THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
RICO JOHNSON,
Appellant,
v. Case No. 5D15-2721
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed April 7, 2017
Appeal from the Circuit Court for
Seminole County,
Debra S. Nelson, Judge.
James S. Purdy, Public Defender, and
Matthew Funderburk, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.
TORPY, J.
Appellant, Rico Johnson, challenges his conviction for conspiracy to traffic in
cocaine. Among other claims, he argues that the trial court erred by permitting police
officers to give opinion testimony identifying his and a co-conspirator’s voices on
intercepted telephone calls. He argues that because the police officers lacked any “prior
special familiarity” with his voice, as witnesses to the crime or otherwise, admitting their
testimony invaded the province of the jury. Based on our conclusion that the trial court
did not abuse its discretion in admitting the voice identification testimony, and that the
other claims of error do not merit discussion, we affirm.
In September 2014, the City/County Investigative Bureau in Seminole County (the
“CCIB”) began investigating the sale and distribution of cocaine that allegedly involved
Appellant, co-conspirator Edward Howard, Jr., and more than one hundred other
suspects. A wiretap on Howard’s telephone allowed the CCIB to record calls and receive
data about intercepted phone calls, including the date and time of the call, whether it was
an incoming or outgoing call from the wiretapped phone, and the numbers dialed by the
wiretapped phone. The investigating agents correlated the suspects’ names with phone
numbers and video surveillance of them and relayed that information to Agents Matt
Scovel, the lead investigative agent, and Kevin Pederson, the administrator of the
software system that intercepted the phone calls. During the investigation, Agents Scovel
and Pederson listened to thousands of intercepted phone calls involving the suspects.
Based on the intercepted phone calls, the CCIB executed a search warrant at
Howard’s home on a day it suspected that Appellant would be delivering a supply of
cocaine. Although cannabis and cash were found in the home, they found no cocaine.
During the search, Agent Scovel spoke with Appellant for approximately five minutes but
Agent Scovel “did most of the talking” because Appellant “felt uncomfortable talking to
[him].” At the same time, Agent Pederson had a five-minute conversation with Howard,
who spoke for approximately half of the time. This was the only time that either agent
personally spoke with Appellant or Howard. Based on the intercepted phone calls,
sixteen suspects, including Appellant and Howard, were eventually arrested and charged
with conspiracy to traffic in cocaine.
2
At trial, the State called Agents Scovel and Pederson to identify Appellant’s and
Howard’s voices, respectively, on the recorded phone calls. Agent Scovel testified that
he recognized Appellant’s voice from the intercepted phone calls, their conversation at
the time of the search, and a DVD recording of a hearing where Appellant testified for
approximately twenty minutes. That recording was not entered into evidence at
Appellant’s trial or played for the jury. Agent Pederson testified that he recognized
Howard’s voice from the intercepted phone calls and their conversation at the time of the
search. The State later played several phone calls for the jury in which Appellant,
Howard, and other suspects allegedly discussed drug transactions in coded terms.
According to Agent Scovel’s testimony, the coded calls involved discussions between
Howard and Appellant, and between Howard and other co-conspirators, about buying
and selling cocaine, the amounts of and prices for the cocaine, the availability of buyers,
and plans to meet to exchange the cocaine for money.
Voice identification testimony has been utilized in this state in criminal prosecutions
since at least 1907. See Mack v. State, 44 So. 706 (Fla. 1907). The origins of this form
of identification date back to the year 1660.
Id. at 708. In Mack, the victim was attacked
from behind in the dark of night. Before the victim lost consciousness from being choked
by her assailant, the assailant uttered twelve words. The victim positively identified the
defendant as her attacker after recognizing his voice in a post-crime show-up. The Florida
Supreme Court affirmed the conviction despite a challenge to the reliability of this form of
evidence.
Id. at 709-10.
Twenty-three years later, the Florida Supreme Court again considered the
admissibility of voice identification testimony. In Martin v. State, 129 So. 112 (Fla. 1930),
3
the defendant was in the victims’ presence in a dimly lit room for about five minutes.
