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, 283
So.3d 901 (Fla. 3d DCA 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,
283 So.3d at 912. 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.
C.J., May and ...