Day v. State

105 So. 3d 1284, 2013 Fla. App. LEXIS 1989, 2013 WL 466218
District Court of Appeal of Florida·Decided February 8, 2013·No. No. 2D11-2110·Published·Cited by 8 cases

Opinion

VILLANTI, Judge.

Latrice Day appeals her conviction for one count of grand theft ($300 or more), contending that the trial court erred by permitting the State to have a police officer identify Day as one of the women [1286] depicted in surveillance video of the crime. While the identification testimony itself was admissible, we agree with Day that the trial court erred by permitting the State to elicit evidence of the witness’s status as a police officer. Therefore, we must reverse and remand for a new trial.

Day was charged with third-degree grand theft after several women entered a Walgreens, loaded their purses with merchandise, and fled the store without paying. Neither the store manager, who witnessed part of the crime, nor any other store employee could identify any of the women; however, the theft was captured on surveillance video. During the investigation of the incident by the Polk County Sheriffs Office, a City of Tampa police detective — Marilyn Lee — happened to see the surveillance video, and she recognized the women from when she worked as a community police officer in the Robles Park area of Tampa. Lee contacted the Polk County Sheriffs Office, and Day and the other women were arrested shortly thereafter.

Prior to trial, Day filed a motion in limine seeking to prohibit the State from having Lee testify as to her identification of Day. Day argued that Lee’s testimony was an improper and unnecessary lay opinion because the jurors could simply watch the surveillance video and determine for themselves whether Day was one of the perpetrators. Day also argued that it was improper for the State to have Lee identify herself as a police officer and testify as to her knowledge of Day because the jurors could infer from that testimony that Day had been involved in prior criminal activity. The trial court denied Day’s motion in limine and permitted Lee to testify.

At trial, the State called Lee as its final witness. The very first question asked by the State was where Lee was employed. Lee responded that she had been employed by the City of Tampa Police Department for twenty-eight years and that she was currently a detective in the latent investigations department. After testifying that she saw the surveillance video on television and recognized Day, the State asked how Lee knew Day. Lee testified that she had recognized Day from “Robles Park,” which Lee explained was a “public housing development ]” in Tampa. Over Day’s renewed objection, Lee testified that she was a “community-oriented police officer” for a period of time and that she handled calls in Robles Park as well as another public housing project. She testified that her job as a community police officer was to get to know the residents, help them feel comfortable with police officers, and help them with calls for police assistance. Lee testified that she recognized Day and the other women involved in the theft because she had “had contact with them” while she was a community police officer. She also testified that she knew some of the women, including Day, only by their street names but that she ultimately identified Day’s legal name “through research and photos that I pulled up ... to match.” Day did not cross-examine Lee, and Day was subsequently convicted as charged.

In this appeal, Day contends that the trial court erred by admitting Lee’s identification testimony, as well as her testimony concerning how she knew Day. We agree in part, and therefore we reverse Day’s conviction and remand for a new trial.

As an initial matter, we disagree with Day’s contention that the trial court erred by allowing Lee to testify to her opinion that Day was one of the women depicted in the surveillance video. This court has held that the State may properly present identification witnesses who are “either eyewitnesses or else capable of independently identifying the individual [1287] from photographs, tape recordings, or similar evidence.” State v. Cordia, 564 So.2d 601, 602 (Fla. 2d DCA 1990) (second emphasis added). The State may introduce such identification testimony when a videotape does not provide clear images of the perpetrators, see, e.g., Hardie v. State, 513 So.2d 791, 792 (Fla. 4th DCA 1987), or simply to support other identification evidence that might be subject to challenge, see Early v. State, 543 So.2d 868, 868-69 (Fla. 5th DCA 1989). Here, Lee testified that she knew Day from when Lee worked in the neighborhood where Day lived. And Day’s defense at trial was misidentifi-cation. Because the store employees were not able to identify any of the perpetrators and because Lee was capable of independently identifying Day, Lee’s testimony was relevant, and the trial court properly admitted it to support the State’s other evidence on the issue of identity.

That said, however, the trial court erred when it permitted the State to also elicit evidence concerning Lee’s position as a Tampa police detective, and this error requires us to reverse and remand for a new trial. While Florida courts have held that police officers may provide in-court lay opinion testimony on the issue of identity, those same courts have held that it is error for the jury to be told that the individuals providing the testimony are police officers. For example, in Hardie, the trial court permitted five Metro-Dade police officers to express their opinions as to the identity of persons — including Har-die — depicted in a surveillance videotape of a smash-and-grab robbery. 513 So.2d at 792. The Fourth District rejected Har-die’s argument that the identification testimony should have been totally excluded, noting that the officers based their testimony on their prior knowledge and contacts with Hardie and that identity was a disputed issue at trial. Id. However, the court reversed Hardie’s convictions and remanded for a new trial because “[t]he trial court should have instructed the state and the witnesses not to divulge the nature of the witnesses’ occupation or the circumstances of their involvement with” him. Id. at 793. The court noted that the disclosure of the fact that the witnesses were police officers made it “inconceivable that the jury would not have concluded that [Hardie] had been involved in prior criminal conduct.” Id. at 793-94.

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Day v. State, 105 So. 3d 1284, 2013 Fla. App. LEXIS 1989, 2013 WL 466218 (Fla. Ct. App. 2013).

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