Characterizing the later voice identification of the defendant by the two victims as “direct
and positive proof” of identity, the supreme court emphasized that this form of evidence
is ordinarily admissible despite threshold challenges to its credibility, leaving for the jury
to decide its probative value. Martin, 129 So. at 115.
Indeed, a cursory review of decisions in this and other jurisdictions reveals
hundreds of cases involving brief encounters between the victim of a crime and a
defendant under circumstances where the defendant can be identified only by voice
comparison. In the typical situation, the spoken words are few and the victim had no prior
familiarity with the defendant’s voice before making the identification. The courts have
uniformly approved the admission of this form of evidence, concluding that the jury should
determine its credibility.
In a more recent case, Macias v. State, 673 So. 2d 176 (Fla. 4th DCA 1996), a
nighttime battery and strong-arm robbery took place over a span of between two and ten
minutes. The victim was unable to see the defendant’s face but identified him based on
his voice. The defendant uttered about thirty words during the crime. Thirty-two days
after the crime, police played for the victim a tape-recorded interview with the defendant.
The victim positively identified the defendant's voice as that of the assailant. The taped
interview used as the exemplar lasted only three minutes, during which time the police
did the majority of the talking. Although much of the recording was unintelligible, the
defendant could be heard uttering the words: “I’m not going to be railroaded again.”
Macias,
673 So. 2d at 179. Three months after the crime, the victim again made a voice
identification of the defendant after hearing him speak at a pretrial bond proceeding.
4
draw same conclusion). In Ruffin, we concluded that the opinion testimony would not be
helpful because the jury could look at the surveillance tape and compare it to the
defendant as he appeared in the courtroom—the same comparison upon which the police
officers based their opinions. Because the comparison required no special expertise, the
use of this evidence, especially from witnesses in positions of authority, was unfairly
prejudicial. Alvarez was similarly premised. In that case, the police witness simply
interpreted a surveillance video. The Fourth District emphasized that the officer was in
no better position than the jury to render the opinion. Accordingly, it reversed the
conviction based on the erroneous admission of the opinion evidence. Alvarez, 147 So.
3d at 542-43. Central to an understanding of Alvarez was its discussion of Johnson v.
State, 93 So. 3d 1066, 1069 (Fla. 4th DCA 2012), which it distinguished because, in
Johnson, the defendant’s appearance had changed before trial, and the police
identification witness had observed the defendant after the crime occurred but before he
changed his appearance. Id. at 542.
The dissent seems to dispute that “helpfulness” is a predicate for the admission of
lay opinion testimony, claiming that this concept is erroneously derived from federal cases
construing federal rule 701 and from Alvarez, which it calls into doubt as a pre-Evans
case. Although the word “helpfulness” does not appear in the Florida code, that the
concept is implicit in the Florida code was confirmed in Alvarez, the holding of which is
well grounded in authoritative works. See Ehrhardt, supra, at § 701.1 n.2; Wigmore,
supra, at §§ 1917-18; see also Ehrhardt, supra, at § 102.1 (explaining that most
differences between Florida code and federal rules were intended to clarify and “not
intended to change the substance of the Federal Rule”). Alvarez preceded Evans, but it
8
circumvent the intent of the evidence code to allow the state to disadvantage the jury by
withholding tangible evidence in its possession so as to justify the use of otherwise
inadmissible lay testimony. Simply put, Evans is a case where the police merely
compared one recording to another, an exercise that was well within the province of the
jury, had it been given the opportunity to do so. 3
In Bush, the Tenth Circuit addressed both authentication and the “helpfulness”
predicate of lay opinion testimony in the context of a police officer’s voice identification
testimony. The Bush court’s discussion of the “helpfulness” predicate is particularly
instructive and illustrates the distinction we highlight here between helpful and unhelpful
lay opinion testimony:
Mr. Bush relies on United States v. LaPierre, 998 F.2d 1460
(9th Cir. 1993). LaPierre is distinguishable from the instant
case, if not inapposite. In LaPierre, a police officer
investigating bank robberies allegedly committed by the
defendant identified him in bank surveillance photographs. Id.
at 1465. The Ninth Circuit held that because the jury could
view the photographs and identify the perpetrator, the officer's
testimony “ran the risk of invading the province of the jury and
unfairly prejudicing” the defendant. Id. Based in part on this
reasoning, the court discouraged the use of lay opinion
identification testimony. Id. We are not convinced that
LaPierre applies here or furthers Mr. Bush's argument in any
manner.
