were consistent with the Victim's head being hit with a hard object. The causes of death were asphyxiation and blunt force head trauma, although either alone would have caused his death. The medical examiner opined that the manner of death was homicide.
A detective looked through the Victim's mobile phone and Facebook page to confirm his identity. Word of the murder began to spread in the community, and individuals who knew the Victim began contacting the police. The detective interviewed some of the Victim's friends and began developing leads on the case. Ultimately, the investigation led to Don's Place. A bartender saw Peter Erik Hedvall ("Defendant") at Don's Place early in the evening the night of the murder wearing a pinstriped "zoot suit" with a big wide hat. The bartender first saw the Victim around 1:30 a.m. or 2:00 a.m. and served him a drink. The Victim left without paying. Around 3:45 a.m., close to last call, the bartender saw the Victim again. Defendant was sitting at the end of the bar, while the Victim was standing at the middle of the bar. The Victim appeared intoxicated.
A "zoot suit" is "a suit of extreme cut typically consisting of a thigh-length jacket with wide padded shoulders and peg pants with narrow cuffs[.]" Zoot Suit , Merriam-Webster Dictionary (11th ed. 2019).
Yet another bartender also saw the Victim earlier in the evening wearing all black with glittery fairy wings. A friend of the Victim confirmed she met the Victim at Don's Place that night and that he was dressed in black and wearing costume wings. The friend last saw the Victim around 3:45 a.m., just before she left. Another patron remembered seeing the Victim that night and stated that he was wearing wings and appeared drunk. Yet another patron who worked at Wing Masters, just in front of Don's Place, went to Don's Place and left around 3:55 or 4:00 a.m., when the bartender announced last call. As he was walking home, this person saw an argument between two people by the dumpster next to Don's Place. According to this person, one sharply-dressed man was wearing a white suit, a hat, and white pants. The other man was wearing all black and wings.
Twenty-four hours after the Victim's body was found, Defendant went to the police station for an interview. During the interview, he acknowledged being at Don's Place the morning of October 28, 2011, and seeing the Victim, but he denied arguing with him. In addition, Defendant admitted he was wearing a white and blue zoot suit and a hat. Police asked to go with Defendant to his home to get the clothing and Defendant agreed. Defendant retrieved the clothing and boots he had worn the night the Victim died and returned to the station with the police. Once there, a detective visually inspected the clothing items and boots in the presence of Defendant and immediately noticed what appeared to be dry bloodstains on the pants. Another detective then came in wearing gloves, and Defendant was asked if she could take the clothing to inspect it. He agreed. A presumptive blood test was conducted, which came back positive for the presence of blood. A detective then read Defendant his constitutional rights. Defendant was not arrested and was allowed to leave the police station.
The clothing and boots and the Victim's costume wings were submitted to the Florida Department of Law Enforcement for DNA testing. Multiple samples were submitted, including Defendant's and the Victim's DNA. Swabs from the crime scene, including stains from the coral rock found near the victim, were also submitted. One blood stain on the back of Defendant's pants matched the Victim. A second blood stain, above the toe of Defendant's right boot also matched at least two individuals, the Victim being one of them. Two blood stains found on Defendant's clothing matched Defendant. Blood taken from the coral rock matched the Victim. Defendant was subsequently arrested and indicted for premeditated murder in violation of section 782.04(1)(a), Florida Statutes.
B. The Motion to Suppress
Before trial, Defendant moved to have the clothing and DNA evidence suppressed on the basis that the detectives exceeded the scope of consent he had given them. At the hearing on the motion, two detectives testified, and the State admitted three video recordings of the police's interactions with Defendant. The trial court entered a written order denying the motion.
C. The Trial
1. Voir Dire
During jury selection, Defendant challenged three jurors, F, S, and H for cause, alleging they were neither impartial nor unbiased. After an extensive jury selection and multiple rounds of questioning, the trial court denied the cause challenges. Defendant exercised peremptory challenges to strike the three jurors from the jury panel. At the conclusion of voir dire, and after Defendant's peremptory challenges had been exhausted, Defendant identified two additional jurors who sat on the jury whom he would have stricken had he not used three of his peremptory challenges on Jurors F, S, and H.
To protect the privacy of the jurors, references to the jurors will be made using the initial of the juror's last name.
2. Testimony on Blood Pattern Analysis
Prior to trial, the State submitted a discovery exhibit in accordance with Florida Rule of Criminal Procedure 3.220, which included a list of "Category A" witnesses. It listed Detective Underwood and attached a copy of Detective Underwood's Report. In addition, the State submitted an amended discovery exhibit with Detective Underwood's curriculum vitae. Further, Detective Underwood was deposed. Detective Underwood's Report included the following:
There was a large pool of blood under the Victim's head and what appeared to be high velocity blood splatter extending from the Victim's head/face towards the street for a total distance of four feet in a cone like shape (expanding outwards from the Victim's head/face towards the street). There was a barely perceptible void in the pattern, suggesting that someone or something had been present when the splatter, from the blow to the head was struck. The shape and size of the splatter droplets were elongated, definitely directional, and indicated a flight pattern of less than thirty degrees, away from the Victim's head. No ‘cast off’ patterns were observed. Swabs were collected from areas of bloodstains. Evidence at the scene suggest that the head wound was a single blow and was struck while the Victim's head was already down on the driveway surface.
