final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No.
Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Paul Patti III,
Assistant Attorney General, West Palm Beach, for appellee.
was convicted of first-degree murder, armed burglary of a
dwelling, and grand theft. Appellant's defense was
self-defense. Appellant argues that the trial court failed to
conduct a Frye hearing before permitting a
toxicologist to testify that it was impossible to tell
whether alcohol found in the victim's body was from the
consumption of alcohol or from the process of the body
Frye was the relevant standard for assessing expert
testimony at the time of the trial, during the pendency of
this appeal the Florida Supreme Court adopted the
Daubert standard for admitting expert scientific
testimony. In re Amendments to Fla. Evidence Code,
278 So.3d 551, 551-52 (Fla. 2019). We apply Daubert to
the facts of this case because the amendment implementing
Daubert is procedural and so the change applies
retroactively. Id. at 552; Pembroke Lakes Mall
Ltd. v. McGruder, 137 So.3d 418, 425 (Fla. 4th DCA
2014). Additionally, "[u]nder Florida's
'pipeline rule,' the 'disposition of a case on
appeal should be made in accord with the law in effect at the
time of the appellate court's decision rather than the
law in effect at the time the judgment appealed was
rendered.'" Kemp v. State, 280 So.3d 81, 88
(Fla. 4th DCA 2019) (citation omitted); see also Perez v.
Bell S. Telecomms., Inc., 138 So.3d 492 (Fla. 3d DCA
2014) (applying Daubert retrospectively and
concluding that affirmance was warranted under Frye,
the standard considered by the trial court, or
Daubert, the standard applied on appeal).
the trial court properly exercised its gatekeeping role under
Daubert in admitting the toxicologist's
testimony. Prior to rendering his opinion, the toxicologist
discussed his relevant education, training, and experience as
a toxicologist and medical examiner as well as the science
supporting his opinion. See Hedvall v. State, 44
Fla.L.Weekly D2696 (Fla. 3d DCA Nov. 6, 2019) (finding no
abuse of discretion in admitting detective's opinion on
blood splatter where, prior to rendering opinion, detective
testified as to his education, training, and experience in
blood pattern analysis); Hangarter v. Provident Life
& Acc. Ins. Co., 373 F.3d 998, 1018 (9th Cir. 2004)
(finding court satisfied its gatekeeping function despite
failing to conduct a formal Daubert hearing).
even if the trial court failed to perform its gatekeeping
role, any error in admitting the toxicologist's testimony
was harmless because the "testimony was cumulative of
the medical examiner's testimony." Hedvall,
44 Fla.L.Weekly D2699. Under the harmless error test, the
state has the burden "to prove beyond a reasonable doubt
that the error complained of did not contribute to the
verdict or, alternatively stated, that there is no reasonable
possibility that the error contributed to the
conviction." State v. DiGuilio, 491 So.2d 1129,
1135 (Fla. 1986). Here, the toxicologist's testimony was
cumulative of the medical examiner's unobjected-to
testimony that he could not determine what percentage of the
alcohol in the victim's body was from body decomposition
and what was from consumption by the victim.
reasons set forth above, we affirm. We affirm the other
issues raised on appeal without comment.
Levine, CJ, May and Forst, JJ, concur