In LaPierre, the testifying officer, like the jury members,
had never seen the defendant in person before the trial. Id. In
essence then, the officer's identification of the defendant was
no different from what the jury members themselves were
required to do in comparing the surveillance photographs to
the defendant in the courtroom. As a result, the court
concluded the officer's overall level of familiarity with the
defendant's appearance fell short of the standard of
helpfulness required by Rule 701. Id. By contrast, Detective
3The outcome might be different in a case where the defendant is successful in
objecting to the state’s attempts to offer the exemplar into evidence.
10
authenticate voice; minimal familiarity sufficient); United States v. Axselle, 604 F.2d 1330,
1338 (10th Cir. 1979) (agent permitted to identify defendant’s voice in single phone call
after hearing his voice in court on one occasion); Vilsaint v. State,
127 So. 3d 647, 650
(Fla. 4th DCA 2013) (detective permitted to authenticate defendant’s voice on tape based
on ten-to-fifteen-minute discussion after his arrest; credibility of identification for jury to
determine). The threshold for authentication is low because the trier of fact makes the
ultimate determination of whether the evidence is genuine. C. Ehrhardt, Florida Evidence
§ 901.1 (2016 ed.).
That Evans is not an authentication case is made clear by the court’s express
holding that the “lead detective usurped the role of the jury by being permitted to opine
that a voice heard on a 911 call-back recording belonged to the defendant.” Evans, 179
So. 3d at 1224. Evans also distinguished, but did not overrule, the main precedent upon
which the dissenting justices relied, Vilsaint v. State, 127 So. 3d 647 (Fla. 4th DCA 2013),
which it labeled as a “case [that] concerns a trial judge’s determination of whether the
recording can be authenticated and thus presented to the jury.” Evans, 177 So. 3d at
1230. In Vilsaint, a police detective authenticated the defendant’s voice on a tape
recording based upon a brief face-to-face interview during which the defendant spoke
only thirty-six words, most of which were “yes” or “no.”
127 So. 3d at 649.
Rather than authenticity, the evidentiary error in Evans involved section 90.701,
Florida Statutes, which addresses the circumstances under which lay opinion testimony
is admissible. One central tenet of this statute is that the testimony must be helpful to the
jury in determining a fact at issue. See Ehrhardt, supra, at § 701.1 n.2; 7 Wigmore,
Evidence §§ 1917-18 (Chadbourn rev. 1978) (lay opinions are inadmissible when jury can
7
draw same conclusion). In Ruffin, we concluded that the opinion testimony would not be
helpful because the jury could look at the surveillance tape and compare it to the
defendant as he appeared in the courtroom—the same comparison upon which the police
officers based their opinions. Because the comparison required no special expertise, the
use of this evidence, especially from witnesses in positions of authority, was unfairly
prejudicial. Alvarez was similarly premised. In that case, the police witness simply
interpreted a surveillance video. The Fourth District emphasized that the officer was in
no better position than the jury to render the opinion. Accordingly, it reversed the
conviction based on the erroneous admission of the opinion evidence. Alvarez, 147 So.
3d at 542-43. Central to an understanding of Alvarez was its discussion of Johnson v.
State, 93 So. 3d 1066, 1069 (Fla. 4th DCA 2012), which it distinguished because, in
Johnson, the defendant’s appearance had changed before trial, and the police
identification witness had observed the defendant after the crime occurred but before he
changed his appearance. Id. at 542.
