IN THE SUPREME COURT OF THE STATE OF FLORIDA LESLIE DEMENIUK, Petitioner, v. 5th DCA Case No. 5D04-756 Supreme Court Case No. SC04-2248 STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL PAMELA J. KOLLER ASSISTANT ATTORNEY GENERAL Fla. Bar #0775990 444 Seabreeze Boulevard 5th Floor Daytona Beach, FL 32118 (386) 238-4990 (386) 238-4997 (fax)
COUNSEL FOR RESPONDENT
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... ARGUMENT ON THE FACE OF THE DECISION IN STATE v. DEMENIUK, INFRA, THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THIS COURT OR OF ANOTHER DISTRICT COURT OR WITH THE CASES REFERENCED BY PETITIONER. THIS COURT SHOULD THEREFORE DECLINE TO ACCEPT JURISDICTION..... CONCLUSION... CERTIFICATE OF SERVICE... CERTIFICATE OF COMPLIANCE... i
TABLE OF AUTHORITIES CASES: Bunkley v. State, 882 So. 2d 890, 917 (Fla. 2004)... 7 Castillo v. DuPont, 854 So. 2d 1264 (Fla. 2003)... 6,7 Chambers v. Mississippi, 410 U.S. 284 (1973)... 6,7 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)... 8 State v. Demeniuk, 29 Fla. L. Weekly D1971 (Fla. 5th DCA August 27, 2004) 1, 6,7,8 DHRS v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986)... 6 Hadden v. State, 690 So. 2d 573 (Fla. 1997)... 6,7 State v. Pettis, 520 So. 2d 250 (Fla. 1988)... 7 Ramirez v. State, 810 So. 2d 836 (Fla. 2001)... 6 Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)... 5,6,8 Roberts v. State, 510 So. 2d 885 (Fla. 1987)... 6,7 OTHER AUTHORITIES: Art. V, 3(b), Fla. Const.... 5 Fla. R. App. P. 9.030(a)... 5,7 ii
STATEMENT OF THE CASE AND FACTS The only facts relevant to this Court in determining whether to accept jurisdiction are those contained within the opinion of the District Court. 1 Respondent, therefore, offers the following. The Fifth District Court s opinion in State v. Demeniuk, 29 Fla. L. Weekly D1971 (Fla. 5th DCA August 27, 2004), states: The State of Florida petitions for a writ of certiorari to quash the order of the circuit court denying the motion of the State for a Frye hearing, and granting the motion of the Respondent, Leslie Demeniuk, a/k/a Leslie Ewing, to vacate an earlier order requiring a Frye hearing. The purpose of the requested Frye hearing was to consider the admissibility of certain expert testimony proposed to be offered by Ms. Demeniuk at her trial for murder. Because the trial court's rulings in this regard departed from the essential requirements of law, which might result in irreparable harm, we grant the petition. Ms. Demeniuk is charged with the first-degree murder of her 4-year old twin boys. The State is seeking the death penalty. Ms. Demeniuk has given notice that she intends to rely on the defense of insanity. It is the nature of the asserted insanity that gives rise to the present dispute. Ms. Demeniuk indicated to the trial court that her insanity was substance induced, which she asserts led to involuntary intoxication, and the eventual deaths of her children. In support of her position she retained two doctors, David Menkes and Ernest Miller, who provided reports supporting her claim of insanity. These doctors attributed Ms. Demeniuk's 1 Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). 1
insanity to the prescribed use of modern anti-depressants known as selective serotonin reuptake inhibitors (SSRIs). Among the SSRIs marketed commonly are Zoloft and Paxil. According to her experts, her use of SSRIs caused "akathisia," which in turn caused Ms. Demeniuk to "self-medicate" with alcohol to an involuntary 0.27 blood-alcohol level, and resulted in her killing her children. In response, the State also hired two experts, Dr. Alan Waldman and Dr. Douglas Jacobs. These doctors deny the existence of SSRI-induced akathisia with resulting homicidal actions, and both assert that the scientific principles upon which the defense relies are not generally accepted in the scientific community. The trial court, however, declined to consider their testimony. The State then filed two motions in limine regarding the assertion of SSRI-induced homicidal behavior, contending that the matters proposed to be testified to by the defense experts were subject to analysis under Frye. Initially, the trial court by letter to counsel denied the motion for a Frye hearing, noting that pure opinion testimony of an expert is not subject to Frye. The State, however, persisted in its quest for Frye consideration of the theory espoused by Ms. Demeniuk's expert witnesses. Specifically, the State objected to the testimony of the defense experts concerning an alleged causal connection between suicide and SSRIs, and concerning the proposed testimony that taking SSRIs cause involuntary alcohol consumption. The State contended that the defense testimony on neither subject was pure opinion, that the conclusions were new and novel, and that a Frye analysis was, therefore, appropriate. The trial court eventually agreed to consider the issues raised, and set a hearing in February of 2004. At the hearing Dr. Menkes, the only witness called, testified for about five hours. When the State cross-examined Dr. Menkes concerning studies he relied on in 2
