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examination of him; (D) the trial court erred by denying Murray's motion to dismiss his indictment; (E) the trial court erred by denying Murray's right to interview grand jury witnesses; (F) the trial court erred in allowing the State to strike an African-American juror without providing a legitimate race-neutral reason; (G) the trial court erred by denying Murray's motion for a mistrial due to juror misconduct; (H) the trial court erred in not giving the jury further instruction regarding the meaning of "abiding conviction of guilt" when requested; (I) the trial court erred in allowing former trial testimony to be read to the jury; (J) the trial court erred in not dismissing his case because of double jeopardy; and (K) there was insufficient evidence to convict Murray of the offenses charged. None of these claims warrant relief.
A. Motion to Exclude Hair Evidence From Victim's Body
Murray first claims that the trial court erred in admitting certain hair evidence recovered from the victim's body. We disagree.
In Murray's direct appeal following his third trial, this Court found that the trial court did not abuse its discretion in admitting these same hair samples.
Specifically, we stated:
Murray contends that the evidence from the victim's body should have been excluded because it was tampered with or altered.
The police claimed to have recovered only two hairs from the victim's body, whereas the expert with the FBI who conducted the tests stated that he received and tested several hairs. Murray challenges this apparent discrepancy.
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In support of his claim, Murray points to the portion of the record where Detective Chase testified that he collected two hairs from the victim's body, one from her chest and one from her leg.
When asked if he counted the number of hairs collected, Chase responded, "I believe it was two hairs but I can't be positive as far as that goes. I mean I didn't have a microscope or anything to look at hairs, but I believe there was two." Chase testified that he placed the hairs in an envelope and then placed the envelope in the property room of the Jacksonville Sheriff's Office. That evidence was later sent to the FBI for comparison. Joseph DiZinno, the expert at the FBI, testified that he received debris from the victim's nightgown and hairs from the victim's body. When asked by defense counsel how many hairs he examined from the victim's body, DiZinno responded that he examined "several" Caucasian hairs. However, he stated that the FBI "doesn't count hairs so . . . there could be as few as five and as many as twenty-one" hairs.
We find that Murray did not overcome his initial burden in demonstrating the probability of evidence tampering relative to the hairs collected from the body. Neither the officer who collected the hairs nor the analyst who received the hairs was sure as to the exact number of hairs at issue. Chase thought he collected only two but stated that he was not positive. DiZinno, on the other hand, acknowledged that because he does not count hairs, he could not give an exact figure as to how many hairs he received. Murray's allegations amount to mere speculation, and hence the trial court did not commit error in admitting the hairs into evidence.
Murray v. State, 838 So. 2d 1073, 1082-83 (Fla. 2002).
The facts in Murray's fourth trial regarding the hair evidence recovered from the victim's body, as well as the testimonies of both Chase and Dr. DiZinno were unchanged from Murray's third trial. Neither Chase nor Dr. DiZinno was sure of the exact number of hairs collected. Because the facts are unchanged since we issued our opinion regarding these hair samples in Murray's third trial, we apply
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the same reasoning here. Accordingly, we find no error in the trial court's admitting the hair evidence recovered from the victim's body.
B. Admission of Hair Evidence From Victim's Nightgown
Next, Murray argues that the trial court erred in admitting hair evidence recovered from the victim's nightgown. We disagree.
Generally, relevant physical evidence can be admitted unless there is evidence of probable tampering. Taylor v. State, 855 So. 2d 1, 25 (Fla. 2003).
Once the objecting party produces evidence of probable tampering, the burden shifts to the proponent of the evidence "to establish a proper chain of custody or submit other evidence that tampering did not occur." Id. (quoting Taplis v. State, 703 So. 2d 453, 454 (Fla. 1997)).
In Murray's last appeal, this Court found that Murray established probable tampering with hair evidence recovered from the victim's nightgown and the State failed to explain the discrepancy. See Murray v. State, 838 So. 2d at 1083. Thus, we concluded that the trial court erred in admitting the hair evidence at trial. Id.
