Wagner v. State

707 So. 2d 827, 1998 WL 78594
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 1998
Docket96-3444
StatusPublished
Cited by24 cases

This text of 707 So. 2d 827 (Wagner 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
Wagner v. State, 707 So. 2d 827, 1998 WL 78594 (Fla. Ct. App. 1998).

Opinion

707 So.2d 827 (1998)

Arthur WAGNER, III, Appellant,
v.
STATE of Florida, Appellee.

No. 96-3444.

District Court of Appeal of Florida, First District.

February 26, 1998.
Rehearing Denied April 3, 1998.

*828 Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.

LAWRENCE, Judge.

Arthur Wagner III (Wagner) seeks review on direct appeal from his convictions and sentences in two cases of sale of cocaine within 1000 feet of a school, and one case of sale of cocaine. Wagner asserts that the trial court erred in: (1) denying his motion for judgment of acquittal, (2) admitting into evidence a videotape of the alleged drug buys, (3) restricting Wagner's cross-examination of Robert Duncan, the officer in charge of the investigation, (4) granting consolidation of the charges for trial, and (5) imposing a seventy-five year sentence for selling a twenty-dollar rock of crack cocaine as constituting cruel and unusual punishment under article I, section 17, of the Florida Constitution. We affirm.

*829 The facts of this case are as follows. Officer Duncan, an investigator with the Special Investigations Division of the Bay County Sheriff's Office, on December 15, 1995, enlisted the aid of a female confidential informant to make drug purchases. The informant made the purchases from an automobile equipped with a hidden video camera which provided a view of the driver's window. Officer Duncan gave a detailed explanation as to the installation and operation of the camera. He explained the manner in which he mounted a Sony recording device in the trunk of a county-owned vehicle, attached by wire to a camera and microphone positioned on the rear window tray of the vehicle. The camera and lens were covered by a blanket containing a small hole through which the camera lens protruded. He further testified that he tested the apparatus and that it was in good order and was working properly during the time of the drug investigation.

The vehicle was searched and the informant was strip-searched by a female employee before the informant was sent to the purchase area. No contraband or currency was found. Officer Duncan then gave the informant twenty dollars, turned on the video recorder, verbally recorded the date and time, and sent the informant to the purchase area along 16th street. Officer Duncan followed the informant in a separate vehicle, but when approaching Wagner's area on 16th street, he diverted his vehicle to a course on 17th street, parallel with the informant's vehicle. He observed the informant during most of her travel to and from the purchase area, but did not observe the actual transaction for fear of being detected. The videotape showed that the informant stopped the car and remained seated when Wagner approached her and conversed with her through the driver's window. Wagner, within a few seconds of his approach, handed the informant something and she handed him what appeared to be United States currency. The informant, upon return to a prearranged location, presented Officer Duncan with a twenty-dollar rock of cocaine. Officer Duncan then turned off the video camera. After waiting for approximately thirty minutes, Officer Duncan turned the video camera back on, verbally recorded the time and date, gave the informant another twenty dollars, and sent her back to the same area where she made the first purchase. The informant once again returned with a rock of cocaine. This process was repeated a third time under the same circumstances and with the same results. The drug transactions thus ended with three separate purchases of crack cocaine under virtually identical circumstances,[1] occurring over a total period of approximately one hour, and all occurring within the same block on 16th street. The three transactions were videotaped on one reel of tape, and the audio portion reflected the date and time of each of the three transactions.

The informant, after the conclusion of the drug purchases, again was strip-searched by a female employee and the vehicle was searched by Officer Duncan. No contraband or money was found on the informant, or in the vehicle.

At the close of the investigation, Officer Duncan retrieved the videotape from the recording device and kept it in his exclusive custody and control until he presented it to the trial judge at the appropriate time for viewing. There was no evidence that the tape had been altered, edited, or tampered with in any way.

The jury, at trial, was permitted to view the visual portion of the video tape, but was not allowed to hear the audio portion. A witness for the State identified the person on the videotape as Wagner. The informant was unavailable and did not testify.[2] The jury found Wagner guilty of two counts of the sale of cocaine within 1000 feet of a school, and of one count of the sale of cocaine. The trial judge sentenced Wagner, as an habitual violent felony offender, to seventy-five years in prison on the first count, seventy-five years in prison on the second *830 count, and to thirty years in prison on the third count, to run concurrently.

I.

Admissibility of Videotape

We first address the issue relating to the admissibility of the videotape, since it is critical to Wagner's argument concerning the sufficiency of the evidence. The admissibility of photographic evidence falls within the trial court's discretion; the court's decision will not be overturned absent a showing of abuse. Thompson v. State, 565 So.2d 1311, 1314 (Fla.1990); Patterson v. State, 513 So.2d 1257, 1260 (Fla.1987). Wagner argues that the videotape was not properly authenticated because there was no "pictorial testimony" offered. He argues that it was incumbent upon the State to offer testimony of the informant or some other witness who could testify that, based upon his or her personal knowledge, the tape fairly and accurately portrayed the incidents reflected thereon.

Authentication under the "pictorial testimony" theory is one means of authenticating a photograph or videotape; it is not however the exclusive means of authentication. Under the "silent witness" theory, photographic evidence may be admitted upon proof of the reliability of the process which produced the photograph or videotape. As Professor Wigmore explains:

With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the "pictorial testimony" rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which "speaks for itself."

John Henry Wigmore, 3 Evidence in Trials at Common Law, § 790, at 219-20 (Chadbourn rev.1970); see also 2 McCormick on Evidence § 214, at 15 (John William Strong ed., 4th ed.1992). The Florida Supreme Court, in Hannewacker v. City of Jacksonville Beach,

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Bluebook (online)
707 So. 2d 827, 1998 WL 78594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-state-fladistctapp-1998.