The dissent seems to dispute that “helpfulness” is a predicate for the admission of
lay opinion testimony, claiming that this concept is erroneously derived from federal cases
construing federal rule 701 and from Alvarez, which it calls into doubt as a pre-Evans
case. Although the word “helpfulness” does not appear in the Florida code, that the
concept is implicit in the Florida code was confirmed in Alvarez, the holding of which is
well grounded in authoritative works. See Ehrhardt, supra, at § 701.1 n.2; Wigmore,
supra, at §§ 1917-18; see also Ehrhardt, supra, at § 102.1 (explaining that most
differences between Florida code and federal rules were intended to clarify and “not
intended to change the substance of the Federal Rule”). Alvarez preceded Evans, but it
8
is clearly not in tension with Evans. It reached the same conclusion as Evans and Ruffin
(upon which Evans principally relied), reversing the conviction based on inadmissible lay
opinion. Nevertheless, even if the dissent is correct that “helpfulness” is not a predicate
for the admission of lay testimony under the Florida code, the elimination of this implied
predicate would authorize a more liberal rule for the admission of lay testimony under
Florida law, not the contrary as the dissent implies.
The dissent also makes a vague assertion that section 90.701 and federal rule 701
have been “interpreted differently.” Because Evans does not mention either section
90.701 or any federal precedents, we assume the dissent’s argument is that federal
precedents construing rule 701 were implicitly rejected in Evans. Besides the lack of
textual support for this argument, it contravenes a prior express directive from the
supreme court that the Florida Evidence Code “should be construe[d] . . . in accordance
with federal court decisions.” Moore v. State, 452 So. 2d 559, 561-62 (Fla. 1984).
Evans is a logical application of Ruffin and Alvarez. In Evans, the state made the
decision not to offer the exemplar telephone recordings into evidence. Had the recordings
been admitted, Evans would have been directly, factually analogous to Ruffin and
Alvarez. 2 The jury would have been able to make the same comparison that was made
by the police because the police enjoyed no expertise or special familiarity with the voice.
Because the state made the decision not to give the exemplar to the jury, the Evans court
treated it as an invasion-of-the-province-of-the-jury case. In other words, it would
2 Arguably, a distinction can be made between visual identification cases and voice
identification cases. In the former, unless the defendant changes his appearance before
trial, the jury can see him in person in the courtroom and compare his appearance to the
image on a photograph or video tape. In a voice case, unless the defendant testifies, the
jury is left to compare the incriminating recording to a recorded exemplar.
9
circumvent the intent of the evidence code to allow the state to disadvantage the jury by
withholding tangible evidence in its possession so as to justify the use of otherwise
inadmissible lay testimony. Simply put, Evans is a case where the police merely
compared one recording to another, an exercise that was well within the province of the
jury, had it been given the opportunity to do so. 3
In Bush, the Tenth Circuit addressed both authentication and the “helpfulness”
predicate of lay opinion testimony in the context of a police officer’s voice identification
testimony. The Bush court’s discussion of the “helpfulness” predicate is particularly
instructive and illustrates the distinction we highlight here between helpful and unhelpful
lay opinion testimony:
Mr. Bush relies on United States v. LaPierre, 998 F.2d 1460
(9th Cir. 1993). LaPierre is distinguishable from the instant
case, if not inapposite. In LaPierre, a police officer
investigating bank robberies allegedly committed by the
defendant identified him in bank surveillance photographs. Id.
at 1465. The Ninth Circuit held that because the jury could
view the photographs and identify the perpetrator, the officer's
testimony “ran the risk of invading the province of the jury and
unfairly prejudicing” the defendant. Id. Based in part on this
reasoning, the court discouraged the use of lay opinion
identification testimony. Id. We are not convinced that
LaPierre applies here or furthers Mr. Bush's argument in any
manner.
In LaPierre, the testifying officer, like the jury members,
had never seen the defendant in person before the trial. Id. In
essence then, the officer's identification of the defendant was
no different from what the jury members themselves were
required to do in comparing the surveillance photographs to
the defendant in the courtroom. As a result, the court
concluded the officer's overall level of familiarity with the
defendant's appearance fell short of the standard of
helpfulness required by Rule 701. Id. By contrast, Detective
3The outcome might be different in a case where the defendant is successful in
objecting to the state’s attempts to offer the exemplar into evidence.
10
Bench conducted face-to-face conversations with Mr. Bush on
at least three occasions and engaged in several phone
conversations with J.R. The jury was denied an opportunity to
engage in any comparison of Mr. Bush's voice to that of J.R.
because Mr. Bush exercised his right not to testify at trial and
only limited recordings were available from the phone
conversations. Detective Bench's testimony was therefore
helpful because it assisted the jury in determining a fact issue
that was otherwise hampered by Mr. Bush's constitutionally
protected silence at trial. The district court's ruling regarding
the admissibility of Detective Bench's lay opinion testimony
was not an abuse of discretion.
