Carl A. COPPOLINO, Appellant,
STATE of Florida, Appellee.
Rehearing Denied June 17, 1969.
F. Lee Bailey, Boston, Mass., James M. McEwen, Tampa, and James Russ, Orlando, for appellant.
Earl Faircloth, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Tallahassee, Frank Schaub, State Atty., and William Strode, Asst. State Atty., Bradenton, for appellee.
LILES, Chief Judge.
The defendant, Carl Coppolino, was tried upon an indictment charging him with the first degree murder of his wife Carmela. The jury found defendant guilty of murder in the second degree and pursuant to this verdict judgment and sentence were entered. From this judgment and sentence defendant appeals.
Defendant's trial was a lengthy and involved one wherein medical and scientific witnesses were introduced by both sides. The witnesses presented a vast amount of complex and conflicting scientific testimony regarding the cause of death of Carmela Coppolino. The defendant in his second point on appeal states in reference to the scientific testimony presented by the State, 'the verdict is not supported by sufficient evidence and is against the weight of the evidence.'
At trial the State introduced a Dr. Helpern, a pathologist who serves as chief medical examiner for the City of New York, and a Dr. Umberger, a toxicologist who is in Dr. Helpern's office. Dr. Helpern testified that: he performed an autopsy on the exhumed body of Carmela Coppolino and as a result of his findings concluded that she was in good health at the time of death, at the conclusion of his autopsy he was not able to determine the cause of death, he found a needle injection tract in the left buttock of the deceased, following his autopsy he turned over certain portions of Carmela Coppolino's body tissue to Dr. Umberger so that Umberger could perform chemical analyses and tests on that tissue. Dr. Umberger testified that he first performed a 'general unknown' test which was designed to disclose the presence of certain drugs and poisons in the body tissue. The results of this 'general unknown' test were negative. Dr. Umberger then attempted to establish a method whereby he could determine if unusual amounts of the component parts of succinylcholine chloride were present in the body tissue. Dr. Umberger testified that some of his tests and procedures were standard ones and that some were new. As a result of his tests Dr. Umberger reached the conclusion, and so testified, that Carmela Coppolino received a toxic dose of succinylcholine chloride.
Dr. Helpern was then recalled and asked his opinion as to the cause of death. He stated that based upon his negative findings from the autopsy and upon Dr. Umberger's positive findings concerning the component parts of the drug, succinylcholine chloride, he concluded that the decedent died from an overdose of said drug.
A Dr. La Du was called by the State and he testified that he found a minute quantity of substance at the needle injection site
which was consistent with the component parts of succinylcholine chloride. Also, a Dr. Cleveland was called and he, in response to a hypothetical question, stated that based upon the negative findings of Dr. Helpern and the positive findings of Dr. Umberger he was of the opinion that death resulted from a toxic dose of succinylcholine chloride.
It is clear from a reading of the transcript that the State's proof of the corpus delicti depends almost solely upon the testimony of Helpern and Umberger and more specifically upon the tests performed by Umberger from which he concluded that the decedent received a toxic amount of succinylcholine chloride. We find that the question is not actually one of sufficiency or weight of the evidence for there was ample evidence before the jury to support its finding as to cause of death. Instead the question really involves the competency of the evidence. That is, should the trial judge have allowed into evidence testimony concerning Dr. Umberger's tests. Actually, the defendant does contest the competency of the testimony concerning Dr. Umberger's tests even though he does not specifically mention it in his point on appeal.
Several witnesses, including those called by the State, testified that prior to the performance of the tests in question it was believed impossible by medical scientists to demonstrate the presence of succinylcholine chloride or its component parts in the body. However, Dr. Umberger, using various procedures, concluded that it was possible to detect succinic acid, a component of succinylcholine chloride, in the body tissue and he testified that he found this acid in abnormal amounts.
The general rule regarding admission of scientific evidence is:
'Where the evidence is based solely upon scientific tests and experiments, it is essential that the reliability of the tests and results thereof shall be recognized and accepted by scientists or that the demonstration shall have passed from the stage of experimentation and uncertainty to that of reasonable demonstrability. * * *' 2 Jones on Evidence § 457 (5th ed. 1958). See also 31 Am.Jur.2d Expert and Opinion Evidence § 44; Notes, Admissibility of Evidence Obtained by Scientific Devices and Analyses, 5 U.Fla.L.Rev. 5 (1952).
Florida has apparently adopted this rule. See Kaminski v. State, Fla.1953, 63 So.2d 339, at page 340, wherein the court in excluding evidence of the giving of a lie detector test quoted from Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014, 34 A.L.R. 145 (1923), saying:
"We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made."
