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Simon v. State

Florida Court of Appeals, Third District

August 16, 2017

Johnathan Simon, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 09-29998 Dennis J. Murphy, Judge.

          Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.

          Before SALTER, LOGUE and LUCK, JJ.

          LUCK, J.

         Johnathan Simon shot and killed Jason Maharaj, and shot and attempted to kill fourteen year old Harris Ostral, as the two victims were walking to the Burger King near school. The jury, after an eight day trial, convicted Simon of first degree murder and attempted first degree murder. Simon contends that his convictions and life sentences should be reversed because it was fundamental error for the state's deoxyribonucleic acid expert to bolster her credibility by testifying about how her work was reviewed by a colleague. We find no fundamental error, and affirm.

         Factual Background and Procedural History

         On September 10, 2009, victims Maharaj and Ostral, along with several of their friends, were walking to a nearby Burger King restaurant after school let out. Simon, following the group, pulled out a gun and started to fire several shots, two of which struck Ostral. Ostral ran into the Burger King while the rest of his friends tried to run away. Ostral, still inside the Burger King, heard three or four more shots. When he went outside, Ostral saw Maharaj lying on the floor dying.

         Detective Jonathan Ortiz found Simon four blocks away at an Advanced Auto Parts. Simon looked "shocked and sweaty." Det. Ortiz asked where he was coming from, and Simon responded he was coming from his girlfriend's house and pointed north. Det. Ortiz thought Simon's response was unusual because he was walking from the south. Because Simon matched the description of the shooter, and the unusual way he was acting, Det. Ortiz detained Simon. Ostral, the victim, and Angela Gothier-Rodriguez, who was sitting in a car at the Burger King drive-thru window during the shooting, identified Simon as the gunman.

         The next day, another detective canvassed the area between the Burger King and the Advanced Auto Parts for the murder weapon. In a grassy area three-hundred feet from the Burger King, the canvassing detective found the murder weapon wrapped in a white shirt. The casings and projectiles (parts of the ammunition) collected at the Burger King matched the firearm found in the grassy area.

         The shirt, firearm, and the firearm's magazine were tested for Simon's DNA. At trial, the state's DNA expert gave a detailed description of the general steps her lab takes in conducting DNA tests:

State: When you receive samples for analysis, how many steps do you put them through during the course of your testing?
DNA expert: Well, it definitely doesn't happen like it does on CSI over a commercial break. There are several steps to the DNA analysis process starting with the first step, which is called the extraction. In this step we're trying to remove the DNA from the actual item that it's on, and this could be a swab that we receive, this could be an item of clothing. The next step would be the quantitation step, and at this step we want to see how much DNA we have, because we want to be within a certain range to give us the best chance of getting a DNA profile when we got to our next step, which is the amplification process. Now copies of the DNA ...

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