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Evidence against Gaime tossed out

Prosecutors lose an appeal and must decide how to proceed against a woman accused of killing one son in an attempted murder-suicide.

By JAMAL THALJI
Published April 22, 2005

A state appeals court ruling has dealt a devastating blow to the prosecution of Kristina Gaime, the Land O'Lakes woman accused of trying to fatally poison herself and her two sons with car exhaust.

The 2nd District Court of Appeal unanimously affirmed late Wednesday an earlier court decision that threw out much of the state's evidence against Gaime, accused of killing one son and trying to kill another in what authorities call a failed 1999 murder-suicide.

Gaime's legal team beamed Thursday.

"It's a huge victory for all of us who believe in the Constitution," defense attorney Lyann Goudie said.

The prosecution was left stunned.

Pinellas-Pasco State Attorney Bernie McCabe said he was shocked by the one-sided decision and that he has to re-evaluate the prosecution's next move.

"There are very few options," McCabe said.

The appeals court upheld the lower court's ruling per curiam, which means the three-judge panel decided unanimously and chose not to issue an opinion.

"It was per curiam?" said a surprised McCabe.

Without an opinion, McCabe said, the state cannot appeal to the Florida Supreme Court. The state can ask the appeals court for a rehearing within 15 days. Asked if the state would appeal to the U.S. Supreme Court, McCabe said that's "unlikely."

The ruling could free Gaime, 40, while she awaits trial on charges of first-degree murder and attempted murder. She has spent the past six years in the Pasco County jail, held without bail.

Gaime's lawyers filed a motion Thursday afternoon to free her pending trial, either by releasing her on her own recognizance or by setting bail. No hearing has been set.

In February 2004, Circuit Judge Lynn Tepper ruled that Pasco County sheriff's detectives improperly obtained the search warrants used to collect evidence from Gaime's home and questioned their credibility.

The judge said the detectives were too vague in requesting the warrants, exceeded the limits of those warrants and produced conflicting testimony.

In the midst of a custody battle with their father, authorities say, Gaime, then a nurse, drugged her sons, 6-year-old Mathew and 8-year-old Adam Rotell, put them in her minivan, ran in a hose from the exhaust and climbed in with them.

Mathew died April 12, 1999.

Adam survived, and so did an injured Gaime.

The evidence the judge suppressed included letters that authorities have described as suicide notes and the hose authorities say ran from the tailpipe to the cabin.

"I really thought that there were some issues that would have to be resolved," McCabe said, "and resolved in our favor."

Will prosecutors offer a plea deal? Will they still take the case to trial?

"It's way too early for that," McCabe said. "I need to make my own personal evaluation of this case."

Goudie wouldn't discuss a plea agreement, either. She said the defense team has much work to do, including several key depositions, but it's ready to press on.

"We're going to prepare for trial," the attorney said.

This isn't the only setback for prosecutors. In March 2004 a U.S. Supreme Court decision banning hearsay eliminated another key piece of evidence: Adam Rotell's testimony. Detectives testified in depositions that Adam described to them what happened and said his mother gave the boys pills.

What is left of the state's case? Among the evidence still admissible for trial is the autopsy results of Mathew, which show lethal amounts of morphine, the testimony of detectives, and a report from Dr. Michael Maher, the psychologist who interviewed Gaime and said she appeared to confess in 1999.

"I think (prosecutors) are going to view that they have enough evidence to try her on these charges," Goudie said.

McCabe said he needed to review the remaining evidence again before commenting on it.

Arguing before the appeals court in March, Goudie said Pasco sheriff's detectives violated Gaime's Fourth Amendment protections against unreasonable search and seizure.

Six years ago Gaime's parents, Gary and Kathleen McDuffie, first came upon the scene. The state argued that because Gaime was unconscious, needing medical help, that her father had the authority to allow a search of his daughter's property.

Goudie responded then that no one can waive a person's Fourth Amendment rights, and Thursday she again slammed the investigators who built the case against Gaime.

"When you have police officers that believe they can disregard and violate that very important constitutional right because they are somehow above the law, it's a sad day for us all," she said, "and it was apparent from the conduct of these particular Pasco County sheriff's detectives that they had no regard for the Fourth Amendment.

"We should all be offended at that kind of conduct."

Pasco Sheriff Bob White was contacted for comment, but an agency spokesman directed all questions to the State Attorney's Office. Former Sheriff Lee Cannon, who was in charge of the agency in 1999, could not be reached for comment.

Reached at his home Thursday, Stephen Rotell, Gaime's ex-husband and father of the two boys, said he had no comment. Goudie said she told members of Gaime's family not to comment.

In the motion to free her client, Goudie wrote that to continue holding Gaime without bail, the state has to show "a higher degree of proof than required to establish guilt beyond a reasonable doubt."

Without the evidence thrown out by Tepper and the appeals court, Goudie said, the state can no longer do that. The motion said Gaime poses no threat to the community, has no prior criminal history, and if released would live with her parents in Lutz.

Goudie said Gaime learned of the ruling from her parents.

"She's very grateful to God, and she's very happy that Judge Tepper did the courageous thing and followed the law, and that so did the appellate court," Goudie said.

Staff writer James Thorner contributed to this report.

[Last modified April 22, 2005, 00:44:19]