reaching his opinion regarding the effects of SSRIs, the witness related that he based his opinion on two studies regarding premenstrual syndrome that were undertaken in 1992 and 1993, and on a third unpublished Scottish study regarding depression suffered by some women during premenstrual time periods. He agreed that he had not personally been engaged in research trials of the drugs, but said that he used the results of that research in his clinical practice. Finally, he stated that he also relied on a healthy volunteer study conducted by Dr. Healy. The hearing was continued at the conclusion of Dr. Menkes' testimony. When the hearing reconvened a month later, the trial judge simply announced at the outset that he had decided to deny the State's motion to exclude the testimony of Dr. Menkes and "whoever else is going to testify as to SSRI's." He then went on to say, If this was a products liability case, I would not allow the testimony in. I think that the connection is too tenuous, but it's not a products liability case, it's a first-degree murder case, the State seeking the death penalty, and I will allow the jury to decide whether or not the testimony requires any credence.... Well, basically I'm finding that there's a sufficient expert opinion, which obviates the need for a Frye hearing. The science that Dr. Menke[s] bases his opinion on, in my opinion, is insufficient for purposes of any case other than a first-degree murder case. However, his opinion is pure opinion and I will allow it. The trial judge later reduced his order to writing, again saying that the testimony was pure opinion, even though he still agreed that in any case other than first-degree murder, "the Court would have to find the science was so tenuous that the evidence would not be admitted." He concluded that "capital cases are different; the defendant is entitled to present all reasonable 3
defenses." From these rulings, the State seeks certiorari relief... Ultimately, Dr. Menkes testified that his conclusions concerning the effects of SSRI's on Ms. Demeniuk were based on scientific studies and research conducted by three scientists, Dr. Healy, Dr. Teicher, and Dr. Jick. He admitted that he had not personally conducted independent research concerning whether SSRIs are linked to suicide, or violent and aggressive behavior, or into whether SSRIs caused an involuntary craving for alcohol. Id. Petitioner filed a notice to invoke the discretionary jurisdiction of this Court. The parties' briefs on jurisdiction follow. 4
SUMMARY OF ARGUMENT This Court should decline to accept jurisdiction in the instant case. The Court is limited to the facts contained within the four corners of the decision in determining whether an express and direct conflict exists. On the face of the decision under review, there is no express and direct conflict with any decision of this Court or any district court. 5
ARGUMENT ON THE FACE OF THE DECISION IN STATE V. DEMENIUK, INFRA, THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THIS COURT OR OF ANOTHER DISTRICT COURT OR WITH THE CASES REFERENCED BY PETITIONER. THIS COURT SHOULD THEREFORE DECLINE TO ACCEPT JURISDICTION. Petitioner seeks discretionary review with this Honorable Court under Article V, Section 3(b)(3) of the Florida Constitution. See also Fla. R. App. P. 9.030(a)(2)(A)(iv). Article V, Section 3(b)(3) provides that the Florida Supreme Court may review a district court of appeal decision only if it "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." In Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986), this Court explained: Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. Neither a dissenting opinion nor the record itself can be used to establish jurisdiction. This Court further stated: This case illustrates a common error made in preparing jurisdictional briefs based on alleged decisional conflict. The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict. As we explained in the text above, we are not permitted to base our conflict jurisdiction on a review of the record or on facts recited only in dissenting opinions. Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the 6
record, as petitioner provided here. Similarly, voluminous appendices are normally not relevant. Reaves v. State, 485 So. 2d at 830, n.3. Petitioner s references to facts in her case not contained in the district court's opinion should be disregarded as not relevant to this Court's decision. 2 Additionally, this Court has held that inherent or so-called "implied" conflict may not serve as a basis for this Court's jurisdiction. DHRS v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986). Petitioner asserts that the instant opinion conflicts with Hadden v. State, 690 So. 2d 573 (Fla. 1997), on the issue of the Fifth District Court of Appeal s failure to consider scientific progress and evidence from legitimate sources presented to th[e] [district c]ourt.... (JB 3). Petitioner further complains that the instant opinion conflicts with Ramirez v. State, 810 So. 2d 836 (Fla. 2001), and Roberts v. State, 510 So. 2d 885 (Fla. 1987), by construing the right to present a defense in a criminal case as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Florida Constitution. (JB 4,8). Petitioner also claims that Demeniuk, infra, conflicts with Castillo v. DuPont, 854 So. 2d 1264 (Fla. 2003), by seeking to assess not simply the validity of the science underlying the opinion but rather reaching to the individual expert s 2 E.g. (JB 5-7). 7