Murray reasons that, because this Court found error in admitting this particular hair evidence at his third trial, then it is also reversible error to admit it at his fourth.
This claim is not persuasive, however, because additional facts were placed in evidence. See, e.g., Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001) ("Under the law of the case doctrine, a trial court is bound to follow prior
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rulings of the appellate court as long as the facts on which such decision[s] are based continue to be the facts of the case."). At Murray's fourth trial, the State introduced additional facts which explained the discrepancy in the chain of custody.
In Murray's third trial, the evidence technician testified that, in processing the crime scene, he placed the victim's nightgown and a bottle of lotion together in one bag, sealed it, and signed his initials. Yet the crime scene analyst testified that when she opened the sealed bag after it was delivered to her in the lab, it only contained a nightgown, not a bottle of lotion. The bottle of lotion was also presented, but it was in its own plastic bag. Because the State failed to explain how these items were separated, this Court found error in admitting the hair evidence recovered from the victim's nightgown at trial. See Murray v. State, 838 So. 2d at 1083.
Prior to Murray's fourth trial, however, the trial court conducted an evidentiary hearing to address the admissibility of this same evidence. During the hearing, two evidence technicians who processed the crime scene testified that the nightgown and lotion were placed in one bag at the crime scene and delivered to the property room at the police department later the same day. Then, two days later, some of the items from the crime scene, including the bag containing the lotion and the nightgown, were moved to the Florida Department of Law
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Enforcement (FDLE) for further processing. The technicians testified that at FDLE, they opened the bag containing the lotion and nightgown and placed the items into separate bags because they had to go to two separate areas for processing. Then at trial, the latent print expert testified that when he received the bottle of lotion, it was sealed and intact but, when he was done analyzing the bottle for prints, he placed it in a plastic bag to keep it from contaminating the other evidence.4 Therefore, the State adequately explained the earlier discrepancy, and we find no error in the trial court's admitting this evidence at Murray's fourth trial.
C. Admitting DiZinno's Testimony and Limiting Cross-Examination
Murray's third claim is the trial court erred by allowing Dr. Joseph DiZinno, the hair and fiber expert, to testify. We disagree.
Dr. DiZinno's testimony revealed that some of the hairs recovered from the victim's body and from her nightgown were pubic hairs which had the same microscopic characteristics as pubic hair that was known to be Murray's.
Consequently, although the hair could not be positively identified, DiZinno concluded that Murray could not be ruled out as a donor of the hair. Murray
4. Although Murray claims on appeal that he was surprised by the print expert's testimony, the issue was not preserved. At trial, Murray did not object to that testimony, move to strike it, or move for a mistrial due to unfair surprise. Although he told the trial judge at sidebar that he was "aghast," it was not a sufficient substitute for a proper objection. See, e.g., Millar Elevator Service Co.
v. McGowan, 819 So. 2d 145, 147 (Fla. 2d DCA 2002).
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claims that DiZinno's testimony should not have been admitted because his method of testing using microscopic hair comparisons does not meet the standards of the scientific community and is therefore unreliable under Frye.5 That claim lacks merit, however, because this Court has concluded that "[v]isual and microscopic hair comparison is not based on new or novel scientific principles and, therefore, does not require a Frye analysis." McDonald v. State, 952 So. 2d 484, 498 (Fla. 2006). Consequently, we do not find that the trial court erred in allowing this testimony.
Murray also contends that his cross-examination of DiZinno was improperly limited because he was not allowed to question him about two investigations of the FBI laboratory--one during the early 1990s while Murray's hair was being processed and a 2003 investigation of DiZinno's then current facility. But this argument was not preserved for appeal.
"For an issue to be preserved for appeal, it must be presented to the lower court, and the specific legal argument or ground to be argued on appeal must be part of that presentation." Doorbal v. State, 983 So. 2d 464, 492 (Fla. 2008); see also Farina v. State, 937 So. 2d 612, 628 (Fla. 2006) ("To preserve an issue, `[f]irst, a litigant must make a timely, contemporaneous objection. Second, the
5.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); see Hayes v. State, 660 So. 2d 257, 262-63 (Fla. 1995) (Florida follows the Frye test to determine the admissibility of new or novel scientific evidence).