During trial, the State tendered Detective Underwood as an expert witness. Defendant objected, asserting the State had failed to identify Detective Underwood as an expert and that Defendant would be prejudiced if the trial court allowed the detective to testify to his blood pattern analysis. At a hearing outside the presence of the jury, the trial court declined Defendant's request for a Daubert hearing on the basis that Defendant could have filed a motion "a long time ago."
However, in lieu thereof, the trial court required the State to lay a predicate for Detective Underwood's testimony. The trial court identified the following expert opinion testimony requirements under section 90.702, Florida Statutes : (1) the testimony must be based on sufficient facts or data; (2) the testimony must be the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
Defendant objected on the basis that the witness was not qualified to testify to the methodology and principles. Defendant further objected to the reliability of the principles and methods used by the detective. The trial court then told the State that the detective needed to address the reliability issue. The trial court allowed Defendant to conduct further voir dire of Detective Underwood. In addition, the trial court conducted its own examination. The trial court then concluded:
I'm going to allow the detective to testify to his opinion. You'll [sic] been given a chance to cross-examine him on many of the issues he's raised. The Court finds that the detective followed the methods and measurements and that the measurements are reliable as far as we know from the experts that's [sic] he's quoted, who wrote the books, so to speak.
I'm going to find he used sufficient facts and data under the circumstances as he was taught. I'm going to find that he applied them reliably to the facts as presented.
The only thing I find him able to testify to is the 30 degree angle he's talked about, and his conclusion that the trajectory is one that would indicate that the victim's body was at a very low position, or on the ground when it was struck.
The detective rendered his expert opinion and Defendant cross-examined the detective on his opinion in front of the jury.
3. Testimony of the Medical Examiner
Dr. Jay Radke, a medical examiner licensed in the State of Florida, testified that his examination of the left side of the Victim's scalp revealed hemorrhaging and that hemorrhaging was consistent with the Victim's head being hit on the left side by a hard object such as a sidewalk. Dr. Radke also identified multiple broken fragments of skull. He opined that blunt force trauma to the right side of the Victim's head was caused by an irregularly shaped object. Dr. Radke also explained that a single blow to the head would not cause blood to travel four feet from the Victim and that an initial blow to the head would not cause any blood to fly out or spurt. Dr. Radke also testified that a subsequent blow to the head would cause already pooling blood to splash and fan out.
4. Evidence of Glitter and Debris from Defendant's Clothing
Prior to trial, in July of 2013, the State and counsel for Defendant met with Detective Haley to inspect Defendant's clothing that was in the State's possession. During this inspection the clothing was placed on a clean piece of brown paper. The brown paper caught debris that fell from the clothing. Once the inspection was completed, the paper was repackaged with the clothing. Only Detective Haley handled the clothing during the original inspection.
Mid-trial, on March 22, 2014, a second inspection was conducted by the State; counsel for Defendant; and Ms. Varan, a DNA expert. When the inspection was completed, counsel for Defendant allowed the State to discard the new piece of brown paper that was placed under the clothing during the inspection. After counsel for Defendant left, a third inspection was held (also on March 22, 2014.) A third piece of brown paper was placed under the clothing during the inspection. This piece of paper was repackaged with the clothing and the paper from the first inspection.
At trial, the State sought to move both pieces of brown paper into evidence and argued that the debris found on the paper came from the coral rock and the wings worn by Defendant. The trial court admitted the brown paper over the Defendant's objection. In so doing, the trial court found that Defendant and counsel had access to inspect (1) the clothing; (2) the paper placed under the clothing; (3) any loose debris that had fallen during the two inspections they were present for prior to trial; and (4) the debris collected during the third inspection before it was admitted into evidence. The trial court further found that Defendant had deposed the DNA expert, Mrs. Varan, the day following the second and third inspections. At the conclusion of trial, and after testimony from more than 25 witnesses, including Defendant, the jury convicted Defendant of the lesser included offense of second-degree murder. The trial court sentenced Defendant to 40 years imprisonment followed by probation for life. This timely appeal followed.
II. ANALYSIS
Defendant alleges five grounds for reversal: (1) the trial court erred by allowing the testimony of Detective Underwood, who Defendant contends was an undesignated and unqualified expert witness for the State; (2) the trial court erred by denying Defendant's challenges for cause to Jurors F, S, and H; (3) the trial court erred by allowing the State to introduce glitter and debris from the clothing Defendant wore on the night of the murder; (4) the trial court erred in denying Defendant's motion to suppress the clothing Defendant wore on the night of the murder; and (5) there are errors on the sentencing scoresheet and the judgment.
A. The Expert Blood Pattern Analysis Testimony
1. The Alleged Discovery Violation and Failure to Conduct a Richardson Hearing
Florida Rule of Criminal Procedure 3.220(b)(1)(A) requires the State to disclose "a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto ...." The Rule further requires that the persons listed be designated in one of three categories: A, B, or C. Id. Category A, which is relevant here, lists eight subcategories of witnesses, including "expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify." Fla. R. Crim. P. 3.220(b)(1)(A)(i).