Bush, 405 F.3d at 917–18 (footnote omitted).
The holding in Evans embraces the same distinction drawn by the Bush court by
limiting the use of lay identification testimony to circumstances where the identification
witness was an eyewitness to the crime or demonstrates a “prior special familiarity” with
the defendant’s voice. Evans, 177 So. 3d at 1229. In both of these scenarios, the
identification witness has an advantage over the jury. An “eyewitness” to a crime has
direct contact with the criminal, giving rise to a unique opportunity for sensory perception.
Accordingly, even when a surveillance tape of the defendant during the commission of
the crime is played for a jury, the “eyewitness” may still give an identification opinion
because the personal contact during the event gives the witness a distinct perspective.
“Prior special familiarity” also involves a witness with some advantage over the jury,
gained by personal contact with the defendant, apart from that which the jury could
experience in the courtroom.
In this case, the identification testimony satisfies both criteria. Agents Scovel and
Pederson were “witnesses” to the crime. We do not interpret the term “eyewitness,” as
used in Evans, to exclude witnesses who hear, rather than see, the crime. Indeed, voice
identification usually involves witnesses who did not see the criminal. And, there is
11
seldom an “eyewitness” to a conspiracy, which, by definition, merely involves an
agreement to commit a crime. Unlike Evans, where the officers became involved in the
investigation after the crime was completed, here, the agents were witnesses to the
conspiracy as it unfolded. Unlike the typical property crime or crime of violence, a
conspiracy is an ongoing crime that might span days, weeks, months, or years. Here, the
conspiracy did not end until the conspirators were apprehended. During the course of
the conspiracy, the agents listened to thousands of conversations, culminating in the
discovery of a probable place and time for the exchange of drugs and money. 4 That place
was later identified as belonging to Howard. After studying the voices of the conspirators
over an extensive period of time, the agents had the opportunity to confront the
conspirators and hear their voices in person. As witnesses, under Evans, it was not
inappropriate for the jury to receive their lay opinions.
Even if the officers here were not “eyewitnesses,” as contemplated by Evans, we
view this as a “prior special familiarity” case. What this means in the context of section
90.701 is that, prior to trial, the identification witness must have gained familiarity with the
defendant that assists the witness in identifying him as the perpetrator and which the jury
cannot itself acquire. Johnson is an example of a case where the police identification
witness had “prior special familiarity.” Although the jury had the ability to compare the
4 The dissent emphasizes that Agent Scovel did not actually listen to the intercepts
until after they were recorded. Whether the agents heard the mechanically intercepted
voices during or after the conversation seems to us a formalistic distinction having no
effect on the reliability of the voice comparison. The point we emphasize is that, under
the Evans construct, the agents were clearly investigating the crime while it was in
progress. The investigation culminated in the search and arrests, in which Agent Scovel
personally participated. This was not a case like Evans, where the police participation
came after the crime was completed.
12
surveillance video with the defendant's in-court appearance, his appearance had
changed since the taking of the video and the police identification witness had observed
him before he changed his appearance but after the crime. The fact that the “prior”
knowledge came after the crime was committed, but before the trial, was inconsequential
to the holding in that case. Bush and Vilsaint are examples of “prior special familiarity” in
the context of voice identification. In Bush, the personal contact between the police officer
and the defendant was not capable of replication for the jury because the defendant did
not testify. Vilsaint is similar to Bush. There, the police identification witness had personal
contact with the defendant during the booking process. Here, like in Bush and Vilsaint,
the agents’ personal contact with the co-conspirators was the type of identification
testimony that could help the jury in identifying the voices on the tapes. This is clearly not
a case like Evans, Ruffin or Alvarez, where police simply performed an after-the-fact
comparison between two recordings, offering nothing additional to aid the jury.
