       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            JABARI KEMP,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D15-3472

                            [ July 31, 2019 ]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502013CF006185A.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

                      ON POST-OPINION MOTIONS

TAYLOR, J.

   In light of In re Amendments to Florida Evidence Code, SC19-107, 2019
WL 2219714 (Fla. May 23, 2019), we withdraw our opinion dated May 8,
2019, which renders the State’s amended motion for rehearing of that
decision moot. We grant appellant’s first amended motion for rehearing
directed to our opinion dated December 13, 2017, and we substitute this
opinion in place of our prior opinions.

   Appellant, Jabari Kemp, appeals his convictions for five counts of
vehicular manslaughter. The charges stemmed from an automobile crash
that resulted in the tragic deaths of five young people. At trial, the
principal issue was whether appellant operated “a motor vehicle . . . in a
reckless manner likely to cause the death of, or great bodily harm to,
another.” § 782.071, Fla. Stat. (2012). A key factual dispute on this issue
was whether appellant was in control of the car at the time of the crash.
To prove this disputed element, the State relied on expert opinion
testimony that appellant had applied the brakes before the crash. The
expert’s braking opinion was based solely on his visual observation of
crush damage to the victims’ car.

   We reverse for a new trial. We conclude that the trial court abused its
discretion in admitting expert testimony that did not meet the
requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993). The expert’s braking opinion was not shown to be based upon
sufficient facts or data, was not shown to be the product of reliable
principles and methodology, and amounted to little more than a subjective
and unverifiable opinion.

    Facts

   On the night of the accident, appellant was driving a Mercedes coupe
northbound on I-95 and exited at Blue Heron Boulevard. According to the
lead accident investigator, the curvature of the Blue Heron exit “would
require a person to make their vehicle maneuver in such a way to make
that curve.”

    Appellant’s car sped down the exit ramp and ran the red light at the
end of the ramp. The car continued straight into the perpendicular lanes
of traffic and crashed into the side of a Lexus sedan that was proceeding
eastbound with the green light. The State presented expert testimony that
appellant’s vehicle impacted the Lexus at about 128 mph. Both cars went
across the median and came to rest beyond the westbound lanes of traffic.

   When paramedics arrived, appellant was awake but was “mostly in and
out of consciousness.” Appellant had to be extricated from his vehicle.

    The five young people in the Lexus died as a result of the accident.

    One of the factual disputes at trial was whether appellant had lost
consciousness shortly before the crash. The State was required to prove
at trial that appellant operated his motor vehicle “in a reckless manner
likely to cause the death of, or great bodily harm to, another,” which is a
required element of vehicular homicide. 1 However, evidence that a

1 Vehicular homicide is defined as “the killing of a human being . . . caused by
the operation of a motor vehicle by another in a reckless manner likely to cause
the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2012).

                                       2
defendant merely lost control of a vehicle is insufficient, without more, to
prove reckless driving. Smith v. State, 218 So. 3d 996, 998 (Fla. 2d DCA
2017).

    Appellant’s defense was that he fainted at the wheel and did not have
control over the car at the time of the collision. He testified that he felt
“very faint” about “a second or two” into the Blue Heron exit from I-95. He
explained that he had never fainted before and did not know he was going
to pass out. He recalled driving 65 to 70 mph before he lost consciousness.
The next thing he remembered was waking up at the hospital.

   Defense counsel argued that appellant’s height and manner of sitting
in the Mercedes likely caused appellant’s foot to press on the gas pedal
after he passed out. According to defense counsel, this would explain how
the vehicle could have gotten up to 128 mph as appellant exited I-95.
Appellant testified that he was 5’11’’, that his Mercedes sports car sat
“kind of low,” and that the gas pedal was “very responsive.”

   An eyewitness described seeing appellant’s car coming down the off-
ramp: “It was a flying like it was – it was like somebody was unconscious
in the car just going, [vroom]. It was – I thought it was flying because it
wasn’t turning, it was just going straight. It was just, like – like a plane
diving.” According to this witness, appellant’s car was not braking.

   A police officer at an unrelated traffic stop about 400 feet away from
the accident “heard the sound of tires screeching on a highway effectively
applying brakes and then I heard a large pop or a bang which was
indicative of a collision having occurred.” However, the officer did not see
the accident, nor did he know which car made the screeching sound.

   Corporal Johnson was the lead investigator in the case. He testified
that appellant’s vehicle left tire marks on the exit ramp. He could not say

Vehicular homicide therefore requires proof of reckless driving—that is, driving
with a “willful or wanton disregard for the safety of persons or property.”
Santisteban v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (citations and
internal quotation marks omitted). “Willful” means “intentional, knowing, and
purposeful,” and “wanton” means with a “conscious and intentional indifference
to consequences and with knowledge that damage is likely to be done to persons
or property.” Lewek v. State, 702 So. 2d 527, 530–31 (Fla. 4th DCA 1997)
(citations and internal quotation marks omitted). “In determining whether a
defendant was driving recklessly, the essential inquiry is whether the defendant
knowingly drove the vehicle in such a manner and under such conditions as was
likely to cause death or great bodily harm.” Santisteban, 72 So. 3d at 195.


                                       3
that the tire marks were indicative of braking immediately before the
crash. He explained that tire marks could be from steering input, braking,
or “a number of factors.” He claimed that tire marks would require driver
input. However, he admitted that he could not state with certainty that
appellant was in control of his vehicle at the time of the collision.

   Corporal Johnson was assisted by Corporal Dooley, who performed the
speed calculations.