Florida Rule of Criminal Procedure 3.220 is the only criminal rule governing discovery applicable to expert witnesses. On the other hand, the Florida Rules of Civil Procedure have multiple rules. See, e.g., Rule 1.200(a)(8) (scheduling of disclosure of expert witnesses and the discovery of facts known and opinions held by such experts); Rule 1.201(b)(1)(O) (number of experts and fields of expertise); Rule 1.280(b)(5) (discovery of facts known and opinions held by experts); Rule 1.390 ("Depositions of Expert Witnesses"); Rule 1.330(a)(3)(F) (use of expert depositions in court proceedings).
Defendant alleges the trial court erred in allowing Detective Underwood to testify as an expert on blood pattern analysis because even though he was designated as a Category A witness, he was not specifically designated as an expert witness. This, Defendant argues, was a discovery violation requiring the trial court to conduct a Richardson hearing. See Richardson v. State, 246 So. 2d 771, 774 (Fla. 1971) ("[T]he violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant."). The State contends that listing Detective Underwood as a Category A witness was sufficient, and therefore, a Richardson hearing was unnecessary because there was no violation of a procedural rule.
"Pursuant to Richardson, the trial court must first determine whether a discovery violation has occurred, and if so, the trial court must ‘inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party's trial preparation.’ " Guillen v. State, 189 So. 3d 1004, 1009 (Fla. 3d DCA 2016) (quoting State v. Evans, 770 So. 2d 1174, 1183 (Fla. 2000) ).
Although we note that the plain language of Rule 3.220 does not require the State to identify any witness specifically as an expert or provide an expert witness list, we need not decide whether the State complied with the requirements of Rule 3.220 because, even if it did not, the failure to do so was harmless error. "[T]he failure to conduct a Richardson hearing is not per se reversible error, but rather is subject to a harmless error analysis." Durrance v. State, 44 So. 3d 217, 221 (Fla. 4th DCA 2010) (citing State v. Schopp, 653 So. 2d 1016, 1020-21 (Fla. 1995) ). A discovery violation may be considered harmless if an appellate court can determine, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the violation. Casica v. State, 24 So. 3d 1236, 1240 (Fla. 4th DCA 2009) (citing Scipio v. State, 928 So. 2d 1138, 1150 (Fla. 2006) ).
Whether the State was required to identify Detective Underwood as an expert under its list of Category A witnesses is not necessary for the disposition of this appeal. Thus, we leave it for another day.
Assuming, arguendo , there was a discovery violation, there is no evidence that this violation resulted in Defendant's trial preparation or strategy being materially impaired. First, Defendant was given the opportunity to depose Detective Underwood on his report and opinions. The State also provided Detective Underwood's curriculum vitae and report. Second, Defendant's theory of the case was not how the victim was killed but that someone, other than Defendant, killed the victim. Third, in his opening statement, counsel for Defendant stated that the Victim "was brutally taken from us." Fourth, even if Defendant did not anticipate Detective Underwood would render the opinion that he did, his opinion could not have changed Defendant's preparation or strategy in light of the cumulative medical examiner's testimony that the causes of death were asphyxiation and blunt force trauma to the head. Moreover, there is no evidence that Defendant would have hired an expert of his own to rebut the testimony of Detective Underwood. Defendant was aware prior to trial that Detective Underwood's testimony would be based on the findings in his report because he had been deposed.
Indeed, the evidence in the record demonstrates the opposite. The trial had been previously set and then continued at the State's request in order to depose a Dr. Stuart James whom Defendant had recently designated as an expert in blood pattern analysis. Thereafter, Defendant filed a second amended witness list removing Dr. James from the list. Less than a month later, the State, having previously provided Detective Underwood's report, provided his curriculum vitae in supplemental discovery.
Finally, Defendant was not required to abandon his theory of the case, i.e., that the State had charged the wrong person, mid-trial. Detective Underwood's testimony had no material bearing on Defendant's theory of identity. It was only material to the issue of the cause of death. Even if the State's failure to explicitly identify Detective Underwood as an expert was a discovery violation, given the evidence presented during the trial, we cannot find that such failure prejudiced Defendant. See Scott v. State, 230 So. 3d 613, 618 (Fla. 5th DCA 2017) ("[A] discovery violation may be considered harmless if an appellate court can determine, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the violation." (citing Casica, 24 So. 3d at 1240 )); Austin v. State, 199 So. 3d 327, 329 n.5 (Fla. 3d DCA 2016) (finding that even if the trial court's failure to conduct a Richardson hearing was erroneous, the error "was harmless beyond a reasonable doubt"). 2. The Daubert Standard
Defendant further alleges the trial court's decision to allow Detective Underwood to provide an expert opinion is grounds for reversal because the court failed to determine whether he was a qualified expert pursuant to the Daubert standard set forth in section 90.702, Florida Statutes (2019). We disagree. "In 2013, the Florida Legislature amended Section 90.702 to pattern it after Rule 702 of the Federal Rules of Evidence. Ch. 2013–107, Laws of Fla." L.L. v. State, 189 So. 3d 252, 255 (Fla. 3d DCA 2016). As amended, section 90.702, Florida Statutes provides as follows:
In May 2019, the Florida Supreme Court explicitly adopted the Daubert standard for expert testimony. See In Re Amendments to the Fla. Evidence Code, 278 So.3d 551 (Fla. 2019). Although there was some uncertainty as to whether the Daubert standard was applicable at the time of trial, the parties and the trial court all agreed that Daubert was the correct standard.