The dissent’s central argument—that Evans sets a “heightened” standard for the
admission of voice identification testimony to foster greater reliability—is a straw man
argument that confuses the holding of the case. Evans did not compel the exclusion of
the tangible recordings or condemn this method of identification. The upshot of Evans is
that the jury must compare the recordings, unpersuaded (or unassisted) by duplicative
lay opinions. At best, the danger of misidentification is unaffected by the exclusion of the
lay opinion evidence.
The dissent’s characterization of Evans as a reliability heightening case also
conflates the distinct evidentiary concepts at issue in voice identification cases, each of
which is rooted in a distinct policy. The prohibition against suggestive show-up methods—
13
not at issue here—protects against tainted identifications and promotes reliability.
Authenticity too establishes a minimal threshold for reliability but is also not at issue here.
By contrast, the “helpfulness” predicate for lay opinion testimony has nothing to do with
the accuracy of the opinion. It is grounded in a policy against invading the jury’s province.
See Wigmore, supra, at §§ 1917-18. As the Evans court emphasized, especially when
the inadmissible lay opinions are offered by persons in positions of authority like police
officers, the admission of these unhelpful lay opinions creates the enhanced risk that the
jury might give undue deference to the lay opinions. Adherence to the “helpfulness”
predicate, while not logically bearing on the reliability of the identification, fosters the
distinct goal of jury independence. See Evans, 177 So. 3d at 1230.
Even if we indulge the dissent in a debate over reliability of the identification
evidence, we conclude that the identity evidence presented here was no less reliable than
in the vast majority of cases where identification is an issue. The fact that the duration of
the post-arrest, personal contact was brief is not a distinguishing feature of this case that
affects the admissibility of the evidence. Many, if not most, identification cases, voice or
otherwise, involve brief encounters during the crime and/or during the post-crime
identification process. In Macias, for example, the assailant uttered about thirty words
during the encounter with the victim. Thirty-two days later the victim identified him from
a three-minute recording, during which, like the face-to-face interview here, the defendant
spoke very few words. Vilsaint too involved brief personal contact with the defendant by
police during the booking process, after his arrest.
Buttressing the opinion testimony here was the additional circumstantial evidence
gleaned from the content of the conversations themselves. From these conversations,
14
the universe of suspects was considerably narrowed. Police became aware of a probable
exchange at a particular place and time. When the police converged on the place, later
confirmed to be Howard’s house, Appellant and Howard were present. This circumstantial
evidence of identity supported the opinion testimony offered at trial. It was for the jury to
decide whether the totality of the identity evidence satisfied the high burden of proof for a
criminal conviction. See Manson, 432 U.S. at 116 (“Juries are not so susceptible that they
cannot measure intelligently the weight of identification testimony that has some
questionable feature.”).
AFFIRMED.
COHEN, C.J., concurs.
ORFINGER, J., concurs in part, and dissents in part, with opinion.
15
ORFINGER, J., concurring in part, and dissenting in part. Case No. 5D15-2721
The holding of Evans v. State, 177 So. 3d 1219, 1229 (Fla. 2015), is clear: the
“testimony that a witness recognizes the voice of the accused is inadmissible . . . unless
the testifying witness (1) was an eyewitness to the crime, (2) has some prior special
familiarity with the voice of the defendant, or (3) is qualified as an expert in identification.” 5
Because I conclude the majority misapplies this holding, I respectfully dissent. 6
The legal system relies heavily on witness identifications for investigating and
prosecuting crimes. However, identification errors are the leading cause of false
convictions. Cindy E. Laub, Lindsey E. Wylie & Brian H. Bornstein, Can the Courts Tell
an Ear from an Eye? Legal Approaches to Voice Identification Evidence, 37 Law &
Psychol. Rev. 119, 119 (2013). Because reliability is the linchpin in determining the
admissibility of identification testimony, Manson v. Brathwaite, 432 U.S. 98, 114 (1977),
and the role of witness identification is so important, especially when there is no physical
evidence, the Florida Supreme Court limited the witnesses able to give opinion testimony
about the identity of a recorded voice in Evans. See C. Ehrhardt, Fla. Evidence § 901.6
(2016 ed.).
