JEFFREY DANIEL BUNCHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the conviction for burglary and grand theft, holding that the trial court did not err in allowing a fingerprint expert to testify about the verification process for matching prints, as this testimony was admissible to explain the methodology and did not improperly bolster the expert's opinion.
The appellate court held that the trial court did not err in allowing the fingerprint expert to testify about the verification process, as it was relevant to the methodology and not improper bolstering, and therefore affirmed the conviction.
[1] An expert may not bolster his own opinion on direct examination with that of another expert.
[2] An expert may not testify that the expert formed an opinion by conferring with others in the same field.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of burglary and grand theft based on fingerprint evidence found on a box. During the trial, a fingerprint expert testified…
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The defendant appeals his conviction and sentence for burglary of a dwelling and grand theft. He argues the trial court erred in allowing the fingerprint expert to testify concerning the process employed for matching prints which included verification by another examiner. He also argues the trial court erred in allowing the State to comment on his right to remain silent. We affirm and address only the defendant’s first argument.
The State charged the defendant with burglary and grand theft of a neighbor’s home. The only evidence placing the defendant inside the neighbor’s home was prints taken from a box which had contained a Rolex watch.
During the trial, the fingerprint expert explained how a positive identification was made and confirmed the prints found on the box were those of the defendant.
State: Okay. Now, how many points of identification that your office requires, in other words, for it to be a print?
Witness: Well, again points alone does not make identification. Our department says you have to have at least nine, but that’s just the beginning stages of an i[ Identification].
State: Okay.
Witness: Again, you have to have class characteristic, you have to have the Gal-ton detail and then you have to have what we refer to, if there is any occasional features, which could include such things as flexion creases, warts, scars, all those things. We put all this information together and then you make a decision whether or not this is an identification.
State: Okay.
Witness: It’s a consensus, it’s not just one item. And then we have a second person to make an evaluation. We have two people look at every one of the cases.
Defense counsel lodged two objections: hearsay and lack of personal knowledge. The trial court overruled the objections, indicating that the expert was permitted to testify to the process employed in identifying the defendant’s prints.
The State then asked the expert: “And both people have to agree?” The trial court overruled defense counsel’s objection to improper bolstering and the expert continued.
Witness: Every time we have an identification where we’ve established the *40identifying an individual in a crime, we always have two people look at it. State: Okay. Is there anything else you can tell the members of the jury that you noticed on those two prints?
Witness: Basically what I want to tell the jury is that we actually identified the defendant on this latent three times. The number three finger twice and part of the right palm, with the portion of the right palm once. So, there’s three fingerprints on this card that match the defendant.
The jury convicted the defendant and the trial court sentenced him to concurrent terms of ten and five years imprisonment, from which he now appeals.
Relying on Telfort v. State, 978 So.2d 225 (Fla. 4th DCA 2008), the defendant argues the trial court erred in allowing the fingerprint expert to bolster his fingerprint identification by testifying that another examiner verified his work. We agree, but find the error harmless.
Experts may give their opinion on any disputed issue if they possess specialized knowledge that will assist the jury. §§ 90.702-706, Fla. Stat. (2006). Unlike a lay witness, an expert can rely on “facts or data [that] are of a type reasonably relied upon by experts in the subject to support the opinion expressed.” § 90.704, Fla. Stat. However, “an expert may not testify that the expert formed the opinion by conferring with others in the same field.” Telfort, 978 So.2d at 226 (citing Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997) approved, by Linn v. Fossum, 946 So.2d 1032 (Fla.2006)). Nor may an expert bolster his own opinion on direct examination with that of another expert. See id.
The issue here is whether a fingerprint expert, who has reached his own independent opinion, may explain the use of a second examiner in the verification process. Telfort addressed a similar, but not identical issue. No Florida court has actually considered the precise question presented here.1
In Telfort, the issue was whether the expert could testify to his level of certainty about the print’s identification by relying on another examiner’s verification. 978 So.2d at 226. We found error in the admission of the testimony because it constituted improper bolstering. Id. at 227. We reach the same conclusion here even though the fingerprint expert did not rely on the second examiner’s identification to *41assure his certainty. The State’s question “[a]nd both people have to agree” was a successful attempt to improperly bolster the testifying expert’s opinion.
We find the error harmless however. Goodwin v. State, 751 So.2d 537 (Fla.1999). “The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Unlike Telfort, there was no dispute that the prints belonged to the defendant. Rather, defense counsel admitted that fact, but argued that the State could not prove when the prints were placed on the box. Thus, the error was harmless.
Affirmed.
WARNER and DAMOORGIAN, JJ., concur.
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Potts v. State, 57 So. 3d 292 (Fla. 4th DCA 2011)…mpared by two other examiners identifying Mr. Tel-fort’s left index finger.’ ” Id. at 226 (emphasis in original). We held it was error to allow this testimony over the defendant’s objection. Id. at 227. We reached the same result in Bunche v. State, 5 So. 3d 38 (Fla. 4th DCA 2009). We reject the state’s contention that the erroneous admission of Sergeant Tustin’s testimony regarding confirmation of his identification by a second examiner was harmless error because the defense did not object to the witness…
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Miller v. State, 127 So. 3d 580 (Fla. 4th DCA 2012)…ify to how he came to his conclusion, but to talk about somebody else in his office, who’s not going to be here to testify, reviewing that work as protocol is certainly bolstering his testimony.” Defense counsel cited our opinion in Bunche v. State, 5 So. 3d 38 (Fla. 4th DCA 2009). The trial court overruled the objection and allowed the examiner to give the following testimony: Q. Okay. Does your conclusion have to be peer reviewed by another analyst within the context of your laboratory? A. It does. Q. A…
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Simon v. State, 225 So. 3d 934 (Fla. 3d DCA 2017)…452 (Fla. 4th DCA 1997), for example, the fourth district affirmed the defendant’s child murder conviction even after finding an expert bolstering error because “the error was harmless under the. facts in this case.” Id. at 455.1 In Bunche v. State, 5 So. 3d 38 (Fla. 4th DCA 2009), the same court affirmed the defendant’s burglary conviction even after finding an expert bolstering error because the defense theory was that the state could not prove when the defendant had been in the burgled property. Id. at…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Linn v. Basil D. Fossum, M.D., 946 So. 2d 1032 (Fla. 2006)
- Schwarz v. State, 695 So. 2d 452 (Fla. 4th DCA 1997)
- Telfort v. State, 978 So. 2d 225 (Fla. 4th DCA 2008)