   Both issues on appeal arise from Corporal Dooley’s testimony. Over
appellant’s Daubert 2 objection and another objection to the late disclosure
of Dooley’s braking opinion, 3 the trial court admitted Dooley’s opinion that
the damage to the Lexus indicated that appellant was braking his vehicle
as the collision occurred.

   Before trial, defense counsel specifically argued that Dooley’s braking
opinion should be excluded under Daubert because the opinion was not
based on any calculations and lacked “a foundation in any form of
science.” The trial court did not rule on the Daubert issue at that time.

   When Dooley testified, he explained that he inspected the vehicles after
the accident for “crush damage,” mechanical defects, tire malfunction, and
damage profiles. Damage profiles show the angle of approach from the
vehicle, how far the crush went into the vehicle, and the angle of departure.

   Dooley claimed that sometimes there is damage that indicates whether
braking occurred at the point of impact between two cars:

         [CORPORAL DOOLEY:] When you have two cars that are
         relatively similar in height . . . , as somebody is approaching
         a car . . . they are not paying attention or whatever it is, and
         at the last second they brake right before impact. And the
         front end will dip and it will go down and it will smack the rear
         of the car or whatever the case is. Normally, that’s from you’re


2   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

3 We affirm as to appellant’s argument that he was procedurally prejudiced by
the State’s discovery violation. Although appellant complained that he was
surprised and ambushed by the State with Dooley’s new braking opinion, we
conclude that appellant was not procedurally prejudiced where: (1) defense
counsel deposed Dooley shortly before opening statements; and (2) appellant
insisted on going forward with the trial rather than requesting a continuance to
retain his own expert on the braking issue.

                                          4
      traveling at a speed and as you hit the brakes, center mass,
      the momentum is going forward so it’s going to push that
      momentum forward causing the front end to dip. I’m sure we
      have all done it, whether you accelerate and the front end goes
      up, or you hit the brakes and the front end goes down, but
      that’s what we are looking for is how up the damage profile is.
      . . . What we have here is, up to here this is the right rear
      passenger door of the Lexus. And as you can see here, it’s
      kind of bowed out a little bit, and then when you look further
      down you notice how it appears to get deeper and deeper and
      deeper. When you get down to the bottom of it that’s the frame
      right there, okay? So when you look at this damage profile
      this to me is obviously a significant impact. But when you
      have all of this up here, which is kind of in line with whatever
      the car may or should have been, and then as you start
      looking down, down, down, it starts to get deeper and deeper
      and deeper as you get down to the –

   At this point, the defense objected, and the court permitted voir dire
before Corporal Dooley rendered his opinion:

      [CORPORAL DOOLEY]: Well, when you have such a
      tremendous speed going down and so much energy and
      momentum, the car is -- if it’s not dipping, or going up, or
      accelerating, it’s going straightforward. Whatever it’s going to
      hit and when it hits you would have the crushing factor. It
      would be more upright but, again, like I said, when I see this
      based on everything I’ve seen in the past, all my training and
      experience, it shows me that the car hits and goes down, is
      what it tells me. That’s all I can testify to. That’s what it tells
      me is that it hits but it’s going down.

      THE COURT: And that is consistent within a reasonable
      degree of scientific certainty with braking of the Mercedes?

      [CORPORAL DOOLEY]: I can’t tell you about the scientific --
      or anything about the braking of the Mercedes. What I can
      tell you is the overall dynamics of a car to require to have
      shocks and struts and all these things and if you are
      accelerating, the front will go up. If you are decelerating it
      goes down -- that’s all I can -- I’m just telling you what it
      means to me.

      THE COURT: Is it consistent with braking?

                                      5
[CORPORAL DOOLEY]: Yes.

THE COURT: Is it consistent with any other scenario other
than braking?

[CORPORAL DOOLEY]: I, personally, cannot think of anything
that it would be consistent with --

THE COURT: Okay.

[PROSECUTOR]: If I could ask him one additional question. .
. . When the Judge asked you if it’s within a degree of
scientific certainty, when we talk about science what you are
discussing deals with a car going downward, deals with the
laws of physics and momentum, correct?

[CORPORAL DOOLEY]: Yes, ma’am.

[PROSECUTOR]: Okay. And that would be science?

[CORPORAL DOOLEY]: Yes, ma’am. . . .

[DEFENSE COUNSEL]: Are there any studies on this dipping
effect, the curling downward?

[CORPORAL DOOLEY]: I’m sure that there are but I can’t
quote anything specific.

[DEFENSE COUNSEL]: None that you have read?

[CORPORAL DOOLEY]: Yes, we’ve actually -- when we go out
and we do a lot of these more specific schools, like I testified
to earlier . . . that I’ve attended, we go out and we will crash
vehicles, we will throw motorcycles off the back of trucks and
watch them spin, but to classify like as actually studying
I personally cannot recall anything specific dealing with
it. Other than talking about momentum in general when
weights are transferred from the center mass forward because
that’s where the momentum was going. And as they apply the
brakes, the momentum shifts forward, and as you accelerate,
the momentum shifts backwards, talking about dynamics of
how cars work. But as far as quoting an actual case study or
a doctor or scientist or whomever may have been out there

                               6
      looking at it, I can’t tell you.

      [DEFENSE COUNSEL]: Okay. And that would have nothing
      to do with the fact that the Lexus was a heavier vehicle at the
      time?

      [CORPORAL DOOLEY]: Heavier vehicle and damage profile, I
      can’t see any type of issue with that but it just appears like I
      said this, I’m just testifying as to what this looks like to me --

      [DEFENSE COUNSEL]: Okay. Thank you. . . .

