Third District Court of Appeal
State of Florida
Opinion filed July 27, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1533
Lower Tribunal No. 14-22398
________________
Steve Austin,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.
Before SHEPHERD, EMAS and SCALES, JJ.
EMAS, J.
Appellant, Steve Austin, appeals from the judgments and sentences for the
offenses of burglary and grand theft. He raises two claims on appeal: the State
during closing argument engaged in improper bolstering of a civilian witness; and
the trial court erred in failing to conduct a Richardson1 hearing and allowing, over
objection, expert testimony from a crime scene investigator whose name was
provided by the State in discovery, but who had not been designated as an expert
witness.
As to the closing argument, we hold that the statements did not constitute
bolstering and the trial court did not err in overruling the defense objections. The
State was discussing the standard jury instructions which list the factors the jury
should consider in weighing the evidence and determining what evidence is
reliable. See Fla. Std. J. Inst. (Crim.) 3.9 (“Weighing the Evidence”).2 The
1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
2 The jury instruction, as read to the jury in this case, provided in pertinent part:
It is up to you to decide what evidence is reliable. You should use
your common sense in deciding which is the best evidence and which
evidence should not be relied upon in considering your verdict. You
may find some of the evidence not reliable, or less reliable than other
evidence.
You should consider how the witnesses acted, as well as what they
said. Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know
the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the
attorneys’ questions?
2
prosecutor thereafter argued what the evidence had shown (or failed to show) as to
these factors, when applied to the witness’ testimony. Read in proper context, the
prosecutor did not personally “vouch” for the witness,3 place the government’s
credibility or prestige behind a witness, or argue or imply the prosecutor was aware
of information, not presented to the jury, bearing on the witness’ credibility,
reliability or motive for testifying.4 Instead, the prosecutor’s argument addressed
why, based upon the jury instructions and the evidence, the jury should conclude
that the witness was neither biased nor mistaken in the testimony he gave at trial.
This is permissible argument. Johnson v. State, 858 So. 2d 1274 (Fla. 3d DCA
2003).
As to the opinions offered by Crime Scene Investigator Formosa, the trial
court properly determined this was permissible lay testimony and not expert
testimony, and that the State was therefore not required to designate Formosa as an
expert witness. 5 This portion of Formosa’s testimony centered on pry marks left
4. Did the witness have some interest in how the case should be
decided?
5. Does the witness’s testimony agree with the other testimony
and other evidence in the case?
3 See, e.g., Jorlett v. State, 766 So. 2d 1226 (Fla. 5th DCA 2000).
4 See, e.g., Valentine v. State, 98 So. 3d 44 (Fla. 2012); Gorby v. State, 630 So. 2d
544 (Fla. 1993).
5 Moreover, Austin did not contend below, or on appeal, that the witness was not
qualified to render an expert opinion on this issue. (Indeed, the witness gave a
pretrial deposition at which the defense questioned him regarding the pry marks
and the tool by which they were likely made.) Rather, the discrete claim is that
3
on a drawer which was forced open and from which several items were taken in
the course of the burglary. Investigator Formosa testified that he processed the
scene and inspected the drawer. He observed the pry marks right next to the
locking mechanism of the drawer and testified that they were made with some type
of tool.6 When asked, Formosa testified: “I don’t know what [type of tool] was
used” to pry open the drawer. He also testified, in answer to further questions, that
the marks “were consistent with,” and “could have been” made by a screwdriver.7
This type of testimony, based upon the personal observation and general
experience of such a witness, has long been recognized as permissible lay
testimony. In Peacock v. State, 160 So. 2d 541 (Fla. 1st DCA 1964), the First
District held that the trial court properly permitted a deputy to testify as a lay
the State committed a Richardson violation by failing to designate the witness as
an expert, as provided by Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i),
resulting in procedural prejudice to Austin in preparation for trial. The trial court
did not conduct a Richardson hearing, concluding that no violation had occurred
because the witness did not offer an expert opinion. Based upon our analysis, we
agree. However, even if the trial court’s ruling was erroneous, we find the failure
to conduct a Richardson hearing was harmless beyond a reasonable doubt. See
Schopp v. State, 653 So. 2d 1016 (Fla. 1995).
6 During the processing of the scene, the witness took photographs of the drawer
and the pry marks. Those photographs were admitted into evidence for the jury to
consider.
7 The purported significance is that, when Austin was arrested at a hotel room
several weeks later, police found a screwdriver on his bed. However, the
screwdriver was never tested nor were any comparisons made between the seized
screwdriver and the pry marks on the drawer. No testimony, lay or expert, was
ever elicited that the pry marks were made by the screwdriver later found in
Austin’s possession.
4
witness regarding his visual comparison of a defendant’s automobile tires with
casts of tire prints found near the scene of the crime. In affirming, the court noted:
One does not have to be specially trained in order to make a visual
comparison of this character. The subject is one upon which an
intelligent person with some degree of experience—qualifications
possessed by the witness—may and should be permitted to testify,
leaving to the jury, as is its exclusive province, the determination of
the credence and weight to be given thereto.
Id. at 543. See also Reynolds v. State, 99 So. 3d 459 (Fla. 2012) (citing Peacock
with approval); Floyd v. State, 569 So. 2d 1225 (Fla. 1990) (citing Peacock with
approval); Jones v. State, 440 So. 2d 570 (Fla. 1983) (citing Peacock with approval
and holding trial court properly admitted lay testimony by experienced police
officer that the mark on the “stash house” window sill was made by the recoil of a
high-powered rifle); L.L. v. State, 189 So. 3d 252 (Fla. 3d DCA 2016). We find
no error in the trial court’s admission of this testimony, which was “within the
permissible range of lay observation and ordinary police experience.” Floyd, 569
So. 2d at 1232.
Affirmed.
5