Bowers v. State

104 So. 3d 1266, 2013 WL 85450, 2013 Fla. App. LEXIS 309
CourtDistrict Court of Appeal of Florida
DecidedJanuary 9, 2013
DocketNo. 4D10-3222
StatusPublished

This text of 104 So. 3d 1266 (Bowers v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers v. State, 104 So. 3d 1266, 2013 WL 85450, 2013 Fla. App. LEXIS 309 (Fla. Ct. App. 2013).

Opinion

WARNER, J.

Appellant challenges his convictions for burglary and criminal mischief. He contends that the court erred in permitting a detective to testify as to his opinion whether an individual on a surveillance video was the appellant. He also argues that the court erred in permitting the state to question him regarding his failure to appear at a previous trial. As to the first claim, the issue was not properly preserved. As to the latter claim, the court did not abuse its discretion in permitting the evidence of flight to avoid prosecution. We thus affirm.

Two men broke into the victim’s home and stole various items. The victim had installed a surveillance camera system throughout the house, and the cameras were able to pick up the two suspects in various locations within the house. The victim provided the video and freeze frames from the tape to the police.

One officer looked at the pictures and videos and was able to identify one of the men from previous contacts. The man he identified was Marvin Woods, appellant’s half-brother. Another detective obtained the video tape and watched it at the police station. He noted that officers watch such videos to try to identify people they might know from their patrols. After watching the video, the detective was unable to identify anybody in the video.

Nevertheless, because the other officer had identified Woods, officers went looking for Woods at the home where appellant lived. When the officers encountered appellant at his home, they arrested him. He made a statement to the officers, identifying himself as one of the men in the video. He admitted helping Woods remove property from the victim’s house.

Prior to going to appellant’s address, another detective looked at a picture of [1268]*1268appellant. At trial, that detective testified that he recognized appellant as being the second person in the video. Appellant’s counsel objected on “speculation” grounds, and the court held a sidebar conference. The court asked the prosecutor, “What is the basis, though, of his ability to make that recognition just from looking comparing a photograph to the video, is that what you’re telling me he did?” The prosecutor responded: “Correct. It’s his belief in looking [ ]at the two that it appeared to him to be the same person. He’s not relying on any expertise or any type of expert opinion at all, just as any layperson giving the opinion.” The court sustained the objection “as being improper predicate at this point in time until more predicate is laid,” but overruled the speculation objection. The court instructed the prosecutor to lay a predicate by making the officer describe the appellant’s features and comparing the similarities between the video and the picture.

The detective continued his testimony, noting that he focused on facial features, stating: “And I’m pretty good at what I do when it comes to watching video and recognizing people just from watching videos.” Appellant’s counsel objected on “bolstering” grounds, and the court overruled the objection. The witness then opined to the jury that the man in the white tank top in the videos and stills was appellant.

At trial, after the state rested, appellant called Woods, who admitted his role in the burglary and that he had pled guilty to all charges. He identified the other person with him as Mit-Mit, and not appellant. Later, in rebuttal, the state recalled the detective who had identified appellant in the video. The detective was familiar with a person named Mit-Mit, but the person on the video was not Mit-Mit.

Appellant also testified in his own defense, denying that he was present in the victim’s home. He only helped Woods move some of the items into their home. When asked why he admitted to detectives that he entered the victim’s house, appellant explained that the detectives were threatening him.

The prosecutor notified the court and defense counsel that on cross-examination he intended to ask appellant about his failure to appear at the prior trial date in order to show consciousness of guilt. Appellant’s counsel objected on relevancy grounds. The court ruled that the question was relevant because it showed an avoidance of prosecution, from which the jury could infer consciousness of guilt. The prosecutor asked appellant about his failure to appear on that first trial date, and appellant stated that he “caught a flat tire,” and did not return for the afternoon of trial or the next two days.

The jury found appellant guilty as charged of all counts. On the burglary charge, the court sentenced appellant to fifteen years in prison as a prison releasee reoffender, consecutive to five years on the grand theft charge, consecutive to another five-year sentence on the criminal mischief charge.

In his initial brief, appellant claims that the court erred in permitting the detective to opine that appellant was one of the individuals on the video. He argues that the objections based upon “speculation” and “bolstering” in effect raised the issue that the detective was invading the province of the jury, because the detective was not an expert and was merely offering lay opinion. Thus, there was no proper predicate for his testimony. The trial court understood the objection to be one based upon improper predicate, because the court sustained the objection based upon that. When the detective gave his [1269]*1269explanation, however, defense counsel did not object as to the nature of the predicate but on “bolstering.”

“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). Even if we were to assume that the proper objection was based upon failure to establish a proper predicate, that objection was sustained, and defense counsel did not object when the state questioned the detective on his analysis of the picture. Counsel objected only when the detective claimed he was good at identifying people. The trial court was not asked to address whether the detective’s testimony invaded the province of the jury. Therefore, it was not given the opportunity to cure any error in admission.

Appellant relies on Ruffin v. State, in which the Fifth District reversed and remanded for a new trial when the trial court allowed testimony of police officers “that in their opinion Ruffin was the man in the videotape” showing the crime. 549 So.2d 250, 251 (Fla. 5th DCA 1989). The court explained:

This was an invasion of the province of the jury. When factual determinations are within the realm of an ordinary juror’s knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury.... [The officers] were not eyewitnesses to the crime, they did not have any special familiarity with Ruffin, and they were not qualified as any type of experts in identification.

Id. (internal citation and footnote omitted). The grounds for the objection made at trial in Ruffin were not stated in the opinion.

Edwards v. State, 583 So.2d 740 (Fla. 1st DCA 1991), relied on Ruffin in a case where the trial court allowed a deputy to testify that the defendant was the person in a videotape of a drug transaction, over the defense objection that it invaded the province of the jury because the officer had no knowledge of the defendant. The

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549 So. 2d 250 (District Court of Appeal of Florida, 1989)
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471 So. 2d 32 (Supreme Court of Florida, 1985)
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79 So. 3d 233 (District Court of Appeal of Florida, 2012)
Harold v. State
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Bluebook (online)
104 So. 3d 1266, 2013 WL 85450, 2013 Fla. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-state-fladistctapp-2013.