      THE COURT: Corporal, is this -- is this type of downward arc
      in damage something that is taught at you know accident
      reconstruction classes that you have done?

      [CORPORAL DOOLEY]: There are examples that are given.
      Unfortunately, you can’t cover every single type of scenario
      that a crash will happen in, but no there are examples given
      and again explain to you how when a vehicles weight shifts
      and different things like that and we learn about speed
      calculations if a car swerved to avoid and all of the load goes
      to one side, and it will leave a tiny thin mark. We learn about
      weight transfer and momentum transfer, and then we go into
      when vehicles collide with others and how they transfer their
      momentum or kinetic energy to the other vehicle. But we do
      learn about these things, but I can’t quote you anything
      specific off the top of my head as to a case study or somebody
      who is in the know, specifically.

(Emphasis added).

  The trial court ruled that Dooley’s braking opinion was admissible
under Daubert, concluding that the opinion was based on Dooley’s training
and was sufficiently reliable to be admitted.

   Dooley then testified that the crush damage to the Lexus went
downward in “an arc-type fashion,” which indicated that the front end of
appellant’s car was dipping as it was colliding with the Lexus. If a car is
dipping, Dooley explained, this indicates “that there is some type of
braking or driver input.” Dooley asserted that if appellant’s vehicle had
not been dipping, there would have been “more of a flatter type crush
pattern.” Dooley claimed that the damage to the Lexus starts at the
normal height one would expect, but arcs downward. According to Dooley,

                                         7
it was the arc of the damage to the Lexus—not its height from the ground—
that was indicative of dipping.

   The jury found appellant guilty as charged on all five counts. The court
granted a downward departure and sentenced appellant to five consecutive
terms of six years in prison, for a total of 30 years in prison.

   Analysis

   On appeal, appellant argues that Dooley’s testimony did not meet the
requirements of section 90.702, Florida Statutes, and Daubert. We agree.

   A. Daubert Applies to This Appeal

   During the pendency of this appeal, there was considerable uncertainty
concerning the standard governing the admission of expert testimony in
Florida. Accordingly, we briefly explain why Daubert applies to this appeal.

   Before appellant’s trial in 2015, the legislature had adopted Daubert as
the standard for the admission of expert testimony. See § 90.702, Fla.
Stat. (2013) (incorporating Daubert standard into Florida Rules of
Evidence); Ch. 2013-107, Laws of Fla., eff. July 1, 2013 (the “Daubert”
Amendment).

   At the time of trial, the amended version of section 90.702 had not been
declared unconstitutional. The parties also relied upon this version of the
statute at trial. Although the Florida Supreme Court later declared that
the Daubert amendment was procedural in nature and that it
unconstitutionally infringed on the Court’s rulemaking authority, see
DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018), neither party challenged
the constitutionality of the Daubert amendment below.

   Because the parties never challenged the constitutionality of the
amended version of section 90.702 below, the statute was presumed
constitutional and the trial court was required to give effect to it when the
case was tried. See Mallory v. State, 866 So. 2d 127, 128 (Fla. 4th DCA
2004). Indeed, at the time of trial, the trial court was bound by case law
holding that the Daubert amendment to section 90.702 applied to pending
cases. See Perez v. Bell S. Telecomm., Inc., 138 So. 3d 492, 498 (Fla. 3d
DCA 2014) (holding that the 2013 revision to section 90.702 should be
applied retrospectively to pending cases); see also Pardo v. State, 596 So.
2d 665, 666 (Fla. 1992) (explaining that “in the absence of interdistrict
conflict, district court decisions bind all Florida trial courts”).


                                     8
   Within a few months after the DeLisle decision, the Florida Supreme
Court adopted “the amendments to sections 90.702 and 90.704 of the
Florida Evidence Code made by chapter 2013-107, sections 1 and 2.” In
re Amends. to Fla. Evidence Code, SC19-107, 2019 WL 2219714, at *3 (Fla.
May 23, 2019). The Court adopted “the amendments to section 90.702 as
procedural rules of evidence” effective immediately upon the release of its
opinion. Id. Thus, because the Court has now adopted the Daubert
amendment, the constitutional defect found in DeLisle has now been
eliminated.

   Under 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.” N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d
403, 412 (Fla. 4th DCA 2015) (quoting Hendeles v. Sanford Auto Auction,
Inc., 364 So. 2d 467, 468 (Fla. 1978)). Although the Daubert amendment
may have suffered from a latent constitutional infirmity at the time of trial,
the parties never raised any constitutional challenge below to section
90.702. Furthermore, as an appellate court, we are required to follow the
law in effect at the time of our decision. Therefore, because the Florida
Supreme Court’s adoption of the Daubert amendment has eliminated the
constitutional defect identified in DeLisle, we apply the requirements of
Daubert and section 90.702 to this appeal.

   B. The Trial Court Abused its Discretion in Admitting the Expert’s
      Opinion Under Daubert

   Turning to the merits, we review the trial court’s ruling on the
admissibility of expert testimony under section 90.702 for an abuse of
discretion. Booker v. Sumter Cnty. Sheriff’s Office, 166 So. 3d 189, 194
n.2 (Fla. 1st DCA 2015).

    Section 90.702, Florida Statutes, codifies the Daubert standard as
follows:

      If scientific, technical, or other specialized knowledge will
      assist the trier of fact in understanding the evidence or in
      determining a fact in issue, a witness qualified as an expert
      by knowledge, skill, experience, training, or education may
      testify about it in the form of an opinion or otherwise, if:

      (1) The testimony is based upon sufficient facts or data;



                                      9
      (2) The testimony is the product of reliable principles and
      methods; and

      (3) The witness has applied the principles and methods
      reliably to the facts of the case.