90.702 Testimony by experts
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
The Legislature amended section 90.702 "to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and to no longer apply the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) in the courts of this state ...." Ch. 2013–107, Laws of Fla. (Preamble to § 90.702 ). As this Court has previously explained, " Daubert, Joiner, and Kumho Tire, known as the Daubert trilogy, are the three United States Supreme Court cases that together articulate the Daubert standard." L.L., 189 So. 3d at 256. "When engaging in a Daubert analysis, the judge's role is that of the evidentiary ‘gatekeeper,’ that is, the one who determines whether the expert's testimony meets the Daubert test." Booker v. Sumter Cty. Sheriff's Office/N. Am. Risk Servs., 166 So. 3d 189, 192 (Fla. 1st DCA 2015) (citing Daubert, 509 U.S. at 597, 113 S.Ct. 2786 ; Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167 ). "[A] trial court has broad discretion in determining how to perform its gatekeeper function when addressing the admissibility of expert opinion testimony." Id. (citing Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004) ). Consequently, "[a]n appellate court will review under an abuse of discretion standard a trial court's admission or exclusion of expert testimony." Id. at 194 n.2 (citing Kumho Tire, 526 U.S. at 142, 119 S.Ct. 1167 ).
Here, prior to rendering his opinion, Detective Underwood testified that he had taken a crime scene reconstruction course with 20 or more hours devoted to blood pattern analysis, had training at the medical examiner's office with 12 hours devoted to blood pattern analysis, and had taken a DNA course with 20 hours of blood pattern analysis. Detective Underwood further confirmed that he had been trained in the mathematical formulas on which blood pattern analysis is based and that he has completed 60 to 75 blood stain pattern analyses.
Based on this testimony and the questioning by the State, Defendant, and trial court itself, the court did not abuse its discretion as gatekeeper in finding that Detective Underwood was qualified to offer expert opinion testimony as to the angle of the blood splatter and his conclusion that the trajectory indicated the victim's body was low to the ground when it was struck. Moreover, even if the trial court erred in finding Detective Underwood was qualified to offer testimony on blood pattern analysis, his testimony was cumulative of the medical examiner's testimony and the error was therefore harmless. See Morris v. State, 561 So. 2d 646, 646 (Fla. 3d DCA 1990) ("With regard to Morris' fourth point on appeal, the homicide detective should not have been allowed to offer an opinion regarding blood spatter. However, the testimony was cumulative to that of the forensic serologist and medical examiner and therefore the error was harmless." (footnote omitted)).
B. Defendant's Cause Challenges of Jurors F, S, and H
Generally, a cause challenge should be denied if the juror declares, and the court determines, that the juror "can render an impartial verdict according to the evidence." Guzman v. State, 934 So. 2d 11, 15 (Fla. 3d DCA 2006) (citing § 913.03(10), Fla. Stat. (2003) ). However, the challenge should be granted "if any reasonable doubt exists as to whether the juror possesses an impartial state of mind." Id. (quoting Busby v. State, 894 So. 2d 88, 95 (Fla. 2004) ). When evaluating a cause challenge, the trial court must look to the "questions posed to and the answers received from the juror to determine whether the juror's responses are ‘equivocal enough to generate a reasonable doubt’ as to the juror's fitness to serve." Id. (quoting Busby, 894 So. 2d at 96.). As we held in Guzman,
A trial judge has a unique vantage point from which to evaluate potential juror bias and make observations of the juror's voir dire responses, which cannot be discerned by this court's review of a cold appellate record. Furthermore, a trial judge has broad discretion regarding juror competency because "[t]he trial judge hears and sees the prospective juror and has the unique ability to make an assessment of the individual's candor and the probable certainly of his answers to critical questions presented to him."
Id. (emphasis added) (citations omitted). Further, the Florida Supreme Court explained in Matarranz v. State, 133 So. 3d 473, 489 (Fla. 2013) that
[t]he true test of the fixedness of an opinion in the mind of a juror is not whether the opinion will readily yield to the evidence. [ Singer v. State, 109 So. 2d 7, 24 (Fla. 1959) ]. The accused is not required to present evidence of innocence. Id. "The accused, guilty or innocent, is entitled to the presumption of innocence in the mind of every juror until every element of the offense charged against him [or her] has been proved...." Id. (quoting Powell v. State, 131 Fla. 254, 175 So. 213, 216 (1937) ); Smith v. State, 463 So. 2d 542, 545 (Fla. 5th DCA 1985). The test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions. Moreover, if an individual takes the additional step of admitting concern that he or she may be biased, an expression
of such sentiment must necessarily inform a court's analysis of juror partiality. See Singer, 109 So. 2d at 24.