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party must state a legal ground for that objection. Third . . . `it must be the specific contention asserted as a legal ground for the objection . . . below.'") (quoting Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005)). "All trial errors . . . must be preserved for appeal by making a contemporaneous objection." Capron v. State, 948 So. 2d 954, 956 (Fla. 5th DCA 2007). While no magic words are needed to make a proper objection, the articulated concern must be "sufficiently specific to inform the court of the perceived error." State v. Stephenson, 973 So. 2d 1259, 1262 (Fla. 5th DCA 2008); see Williams v. State, 414 So. 2d 509, 511-12 (Fla. 1982).
At trial, defense counsel asked the judge, outside the presence of the jury, if he could pursue questioning regarding these investigations and was told that he could not. Thereafter, he did not object or attempt to proffer what evidence any inquiry into a lab investigation would reveal. In order to predicate error, the substance of the evidence must either be apparent or be made known to the court through an offer of proof. See § 90.104, Fla. Stat. (2003); see also Miller v. State, 870 So. 2d 15, 17 (Fla. 2d DCA 2003) ("[T]he issue was not adequately preserved for appeal because defense counsel never proffered the answer."). Here, because the defense failed to proffer the answer, we do not know whether this line of questioning would have had any bearing on this case. Accordingly, we find that this issue was not preserved.
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D. Motion to Dismiss Indictment
Next, Murray maintains that his indictment should be dismissed because the only incriminating evidence that could possibly have been presented to the grand jury was that his DNA matched that of the hairs found at the crime scene. Since this Court reversed his previous conviction because of the improper admission of DNA evidence, he maintains that the grand jury based its indictment on no evidence at all. Murray's reasoning is incorrect for several reasons.
First, an indictment results from a hearing only to determine probable cause.
It is no more than an accusation, the merits of which will be determined at trial.
See Fratello v. State, 496 So. 2d 903, 911 (Fla. 4th DCA 1986). Therefore, a court should not, for the purposes of deciding whether to dismiss an indictment, "consider the . . . sufficiency of the evidence upon which an indictment or information is based." Id. (quoting State v. Schroeder, 112 So. 2d 257, 261 (Fla. 1959)). Even when the State's case at trial differs materially from the time of the grand jury indictment, this Court has not found error in the trial court's refusal to dismiss the indictment. See Evans v. State, 808 So. 2d 92, 101 (Fla. 2001).
Rather, this Court finds that due process is implicated when "a prosecutor permits a defendant to be tried upon an indictment which he or she knows is based on perjured, material testimony without informing the court, opposing counsel and the
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grand jury." Id. (quoting Anderson v. State, 574 So. 2d 87, 91 (Fla. 1991)). Here, there are no such implications.
Second, Murray's claim is purely speculative. He claims that DNA was the only evidence presented against him at the grand jury proceeding, but Murray has no idea what evidence was presented to the grand jury because there are no minutes and the proceedings were not, and were not required to be, recorded. See In re Report of the Grand Jury, 533 So. 2d 873, 875 (Fla. 1st DCA 1988) (citing United States v. Head, 586 F. 2d 508 (5th Cir. 1978); State v. McArthur, 296 So. 2d 97 (Fla. 4th DCA 1974)). But, even if evidence of DNA was the only testimony presented to the grand jury, it still would not require the trial court to dismiss the indictment because, even if grand jury testimony is later learned to be false, it is only grounds for dismissing an indictment if the prosecution knew the testimony was false when it was presented. See Evans, 808 So. 2d at 101. Here, twelve years and three trials passed between Murray's indictment and this Court's holding that the DNA evidence was improperly admitted, and there has been no indication that the DNA evidence was falsely procured, let alone that the prosecution was aware of it and failed to inform Murray or the court.