§ 90.702, Fla. Stat.

    Under Daubert, a trial judge has a gatekeeping role to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but
reliable.” 509 U.S. at 589. The trial judge is “charged with this
gatekeeping function ‘to ensure that speculative, unreliable expert
testimony does not reach the jury’ under the mantle of reliability that
accompanies the appellation ‘expert testimony.’” Rink v. Cheminova, Inc.,
400 F.3d 1286, 1291 (11th Cir. 2005) (citation omitted).

   A trial judge must make “a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be applied to
the facts in issue.” Daubert, 509 U.S. at 592–93. This basic gatekeeping
obligation applies not only to scientific testimony, but “to all expert
testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

    The Supreme Court in Daubert outlined a list of factors that bear on
the reliability inquiry: (1) whether the theory can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error of a particular scientific
technique, as well as the existence of standards controlling the technique’s
operation; and (4) general acceptance in the scientific community. 509
U.S. at 593–94. The Daubert “test of reliability is flexible, and Daubert’s
list of specific factors neither necessarily nor exclusively applies to all
experts or in every case.” Kumho Tire, 526 U.S. at 141 (internal quotation
marks omitted).

   “[T]he test under Daubert is not the correctness of the expert’s
conclusions but the soundness of his methodology.” Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“Daubert II”).
However, an expert’s opinion must be based upon “knowledge,” not merely
“subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590.
Nothing in Daubert requires a court “to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert,” and “[a]
court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997).

                                      10
   Here, the trial court abused its discretion in admitting Dooley’s braking
opinion under Daubert. The trial court admitted the opinion without
requiring that it satisfy any of the benchmarks of reliability set forth in
Daubert. The record does not show that Dooley’s technique—eyeballing
the shape of the crash damage on a vehicle to determine if the vehicle that
made the impact was braking—has been tested, has been subjected to
peer review or publication, has a quantifiable rate of error, or is generally
accepted in the field of accident reconstruction. Dooley’s repeated
invocation of the magic words “training and experience” was insufficient,
without more, to establish the reliability of his opinion under Daubert.

    Simply put, Dooley opined that because the damage to the Lexus went
downward in an “arc-type fashion,” appellant’s car must have been dipping
at the time of the collision, which indicated that appellant was braking.

    Dooley’s opinion can therefore be broken down into two distinct
components: (1) applying the brakes causes the front of the driver’s vehicle
to dip downward; and (2) Dooley was able to look at the shape of the
damage to the Lexus to infer that appellant’s vehicle was dipping, and
therefore braking, at the time of the collision. The first component of
Dooley’s opinion was supported by the laws of physics and momentum.
But the second component of Dooley’s opinion was never shown to be
reliable.

   Although Dooley initially implied that his braking opinion was based
upon the collection of data, Dooley later admitted that his opinion was
based solely on his visual impression of the shape of the damage to the
Lexus. Dooley conceded that his opinion was not based on height
measurements of the vehicles or the height of the damage to the Lexus,
acknowledging at one point: “I’m just testifying as to what this looks like
to me.”

   Dooley testified that “when I see this based on everything I’ve seen in
the past, all my training and experience, it shows me that the car hits and
goes down, is what it tells me. That’s all I can testify to.” At one point,
Dooley admitted that he could not recall studying in his accident
reconstruction classes the specific issue of the “curling downward” of
damage due to the dipping effect:

      [W]e go out and we will crash vehicles, we will throw
      motorcycles off the back of trucks and watch them spin, but
      to classify like as actually studying I personally cannot
      recall anything specific dealing with it. Other than

                                     11
      talking about momentum in general . . . . But as far as quoting
      an actual case study . . . I can’t tell you.

(Emphasis added).

   Dooley thus admitted that he had not studied this exact scenario in his
course work. Later, however, when asked whether “this type of downward
arc in damage” was something he was taught in accident reconstruction
classes, he vaguely replied that “[t]here are examples that are given,” that
“you can’t cover every single type of scenario that a crash will happen in,”
that he learned about “weight transfer” and “momentum transfer” in his
classes, and that “we do learn about these things, but I can’t quote you
anything specific off the top of my head as to a case study or somebody
who is in the know, specifically.”

   Contrary to the trial court’s conclusion, Dooley’s testimony does not
actually support that he was taught how to examine the shape of crash
damage to determine whether the vehicle that caused the damage was
braking at the time of the collision. Where an expert is relying solely or
primarily on his experience, the proponent of the testimony bears the
burden “to explain how that experience led to the conclusion he reached,
why that experience was a sufficient basis for the opinion, and just how
that experience was reliably applied to the facts of the case.” United States
v. Frazier, 387 F.3d 1244, 1265 (11th Cir. 2004). Here, the prosecution
did not meet its burden to explain how Dooley’s experience led to the
conclusion he reached, why that experience was a sufficient basis for the
braking opinion, and just how that experience was reliably applied to the
facts of this case. 4

   We conclude that Dooley’s testimony was woefully insufficient to
establish the reliability of his methodology under Daubert. There was no
evidence that Dooley’s methodology had ever been tested. Nor was there
evidence that Dooley’s methodology had been subjected to peer review and
publication. Dooley could not reference any specific studies or peer-
reviewed materials, much less any blind studies showing that it is possible


4The deficiencies in Dooley’s methodology became even more apparent on cross-
examination. Dooley admitted that he did no testing in this case to formulate his
braking opinion. Dooley did not know anything about the metallurgy of the
Lexus, whether the Lexus was weaker toward the bottom than the top, or whether
the Lexus had been in any prior collisions. When asked how he could exclude
the possibility that the damage to the Lexus was not “just as a result of the
natural shape and weight of that Mercedes,” Dooley essentially responded that
his “training and experience” allowed him to reach such a conclusion.