Appellate courts review a trial court's ruling on juror cause challenges for an abuse of discretion. Kessler v. State, 752 So. 2d 545, 550 (Fla. 1999). "The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court." Guzman, 934 So. 2d at 14-15 (quoting Busby, 894 So. 2d at 95 ). "It is within the trial court's province to determine whether a cause challenge should be granted based on a juror's competency, and such a determination will not be disturbed on appeal absent manifest error." Id. at 14 (citing Busby, 894 So. 2d at 95 ). "Furthermore, a trial judge has broad discretion regarding juror competency because ‘[t]he trial judge hears and sees the prospective juror and has the unique ability to make an assessment of the individual's candor and the probable certainty of his answers to critical questions presented to him.’ " Id. at 15 (citing State v. Williams, 465 So. 2d 1229, 1231 (Fla. 1985) ). And, a trial court's ruling will be upheld so long as the ruling is supported by the record. Busby, 894 So. 2d at 95 (citing Gore v. State, 706 So. 2d 1328, 1332 (Fla. 1997) ; Mendoza v. State, 700 So. 2d 670, 675 (Fla. 1997) ; Smith v. State, 699 So. 2d 629, 635-36 (Fla. 1997) ). We therefore review and consider the entire voir dire of the potential jurors to determine whether there is any support in the record for the trial court's decision to deny Defendant's cause challenges.
1. Juror F
Defendant moved for a cause challenge against Juror F based on the following colloquy:
[DEFENSE COUNSEL]: Okay. By the way, I guess, while I'm on this topic, we can go row by row. And is there anyone here who believes that police officers have greater credibility or if they come in here and say that they're with law enforcement, that you would give greater weight to their evidence than you would someone else, a civilian witness?
....
JUROR [M.]: Yeah. Right. I'd certainly want to know what all the evidence is and if there were other factors that would influence who I would believe or who I think is giving the most plausible testimony. But if it's purely a police officer said, you know, "I saw it this way," somebody else saw it the other way, but it's moral factors, I would be inclined to think that the police officer probably has it more right.
[DEFENSE COUNSEL]: Okay. Does anybody agree?
....
JUROR [F]: I agree because police officers are trained to be, they pay attention to detail, unlike a person that's not trained.
Nursing, it's the same way. I'm going to notice something that an average person is not going to notice. So in that environment, there are things they would know, you know.
[DEFENSE COUNSEL]: So you are going to lean towards --
JUROR [F]: I mean, I'm not saying they were not both equal as far as like he was saying they're equal. It's like this is what this person is saying, that's what that person is saying, but in a sense where they start breaking down details, yes, I'm probably going to be more with
the police officer because, I mean, they are supposed to pay attention to that.
(Emphasis added).
While Defendant relies on this colloquy, it is only a brief segment of the entirety of the voir dire of Juror F. Indeed, the above colloquy continued with:
[DEFENSE COUNSEL]: Well, do you think they always do?
JUROR [F]: I'm sure they don't.
(Emphasis added).
In addition, prior to deciding whether to grant or deny Defendant's cause challenge, the trial court asked additional questions:
THE COURT: Forget about everything else. If a police officer walked in here and said something and a citizen walked in and said something, would you be able to weigh their testimony equally with the rules that you're given, or would you give the police officer's testimony greater weight automatically because they're a police officer?
....
JUROR [F]: Taking the training out of it, no. They have no weight. I just -- I was referring to the training.
In Whitby v. State, 933 So. 2d 557, 558-59 (Fla. 3d DCA 2006), we stated that,
[d]uring voir dire, juror Hayes initially indicated that she would be biased in favor of a police officer's credibility. However, upon further questioning, she unequivocally stated that she would not give a police officer's testimony more weight due to his/her status as a law enforcement officer and that she would evaluate the case on the evidence presented. We, therefore, conclude that the trial court acted within its discretion by denying the defendant's cause of Ms. Hayes.
(Emphasis added) (citing Grullon v. N. Miami Med. Ctr., 780 So. 2d 196 (Fla. 3d DCA 2001) ).
Here, further questioning by the trial court demonstrated that Juror F agreed that police officers do not always tell the truth and absent special training, their testimony is entitled to no greater weight than another witness. Juror F was unequivocal that she would be able to render a verdict on the evidence presented and not give a police officer's testimony more weight because of their status as a law enforcement officer. Further, the testimony at issue does not involve an immutable opinion or attitude arising from personal life experiences and firmly held beliefs. See Matarranz, 133 So. 3d at 486 ("[C]ourts and counsel are correct to engage prospective jurors in a dialogue addressing their partialities, biases, prejudices, and misconceptions when they are rooted in a lack of familiarity with the judicial system as part of an effort to rehabilitate in contrast to those immutable opinions and attitudes that arise from personal life experiences and firmly held beliefs."). Accordingly, we cannot find the trial court abused its discretion in denying the cause challenge to Juror F.
2. Juror S
Defendant moved for a cause challenge against Juror S because she stated she was unsure as to whether she could be impartial because her neighbor had been the victim of a crime.
THE COURT: Would anyone prefer not to sit on this case because of the kind of case that it is?
....
JUROR [S]: I recently was -- my neighbor recently was strangled, so I'm a little sensitive to this type of proceeding.
THE COURT: Okay. Do you think that would cause you to be prejudiced or biased in this case?
JUROR [S]: I'm not sure.