However, it is also a rule in Florida that the trial judge enjoys wide discretion in areas concerning the admission of evidence and that his ruling on admissibility of evidence will not be disturbed unless an abuse of discretion is shown. Mutual Life Ins. Co. of New York v. Bell et al., 1941, 147 Fla. 734, 3 So.2d 487.
The problem presented to the trial judge was, were the scientific tests performed by Umberger so unreliable and scientifically unacceptable that their admission into evidence was error.
Drs. Umberger, Helpern and Cleveland stated that they held their conclusions and opinions with reasonable medical certainty. The defendant produced scientific witnesses who challenged the conclusions of the State's witnesses and the methods and tests used to reach those conclusions. In this case, unlike those involving lie detector tests or intoxication tests, there is a dearth of literature and specific case law to guide the trial and appellate courts. The trial
court listened to the testimony of the expert witnesses and in an exercise of his discretion ruled that the tests in question were sufficiently reliable to justify their admission.
On appeal it is incumbent for defendant to show that the trial judge abused his discretion. This the defendant has failed to do.
The trial court in instructing the jury gave instructions on all degrees of murder and manslaughter. Defendant in his fifth point on appeal contends that the trial judge committed reversible error by instructing the jury on second degree murder, third degree murder and manslaughter. Defendant argues that it is logically impossible for someone to commit second degree murder by the deliberate use of drugs or poisons and that the instructions invited a compromise verdict.
Florida Statute § 919.14, F.S.A. provides:
'Determination of degree of offense.-- If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.'
In the recent case of Brown v. State, Fla.1968, 206 So.2d 377, the Florida Supreme Court had occasion to discuss this statute. The court said at page 381:
'(1) CRIMES DIVISIBLE INTO DEGREES. Section 919.14, applies only to those crimes which are divided into degrees, e.g., unlawful homicide (Fla.Stat. §§ 782.04, 782.06, F.S.A.), and, arson (Fla.Stat. §§ 806.01--806.04, F.S.A.). If an accused is charged with the highest degree of such a crime, the court should charge the jury on all lesser degrees. In this category it is immaterial whether the indictment specifically charges the lesser degrees or whether there is any evidence of a crime of such degree. Killen v. State, 92 So.2d 825 (Fla.1957); Brown v. State, 124 So.2d 481 (Fla.1960). The court must instruct on the lesser degrees simply because § 919.14 clearly requires it, and not because such degrees are necessarily included lesser offenses. In many cases the elements of the lesser degrees are totally distinct from the offense charged. See e.g., Clemmons v. State, 43 Fla. 200, 30 So. 699 (1901). If the evidence is sufficient to support a verdict of guilty of the offense charged, the jury has the power, under § 919.14 to find the accused guilty of a lesser degree of the offense regardless of the lack of evidence as to such degree. Killen v. State, supra; Hodella v. State, 158 Fla. 94, 27 So.2d 674 (1946). Under the statute, the trial judge should, and if requested must, instruct on all lesser degrees of the offense, if the case is allowed to go to the jury for a determination of guilt or innocence on the offense charged. Brown v. State, 124 So.2d 481 (Fla.1960).'
At page 382 the court added:
'Here is a difference between § 919.16,--the necessarily included offense statute--and § 919.14--the divisibility into degrees statute. Under the former the lesser offense must Necessarily be included in the offense charged. Hence, it is necessary to prove the lesser in order to prove the greater. Under § 919.14, the lesser degrees of the major crime are not necessarily included in it, and, therefore, are not essential elements of proof in establishing it. Nevertheless, the statute, § 919.14, permits a jury to convict of the lesser degree regardless of the accusation and proofs.'
In light of § 919.14 and Brown it is clear that the trial judge did not err by giving the instructions in question.
In his sixth point on appeal, defendant asserts that the trial judge erred by admitting into evidence certain testimony given by one Marjorie Farber concerning crimes committed by her and defendant. This witness who was called by the State testified, over repeated defense objections, that: between Spring 1962 and January 1964 she and defendant were 'lovers', during this time defendant was married to the decedent, and pursuant to their 'affair' she and defendant made several trips together including trips to Florida. The witness then testified that the defendant made certain allegedly incriminating statements concerning the death of his wife in her presence.
Clearly, the activities testified to by the witness constituted criminal acts. See Florida Statute 798.03, F.S.A. which pertains to fornication.
In Williams v. State, Fla.1959, 110 So.2d 654, 663, the court clarified the rule concerning admission of evidence of other crimes. The court in pointing out that the primary question was one of relevancy of the evidence sought to be introduced stated:
'Evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some ...