                                       12
to accurately infer braking from the shape of crash damage alone. Dooley
assumed that there were studies on the “curling downward” of damage due
to the dipping effect, but he could not “quote anything specific.” Dooley
did not specifically point to any experience or training where the
occurrence of braking was determined solely on the basis of someone’s
visual impression of the shape of crash damage. For example, Dooley
never testified that he received training in comparing collision damage
known to have occurred after braking with collision damage known to have
occurred without braking.

    On this record, it is also impossible to quantify a potential rate of error
for Dooley’s methodology. Dooley’s testimony failed to address what the
“known or potential rate of error” was for attempting to discern braking
from a visual inspection of the shape of crash damage to another vehicle.
The absence of any testimony in this regard further undermines the
reliability of Dooley’s methodology.

    The State also failed to show that Dooley’s opinion was based upon a
generally accepted methodology in the field of accident reconstruction.
Dooley testified that his opinion dealt with science—specifically, the laws
of physics and momentum. However, when asked whether the damage to
the Lexus was “consistent within a reasonable degree of scientific
certainty” with the Mercedes braking, Dooley simply replied: “I can’t tell
you about the scientific – or anything about the braking of the Mercedes.
. . . I’m just telling you what it means to me.” The best Dooley could do
was reiterate the obvious point that the front of a car goes up when
accelerating and goes down when decelerating. Thus, while the laws of
physics and momentum provided a reliable basis for Dooley’s testimony
that the front of a vehicle dips downward while braking, there was no
showing that simply looking at the shape of crash damage on a vehicle is
a generally accepted methodology in the field of accident reconstruction
for determining whether the vehicle that made the impact was dipping (and
therefore braking) before the collision.

   In short, Dooley’s braking opinion was insufficient to satisfy Daubert.
None of the Daubert factors supported the admissibility of the opinion.
Dooley did not rely on any reliable methodology in formulating this braking
opinion, and instead offered his subjective visual impression of what the
damage to the Lexus “look[ed] like to [him].” There was simply too great
an analytical gap between Dooley’s observations and the opinion proffered.

   Conclusion



                                      13
   The improper admission of Dooley’s testimony was not harmless. See
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The dispute over
whether appellant was braking at the time of the collision went to the heart
of appellant’s defense that he had lost consciousness immediately before
the accident. We reverse and remand for a new trial.

   Reversed and Remanded.

CIKLIN, J., concurs specially with opinion.
MAY, J., dissents with opinion.


CIKLIN, J., concurring specially.

   I fully support the majority opinion and write to acknowledge the
devastation suddenly inflicted upon the community when this
unimaginable nightmare occurred on Saturday, April 13, 2013 at 12:20
a.m. Orane O. Cummings, Shonteria Grimsley, Christina Oliver-Joseph,
Makita Campbell, and Jason Alexander Mahlung were innocent victims
doing nothing else but going about their lives.
    As our majority opinion indicates, this appeal boils down to the
reliability and sufficiency of the state’s conspicuously limited evidence
pertaining to the decisive issue of Jabari Kemp’s “control” over his vehicle
at the time of this horrific event. The fundamental importance of this point
cannot be overstated and, indeed, is the crux of the appellate review before
us.
      •   By operation of law, Kemp cannot be guilty of vehicular
          manslaughter if he was and remained unconscious while
          traveling 128 miles per hour on the I-95 exit ramp in the seconds
          leading up to the fiery crash at the corner of the interstate and
          Blue Heron Boulevard.

      •   Whether or not the defendant applied his brakes before impact
          thus determining if Kemp was consciously in control of his
          vehicle, has become the crucial line of legal demarcation between
          a terrible accident on the one hand, and a culpable criminal act
          on the other.

      •   A paramount issue in this appeal is whether five young people
          were tragically killed because of an unthinkable yet unavoidable
          human occurrence requiring legal absolution, or at the hands of


                                     14
         a dangerously reckless driver who should rightfully be cloaked
         with a veil of criminality.

    Other than the testimony of a non-eyewitness police officer handling an
unrelated traffic stop some 400 feet away who heard “screeching,” the sole
evidence presented by the state as to the critical issue of the defendant’s
control and consciousness was expert-like testimony from FHP Corporal
Dooley. The state presented no other witnesses to the jury and did not
offer any type of additional evidence on the question of the defendant’s
“control” and consciousness. Other than Corporal Dooley’s vehicle crush
testimony, there was no other forensic or scientific evidence (such as tire
tracks, skid marks, road scrapings or other markings on Blue Heron
Boulevard indicating that any type of braking or even subtle maneuvering
took place) to indicate that the defendant braked and was therefore
conscious and legally in control at the time of impact.
   During its closing argument, it is important to note, the state did not
shy away from relying on Corporal Dooley’s erroneously admitted
testimony—thereby compounding the error by repeating it to the jury.
This jury appears to have, understandably, given great deference to
Corporal Dooley’s purported expert testimony and thereupon convicted
Jabari Kemp, leading to a 30-year prison sentence and what could have
been, but for the mercy of the trial judge, a statutorily-permitted sentence
of 75 years which, given the age of the defendant, would have been
tantamount to a life sentence.
    If Jabari Kemp committed vehicular manslaughter, our criminal justice
system demands that he face the consequences of his chosen actions and
the decisions he made. If he did not commit a crime, however, our system
requires that he be acquitted and relieved of criminal responsibility in this
matter. As a court of appeal, our responsibility is to pass judgment on the
reliability, quality, and admissibility of Corporal Dooley’s pivotal expert
testimony.
   This case comes down to the singular issue of the admissibility of
Corporal Dooley’s testimony in light of the statutory codification of
Daubert. The Legislature exercised its prerogative to amend the Florida
Evidence Code by adopting section 90.702 as follows:
         If scientific, technical, or other specialized knowledge will
      assist the trier of fact in understanding the evidence or in
      determining a fact in issue, a witness qualified as an expert
      by knowledge, skill, experience, training, or education may
      testify about it in the form of an opinion or otherwise, if:



