JOSE SANTANA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2016-05-11
No. 4D14-4325
WARNER and CONNER, JJ., concur.
191 So. 3d 946 Florida District Court of Appeal, Fourth District (2016) Negative Treatment
Cited by 11 cases

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Holding

The court held that the trial court abused its discretion by admitting audio recordings without proper foundation, and because the appellant is deceased, the charge must be dismissed.


Headnotes

[1] Authentication of audio recordings requires evidence sufficient to support a finding that the recording is a fair and accurate representation of the conversation that occ…

[2] Admission of audio recordings without testimony from the technician who operated the recording device or a person with knowledge of the conversation's accuracy constitute…

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Facts & Procedural History

Appellant was convicted of trafficking in a controlled substance, claiming entrapment. The State introduced audio recordings of conversations between …

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Opinion of the Court
FORST, J.

FORST, J.

Appellant Jose Santana appealed his conviction and sentence for trafficking in a controlled substance. Of his five issues raised,1 we write to address only Appellant’s claim that the State failed to properly lay the foundation for audio recordings of conversations between Appellant and a confidential informant. We conclude that Appellant is correct in this argument and *948reverse. Because Appellant is deceased and this appeal is proceeding under State v. Clements, 668 So.2d 980 (Fla.1996), the reversal on this one issue requires a dismissal of the charge against Appellant, which renders the other issues raised moot.

BACKGROUND

Appellant was charged with trafficking in ecstasy based upon his sale of the drug to an undercover officer. He claimed that he was entrapped by a confidential informant attempting to reduce the sentence for his own drug offenses by working with a drug enforcement agent. At the behest of a drug enforcement agent, the confidential informant recorded telephone calls between himself and Appellant setting up the drug deal. The agent did not monitor these phone calls, and the confidential informant provided the recordings to the agent only after the conclusion of the transaction. At trial, the agent could not testify that the audio tape of the recorded conversations were true representations of what was actually said. They were admitted at trial over Appellant’s objection that the tapes had not been properly authenticated.

ANALYSIS

“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” § 90.901, Fla. Stat. (2014). With regards to the admission of audio recordings, “there [is] no specific list of requirements” to determine compliance with section 90.901. Justus v. State, 438 So.2d 358, 365 (Fla.1983). However, the authentication should be made by the technician who operated the recording device or a person with knowledge of the conversation that was recorded. See Charles W. Ehrhardt, Florida Evidence § 401.4 (2015 ed.).

Here, no such' authentication evidence was introduced. Although the State did introduce testimony supporting' the identity of the speakers on the-recording, it did not introduce evidence that the recording was a fair and accurate representation of the conversation that occurred. The confidential informant did not testify, the law enforcement officials who testified were not participants in or listening to the conversations as they occurred, and the State did not ask Appellant whether the recordings were accurate despite the fact that Appellant testified on his own behalf. The introduction of the recordings without this foundation was an abuse of discretion.

The State alternatively argues that this error was' harmless. It is noteworthy that the jury in this case requested to listen to one of the recordings again during their deliberations, The recorded conversations between Appellant and the confidential informant that were played for 'the jury could very well have contributed to the jury’s determination that Appellant was not in fact entrapped. Thus, the state has not met its burden of “prov[ing] beyond a reasonable doubt that the error complained of did . not contribute to the verdict.” State v. DiGuilio, 491, So.2d 1129, 1135 (Fla.1986).

CONCLUSION

We therefore, hold that the trial court abused its discretion in admitting the recordings of Appellant and the confidential informant when no foundation was laid as to the accuracy of the recordings. Under normal circumstancés, we would proceed to analyze the other issues raised and likely remand for a new trial. However, because Appellant passed during the pen-dency of this appeal, there is no possibility of a new trial. Instead, we remand for the *949trial court to dismiss the charge against Appellant and to vacate his sentence, including the civil lien that was the Clements foundation for this appeal.

Reversed.

WARNER and CONNER, JJ., concur.


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Citator

Cited By

  • Arkheem J. Lamb v. State, 246 So. 3d 400 (Fla. 4th DCA 2018)
    …te made a prima facie showing of the video’s authenticity for the purpose of admission into evidence, thus allowing the jury to make the ultimate determination of the weight to be given to the video’s contents. The defendant cites Santana v. State, 191 So. 3d 946 (Fla. 4th DCA 2016), for the proposition that “authentication should be made by the technician who operated the recording device or a person with knowledge of the conversation that was recorded.” Id. at 948. However, Santana is distinguishable fro…
  • Taide Wiston Asencio, JR. v. State, 244 So. 3d 294 (Fla. 4th DCA 2018)
  • Ellison v. State, 271 So. 3d 1045 (Fla. 4th DCA 2019)
    …at error was harmless where the improperly admitted evidence implicated defendant, was used in arguments by the state to the jury, and the jury requested a read-back of the erroneously admitted statements during deliberations); Santana v. State, 191 So. 3d 946, 948 (Fla. 4th DCA 2016) (finding error not harmless where jury requested during deliberations to listen to improperly admitted recording). While this disposition renders appellant’s remaining arguments on appeal moot, we briefly address the…

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