However, as voir dire continued and defense counsel questioned Juror S, the following exchange occurred:
[DEFENSE COUNSEL]: I believe, starting on the first row here, [Juror S.], did you -- were you -- did you raise your hand? Or I have some notation that you were --
JUROR [S]: Yes. A neighbor was -- had domestic violence. So it was not me personally.
[DEFENSE COUNSEL]: Okay. So would that have any impact on you?
JUROR [S]: I don't think so, no. I think I can -- that has nothing to do with this.
[DEFENSE COUNSEL]: Well, again, when you say "I think," that gives us pause to see. There might be a doubt in your mind about whether you can?
JUROR [S]: No. No.
[DEFENSE COUNSEL]: Like the judge has great analogy about landing the plane. If you come on there, "Well, I think I can land this plane," you know, people might get a little nervous and have a doubt about your ability to land the plane, and we need to, you know, land the plane.
JUROR [S]: Right. I'm not a pilot, but I'm clear.
The transcript attributes this response to Juror M. However, the State's Answer Brief attributes it to Juror S. Defendant does not correct nor object to the State's assertion.
Juror S unequivocally stated that she was neither prejudiced nor biased. Similarly, having a neighbor who was the victim of a crime does not qualify as an immutable opinion or attitude arising from personal life experiences and firmly held beliefs. See Matarranz, 133 So. 3d at 486. Accordingly, we cannot find the trial court abused its discretion in denying the cause challenge to Juror S.
3. Juror H
While Juror H stated she would be impartial when applying the jury instructions and evaluating the evidence, Defendant sought to challenge Juror H for cause because she knew two detectives on the witness list:
THE COURT: You heard the questions I've asked already. You're going to get an instruction at the end of the case that will explain to you the rules that you can use to judge or weigh the believability or credibility of witnesses. Can you apply that instruction equally to Detective Cuervo's testimony as you would anyone else?
JUROR [H]: I believe so.
THE COURT: Okay. [Juror H.], I have a simple explanation of the "I believe so" or "I think so" answer. Imagine you're in a plane for a second and the pilot says, "I believe, I think I can land the plane."
Okay. So we really need to know if you can or you can't.
JUROR [H]: Yes.
During questioning by Defendant, Juror H further stated she would be impartial:
[DEFENSE COUNSEL]: [Juror H], from what you heard so far, have you formed any conclusion or opinion about the case?
JUROR [H]: None.
[DEFENSE COUNSEL]: Okay. And as you sit here now, you can presume [Defendant] to be innocent?
JUROR [H]: Yes, until proven guilty.
[DEFENSE COUNSEL]: All right. Exactly. And you can hold the State to their burden of proving beyond a reasonable doubt?
JUROR [H]: Absolutely.
[DEFENSE COUNSEL]: Okay. And there's nothing that would cause you any concern about that?
JUROR [H]: No.
....
[DEFENSE COUNSEL]: Okay. I think while I've got you in the hot seat, so to speak, I believe you stated you knew several of the officers?
JUROR [H]: I did.
[DEFENSE COUNSEL]: That you were friends, I guess with Cuervo and Duponty.
JUROR [H]: Yes.
[DEFENSE COUNSEL]: Okay. And is that a close friendship?
JUROR [H]: I grew up with both of them and one I dated.
[DEFENSE COUNSEL]: Okay. So that's pretty close. I mean, they may well be called in this particular case. So obviously that gives me concern if your friends are on the jury. Given the closeness, do you think that they would start out having more credibility than someone who just -- that you didn't know and came in off the street?
JUROR [H]: No. But the dating didn't end well.
[DEFENSE COUNSEL]: Okay. So would they come in with less credibility?
JUROR [H]: No, I would be fair.
[DEFENSE COUNSEL]: Okay. So there's nothing about your experience in growing up with them? You don't have any opinion about whether they're credible or truthful?
JUROR [H]: No. I'm good.
The record shows Defendant used peremptory challenges to strike Jurors F, S, and H. After all the defense's preemptory challenges had been exhausted, the defense only identified two jurors on the jury whom it would have struck if granted additional challenges. Once the jury selection was complete, Defendant restated his objections on the record stating he did not accept the panel and renewing his cause challenges. However, this was not enough.
To prove the trial court committed reversible error, the
defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted. Pentecost v. State, 545 So. 2d 861, 863 n.1 (Fla. 1989). By this we mean the following. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenge had been exhausted. The defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial.
Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990) (emphasis added) (footnotes and internal quotation marks omitted). Accordingly, we affirm the trial court's rulings as to Jurors F, S, and H.
Defendant only preserved his objection as to two jurors, because only two, not three, of the jurors he had sought to challenge sat on the jury. Because we find no reversible error in the trial court's rulings with respect to Jurors F and S, we need not decide whether reversal is required with respect to Juror H.
