final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 09-29998 Dennis J. Murphy, Judge.
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
SALTER, LOGUE and LUCK, JJ.
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.
Background and Procedural History
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
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.
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.
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 ...