To ensure the reliability of opinions presented to the jury, Evans raised the
standard for a voice identification by requiring the witness offering an opinion on the
identity of a speaker to be either an eyewitness or a witness with prior special familiarity
5 The Florida Supreme Court decided Evans after Johnson’s trial.
6 I concur with the majority that Johnson’s other claims of error lack merit.
16
with the voice. 7 As a result, Evans demands more than did the earlier cases relied on by
the majority. In an effort to satisfy the Evans construct, the majority contends that Agent
Scovel either was an eyewitness to the crime (a position not advanced by the State) or
had sufficient prior special familiarity with Johnson’s voice to be able to reliably identify it
on the recordings. I disagree with both contentions.
First, with respect to the majority’s position that Agent Scovel was an eyewitness,
an eyewitness is someone who personally sees an event and can describe it later.
Eyewitness, Black’s Law Dictionary (10th ed. 2014); see also Earwitness, Black’s Law
Dictionary (10th ed. 2014) (defining earwitness as witness who testifies about something
he or she heard, but did not see). I do not dispute that Agent Scovel listened to the tapes
of the recorded telephone calls or that the tapes were properly authenticated. But the
question here is not one of authentication; it is whether Agent Scovel is able to reliably
opine—either as an eyewitness or as a witness with prior special familiarity with
Johnson’s voice—that he recognized Johnson’s voice on the tape. 8 Agent Scovel was
not present when the calls were recorded, and did not observe Johnson speaking on the
phone while simultaneously listening to the calls. Had that occurred, arguably, he could
be considered an eyewitness. But, with the exception of one brief personal conversation
with Johnson, Agent Scovel was in no better position to identify the voice on the
recordings than anyone else who listened to the tapes and the recording of Johnson’s
pretrial testimony.
7 Expert testimony is also permitted by Evans, but is not an issue in this case.
8 Because this case concerns lay opinion testimony, I need not distinguish Vilsaint
v. State, 127 So. 3d 647 (Fla. 4th DCA 2013), which the majority concedes is a case
regarding authentication. See slip opinion at 7.
17
The majority’s reliance on Mack v. State, 44 So. 706 (Fla. 1907), Martin v. State,
129 So. 112 (Fla. 1930), and Macias v. State,
673 So. 2d 176 (Fla. 4th DCA 1996), is
misplaced. Each of those cases involved the victim of the crime testifying as to what the
perpetrator said while the crime was being committed. The victims in those cases were
prototypical eyewitnesses to the crimes and as such, satisfied the Evans requirements.
Just as the officers in Ruffin v. State,
549 So. 2d 250 (Fla. 5th DCA 1989), and Alvarez v.
State,
147 So. 3d 537 (Fla. 4th DCA 2014), were not eyewitnesses to a crime merely
because they later watched a recorded video of the crime, Agent Scovel is not an
eyewitness to the conspiracy merely because he later listened to the recorded phone
conversations discussing it.
Perhaps the strongest support for the majority opinion can be found in Alvarez,
which held that “[e]ven non-eyewitnesses may testify as to the identification of persons
depicted or heard on a recording so long as it is clear the witness is in a better position
than the jurors to make those determinations.” 147 So. 3d at 542. Because Agent Scovel
had a brief, in-person conversation with Johnson, he was in a slightly better position than
the jurors to determine if Johnson’s voice was on the recorded telephone calls. However,
this “better position than the jurors” language—which the majority refers to as the
“helpfulness” standard—cannot be found in Evans, which postdates Alvarez. 9 It was
apparently adopted from Federal Rule of Evidence 901 and numerous federal cases cited
9 The State could have allowed the jury to determine for itself if Johnson’s voice
was heard on the incriminating recordings by playing the recording of the pretrial hearing
at which Johnson testified, or by compelling him to give a voice exemplar, either before
or at trial, in order to evaluate the physical properties of his voice. See Fla. R. Crim. P.
3.220(c)(1)(B); United States v. Dionisio, 410 U.S. 1 (1973).
18
by the majority, but it is premised on what appears to be a lower standard for the
admissibility of opinion testimony in federal courts.
