A judge's ruling on evidence is probably not the last word, says the chief deputy to State Attorney Bernie McCabe.
By CHASE SQUIRES
Published February 19, 2004
DADE CITY - A day after a judge barred prosecutors from using stacks of evidence against Land O'Lakes mother Kristina Gaime, the top deputy at the State Attorney's Office predicted the issue would go to an appeals court before the case gets to trial.
Bruce Bartlett, chief deputy to elected State Attorney Bernie McCabe, said Wednesday there is a "substantial likelihood" the state would seek a higher court's opinion on the ruling issued Tuesday by Circuit Judge Lynn Tepper. Bartlett said he had reviewed the case while McCabe was in Tallahassee on Wednesday.
The first-degree murder case against Gaime, 39, accuses her of killing 6-year-old son Mathew Rotell in what investigators describe as a botched murder/suicide plot. Mathew was found dead in Gaime's minivan.
Investigators say she drugged Mathew and another son, Adam, then 8, with morphine and tried to gas them and herself with the exhaust from her minivan late April 11, 1999, or early the next morning. Gaime and Adam survived.
Tepper on Tuesday blocked the state from using most of what investigators found in the subsequent search of her home. She ruled that the testimony of two detectives was suspect, and that the detective in charge of securing search warrants misled judges.
Among the forbidden items are stacks of letters detectives seized, including one addressed "Dear Police Dept." That letter asks deputies to give other letters to her family, and explains, "I didn't want anyone to find us in time."
Tepper also blocked prosecutors from using as evidence the hose they found in the garage. They think it was used to direct the minivan's exhaust into the cabin, where they say Gaime had placed her sons and gotten inside with them.
Bartlett said he is convinced that there are appealable issues in the judge's ruling. Ultimately, he said, the call lies with McCabe, but he expected him to concur, especially with what is at stake.
"The note to police, among other notes, those are what we would consider to be critical pieces of evidence," he said.
The first step, Bartlett said, would be to ask for a rehearing to at least define the issues more clearly. The next step would be to ask for an appeals court to intervene, he said.
Gaime's trial is set for April 12, but Bartlett said an appeal could hold up that date if necessary.
In making her ruling, Tepper appeared most concerned with the wording Detective Kimberly Norris used in writing sworn statements for Judges Wayne Cobb and Maynard Swanson to review before deciding whether to grant a search warrant.
Tepper was especially critical that Norris reported that detectives had been told Mathew may have died of a drug overdose, without adding that other factors, such as carbon monoxide poisoning, might have been the cause.
Tepper also said it was misleading to tell a judge that Adam had said his mother gave him drugs, without also reporting that he had to be coaxed throughout a lengthy interview and initially said she had not given them drugs.
"No, no, no medicine," he said at one point on a transcript of that interview.
Norris also did not report that Adam told detectives he had a learning disability and could not estimate time or recall events that happened on specific days.
The judge also ruled that Norris could not justify why detectives went beyond the scope of the search warrants she did obtain, seizing items that weren't listed.
Under questioning by defense attorney Lyann Goudie on Tuesday, Norris said she didn't feel she needed a search warrant.
"We had a crime. We don't have to have a search warrant," Norris said on the witness stand. "I had a dead child."
She said her training has been that at the scene of a death investigation, deputies do not need a search warrant.
Tepper also criticized the testimony of lead Detective Brett Landsberg on his discovery of the "Dear Police" letter. Notes or letters were not part of the search warrant. When Landsberg found it in a drawer, removed and read it, he learned there were other letters in the house and alerted other detectives, according to testimony.
Tepper ruled that defense attorney Goudie successfully challenged Landsberg's testimony Tuesday when he said the letter was caught on a drawer as he opened it, and it unfolded in his hand as he searched for drugs.
"It was all one motion," Landsberg said.
In a deposition in 2001, Landsberg testified, "I had to lift it up to look underneath it for drugs, and when I picked it up, I opened it up also."
Since his time as a detective with the Sheriff's Office's crimes against children division, Landsberg has been promoted to a sergeant with the patrol division.
Norris, criticized the most by Tepper's ruling, received mostly positive remarks on her annual reviews in recent years. One credits her effective report writing.
She resigned in June, citing a "need to make a full-time career change," but offered to stay on as a reserve deputy. In January, she was reactivated from reserve to full-time patrol duties.
The St. Petersburg Times reported in 2000 that Norris received a two-day suspension for going to a tanning salon and returning a pair of shoes to a store while on duty. Her personnel file released by the Sheriff's Office on Wednesday makes no mention of that.
Sheriff Bob White was not available for comment Wednesday, but Sheriff's Office spokesman Kevin Doll said the department stands by both detectives, regardless of Tepper's remarks.
"This is one judge's opinion. We respect the judge's opinion, but we stand behind our detectives," Doll said. "This is not the end result of the opinion. That depends on the State Attorney's Office as far as an appeal. We're not trying this case; the state attorney is. This (ruling) could be strengthened if it's appealed, (or) it could be overturned."
