Opinion
No. 3D08-490.
Opinion filed December 22, 2010.
An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge, Lower Tribunal No. 04-30908.
Andrew F. Rier, for appellant.
Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
Johnny Wade ("the defendant") appeals from his conviction and sentence for robbery and burglary. We affirm.
Katherine Hernandez picked up Sara Hurtado and Gisela Carpio from the airport. As Hurtado and Carpio entered the apartment where they were staying, a black male snatched their purses and ran. Hernandez, who had been parking her car, wrote down the license plate of a car driving away from the scene. The license plate was registered to the defendant. Subsequently, the police showed Hurtado a photo line-up, and she identified the defendant as her assailant. Consequently, the State charged and tried the defendant for the crimes of robbery and burglary.
The first trial resulted in a mistrial. At the second trial, the prosecutor began his opening statement by sitting in the witness box, and stating:
How would State prove that the Defendant's guilty of these crimes . . . ? Well, members of the Jury, it will begin right here. This chair that I'm sitting in as will witnesses that will come to you and bring to you a credible telling of what happened, of the robbery, of the burglary with battery.
Defense counsel did not object to the prosecutor's opening statement.
Subsequently, the State introduced the police photo line-up through Hurtado, who testified that she identified the defendant's photograph from the line-up. Assuming that the State intended to call the police officer who investigated the case, defense counsel did not object contemporaneously to this evidence. When the State rested without calling the police officer, defense counsel objected to the photo line-up on the ground that it lacked a predicate. The trial court stated that the jury could decide for itself whether the defendant's photograph was part of the line-up, and overruled the objection. The jury found the defendant guilty of the crimes charged, and the trial court sentenced him to life in prison.
On appeal, the defendant contends that the prosecutor's opening statement constitutes fundamental error. The defendant also contends the trial court erred in allowing the photo line-up into evidence without a proper predicate. On the other hand, the State asserts that any error in the opening statement was waived by defense counsel's failure to object contemporaneously, and that the error is not fundamental. Additionally, the State asserts the trial court correctly admitted the photo line-up. We agree with the State.
Turning first to the prosecutor's opening statement, it is well settled that "prosecutors may not directly or indirectly express their opinions as to the credibility of witnesses or the guilt of the defendant." See Martinez v. State, 761 So. 2d 1074, 1081 (Fla. 2000). The failure to raise a contemporaneous objection to an improper argument, however, waives the error, unless the argument rises to the level of fundamental error. See Poole v. State, 997 So. 2d 382, 390 (Fla. 2008).
A fundamental error is one which affects the validity of the trial to such an extent that the verdict would not have been obtained but for the error. Lawrence v. State, 831 So. 2d 121, 134 (Fla. 2002). Here, although improper, the prosecutor's statements were not so prejudicial or pervasive as to invalidate the whole trial and the jury's verdict.
Next, regarding the admission of the photo line-up, any witness can testify that a photograph is a fair and accurate representation, and the photographer's testimony is not necessary to authenticate the photograph. See Charles W. Ehrhardt,Evidence § 401.2 (2010 ed.). Here, Hurtado testified that she recognized the defendant from the photograph in the line-up. We determine that the predicate was sufficient. Further, there was no need for the police officer to either authenticate the accuracy of the photograph, or to verify the eyewitness' identification of the defendant from the photograph. Thus, the trial court properly admitted the photo line-up into evidence.
Accordingly, we affirm the defendant's conviction and sentence.
Affirmed.
Salter, J., concurs.
Not final until disposition of timely filed motion for rehearing.
I dissent.
The majority opinion relies on Ehrhardt, but does not address how the photographic line-up was shown to be relevant without anyone testifying that the photograph which the witness identified was the photograph of the defendant. As Ehrhardt states: "Photographs, when properly authenticated, are admissible to prove a material fact in the lawsuit." See Charles W. Ehrdardt, Florida Evidence, § 401.2 (2007 ed.) I agree with the majority that any witness can testify that a photograph is a fair and accurate representation, and that the photographer's testimony is not necessary to authenticate the photograph. But in this case, no one testified that the photograph was a fair and accurate representation. No one even testified that it was what it purported to be — a photograph of Johnny Wade, let alone that it was a fair and accurate representation of Wade.
