DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LANCE LAROCCA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1824
[January 15, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No. 15-248CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Paul Patti III,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant 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 decomposing.
Although 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). 1 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
1
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993); Frye v. United States,
293 F. 1013 (D.C. Cir. 1923).
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).
We find 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).
Moreover, 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.
For the reasons set forth above, we affirm. We affirm the other issues
raised on appeal without comment.
Affirmed.
LEVINE, C.J., MAY and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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