                                     15
      (1) The testimony is based upon sufficient facts or data;

      (2) The testimony is the product of reliable principles and
          methods; and

      (3) The witness has applied the principles and methods
          reliably to the facts of the case.

§ 90.702, Fla. Stat.
    Based on the record before us, including Corporal Dooley’s candid
answers to the numerous questions asked of him by the defendant, the
state, and the trial court, it simply cannot be held that his expert braking
testimony was based upon legally sufficient facts or data that met the
reliability and admissibility requirements of section 90.702. And although
the state made a determined effort to render Corporal Dooley a braking
expert, the principles and methodologies that formed the basis of Corporal
Dooley’s area of braking expertise did not fall within the ambit of section
90.702.
   While the trial court took painstaking steps to ensure a fair trial, we
must nevertheless find that reversible error occurred. A jury finding of
criminal culpability must be based upon competent and reliable evidence,
as defined by statute. To permit otherwise would undermine our
institutions of law.
   I assume the catastrophic event of April 13, 2013 must continually
replay in the minds of every person who was touched by this tragedy. For
most, the hurt must be on a horrible revolving loop. But that cruel reality
cannot be permitted to obscure the central appellate issue before us and
our obligation to insist that no legal errors be made—particularly when
someone is convicted of very, very serious crimes.
   Make no mistake. The state may ultimately be able to produce
sufficient testimony and present the evidence necessary to lawfully convict
Jabari Kemp, thereby holding him legally accountable for the devastation
that took place in 2013. However, with the trial record that is before us,
we have no choice but to hold that the state did not meet its burden in
Kemp’s first trial and that a new trial is warranted.
   The gravity of our ruling does not escape us.


MAY, J., dissenting.



                                    16
   I respectfully dissent. The trial court did not abuse its discretion in
admitting the opinion of the accident reconstructionist under section
90.702, Florida Statutes (2014). I would affirm.

   Section 90.702 provides:

      If scientific, technical, or other specialized knowledge will
      assist the trier of fact in understanding the evidence or in
      determining a fact in issue, a witness qualified as an expert
      by knowledge, skill, experience, training, or education may
      testify about it in the form of an opinion or otherwise, if:

      (1) The testimony is based upon sufficient facts or data;

      (2) The testimony is the product of reliable principles and
          methods; and

      (3) The witness has applied the principles and methods
          reliably to the facts of the case.

   The United States Supreme Court has explained:

      Experts of all kinds tie observations to conclusions through
      the use of what Judge Learned Hand called “general truths
      derived from . . . specialized experience.” And whether the
      specific expert testimony focuses upon specialized
      observations, the specialized translation of those observations
      into theory, a specialized theory itself, or the application of
      such a theory in a particular case, the expert’s testimony often
      will rest “upon an experience confessedly foreign in kind to
      [the jury’s] own.” The trial judge’s effort to assure that the
      specialized testimony is reliable and relevant can help the jury
      evaluate that foreign experience, whether the testimony
      reflects scientific, technical, or other specialized knowledge.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-49 (1999) (citations
omitted).

   Here, there can be no doubt that Corporal Dooley was an expert in
accident reconstruction. He testified that he had been employed with the
Florida Highway Patrol for thirteen years and had been a homicide
investigator for more than five years. His training was extensive. He
testified about his training as follows:


                                    17
      It’s very extensive, first and foremost you start off with the
      basic homicide investigations which kind of gets you into
      mathematical formulas and dynamics of how crashes happen
      and basically overall scene work and then you go into more
      advanced schools like advanced traffic homicide and
      reconstruction -- where that gets more into nuts and bolts of
      how to properly reconstruct a crash and then you get into
      more specific -- more advanced dealing with specific items like
      motorcycles, pedestrians, trains, commercial motor vehicles.

      There is just a lot of stuff that as you progress it gets more
      and more specific. In total it’s probably been -- if you would
      add it all up together probably in excess of 800 plus hours in
      the class room and actually out in the field doing this training
      prior to even investigating things.

   He had been the primary investigator in more than sixty-five accidents
and assisted in over two hundred. His role was to assist in “mapping the
scene using [photogrammetry].” He was there to make an independent
determination of how the crash occurred.        From his observations,
photographs, and measurements, he was able to construct a three-
dimensional model of the accident scene. He was also able to create a
crash zone using specific software.

