final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No.
Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
tragic accident resulted in the death of five people, and the
defendant's conviction on five counts of vehicular
manslaughter. He appeals his conviction and sentence. He
argues the trial court erred in admitting the testimony of an
accident re-constructionist, and he was procedurally
prejudiced by the late disclosure of an expert opinion. We
disagree and affirm.
evening of the accident, the defendant was driving a Mercedes
coupe northbound on I-95. He exited at Blue Heron Boulevard.
According to the lead accident investigator, the curvature of
that exit "would require a person to make their vehicle
maneuver in such a way to make that curve."
defendant's car ran the red light at the end of the exit
ramp, continued straight into the perpendicular lanes of
traffic, and crashed into the side of a Lexus sedan that was
proceeding eastbound with the green light. The State
presented expert testimony that the defendant's car was
travelling at 128.7 mph at the time of impact. Both cars went
across the median and came to rest beyond the westbound lanes
five young people in the Lexus died as a result of the
accident. When paramedics arrived, the defendant was awake
but "mostly in and out of consciousness." The
defendant had to be extricated from his car.
factual dispute was whether the defendant lost consciousness
before the crash. His defense was that he blacked out and did
not have control of the car at the time of the collision. He
testified that he felt "very faint" about "a
second or two" into the Blue Heron exit. He explained
that he had never fainted before and did not know he was
going to pass out. He recalled driving 65 to 70 mph before he
lost consciousness. The next thing he remembered was waking
up in the hospital.
counsel argued that the defendant's height and manner of
sitting in his car meant that his "foot likely depressed
on that pedal" after the defendant passed out, which
would explain how the vehicle could have reached 128 mph. The
defendant testified that he was five foot and eleven inches
tall. His Mercedes sports car sat "kind of low, "
and the gas pedal was "very responsive."
passenger in a car that passed the Lexus, described the
defendant's car exiting the ramp: "It was a flying
like it was - it was like somebody was unconscious in the car
just going, [vroom]. It was - I thought it was flying because
it wasn't turning, it was just going straight. It was
just, like - like a plane diving." According to this
witness, the defendant's car did not attempt to brake.
police officer at an unrelated traffic stop about 400 feet
away from the accident "heard the sound of tires
screeching on a highway effectively applying brakes and then
. . . heard a large pop or a bang which was indicative of a
collision having occurred." But, the officer did not see
the accident, and did not know which car made the screeching
Johnson was the lead investigator. He testified that he did
not see any roadway tire marks indicating the defendant was
braking immediately before the crash. He was assisted by
Corporal Dooley, who performed the speed calculations.
issues on appeal arise from Corporal Dooley's testimony.
Over the defense Daubert objection and another
objection to a State discovery violation, the trial court
admitted Dooley's opinion that the damage to the Lexus
indicated the defendant was braking his vehicle as the
Dooley testified that the crush damage to the Lexus went
downward in "an arc-type fashion, " which indicated
the front end of the defendant's car was dipping as it
collided with the Lexus. If a car is dipping, Dooley
explained, this indicates "that there is some type of
braking or driver input."
stated that if the defendant's vehicle had not been
dipping, there would be "more of a flatter type crush
pattern." Dooley claimed that the damage to the Lexus
started at the normal height one would expect, but arcs
downward. According to Dooley, it was the arc of the damage
to the Lexus-not its height from the ground-that was
indicative of dipping.
jury found the defendant guilty as charged on all five
counts. The court granted a downward departure and sentenced
the defendant to five consecutive terms of six years in
prison, for a total of 30 years. From his conviction and
sentence, the defendant now appeals.
defendant first argues the trial court erred by admitting
Dooley's braking opinion, because it did not meet the
requirements of section 90.702, Florida Statutes (2015), and
Daubert. Because the parties relied on
Daubert at trial and because neither party
challenged the validity or constitutionality of the
Daubert Amendment, we apply Daubert to this
appeal. See Clare v. Lynch, 220 So.3d 1258, 1261-62
(Fla. 2d DCA 2017) (applying a statutory amendment governing
expert witness qualifications in medical malpractice cases,
despite the Florida Supreme Court's refusal to adopt the
amendment "to the extent it is procedural, " where
the relevant party did not raise the constitutionality of the
review a trial court's ruling on the admissibility of
expert testimony under section 90.702 for an abuse of
discretion. Booker v. Sumter Cnty. Sheriff's
Office/N. Am. Risk Servs., 166 So.3d 189, 194 n.2 (Fla.
1st DCA 2015).
Daubert assigned the trial judge as gatekeeper to
"ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable."
509 U.S. at 589. That obligation applies not only to
"scientific" testimony, but "to all expert
testimony." Kumho Tire Co. v. Carmichael, 526
U.S. 137, 147 (1999).
Court articulated factors bearing on the reliability inquiry:
(1) whether the theory can be or has been tested;
(2) whether the theory or technique has been subjected to
peer review and publication;
(3) the known or potential rate of error of a particular
scientific technique, as well as the existence of standards
controlling the technique's operation; and
(4) general acceptance in the scientific community.
Daubert, 509 U.S. at 593-94. The Court advised
however that the "test of reliability is flexible, and
Daubert's list of specific factors neither
necessarily nor exclusively applies to all experts or in
every case." Kumho Tire, 526 U.S. at 141
(internal quotation marks omitted).
90.702, Florida Statutes, provides that expert testimony is
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
Court has explained:
Experts of all kinds tie observations to conclusions through
the use of what Judge Learned Hand called "general
truths derived from . . . specialized experience." And
whether the specific expert testimony focuses upon
specialized observations, the specialized translation of
those observations into theory, a specialized theory itself,
or the application of such a theory in a particular case, the
expert's testimony often will rest "upon an
experience confessedly foreign in kind to the jury's
own." The trial judge's effort to assure that the
specialized testimony is reliable and relevant can help ...