STEVE AUSTIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Steve Austin appeals his burglary and grand theft convictions, challenging the prosecutor's closing argument as improper bolstering of a witness and the trial court's failure to conduct a Richardson hearing before admitting crime scene investigator testimony. The appellate court affirms, finding the prosecutor's argument permissible and the investigator's testimony properly admitted as lay testimony rather than expert testimony.
The prosecutor's closing argument did not constitute bolstering because it applied standard jury instruction factors to the evidence rather than personally vouching for the witness. The crime scene investigator's testimony was permissible lay testimony based on personal observation and general police experience, not expert testimony requiring designation under Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i).
[1] A prosecutor's closing argument is permissible when it applies jury instructions and evidence to a witness's testimony to argue why the witness should be believed, rather…
[2] Testimony based on a witness's personal observation and general experience, such as identifying pry marks as consistent with a screwdriver, is permissible lay testimony a…
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Join FLexlaw to unlock all legal intelligence“Read in proper context, the prosecutor did not personally "vouch" for the witness, 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. 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.”
Establishes the standard for distinguishing permissible closing argument applying jury instructions from improper bolstering
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Join FLexlaw to unlock all legal intelligenceSteve Austin was convicted of burglary and grand theft. A crime scene investigator testified about pry marks on a drawer that was forced open during t…
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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 provid*329ed 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. (Grim.) 3.9 (‘Weighing the Evidence”).2 The 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 dn the testimony he gave at trial. This is permissible argument. Johnson v. State, 858 So.2d 1274 (Fla. 3d DCA 2003).
' [2,3] 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 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 *330of 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 641 (Fla. 1st DCA 1964), the First District held that the trial court properly permitted a deputy to testify as a lay 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.
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Hedvall v. State, 283 So. 3d 901 (Fla. 3d DCA 2019)…DCA 2017) (“[A] discovery violation may be considered harmless if an appellate court can determine, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the violation.” (citing Casica, 24 So. 3d at 1240)); Austin v. State, 199 So. 3d 327, 329 n.5 (Fla. 3d DCA 2016) (finding that even if the trial court’s failure to conduct a Richardson hearing was erroneous, the error “was harmless beyond a reasonable doubt”). 2. The Daubert Standard Defendant further alleges the trial court’s deci…
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Pinkney v. State (Fla. 3d DCA 2024)…2 Affirmed. See State v. Schopp, 653 So. 2d 1016 (Fla. 1995) (holding that harmless error analysis set out in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) applies to trial court’s failure to conduct Richardson hearing); Austin v. State, 199 So. 3d 327, 329 n. 5 (Fla. 3d DCA 2016) (noting that “even if the trial court's ruling was erroneous, we find the failure to conduct a Richardson hearing was harmless beyond a reasonable doubt”) (citing Schopp, 653 So. 2d 1016). See also Ryan v. State, 390…
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Molina v. State (Fla. 3d DCA 2019)…m, place the government’s credibility or prestige behind the victim, or argue or imply the prosecutor was aware of information not presented to the jury, bearing on the victim’s credibility, reliability or motive for testifying. See Austin v. State, 199 So. 3d 327, 329 (Fla. 3d DCA 2016). Instead, the prosecutor’s statement addressed why, based upon the jury instructions and the evidence, the jury should conclude that the witness was being truthful. This is permissible argument. See Johnson v. State, 858 So.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- State v. Schopp, 653 So. 2d 1016 (Fla. 1995)
- Floyd v. State, 569 So. 2d 1225 (Fla. 1990)
- Jones v. State, 440 So. 2d 570 (Fla. 1983)
- Olen Clay Gorby v. State, 630 So. 2d 544 (Fla. 1993)
- Terance Valentine v. State, 98 So. 3d 44 (Fla. 2012)
- Reynolds v. State, 99 So. 3d 459 (Fla. 2012)
- L.L. v. State, 189 So. 3d 252 (Fla. 3d DCA 2016)
- Johnson v. State, 858 So. 2d 1274 (Fla. 3d DCA 2003)
- Jorlett v. State, 766 So. 2d 1226 (Fla. 5th DCA 2000)