Although I agree with the majority that the provisions of the Florida and federal
evidence codes regarding lay opinion testimony are similar, one need only compare
Evans with United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005), to see that they
have been interpreted differently by Florida and federal courts. Had this case been
prosecuted in federal court, Agent Scovel’s opinion testimony would certainly have been
allowed. See, e.g., Bush,
405 F.3d at 919 (holding voice identification need only rise to
level of minimal familiarity); United States v. Axselle,
604 F.2d 1330, 1338 (10th Cir. 1979)
(holding single telephone call, combined with hearing voice in court, is sufficient for voice
identification testimony to go to jury). However, I am compelled to follow the interpretation
of the Florida evidence code by the Florida Supreme Court, not the interpretation of the
federal evidence code by federal courts. Under Florida law, because Evans raised the
bar for the admissibility of an opinion on voice identification, I conclude Agent Scovel was
not an eyewitness competent to render an opinion on whose voice was heard on the
recordings.
Turning to the majority’s position that Agent Scovel had adequate prior special
familiarity with Johnson’s voice that qualified him to testify, it seems a matter of common
sense that the ability to identify a speaker from his or her voice depends on the number
of exposures to the voice in question, the quality of these exposures, and the nature of
the identification process. See Lawrence Solan & Peter M. Tiersma, Hearing Voices:
Speaker Identification in Court, 54 Hastings L.J. 373, 375 (2003). The Evans court
incorporated this common sense approach by creating a standard permitting a witness to
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identify the voice of the defendant when the witness was previously familiar with the
defendant. Evans, 177 So. 3d at 1229; see State v. Cordia,
564 So. 2d 601, 601-02 (Fla.
2d DCA 1990) (permitting witness to testify who had known defendant “for a significant
period of time” and had spoken to defendant in person and over telephone); Hardie v.
State,
513 So. 2d 791, 792 (Fla. 4th DCA 1987) (holding that police officers who had prior
knowledge and contact with defendant could properly testify and identify him).
Here, however, Agent Scovel lacked the requisite prior special familiarity with
Johnson. Before initiating the investigation, Agent Scovel had no contact with Johnson.
During the course of the investigation, Agent Scovel spoke to Johnson only once, during
the search of Howard’s house, and Johnson said little during that conversation. Other
than this brief conversation, the only familiarity Agent Scovel had with the voice that he
believed to be Johnson’s was through listening to recordings of intercepted phone
conversations and a subsequent recording of Johnson’s pretrial hearing. This limited
interaction with Johnson is not sufficient to constitute prior special familiarity. Indeed,
Evans specifically held that “a police officer investigating a particular suspect’s voice after
the investigation is ongoing . . . does not constitute the requisite prior familiarity with the
suspect.” 177 So. 3d at 1230 (emphasis added); see Proctor v. State,
97 So. 3d 313, 315
(Fla. 5th DCA 2012); cf. Cordia,
564 So. 2d at 601-02; Hardie,
513 So. 2d at 792. While
the majority contends that the timing of an officer’s interaction with a voice is
inconsequential, the Florida Supreme Court held otherwise. It is clear from Evans that
an investigating officer does not obtain prior special familiarity with a suspect’s voice if his
or her first encounter with the voice occurs after a criminal investigation into the suspect’s
behavior has begun, regardless of whether at that time the crime has been completed.
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Evans, 177 So. 3d at 1230. Additionally, a trial court’s error in permitting an improper
identification “may be exacerbated where the testimony comes from a police officer” and
the jury is aware of that position because officers are often regarded as highly credible.
Martinez v. State,
761 So. 2d 1074, 1080 (Fla. 2000); see also Evans,
177 So. 3d at 1230
(finding use of questions that elicit witness’s position as police officer when witness is
identifying defendant’s voice or image may be reversible error even when identification
itself is permissible).
In the end, the majority distinguishes this case from Evans by claiming that Agent
Scovel was an eyewitness because he listened to the recordings and spoke briefly in-
person with Johnson, whereas the detective in Evans had no personal interaction with
the defendant. Although this is accurate, it is insufficient under the heightened Evans
standard to make Agent Scovel an eyewitness or to give him the requisite prior special
familiarity with Johnson’s voice to reliably identify it in the recordings. 10 I would reverse
for a new trial.
10 Likewise, I do not believe Agent Pederson was an eyewitness or had prior
special familiarity with Howard’s voice to reliably identify it in the recordings.
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