application of the underlying science in reaching his conclusion. (JB 3-4). Petitioner also contends that Demeniuk, infra, conflicts with Chambers v. Mississippi, 410 U.S. 284 (1973), and Ramirez, supra, in that they stand for the principle that rules of evidence may not be applied in such a way as to infringe upon a defendant s right to a fair trial and to present defense witnesses. (JB 8). Finally, Petitioner contends that the Demeniuk opinion conflicts with State v. Pettis, 520 So. 2d 250 (Fla. 1988), regarding the standard of review for a petition for writ of certiorari in a criminal case. (JB 7-8). Notably, Castillo, supra, Roberts, supra, and Pettis, supra, are mentioned nowhere in the four corners of the Demeniuk opinion. Demeniuk, infra. Respondents submit it would be difficult to find express and direct conflict with any case not even contained within the four corners of the underlying opinion. Also, Chambers, supra, is a United States Supreme Court case and this Court s conflict jurisdiction is limited to conflict among the districts or with this Court s own opinion. 3 Finally, Petitioner asserts the instant opinion conflicts with Hadden but relies upon facts not contained within the four corners of the Demeniuk opinion in order to argue conflict. Infra. Respondents submit there can be no conflict when 3 This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of a district court of another district court of appeal or the Supreme Court on the same question of law. Bunkley v. State, 882 So. 2d 890, 917 (Fla. 2004); see also Fla. R. App. P. 9.030(a)(2). 8
Petitioner is relying upon facts not even contained within the challenged opinion. As for the remaining cases, a review of the Demeniuk opinion reveals that the district court was merely applying the law set forth in these cases in rendering its opinion. Infra. In so doing, the district court found that the trial court had departed from the essential requirements of law by refusing to act as gatekeeper and hold a full Frye 4 hearing, despite the sworn testimony of the Petitioner s expert s witness, Dr. Menkes, that he was not merely giving pure opinion testimony. 5 Id. The instant opinion simply returns this case to the circuit court for a Frye hearing. 6 Upon hearing the testimony and argument at such a hearing, the trial court may find that Frye has been satisfied. On the other hand, the trial court may exclude the testimony Petitioner is seeking to introduce at trial; however, Petitioner can always raise the issue on direct appeal assuming she is convicted at trial or enters a plea and reserves the issue for appellate review. Based on the a review of the Demenuik opinion, it is clear there is no express or direct conflict with any of the cases 4 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 5 As set forth in the opinion, Dr. Menkes admitted he had never personally done any independent research on the issue, but was relying upon studies and research conducted by other scientists in giving his opinion in this case. Infra. 6 A Frye hearing was held on December 4, 2004, in the circuit court in St. John s County, Florida, and was continued until another day. 9
referenced by Petitioner. Reaves, supra. Accordingly, this Court should decline to accept discretionary jurisdiction. CONCLUSION Based on the arguments and authorities presented herein, Respondent respectfully requests this honorable Court decline to accept jurisdiction in this case. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CHARLES J. CRIST, JR. ATTORNEY GENERAL KELLIE A. NIELAN PAMELA J. KOLLER ASSISTANT ATTORNEY GENERAL ASSISTANT ATTORNEY GENERAL Fla. Bar #618550 Fla. Bar #0775990 444 Seabreeze Boulevard 444 Seabreeze Boulevard 5th Floor 5th Floor Daytona Beach, FL 32118 Daytona Beach, FL 32118 (386) 238-4990 (386) 238-4990 (386) 238-4997 (fax) (386) 238-4997 (fax) COUNSEL FOR RESPONDENT COUNSEL FOR RESPONDENT CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing Jurisdictional Brief of Respondent has been furnished by U.S. Mail to Wm. J. Shepppard, Esq., and D. Gray Thomas, Esq., Sheppard, White & Thomas, P.A., 5 Washington Street, Jacksonville, FL 32202, this day of December, 2004. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style of type used 10
in this brief is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). Pamela J. Koller Of Counsel 11