C. The Admission of the Brown Paper Containing Glitter and Debris
Defendant contends the trial court committed reversible error in allowing the State to introduce the brown paper used during the examination of Defendant's clothing and to argue that the paper contained debris from the rock used in the homicide and glitter from the Victim's wings. More specifically, Defendant claims that the State's failure to disclose that it intended to introduce such evidence constituted a discovery violation requiring a Richardson hearing. We disagree. Defendant was provided the chance to view and inspect all the evidence in the State's possession relating to the glitter and debris contained in the brown paper, including the clothing worn by Defendant the night of the murder, the costume wings worn by the Victim, photos of Defendant's hand, and video of Defendant's interrogation. The evidence at issue is physical evidence that was available for inspection by all parties. Counsel for Defendant had at least two opportunities to inspect the debris: (1) during the inspection with Detective Haley in July 2013 and (2) mid-trial on March 22, 2014. Defendant was also provided an opportunity to depose Ms. Varan, the DNA expert, about the brown paper used during the March 22, 2014 inspection.
In Knight v. State, 76 So. 3d 879, 888 (Fla. 2011), the State provided the defense with two expert reports. The defense chose to rely on the first expert and argued that the State could not rely on the second, conflicting, expert because it would be a discovery violation. The Florida Supreme Court disagreed, stating that
[t]he record demonstrates that the questioned evidence was produced and the trial court found no discovery violation had occurred after two inquiries. In fact, the trial court found that the defense was actually in receipt of all the evidence but complained of having the evidence interpreted differently by two experts and having relied on the information from the first expert.
Id. (citing State v. Evans, 770 So. 2d 1174, 1177-78 (Fla. 2000) ).
Similarly, here, all the evidence intended to be introduced at trial was produced and available for inspection, yet Defendant chose not to inspect the brown paper from the first inspection and even permitted that the brown paper from the second inspection be discarded. Defendant's decision to not inspect the brown paper is not attributable to the State nor is it a discovery violation. Moreover, the brown paper from the first inspection was admitted without objection, allowing the State to argue the inference that debris that fell from the paper matched debris found on the scene, clothing, and Defendant. At that point, all additional brown paper was simply cumulative of the evidence already admitted. Defendant argues that admittance of the brown paper from the third inspection was a discovery violation because he was not told of its existence and was not provided notice of or permitted to attend the third inspection. But here, the trial court conducted a Richardson hearing. After the trial court excused the jury and witness for lunch, a hearing was held wherein the trial court stated: "the issue is whether it's [a] discovery violation. I'm trying to figure out whether it is a discovery [violation]. So that's the first thing I have to do for a Richardson Hearing. " We affirm the trial court's finding that "if there was a discovery violation, it was inadvertent, trivial, and not prejudicial to the defense." See Durrance, 44 So. 3d at 221 ; Scipio, 928 So. 2d at 1150 ; Schopp, 653 So. 2d at 1020-21.
Finally, we find there was no manufactured evidence. The evidence at trial included photos of the wings found around the Victim's neck; a video of Defendant's interview where it can be seen that he is picking at his hands; a pair of wings, made by the same manufacturer as the wings found on the Victim and used as a demonstrative aid; and a photo of Defendant's hands which appeared to have glitter on them. The State's argument regarding the glitter was the product of skillful lawyering and was permissible during closing argument and rebuttal based on the evidence admitted. Much like the brown paper from the third inspection, once evidence of the glitter covered wings worn by the Victim was admitted, the State was permitted to argue the inference that the glitter on the wings matched the glitter debris on Defendant's clothes and hands.
D. The Motion to Suppress the Presumptive Blood Test, the Subsequent Seizure, and the DNA Testing of Defendant's Clothing
It is undisputed that there was no warrant for the search and testing of the clothing and boots Defendant wore on the night of the murder. In the trial court Defendant sought suppression on the grounds that he did not consent to the search and, even if he did, the State exceeded the scope of his consent by conducting presumptive blood and DNA tests. The State contends that the trial court correctly denied Defendant's motion to suppress because Defendant consented to the search and, even if the search exceeded the scope of consent, it was proper pursuant to the plain view exception. We agree.
"A ruling on a motion to suppress is presumed correct, and the appellate court ‘must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.’ " State v. Smith, 172 So. 3d 993, 996 (Fla. 1st DCA 2015) (quoting Murray v. State, 692 So. 2d 157, 159 (Fla. 1997) ). Further, "[a] motion to suppress evidence generally involves a mixed question of fact and law." Strawder v. State, 185 So. 3d 543, 545 (Fla. 3d DCA 2016). A trial court's factual findings must be supported by competent substantial evidence, and findings of law are reviewed de novo. Id.; Black v. State, 59 So. 3d 340, 344 (Fla. 4th DCA 2011).
"Warrantless searches ‘are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ " Harris v. State, 238 So. 3d 396, 399 (Fla. 3d DCA 2018) (quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ); see also State v. Hollingshead, 974 So. 2d 1123, 1124 (Fla. 3d DCA 2008). The established exceptions applicable in this case are consent and plain view.
Whether a defendant consents to a search is determined by the totality of the circumstances. Davis v. State, 594 So. 2d 264, 266 (Fla. 1992). In Davis, the Florida Supreme Court explained the analysis as follows:
To determine whether a proper constitutional search was conducted in the instant case, two issues must be addressed. First, whether Davis voluntarily consented to the search. Second, if Davis voluntarily consented to the search, was the search conducted within the limits of the consent given. United States v. Blake, 718 F. Supp. 925 (S.D. Fla. 1988), aff'd, 888 F.2d 795 (11th Cir. 1989).
