Bryant v. State

810 So. 2d 532, 2002 WL 100414
CourtDistrict Court of Appeal of Florida
DecidedJanuary 28, 2002
Docket1D00-3698
StatusPublished
Cited by11 cases

This text of 810 So. 2d 532 (Bryant 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
Bryant v. State, 810 So. 2d 532, 2002 WL 100414 (Fla. Ct. App. 2002).

Opinion

810 So.2d 532 (2002)

Veleka BRYANT, Appellant,
v.
STATE of Florida, Appellee.

No. 1D00-3698.

District Court of Appeal of Florida, First District.

January 28, 2002.
Rehearing Denied March 19, 2002.

*533 Harold S. Richmond and Grant Dearborn, Quincy and Michael R. Reiter, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Veleka Bryant appeals three convictions for child abuse, having been acquitted on two other counts. The only evidence the jury saw that crimes had occurred was an edited videotape excerpt with multiple "enhancements" that the state had made for purposes of trial. When the state offered the edited, fully enhanced excerpt at trial, defense counsel objected that he had not seen it before or even known of its existence, and sought a continuance so that a defense expert could examine the excerpt, compare it to the originals, and evaluate the state's expert's testimony about the alterations. Concluding that admitting this excerpt, over objection on best evidence grounds, without granting the motion for continuance (or comparing the excerpt with the originals) was error, we reverse and remand for a new trial.

*534 I.

The state adduced evidence linking the edited, fully enhanced excerpt to time lapse videotapes removed from the toddler room at Color Me Kids, Inc. Day Care Center. One of the daycare center owners testified that, after receipt of an anonymous tip, a time lapse camera had been installed in the toddler room on June 15, 1999. After removing videotapes from this camera two days later and viewing them, she testified, the owners gave the tapes, unaltered, to Detective Bruce Gaines of the Leon County Sheriffs Office.

Detective Gaines testified that he gave the tapes to State Attorney's Office Investigator Jimmy Anderson, still unaltered. Investigator Anderson testified that he gave the tapes in turn to Carl Knowles, a videographer the state retained, in the same condition in which he received them. Finally, Mr. Knowles testified as an expert that, in creating the initial, partially enhanced (joint[1]) excerpt and later the edited, fully enhanced excerpt of the original time lapse videotapes, he did not alter the original tapes, which were received in evidence at trial. He described the process he testified he used to create the edited, fully enhanced excerpt in some detail, and testified that none of the original images had been distorted.

Defense counsel objected that he had never seen the edited, fully enhanced excerpt, had been unaware of its existence, and had been affirmatively misled to believe that the state was going to offer a different videotape consisting of portions of a partially enhanced, joint excerpt he had viewed.[2] Defense counsel also asked the trial court for a continuance in order to obtain a defense expert to evaluate the state's expert's testimony. Finally, defense counsel objected that the edited, fully enhanced excerpt was inadmissible under the decision in Wagner v. State, 707 So.2d 827 (Fla. 1st DCA 1998) and the best evidence rule. See § 90.952, Fla. Stat. (2000) ("Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording or photograph.").

The trial court was initially under the impression that "the tapes in question here have been disclosed,"[3] and did not conduct *535 a hearing pursuant to Richardson v. State, 246 So.2d 771, (Fla.1971). The trial court did, however, declare a recess so that defense counsel could view the edited, fully enhanced excerpt. Whether the trial judge joined counsel in watching the edited, fully enhanced excerpt before overruling the defense objections to its admission is unclear from the record. What is clear is that neither the trial court nor defense counsel had viewed the original, time lapse videotapes.[4]

The jury, who viewed the edited, fully enhanced excerpt during the trial, interrupted their deliberations to ask to see the original time lapse tapes, as well. After consulting counsel and in their presence, the trial judge responded:

Let me advise you, we have consulted with the defense and consulted with the State. We do not physically have the ability or the equipment at this time to play the Exhibits 2-A and 2-B [the original, time lapse videotapes]. And we are not sure what or how long it would take to find that equipment or if it would be possible to obtain that tonight. So at this time we do not have the capability and the special machinery to play 2-A and 2-B.

He also informed the jury that they could watch the edited, fully enhanced excerpt tape again. The trial court evidently relied on counsel's representations concerning the need for and unavailability of special equipment for viewing the original, time lapse videotapes.[5]

II.

A videotape, like a still photograph, may be admissible "if relevant to any issue required to be proven in a case," State v. Wright, 265 So.2d 361, 362 (Fla. 1972), "unless it is barred by a rule of exclusion or its admission fails a balancing test to determine whether the probative value is outweighed by its prejudicial effect." Rose v. State, 787 So.2d 786, 794 (Fla.2001). "The rule governing admissibility into evidence of photographs applies with equal force to the admission of motion pictures and video tapes. Grant v. State, *536 171 So.2d 361 (Fla.1965)." Paramore v. State, 229 So.2d 855, 859 (Fla.1969), vacated as to sentence only, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); see § 90.951(2), Fla. Stat. (2000) ("`Photographs' include still photographs, X-ray films, videotapes, and motion pictures.").

A.

The proponent of a photograph must be prepared to establish as a predicate for its admission that the photograph fairly and accurately represents what it purports to depict. Only if a "picture ... i[s] verified as a true representation of the subject about which testimony is offered, is [it] admissible in evidence." Adams v. State, 28 Fla. 511, 10 So. 106, 113 (1891). "Any witness with knowledge that [a still photograph or a videotape] is a fair and accurate representation may testify to the foundational facts...." Charles W. Ehrhardt, Florida Evidence, § 401.2, at 114 (2001 Ed.). A witness (who need not have been the photographer) who saw what a photograph portrays can testify to the photograph's fairness and accuracy. See, e.g., Hillsborough County v. Lovelace, 673 So.2d 917, 918 (Fla. 2d DCA 1996). In the present case, nobody who was in the toddler room when the time lapse videotape recordings were made testified.

B.

If no witness who is available has seen what a videotape or a photograph depicts, proof of surrounding circumstances may nevertheless "be sufficient for the court to find that the photograph is a fair and accurate representation of a material fact." Ehrhardt, supra, § 401.2, at 114. This approach reflects resort to the so-called "silent witness" theory, see generally Hannewacker v. City of Jacksonville Beach, 419 So.2d 308, 311 (Fla.1982), which entails proof of foundational facts establishing the reliability of the process that yielded the photographic images, taking into account the following factors:

(1) evidence establishing the time and date of the photographic evidence;

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Bluebook (online)
810 So. 2d 532, 2002 WL 100414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-state-fladistctapp-2002.