The witness was shown a photographic line-up containing either six photographs or twenty-four photographs. She testified that she identified photograph # 3. This is relevant only if that is the photograph of the defendant. Without the officer that prepared the line-up to establish the identity of the individual who was actually portrayed in photograph #3, the line-up is not relevant to this case. All the State established through the questioning of the victim was that the lineup was not suggestive. She was never asked if that was a fair and accurate representation of the defendant. Even if asked, she would not be qualified to answer. The majority opinion states that "Hurtado testified that she recognized the defendant from the photograph in the line-up." See supra Respectfully, all she testified to was that she identified photograph #3 as the person who attacked her. There was no testimony that photograph #3 was in fact a photograph of Wade.
The trial court addressed the issue by saying that "in the pictures you can see that it is the defendant, the [j]ury can clearly see that and or they can disagree." Respectfully, the judge and jury can only see that the individual in photograph # 3 looks like Wade, but they have no way of knowing if that is in fact a photograph of Wade. There is no precedent for allowing the judge or the jury to provide the link so as to prove the relevance of a photograph. It would be like admitting the photograph of an intersection where an accident took place by saying that "you can see in the picture that it is the intersection. The jury can clearly see that."
Here the State, as the proponent of the photographic line-up, must establish as a predicate for its admission that the it fairly and accurately represents what it purports to depict. Only if a "picture . . . i[s] verified as a true representation of the subject about which testimony is offered, is [it] admissible in evidence." Adams v. State, 10 So. 106, 113 (1891), overruled in part Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308, 311 (Fla. 1982). A witness (who need not have been the photographer) who saw what a photograph portrays can testify to the photograph's fairness and accuracy.See, e.g., Hillsborough Cnty. v. Lovelace, 673 So. 2d 917, 918 (Fla. 2d DCA 1996). The only exception I have found under our case law is through the "silent witness" theory.See Hannewacke, 419 So. 2d at 311; Wagner v. State, 707 So. 2d 827, 831 (Fla. 1st DCA 1998). But before photographic evidence may be admitted into evidence on the "silent witness" theory, the trial judge must first determine it to be reliable, after having considered the following:
(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.
Bryant v. State, 810 So. 2d 532, 536 (Fla. 1st DCA 2002). None of that happened here. The trial court left it up to the jury to provide the foundation. The majority opinion does not address the issue.
I do not believe the error in admitting the line-up was harmless. Wade's first trial resulted in a hung jury. There was no physical evidence connecting Wade to the crime. There were three witnesses to the crime but only one identified Wade. Another witness recorded the license tag of the getaway car and it was tied to Wade, but no confession or other admission was ever elicited from Wade. During the trial, Wade received marginal representation. The prosecutor repeatedly vouched for the credibility of the witnesses during the opening statement and closing argument, without objection. The prosecutor was allowed to question the panel during voir dire for several pages in the transcript, about trafficking in cocaine, without objection. The State did not charge Wade with trafficking in cocaine. Drugs had nothing to do with the case. Next, the prosecutor was allowed to question the prospective jurors about battery, without objection. The State did not charge Wade with battery. Next, the prosecutor questioned the jury about murder, the principal theory, and bank robbery, all without objection. The State charged Wade with none of these. Then the prosectuor questioned the jury about murder during the bank robbery. Also, without objection, was the hearsay testimony from Hurtado that she identified the person who had attacked her. Hurtado testified that she was shown four sheets of photos containing twenty-four photos, but the State only introduced the one line-up consisting of six photos. Finally, the photographic line-up played a prominent part in the prosecutor's closing argument. For these reasons, I do not believe we can conclude that the admission of the line-up was harmless error.