Finally, there was plenty of other evidence to support the grand jury indictment. Taylor had already been convicted of the crime, for example, and Murray had been placed with Taylor both before and after the murder. Murray
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also made several incriminating statements to Detective O'Steen the day immediately before his indictment,6 any of which could have supported probable cause. Accordingly, we find no error in the trial court's denial of Murray's motion to dismiss his indictment.
E. Motion to Interview Grand Jury Witnesses
Murray also claims that, because the minutes of the grand jury proceeding were not recorded, he should be allowed to interview the one witness who testified and the prosecutor. He maintains that the trial court committed reversible error by not granting this request. We disagree.
Section 905.27, Florida Statutes, permits limited disclosure of grand jury evidence for (1) determining the consistency of testimony; (2) determining whether perjury occurred; or (3) in furtherance of justice. Because Murray has not claimed that any trial testimony was inconsistent with grand jury testimony, or that it was
6. O'Steen was the only witness to testify at the grand jury proceeding. On the day preceding his grand jury testimony, O'Steen spoke with Murray after reading him his Miranda warnings and after Murray waived his right to counsel. At trial, O'Steen testified that, at that meeting, Murray admitted to him that he was with Taylor the night of September 15, 1990. O'Steen also said that when he told Murray his hair matched the hair recovered from the scene, "[h]e said that Taylor told on himself by . . . coming in her, and he said that we didn't find his come." O'Steen further testified that Murray tried to explain how his hair may have ended up at the scene by stating, "[m]aybe its when I pulled a bag of reefer out of my crotch and gave it to Taylor." Then he said, "[i]f my hair was on Taylor's clothes and Taylor took off his clothes and raping her on the bed, it would fall off." O'Steen then asked Murray how he knew those details and he said he just assumed that's how it was.
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perjured, we look to the third prong of the statute, furtherance of justice, for grounds to support his request for these interviews. We do not see how these interviews, if granted, would further justice in his case. Further, Murray does not state a particularized need for these interviews or explain how obtaining access to otherwise secret testimony would help his case. See In re Request for Access to Grand Jury Materials, 833 F.2d 1438, 1441-42 (11th Cir. 1987) ("Persons who testified before the grand jury did so with the expectation that their testimony would remain secret. . . . [Hence,] disclosure [of grand jury records] is appropriate only in those cases in which the need for disclosure outweighs the interest in secrecy. . . . However . . . [t]he [party requesting disclosure] must assert a particularized need for the grand jury records."); see also Jent v. State, 408 So. 2d 1024, 1027 (Fla. 1981) ("To obtain access to grand jury testimony, a proper predicate must be laid. Mere surmise or speculation . . . is not a proper predicate.") (citing Minton v. State, 113 So. 2d 361 (Fla. 1959)). Accordingly, we find that the trial court did not abuse its discretion in denying Murray's request.
F. Challenge to Juror Strike for Not Providing a Race-Neutral Reason
Murray further claims that the trial court reversibly erred when it allowed the prosecution to strike an African-American venireperson without providing a legitimate race-neutral reason. We disagree.
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In Florida, both jurors and litigants have a right to jury selection procedures that are free from discrimination. See Welch v. State, 992 So. 2d 206, 211 (Fla. 2008) (citing Abshire v. State, 642 So. 2d 542, 544 (Fla. 1994)). The three-step guideline for resolving an allegation of discrimination in peremptory challenges is set forth in Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (footnotes omitted), as follows:
A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).
See also Farina v. State, 801 So. 2d 44, 49 (Fla. 2001). "There are no specific words which the court must state to satisfy step three of the Melbourne analysis."
Simmons v. State, 940 So. 2d 580, 582 (Fla. 1st DCA 2006) (citing Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001)); see also Melbourne, 679 So. 2d at 765 ("The right to an impartial jury guaranteed by article I, section 16, is best safeguarded not by an arcane maze of reversible error traps, but by reason and common sense."); Fleming v. State, 825 So. 2d 1027, 1029 (Fla. 1st DCA 2002).
Rather, the most important consideration is that the trial judge actually "believes
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