Whether a suspect voluntarily consents to a search is a question of fact to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) ; Shapiro v. State, 390 So. 2d 344 (Fla. 1980), cert. denied, 450 U.S. 982, 101 S. Ct. 1519, 67 L. Ed. 2d 818 (1981). In addition, the determination of whether the consent to a
search was voluntary is a question for the trial judge and should not be disturbed on appeal unless the determination is clearly erroneous. DeConingh v. State, 433 So. 2d 501 (Fla. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 995, 79 L. Ed. 2d 228 (1984).
Id.
There is direct testimony in the record to support the trial court's finding that Defendant consented to allowing the police to view the clothing he wore the night of the murder, including taking the clothing out of the room to "inspect" it. Based on the totality of the circumstances and our review of the record, we hold that ample evidence supports the trial court's finding that Defendant voluntarily consented to the search and that the search was conducted within the limits of the consent given. Id. (citing Blake, 888 F.2d at 800 ; State v. Wells, 539 So. 2d 464 (Fla. 1989) ).
At the hearing on the motion to dismiss, Detective Haley was asked the following:
Q Now, after you observed blood upon the clothing, was another detective asked to come in to collect it?
A Yes, Detective Janeth Calvert.
Q Did the defendant agree that Detective Calvert could take the clothing and inspect it?
A Yes
We further conclude that the subsequent seizure of the clothing and the DNA testing were permissible pursuant to the plain view exception.
The plain view doctrine requires that three elements be satisfied:
(1) the police officer is in a place where he has a lawful right to be;
(2) in the course of his presence the officer inadvertently comes upon an object which is openly visible; and
(3) it is immediately apparent to the officer that the object constitutes evidence of a crime.
M.L. v. State, 47 So. 3d 911, 912 (Fla. 3d DCA 2010) (citations omitted).
There is no question that the Detectives were in a place where they were lawfully permitted to be, an interview room at the police station. Second, even before Defendant placed the clothing on the table in the interview room, Detective Haley noticed what appeared to be dry bloodstains. And, unlike the seizure of a bag or opaque container, where the contents are not immediately apparent as objects constituting evidence of a crime, see id. at 913 (citing Caplan v. State, 531 So. 2d 88, 92 (Fla. 1988) ), here the blood stains and discoloration on the clothes and boots, combined with the totality of the collective circumstances known to law enforcement, were immediately apparent to Detective Haley as constituting evidence of a crime. At that point, the seizure of the clothing and boots was proper because there was probable cause that they were direct evidence of the murder. See Pagan v. State, 830 So. 2d 792, 808-09 (Fla. 2002) ; cf. Maryland v. King, 569 U.S. 435, 466, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting) ("The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.").
In addition to the blood stains and discoloration on the clothing and boots, law enforcement knew, among other things, that the Victim had bled profusely as a result of having been murdered, that multiple witnesses had seen Defendant and the Victim together—and in an argument—just hours before the time of the murder, and that Defendant did not deny that he was wearing the clothing and the boots the night of the murder.
Finally, based on the totality of the record before us, once the clothing and boots were lawfully seized, the DNA test conducted herein was proper. See Com. v. Arzola, 470 Mass. 809, 26 N.E.3d 185, 190 (2015) (holding that where a defendant's shirt was lawfully seized in plain view, defendant had "no reasonable expectation of privacy that would prevent the analysis of that shirt to determine whether blood found on it belonged to the victim or to the defendant" (citing Raynor v. State, 440 Md. 71, 99 A.3d 753, 765 (2014) (defendant "does not possess a reasonable expectation of privacy in the identifying characteristics of his DNA"))); cf. State v. Weiss, 449 So. 2d 915, 917-18 (Fla. 3d DCA 1984) (holding that after an initial invasion of defendant's property by a private search, a field test of white powder for the presence of cocaine did not infringe on any constitutionally protected privacy interest (citing United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) )). "Indeed, it is generally accepted that analysis of a person's DNA, solely for purposes of identification, reveals no more information about that person than does analysis of his or her latent fingerprints." Raynor, 99 A.3d at 762 (citing King, 569 U.S. at 436, 133 S.Ct. 1958 ). And, unlike the DNA obtained from the defendant in King, the DNA obtained here was not obtained as a result of any physical intrusion into Defendant's body. Accordingly, we affirm the trial court's denial of Defendant's motion to suppress.
E. The Sentencing Scoresheet and the Order Establishing Monetary Sums
We remand for the limited purpose of correcting the sentencing scoresheet to reflect that Defendant did not plead guilty but rather was convicted after a jury trial. We also remand for the limited purpose of amending the mandatory costs found in the order establishing monetary sums. We agree with Defendant that the monetary amount found in the order establishing sums is incorrect and should reflect a total cost of $283.00. Lastly, we affirm the assessment of the Teen Court fee assessment as part of Defendant's mandatory costs. See § 938.19, Fla. Stat. (2019). Section 10-3, of the Monroe County Code of Ordinances meets the requirements of section 938.19 ; therefore, it was not assessed against Defendant in error.
V. CONCLUSION
For the reasons set forth above we affirm the trial court and remand with limited instructions to correct the Sentencing Scoresheet and the Order Establishing Monetary Funds as directed herein.
Affirmed.