ANDREW WILLIAMS v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANDREW WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-1504

[July 15, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502018CF005193A.

Carey Haughwout, Public Defender, and Claire V. Madill, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The defendant appeals his conviction and sentence for attempted first-

degree murder of a liquor store clerk. He argues the trial court erred in:

(1) admitting testimony regarding the shooter’s height as compared to the

defendant; (2) overruling an objection to the prosecutors’ use of

demonstrative aids; and (3) preventing the introduction of the victim’s

sworn statement. He also argues the information was fundamentally

defective. We agree with him on issues one and two and reverse for a new

trial.

In 2018, law enforcement received a crime stoppers tip naming the

defendant as the shooter at a liquor store incident in 2016. The State

charged the defendant with attempted first-degree murder with a firearm

(premeditated).

At trial, the victim testified he was working at the liquor store on the

day of the incident. The defendant came into the store and wanted to buy

a half pint of liquor. The victim asked the defendant for identification

because he looked young. The defendant began to argue with the victim

and said he knew the owner. The victim told him he still needed the

identification.

The victim testified the defendant left and returned with his ID.

[He] came back in, was still being rude and disrespectful,

cussing at me and stuff. And then while I was checking his

ID, it--it [sic] says his legal age and stuff. It looked legit and

everything. But he was still being rude. And then he said

remember my face, you p___y a__ bitch.

(omissions added). The victim refused the defendant service and told him

to “get the hell out of the store.” The defendant left between 4:00 and 6:00

p.m.

Later that evening, the victim heard the bell attached to the front door,

indicating a customer was entering. A new clerk the victim was training

assisted the customer, and the customer left. The victim heard the bell go

off a second time. When he looked up, he saw an individual walk into the

store with his hands in his jacket and some “skully-type thing on [his]

head. And some glasses.” The lenses of the glasses were black.

He estimated the individual’s height was between five-five and five-ten.

He explained that where he stood near the cash register was elevated from

the customer by about six inches. He described the individual as “light-

skinned African-American or black person” who had twists or dreadlocks

with a couple little gold clamps on some strands of hair. He could see only

the nose, mouth, lips, and chin of the individual due to the glasses and

hoodie.

[Victim]: So I was still counting. And I looked up because I

seen somebody in front of me. Whenever I looked up, that’s

whenever I seen the gun. I yelled gun, bang, bang -- then I

started back stepping in towards the office. . . . And I must

have -- well, I basically back stepped left into the supply room

area.

[State]: Were you hit?

[Victim]: Yeah, I was shot twice.

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[State]: Okay. Did you recognize the person that you shot

that shot you that evening?

[Victim]: Yes.

[State]: Was it the same person that you had an argument

with earlier the day before?

[Victim]: Yes.

The victim then identified the defendant as the shooter and the customer

who argued with him earlier.

At the hospital, the victim gave a sworn statement to the police. He

remembered telling officers the shooter had a tattoo, but not where it was

located. He did not remember telling the officers he was only about fifty

percent sure the shooter was the same person he had argued with earlier.

The defendant attempted to impeach the victim with his prior sworn

statement, but the court advised that if the victim did not recall, the

statement could only be used to refresh his recollection, not impeach him.

After listening to his prior sworn statement, the victim stated that he told

the officer he was above fifty percent sure the defendant was the shooter.

The defendant asked the victim again, but the State objected to the

question as improper impeachment. The trial court sustained the

objection.

The defendant requested to play the last portion of the victim’s sworn

statement to the jury. Once again, the State objected, and the court

sustained the objection. The victim confirmed he was above fifty percent

sure.

In May 2018, the police presented a photo lineup to the victim. He

identified photo #2, the defendant, as the shooter. Prior to viewing the

lineup, the victim had not seen the surveillance video in over a year. He

based his lineup identification on his own recollection.

Another store employee working that night remembered preparing to

close when a man came in and shot the victim. The man wore glasses, a

hooded sweatshirt, and pants. He believed the man was about five-eleven.

The shooter did not say or ask for anything. He just came in and shot the

victim.

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The detective assigned to investigate the shooting arrived on scene and

conducted a walkthrough. He noted interior surveillance cameras inside

the store. He was able to obtain video surveillance footage from the store

for the time period the defendant was in the store earlier in the day, as

well as footage when the shooting occurred. Regarding the surveillance

footage showing the shooting, the State questioned the detective about

whether he could estimate the shooter’s height. The detective testified it

is usual for stores to have height markers near entrances. In this instance,

there was no height marker; however, there was a prominent black line on

signage attached to the large glass window adjoining the front door. The

detective used the black line as a height marker and had multiple still

shots from the surveillance videos enlarged. He further testified:

[State]: Okay. Now, going back to the markers that you

mentioned, were you able, once watching the video, to then go

back to certain physical markers and compare that to—to be

able to make an estimation of the suspect or the shooter’s

potential height?

[Detective]: Yes.

[State]: And explain how you did that.

[Detective]: Well, when the subject entered the store, based

on how the door -- based on how the door is fixated, just to --

if you’re exiting the store -- say I’m exiting the store, just to

the right of the glass door there was a -- there was a sign there.

And the sign had like a black line that you can clearly see. So

I used that to gauge the height by measuring from that line

down. And by comparing that to the assailant when he’s

walking in and out.

