EDWARD JAMES MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court's declaration of a witness as an expert in the presence of the jury, even if error, does not constitute fundamental error when the defendant did not object and the declaration did not affect the validity of the proceedings.
[1] A trial court's declaration that a witness is an expert in the presence of the jury does not necessarily constitute a comment on the witness's credibility in violation of…
[2] Jury instructions adequately address the role of expert witnesses and inform the jury that they may accept or reject expert testimony, mitigating potential prejudice from…
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Join FLexlaw to unlock all legal intelligenceEdward Mitchell appealed his convictions for drug offenses, arguing the trial court committed fundamental error by declaring a crime lab analyst an ex…
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Edward Mitchell appeals his convictions for sale and possession of a controlled substance. At trial, the State called a crime laboratory analyst from the Florida Department of Law Enforcement who confirmed the substance allegedly possessed and sold by Mitchell contained cocaine. After the State established the witness’s qualifications and experience, the State moved to have the witness “declared *370an expert in the field of controlled substance analysis.” Mitchell’s counsel confirmed that there were no objections to the witness’s expert qualifications. The court then stated, in the presence of the jury, “All right. She’ll be received and designated as an expert witness in that field.” Mitchell argues that the trial court’s declaration that the witness was an expert was fundamental error. We disagree.
Mitchell concedes that he did not preserve this issue with a proper objection. For this Court to reverse an unpreserved error, the error must be “fundamental”—it must “reach down into the validity of the trial itself.” Ramroop v. State, 174 So.3d 584, 589-90 (Fla. 5th DCA 2015) (quoting Randolph v. State, 853 So.2d 1051, 1068 (Fla. 2003)). Fundamental error applies only to those “rare cases ... where the interests of justice present a compelling demand for its application.” Delestre v. State, 103 So.3d 1026, 1028 (Fla. 5th DCA 2012) (quoting Smith v. State, 521 So.2d 106, 108 (Fla. 1988)).
In Osorio v. State, 186 So.3d 601 (Fla. 4th DCA 2016), rev. denied 2016 WL 1749455 (Fla. May 3, 2016), the Fourth District Court of Appeal held that the trial court’s statement accepting a witness as an expert in the presence of the jury constituted error. The trial court declared to the jury that the State’s witness was “an expert in the field, and [could] give opinion testimony, and hypotheticals in the field of being a forensic chemist.” 186 So.3d at 608 (alteration in original).1 The appellate court reasoned that by engaging in this “tender and accept” process, whereby the court implicitly or explicitly commented on the witness’s status as an “expert,” the court violated section 90.106, Florida Statutes (2016), which prohibits it from commenting on “the credibility of the witnesses.” Id. at 609. The court pointed out that several other jurisdictions, federal courts of appeal, and the advisory committee to the Federal Rules of Evidence have criticized this process and recommended that the judge limit his or her comments to simply denying an objection to the witness’s testimony. See id at 608-10 (compiling authority). Yet, other jurisdictions have taken a more lenient approach to the issue, allowing trial courts to accept a witness as an expert. E.g., In re C.W.D., 232 Ga.App. 200, 501 S.E.2d 232, 239 n.2 (1998); Kihega v. State, 392 S.W.3d 828, 835 (Tex. App. 2013).
While we agree that it is the better practice for the court to avoid declaring the witness an expert in the presence of the jury, we do not believe that this “tender and accept” process necessarily equates to commenting on the witness’s testimony or placing the court’s imprimatur on the witness in violation of section 90.106. The standard jury instructions address expert witnesses and provide sufficient protections for the defendant.2 The instructions inform the jury that they have received testimony from an expert but that all witnesses are treated alike, except that experts may provide opinion testimony. *371The jury instructions further clarify that, as with all witnesses, the jury is free to believe or disbelieve all or any part of the expert witness’s testimony. The designation of a witness as an expert does not reflect on that witness’s credibility, as the jury instructions explain.
We believe that it is overly formalistic to presume that the mere acceptance of a witness as an expert constitutes a comment on the credibility of the witness. This is particularly true given that the jury instructions specifically address the role of expert witnesses at trial, and juries are presumed to follow their instructions. See Hurst v. State, 202 So.3d 40 (Fla. 2016). Thus, we disagree with Osorio that a trial court’s declaration that a witness is an expert is error.3
Even if we were to assume that the trial court’s declaration was error in this case, any error would not be fundamental. Mitchell’s defense at trial had nothing to do with the qualifications of the State’s chemist or the validity of the tests performed. Counsel for Mitchell asked three questions of the State’s chemist, none of which related to the nature or validity of her exam. The trial court’s only comment—“All right. [The State’s witness will] be received and designated as an expert witness in [the field of controlled substance analysis]”—did not affect the validity of the proceedings. In this situation, Mitchell is far from reaching his burden of establishing fundamental error. Accordingly, we affirm Mitchell’s convictions.
AFFIRMED.
SAWAYA and EDWARDS, JJ., concur.
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Shavonn Chanyell Norfleet v. State, 219 So. 3d 1039 (Fla. 1st DCA 2017)…PER CURIAM Appellant raises four issues in this direct criminal appeal. We affirm issues I, II, and IV without discussion, and we affirm issue III based on Norfleet v. State, Case No. 1D16-1971 (Fla. 1st DCA June 27, 2017), and Mitchell v. State, 207 So. 3d 369 (Fla. 5th DCA 2016), because the trial court’s declaration in front of the jury that certain state witnesses were “experts” did not rise to the level of fundamental error1 in this case, AFFIRMED. WETHERELL, RAY, and MAKAR, JJ., CONCUR. . We r…
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Norfleet v. State, 223 So. 3d 395 (Fla. 1st DCA 2017)…ot object when the prosecutor tendered the witnesses as experts or when the trial court declared them to be experts in front of the jury, reversal is required in this case only if the declarations constitute fundamental error. See Mitchell v. State, 207 So. 3d 369, 370 (Fla. 5th DCA 2016) (holding that even if the trial court erred when it declared a state witness to be an expert in front of the jury, the error did not rise to the level of fundamental error). Fundamental error applies “only in rare cases ...…
Authorities Cited
- Hurst v. State, 202 So. 3d 40 (Fla. 2016)
- Smith v. State, 521 So. 2d 106 (Fla. 1988)
- Randolph v. State, 853 So. 2d 1051 (Fla. 2003)
- STANDARD JURY INSTRUCTIONS-CRIMINAL CASES (99-2), 777 So. 2d 366 (Fla. 2000)
- Delestre v. State, 103 So. 3d 1026 (Fla. 5th DCA 2012)
- Gangapersad Ramroop v. State, 174 So. 3d 584 (Fla. 5th DCA 2015)
- Osorio v. State, 186 So. 3d 601 (Fla. 4th DCA 2016)
- Charismatic Orthodox Church v. Reemployment Assistance Appeals Comm'n, 186 So. 3d 601 (Fla. 5th DCA 2016)