   Corporal Dooley conducted a post-crash inspection of the vehicles. He
inspected the car for anything that happened as a result of the crash, such
as “crush damage,” mechanical defects, tire malfunction, and damage
profiles. He explained the damage profile as providing information on the
angle of approach, how far the crush went into the vehicle, and the angle
of departure. The damage profile also provided information on whether
braking occurred. He explained:

      When you have two cars that are relatively similar in height .
      . . , as somebody is approaching a car . . . they are not paying
      attention or whatever it is, and at the last second they brake
      right before impact. And the front end will dip and it will go
      down and it will smack the rear of the car or whatever the case
      is. Normally, that’s from [when] you’re traveling at a speed
      and as you hit the brakes, center mass, the momentum is
      going forward so it’s going to push that momentum forward
      causing the front end to dip. I’m sure we have all done it,
      whether you accelerate and the front end goes up, or you
      hit the brakes and the front end goes down, but that’s
      what we are looking for is how up the damage profile is.

                                    18
      ....

      What we have here is, up to here this is the right rear
      passenger door of the Lexus. And as you can see here, it’s
      kind of bowed out a little bit, and then when you look further
      down you notice how it appears to get deeper and deeper and
      deeper. When you get down to the bottom of it that’s the frame
      right there, okay? So when you look at this damage profile
      this to me is obviously a significant impact. But when you
      have all of this up here, which is kind of in line with whatever
      the car may or should have been, and then as you start
      looking down, down, down, it starts to get deeper and deeper
      and deeper as you get down to the –

(Emphasis added).

   At this point, the defense objected, and the court permitted voir dire
before Corporal Dooley rendered his opinion. The voir dire was extensive.
The judge asked many questions to fulfill his role as gatekeeper.

      [CORPORAL DOOLEY]:             Well, when you have such a
      tremendous speed going down and so much energy and
      momentum, the car is -- if it’s not dipping, or going up, or
      accelerating, it’s going straightforward. Whatever it’s going to
      hit and when it hits you would have the crushing factor. It
      would be more upright but, again, like I said, when I see this
      based on everything I’ve seen in the past, all my training and
      experience, it shows me that the car hits and goes down, is
      what it tells me. That’s all I can testify to. That’s what it tells
      me is that it hits but it’s going down.

      THE COURT: And that is consistent within a reasonable
      degree of scientific certainty with braking of the Mercedes?

      [CORPORAL DOOLEY]: I can’t tell you about the scientific --
      or anything about the braking of the Mercedes. What I can
      tell you is the overall dynamics of a car to require to have
      shocks and struts and all these things and if you are
      accelerating, the front will go up. If you are decelerating it
      goes down -- that’s all I can -- I’m just telling you what it
      means to me.

      THE COURT: Is it consistent with braking?

                                      19
[CORPORAL DOOLEY]: Yes.

THE COURT: Is it consistent with any other scenario other
than braking?

[CORPORAL DOOLEY]:          I, personally, cannot think of
anything that it would be consistent with --

THE COURT: Okay.

[PROSECUTOR]: If I could ask him one additional question. .
. . When the Judge asked you if it’s within a degree of scientific
certainty, when we talk about science what you are discussing
deals with a car going downward, deals with the laws of
physics and momentum, correct?

[CORPORAL DOOLEY]: Yes, ma’am.

[PROSECUTOR]: Okay. And that would be science?

[CORPORAL DOOLEY]: Yes, ma’am.

....

[DEFENSE COUNSEL]: Are there any studies on this dipping
effect,
the curling downward?

[CORPORAL DOOLEY]: I’m sure that there are but I can’t
quote anything specific.

[DEFENSE COUNSEL]: None that you have read?

[CORPORAL DOOLEY]: Yes, we’ve actually -- when we go out
and we do a lot of these more specific schools, like I testified
to earlier . . . that I’ve attended, we go out and we will crash
vehicles, we will throw motorcycles off the back of trucks and
watch them spin, but to classify like as actually studying I
personally cannot recall anything specific dealing with it.
Other than talking about momentum in general when weights
are transferred from the center mass forward because that’s
where the momentum was going. And as they apply the
brakes, the momentum shifts forward, and as you accelerate,

                               20
the momentum shifts backwards, talking about dynamics of
how cars work. But as far as quoting an actual case study or
a doctor or scientist or whomever may have been out there
looking at it, I can’t tell you.

[DEFENSE COUNSEL]: Okay. And that would have nothing
to do with the fact that the Lexus was a heavier vehicle at the
time?

[CORPORAL DOOLEY]: Heavier vehicle and damage profile, I
can’t see any type of issue with that but it just appears like I
said this, I’m just testifying as to what this looks like to me --

[DEFENSE COUNSEL]: Okay. Thank you.

....

THE COURT: Corporal, is this -- is this type of downward arc
in damage something that is taught at you know accident
reconstruction classes that you have done?

[CORPORAL DOOLEY]: There are examples that are given.
Unfortunately, you can’t cover every single type of scenario
that a crash will happen in, but no there are examples given
and again explain to you how when a vehicles weight shifts
and different things like that and we learn about speed
calculations if a car swerved to avoid and all of the load goes
to one side, and it will leave a tiny thin mark. We learn about
weight transfer and momentum transfer, and then we go into
when vehicles collide with others and how they transfer their
momentum or kinetic energy to the other vehicle. But we do
learn about these things, but I can’t quote you anything
specific off the top of my head as to a case study or somebody
who is in the know, specifically.

....

THE COURT: All right. The Court will admit this opinion. I’m
admitting this opinion as a gatekeeper. I have through
counsel’s questions and the Court’s questions undertaken an
-- you know, an
examination of Corporal Dooley, as to reliability of this type of
evidence.


