EZRA HENRY, GLORIA MILLER, AND JACK HARRIS DENT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Three defendants were convicted of cocaine trafficking after a traffic stop and vehicle search yielded five cocaine packages. The appellate court reversed due to prosecutorial misconduct during closing argument, where the prosecutor suggested without evidence that defendants were repeat drug offenders, combined with improper admission of a poorly authenticated transcript of an audio recording.
The court held that both errors occurred. The use of the unauthenticated transcript alone would not constitute reversible error given the extensive deletions of disputed words and phrases. However, the prosecutor's comments suggesting the defendants were repeat offenders without evidentiary basis constituted egregious error that the state failed to prove was harmless beyond a reasonable doubt.
[1] A partially inaudible tape recording is admissible unless the unintelligible portions substantially deprive the remainder of relevance.
[2] A transcript of a poorly audibility tape recording requires authentication by the preparer's testimony of personal knowledge or an expert's testimony of accuracy to be ad…
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Join FLexlaw to unlock all legal intelligence“the law of Florida requires authentication by one of two methods: (1) the person who prepared the transcript could testify that he witnessed the events recited in the transcript and thus had personal knowledge that the transcript was an accurate rendition of the tape-recording; or (2) an expert witness professionally skilled in understanding indistinguishable taped conversations could testify that the transcript was an accurate rendition of the tape-recording.”
Establishes the legal standard for authenticating transcripts of audio recordings in Florida.
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Join FLexlaw to unlock all legal intelligenceAppellants Ezra Henry, Gloria Miller, and Jack Dent were stopped on the Florida Turnpike for a non-functioning tag light. Henry, the car's lessor, con…
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COBB, Judge.
The appellants, Ezra Henry, Gloria Miller and Jack Dent, were convicted of trafficking in cocaine as a result of being stopped on the Florida Turnpike for a non-functioning tag light. The lessor of the car, Henry, consented to a search by the arresting officers. As the defendants were waiting for the search to take place, an audio tape of their conversation was made. Five packages of cocaine were found beneath the hood of the vehicle.
At trial the state, over defense objection, submitted a transcript of the tape as an aid to the jury. The transcript was prepared by the sheriffs office, and represented the interpretation of the transcriber. The audibility of the tape can only be described as poor. The transcript was not entered into evidence, but the jury was permitted to use it during the trial.
The general rule regarding admissibility of partially inaudible tape recordings is that such recordings are admissible unless the inaudible and unintelligible portions are so substantial as to deprive the remainder of relevance. Odom v. State, 403 So. 2d 936 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Harris v. State, 619 So. 2d 340 (Fla. 1st DCA 1993). In regard to admissibility of the transcript of the tape, the law of Florida requires authentication by one of two methods: (1) the person who prepared the transcript could testify that he witnessed the events recited in the transcript and thus had personal knowledge that the transcript was an accurate rendition of the tape-recording; or (2) an expert witness professionally skilled in understanding indistinguishable taped conversations could testify that the transcript was an accurate rendition of the tape-recording. See Uliano v. State, 536 So. 2d 393 (Fla. 4th DCA 1989); Golden v. State, 429 So. 2d 45 (Fla. 1st DCA), rev. denied, 431 So. 2d 988 (Fla.1983); Duggan v. State, 189 So. 2d 890 (Fla. 1st DCA 1966). Neither method was used in the instant case; hence it was error for the trial court to allow the transcript to be used by the jury. Given the extensive deletions of disputed words and phrases, however, the use of the transcript, standing alone, would not constitute reversible error. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
The more egregious error was the trial court’s failure to grant a mistrial motion prompted by the prosecutor’s remark during closing argument which suggested, without any evidentiary basis, that the defendants previously had been involved in drug trafficking. In DiGuilio, the Florida Supreme Court adopted the harmless error test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967): the state, as beneficiary of the error, has the burden to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. DiGidlio at 1138. The state has not sustained that burden in respect to the prosecutor’s comments suggesting that the defendants were repeat offenders. See Finklea v. State, 471 So. 2d 596 (Fla. 1st DCA 1985).
REVERSED AND REMANDED FOR NEW TRIAL.
DAUKSCH and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martinez v. State, 761 So. 2d 1074 (Fla. 2000)…otherwise properly admissible.” Odom v. State, 403 So. 2d 936, 940 (Fla.1981). Such recordings are admissible unless the inaudible and intelligible portions are so substantial as to deprive the audible portions of relevance. See id.; Henry v. State, 629 So. 2d 1058, 1059 (Fla. 5th DCA 1993); Harris v. State, 619 So. 2d 340, 342 (Fla. 1st DCA 1993). On appeal, Martinez does not assert that the trial court improperly admitted the audio-video tape but asserts error with regard to the jurors’ use of the transcrip…1 / 2
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Wilson v. State, 680 So. 2d 592 (Fla. 3d DCA 1996)…recording if the audible parts are relevant, authenticated, and otherwise properly admissible. Harris v. State, 619 So. 2d 340, 342 (Fla. 1st DCA 1993) (quoting Loren v. State, 518 So. 2d 342, 352 n. 4 (Fla. 1st DCA 1987)); see also Henry v. State, 629 So. 2d 1058, 1059 (Fla. 5th DCA 1993). Where, as in the trial below, a partially inaudible tape recording is appropriately played for the trier of fact, the case law is clear that' neither a written nor oral interpretation of the inaudible portions of the tape…
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Jackson v. State, 979 So. 2d 1153 (Fla. 5th DCA 2008)…such an extent that it makes the evidence misleading or irrelevant. See McCoy v. State, 853 So. 2d 396 (Fla.2003); Odom v. State, 403 So. 2d 936 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982). See also Henry v. State, 629 So. 2d 1058, 1059 (Fla. 5th DCA 1993); Harris v. State, 619 So. 2d 340, 342 (Fla. 1st DCA 1993). In the present case there are numerous indicators of the authenticity of the tape for purposes of section 90.901. One law enforcement officer testified that he ins…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Odom v. State, 403 So. 2d 936 (Fla. 1981)
- Bowsher v. Merck & Co., Inc., 456 U.S. 925 (U.S. 1982)
- O'Brien v. United States, 456 U.S. 925 (U.S. 1982)
- Golden v. State, 429 So. 2d 45 (Fla. 1st DCA 1983)
- Duggan v. State, 189 So. 2d 890 (Fla. 1st DCA 1966)
- Harris v. State, 619 So. 2d 340 (Fla. 1st DCA 1993)
- Finklea v. State, 471 So. 2d 596 (Fla. 1st DCA 1985)
- Uliano v. State, 536 So. 2d 393 (Fla. 4th DCA 1989)