       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                             January Term 2014

                   MARCIA PRISCILLA RODRIGUES,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-2287

                               [July 2, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 08CF013334AMB.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant challenges her conviction for first degree murder on two
grounds. First, she claims that the court erred in admitting prejudicial
evidence about her social life and dating history, as well as her son’s
opinions as to her mental state. She argues expert witnesses were
improperly used as “conduits” for this inadmissible evidence. Second, she
objects that the court refused to allow juror interviews or a re-polling of
the jury after a juror expressed concern that the jury did not understand
the jury instructions. Neither issue has merit.

    As to the first issue, the appellant presented an insanity defense, and
both the state and defense presented experts on the issue. Both sides’
experts discussed whether appellant’s son believed she was, essentially,
faking insanity. In a deposition given by the son and reviewed by the
experts, the son wavered as to whether he believed his mother’s mental
illness was genuine. Much of the testimony by the experts to which
appellant objects on appeal was not preserved by a contemporaneous
objection at trial. Although the parties discussed the inadmissibility of the
son’s opinion of his mother’s mental state, the court did not make a
definitive ruling on the issue. The court commented that it seemed that if
it were the son’s opinion, it would not be admissible, but it made no
definitive ruling. “If the court has made a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error for appeal.”
§ 90.104(1)(b), Fla. Stat. (2007) (emphasis added). Here, during the
proffer, appellant failed to obtain such ruling on this issue. See USAA Cas.
Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th DCA 2009). The trial court
did not rule on the specific comments elicited, and appellant failed to
object to them. Thus, her failure to contemporaneously object to this
testimony by the state’s expert means the issue is not preserved for appeal.

   The first time this issue was raised was by the state. Before trial the
prosecutor volunteered that she would not elicit the son’s opinion as to
appellant’s mental state when the son testified at trial. The court
commented, “[I]t seems to me if it’s [the son’s] opinion . . . I mean, clearly
that would be inadmissible.”

   Later, when the state proffered certain testimony by its expert,
appellant argued that the son’s opinion as to whether the crime was
premeditated, as opposed to the result of mental illness, was inadmissible.
When the court noted it was “sensitive” to this concern, the state agreed
not to elicit such testimony. This is not a definitive ruling by the court.
When the state’s expert did nevertheless testify that appellant’s son
questioned the validity of her symptoms, appellant did not object.

   Testimony about the son’s opinion was also elicited from appellant’s
expert during cross-examination by the state. During a proffer of the
cross-examination, appellant objected that the son’s opinion as to his
mother’s mental illness was inadmissible and that the cross-examination
was being used as a conduit to introduce this otherwise inadmissible
evidence. The court ruled the son’s opinion as to the validity of his
mother’s mental illness was not admissible, but allowed the state to ask
appellant’s expert about specific statements appellant made to her son,
which tended to show the killing was premeditated.

   Subsequently, on cross-examination before the jury, appellant’s expert
began to discuss the son’s opinion. Appellant at one point objected,
without stating a specific basis. During sidebar, the state and court
commented that appellant’s expert was volunteering the son’s opinion,
even though the state was not directly eliciting it. Appellant appeared to
agree, commenting that “everything is intertwined” and that the doctor was
attempting to give context to appellant’s statements. Appellant thereafter

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did not object as her expert continued to discuss the son’s opinion through
the remainder of cross-examination. Again, we cannot conclude that the
trial court made a definitive ruling excluding the comments.

    Even if appellant had sufficiently preserved this issue, we find no
reversible error in the admission of this testimony. Although an expert
should not be used as a conduit for inadmissible evidence, this prohibition
is inapplicable when otherwise inadmissible evidence of the facts and data
supporting the expert’s opinion is brought out in cross-examination.
Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 127 (Fla. 4th DCA 2006);
see also § 90.705(1), Fla. Stat. (2007) (“On cross-examination the expert
shall be required to specify the facts or data” on which he or she relied.).
Moreover, there may have been strategic reasons for the lack of objection.
Appellant’s expert testified at length regarding the son’s deposition and
used it to elucidate his own opinion regarding appellant’s sanity. Overall,
we cannot say the trial court abused its discretion in admitting this
testimony.

    With respect to the state’s expert’s testimony about appellant’s social
life and dating history, appellant opened the door to this evidence on cross-
examination. Appellant also failed to object to the state eliciting testimony
on this topic from appellant’s expert on cross-examination. Even if this
issue was preserved, the trial court did not abuse its discretion in allowing
such testimony, because it is appropriate to inquire into the factual basis
of an expert’s opinion on cross-examination. See Hayes, 933 So. 2d at
127.

   On the second issue, the jury was polled at appellant’s request prior to
the recording of the verdict. After their discharge, and based upon a
voluntary conversation with some of the jurors, appellant filed a motion to
re-poll the jury. The court properly denied the request. See Fla. R. Crim.
P. 3.450 (“[N]o motion to poll the jury shall be entertained after the jury is
discharged or the verdict recorded.”); Simpson v. State, 3 So. 3d 1135,
1142-43 (Fla. 2009). Further, the trial court did not err in denying a
motion to interview the jurors, because the matters upon which an
interview was sought, namely the jurors’ understanding of the jury
instructions and verdict form, inhered in the jury verdict. See Johnson v.
State, 593 So. 2d 206, 210 (Fla. 1992) (questions about “the jury’s
understanding of the court’s instructions” were improper because they
concerned matters inhering in the verdict); see also Simpson, 3 So. 3d at
1144 (claim that jurors misunderstood jury instructions is clearly a matter
that inheres in jury verdict).

   The conviction and sentence are affirmed.

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DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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