County Criminal Court: CRIMINAL LAW Ė Jury Trial/Evidence Ė Hearsay - Expert Witness - Court did not abuse its discretion by ruling the witness did not qualify as an expert witness.Testimony was hearsay and subject to hearsay objections.Judgment and Sentence affirmed.Sciandra v. State, No. 02-82 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

STEVEN CORY SCIANDRA,

††††††††††† Appellant,

 

vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† CRC 01-12974CFANO

 

STATE OF FLORIDA,

††††††††††† Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from verdict, judgment and sentence, Pinellas County Court

 

County Judge Patrick K. Caddell

 

Joy Goodyear, Esq.

Assistant Public Defender

Attorney for Appellant

 

Heather Brooke Quick, Esq.

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendantís appeal of a jury-trial verdict, judgment and sentence that the defendant argues was the result of the trial courtís refusal to allow a defense witness to testify.After reviewing the briefs and the record, this Court affirms the trial courtís ruling.

††††††††††† Officer Pippin with the Florida Highway Patrol testified that he was on routine patrol on the evening of February 18, 2001 in the early morning hours.Officer Pippin observed the defendant speeding and driving erratically.The officer began a DUI investigation and the defendant was subsequently arrested for DUI.Appellant was given a breath-alcohol test with results of .128 and .126.Vicki Fairchild, a certified breath test operator and inspector with the Pinellas County Sheriffís Office administered the breath-alcohol test to the defendant.The State rested at the conclusion of Ms. Fairchildís testimony.

The defendant sought to introduce the testimony of Ronald Adams.The trial court allowed the defendant to proffer the testimony of Mr. Adams outside the presence of the jury.Mr. Adams testified that he is a 25-year veteran with the St. Petersburg Police Department and had been certified as a breath test operator on the Smith and Wesson Breathalyzer and the Intoxolizer 5000 in 1978.Mr. Adams testified that he continued with his certification as a breath test operator until 1998, but he had not been trained on the intoxolizers that are currently used by the Pinellas County Sheriffís Department and regulated by the Florida Department of Law Enforcement (FDLE).Mr. Adams testified that he had been trained by fellow officers to allow individuals with dentures either to remove the dentures or to rinse their mouths with water prior to conducting the breath test in order to ensure there was no alcohol residue in their mouthsí that might result in a higher reading on the breath test.Mr. Adams stated this procedure was a result of training he had received in the 1970ís and from experience in conducting breath tests.Mr. Adams did not offer any scientific evidence or knowledge of any studies or experiments that would support the theory that alcohol residue from dentures might result in a higher breath test reading.The trial court denied the defendantís request to allow Mr. Adams to testify before the jury finding that the witness did not qualify as an expert.

The standard of review for determining if the trial court erred in refusing to accept a witness as an expert is abuse of discretion.Jones v. State, 748 So.2d 1012 (Fla. 1999).It is well established that a trial court has broad discretion concerning the admissibility of expert testimony, and unless there is a clear showing of error or abuse of discretion, the trial courtís determination will not be disturbed on appeal.Hall v.State, 568 So.2d 882 (Fla. 1990).The two relevant factors for the trial court to consider when determining the admissibility of expert testimony are that the subject must be beyond the common knowledge of the average layman and that the witness must have such knowledge as ďwill probably aid the trier of fact in its search for the truthĒ.Mills v. Redwing Carriers, 127 So.2d 453, 456 (Fla. 2d DCA 1961).

This Court finds that the trial court did not abuse its discretion in refusing to accept Mr. Adams as an expert witness.The trial court proffered Mr. Adamsí testimony outside the presence of the jury to determine the probative value of his testimony and the basis for his expertise.The trial court found that in order for Mr. Adams to offer opinion testimony, he would have to qualify as an expert, as the subject was beyond the common laymanís knowledge.However, the trial court found that the nature of the testimony, if allowed, would be misleading to the jury.The court found that the scope of Mr. Adamsí knowledge was limited to the outdated procedures from HRS and to the Smith and Wesson manually operated machines.The trial court found that because Mr. Adams did not qualify as an expert, his testimony would be subject to hearsay objections.

The defendant argues that the trial court committed reversible error by not allowing Mr. Adams to testify before the jury.Defendant argues he is entitled to the compulsory process of witnesses and to bring any material evidence shown to be available and capable of being used by him in aid of his defense.The defendantís argument is misplaced.In this case, the witness did not qualify as an expert and as a lay person, he could not offer his opinion on the subject.Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally observed.Fla.Statß90.701 (Fla. Stat. 2001); Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994).The trial court was mindful of the defendantís right to compel witnesses.The court, in reaching its decision, stated the general rule that courts should be fairly liberal in allowing the defense to present viable defenses and evidence and testimony that is relevant to the issue before a jury.However, that is balanced by a requirement that evidence introduced by either side in the case not be such as would tend to be misleading to the jury.

The defendant also argues that he was not permitted to impeach the Stateís witness on the effects of dentures on breath readings.The defendant misses the critical distinction that Mr. Adams had to be qualified as an expert before his testimony could be anything other than hearsay.Huff v. State, 495 So.2d 145 (Fla. 1986).

It is therefore

ORDERED AND ADJUDGED that the verdict, judgment and sentence are affirmed.

DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida this ______ day of November, 2002.

 

 

____________________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

 

 

 

____________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

 

____________________________________

TIMOTHY R. PETERS

Circuit Judge

Copies furnished to:

 

Joy K. Goodyear, Esq.

Assistant Public Defender

Attorney for Appellant

 

Heather Brooke Quick, Esq.

Assistant State Attorney

Attorney for Appellee