                               21
      I do find that it is quote/unquote not junk science, that, in
      fact, it is taught. It is part and parcel of the training with
      respect to accident reconstruction. That this -- a witness has
      -- certainly has the training and hours of experience to opine
      as to accident reconstruction. He specifically discussed the
      evidence that he has seen on the damage to the Lexus that
      corresponds to an opinion that -- of a dipping damage, which
      is consistent within his opinion of a car braking.

      I’m going to allow the opinion to come in, subject, of course,
      to the weight of this opinion as being borne out by [defense
      counsel’s] cross-examination, but I do find that this opinion
      is sufficiently reliable. Daubert, don’t forget, is a rule of
      admissibility as opposed to inadmiss[i]bility. And I do find
      that it’s not a pure opinion of the corporal but it’s instead
      based on training, experience, he’s got the expertise. And I do
      find as a gatekeeper that it is sufficiently reliable and
      sufficiently factually based to allow this opinion into the -- into
      evidence in this trial.

      I may have some more with respect to a ruling on this but at
      this juncture I am going to allow the opinion subject to the
      weight to be
      attached to it by a cross-examiner.

   The court explained to the jury:

      [Defense counsel’s] objection to the opinion as to whether the
      Mercedes was braking or not, their objection to that is
      overruled. Of course, you decide what weight you wish to give
      to anyone’s opinion, you can accept it or reject it, or accept
      part of it that’s totally up to you -- I’m going to turn back now
      to the assistant State attorney to continue her direct
      examination.

   Corporal Dooley then testified that the photographs showed the front
end of the defendant’s vehicle was dipping as the cars collided, indicating
to him that “there [was] some type of braking or driver input.” Without
some type of braking,

      you would have more of a flatter type crush pattern . . . that
      curvature to that crush damage that’s what it tells me is that
      the car -- the front of the car that’s doing the hitting is coming
      in and as it’s hitting the front end is dipping and going down.

                                      22
      ....

      Transfer momentum transferring to the front of the car
      putting the load on the front.

   As the Court declared in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 597 (1993): the trial judge is assigned “the task of ensuring
that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand. Pertinent evidence based on scientifically
valid principles will satisfy those demands.” Here, the trial court did just
that.

   It is significant to note that, earlier in the trial, the trial court sustained
the same defense objection to Corporal Johnson when he attempted to
render the same “dipping” opinion because the State had not shown the
requisite reliability of his testimony. But after listening to Corporal
Dooley’s experience and training, he overruled the objection.

   As the trial court noted, the admission of Corporal Dooley’s testimony
was based on physics and momentum, which is scientifically reliable.
That evidence was admissible, and its weight was subject to defense
counsel’s cross-examination and closing argument. It was the jury’s role
to decide what weight to give the opinion.

   The trial court did not err in its role as gatekeeper. First, as Corporal
Dooley testified, the fact that the front end of the car lifts up when
accelerating and dips down when decelerating is common knowledge. “I’m
sure we have all done it, whether you accelerate and the front end goes
up, or you hit the brakes and the front end goes down, but that’s what we
are looking for is how up the damage profile is.”             The majority
acknowledges as much.

   The majority agrees that the “laws of physics and momentum provided
a reliable basis” for Corporal Dooley’s opinion but then dissects the opinion
into two parts and concludes the “second component” was not shown to
be reliable. It refuses to recognize that those same laws of physics and
momentum would allow for the accident reconstructionist to view the
crash damage and render an opinion on whether the defendant’s car was
dipping downward at the time of the collision.

   Second, the trial court permitted, and participated in, a significant voir
dire of Corporal Dooley prior to determining the experienced accident
reconstructionist’s opinion was admissible. As the concurrence notes,

                                       23
during that voir dire, Corporal Dooley’s experience and training was
explained. This provided the judge with enough information to determine
whether his opinion bore the necessary indicia of scientific reliability.

   Third, while Corporal Dooley could not point to specific training on this
type of crash, his experience and training cannot be denied. He “had been
employed with the Florida Highway Patrol for thirteen years, and had been
a homicide investigator for more than five years.” He had been the primary
investigator in sixty-five accidents and participated in the investigation of
another two hundred accidents. In short, his expertise was unchallenged.

   Fourth, the majority notes that the lead investigator in the case testified
that the defendant’s vehicle left tire marks on the exit ramp, but he could
not discern whether they indicated braking immediately before the crash.
Defense counsel made much of this fact during his closing argument.

   Fifth, the defense was able to argue to the jury its own theory of how
the accident happened. According to the defense, the defendant lost
consciousness, causing his foot to get stuck on the accelerator. Defense
counsel argued there were no significant tire marks to support that the
defendant applied his brakes prior to the collision. Defense counsel also
argued that, because the defendant’s car lost a front wheel, there was an
alternative theory as to the dipping crush marks on the victims’ car.

   The concurrence suggests the State failed to present “other witnesses”
on the question of the defendant’s control of the vehicle. In reality, those
that witnessed the accident did testify about the defendant’s speed exiting
the expressway and were even allowed to “opine” that “it was like
somebody was unconscious. . . .” Another officer at an unrelated traffic
stop “heard the sound of tires screeching on a highway effectively applying
brakes. . . .” This testimony also supports the opinion of Corporal Dooley.

   In short, the jury was served up competing theories for the cause of the
accident with evidence to support those theories. It was the jury’s
responsibility to determine the weight given to that evidence and,
ultimately, the defendant’s guilt. Custer Med. Ctr. v. United Auto. Ins. Co.,
62 So. 3d 1086, 1098 (Fla. 2010) (“[I]t is the function of the jury to weigh
and evaluate the evidence.”).

   For these reasons, I would affirm.


                            *         *         *


                                     24