[State]: Okay. And using that estimation, approximately

what height were you able to determine for the perpetrator of

this crime?

Defense counsel objected to this testimony based on a lack of foundation

for the detective to testify as an expert. He also objected on the ground

that the detective’s testimony invaded the province of the jury. The trial

court overruled the objections, stating:

Well, I’m not sure he put a science behind it. What he’s

testifying to, his investigative process with respect to, for his

own purposes, obtaining an estimate of a height. He’s not

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giving an expert opinion as to what the height was, he’s just

saying pursuant to my investigation this is what I did to come

up with a potential height of the perpetrator.

...

I’m just saying, I don’t think he’s giving an expert opinion. I

think what he’s doing is saying as part of my investigation I

took these steps to get for my own investigative purposes an

approximate height of the perpetrator. I think he can do that.

The detective subsequently testified that he was able to come up with

the assailant’s approximate height by measuring the black line on the sign

the assailant passed coming into the store and noting from the enlarged

still photos from the surveillance video that the top of the assailant’s head

appeared to be the same height as the black line. Regarding the shooter’s

approximate height, the detective testified, “I measured it at roughly sixty-

nine and three-quarters to maybe seventy inches, seventy inches and a

quarter,” which he converted to “[f]ive-nine and three-quarters to about

five-ten and a quarter,” upon prompting by the State. He further testified

that both the defendant and the shooter appeared to be the same height,

using the same black line when comparing the two video footages. To

further document his investigation, the detective placed red arrows on the

photos to demonstrate the top of the head of the shooter and the defendant

at the same height as the black line. The photos were admitted into

evidence.

When interviewed, the defendant admitted to the altercation with the

victim, but denied returning to the store or shooting the victim. When the

defendant signed his Miranda form, the detective saw that he used his

right hand. The shooter was right-handed. The detective also measured

defendant’s height as five foot eleven inches when interviewed.

After the defendant became a suspect, the detective queried his name

in the Driver and Vehicle Information Database (“DAVID”). He found a

photo of the defendant the day after the shooting. The photo showed the

defendant’s hairstyle and features around the time of the shooting. It

listed the defendant’s height as five foot eleven.

During the closing argument, the prosecutor argued that the victim

would be able to identify the shooter, even with a hoodie and glasses. She

then proceeded to put on a hoodie and a pair of sunglasses to demonstrate.

Defense counsel objected arguing the hoodie sweatshirt and glasses were

not the same as in the pictures and went beyond a demonstrative aid. This

5

was more prejudicial than probative. The trial court overruled the

objection and allowed the prosecutor to use the hoodie sweatshirt and

glasses as a demonstrative aid, but gave the following instruction:

All right. Ladies and gentlemen of the jury, the sweatshirt and

glasses being utilized at this time by [the prosecutor] in her

closing argument is not evidence. It’s just a demonstrative aid

to assist in presenting her argument. But it is not evidence in

the case.

The prosecutor then argued:

Okay. Obviously, we never collected the actual evidence that

was used. But I do this to show you that on a piece of paper

with skin color, and background images, and pixilation, it

doesn’t show the same effects as a pair of sunglasses and a

hood over the hood [sic].

That’s what [the defendant] put on and went back into the

store with. That’s all that separated him from earlier in the

day when he was face to face with that same man. He could

see everything on the face. He said the nose, the chin, the

lips, the cheekbones. He was distinct. And he told you that

as sure as we’re all sitting in this room, he could see that that

was the same man.

The State also commented on the detective’s height theory. “The height,

we know that’s [the defendant], and we now know where his height was in

proportion to the door. And we know he is the same height in proportion

to the same spot as the shooter himself later in the day.”

During deliberations, the jury submitted two questions to the trial

court:

1. How sure arrow height parallel to ground and same height

day and night?

2. When did the victim say shooter had neck tattoo, hospital

or at liquor?

The court explained that it could not respond because both questions were

factual. The court told the jury to rely on the evidence presented and their

recollection.

6

The jury convicted the defendant as charged finding that during the

offense the defendant: (1) possessed a firearm; (2) discharged a firearm;

(3) caused the victim great bodily harm in discharging the firearm; and (4)

carried, displayed, used, threatened to or attempted to use a weapon. The

defendant moved for a new trial, judgment of acquittal, and/or arrest of

judgment. Defense counsel argued the trial court erred in overruling his

objection to the prosecutor wearing a sweatshirt and sunglasses in closing.

The trial court denied the motion, but stated:

Candidly, I had some concerns about the hat and glasses, but

I based on the instruction I gave, I do not believe that’s

reversible error, nor do I believe it would require a new trial.

So I’m going to deny the motion for new trial at this time.

The trial court sentenced the defendant to a thirty-five year minimum

mandatory. The defendant now appeals.

• The State’s Demonstrative Evidence

The defendant argues the trial court erred in overruling his objection to

the prosecutor wearing a dissimilar pair of sunglasses and sweatshirt

during closing to bolster the reliability of the victim’s identification. The

State responds there was no error in the prosecutor’s use of the

demonstrative aid. We agree with the defendant.

We review the use of a demonstrative aid at trial for an abuse of

discretion. Lowe v. State, 259 So. 3d 23, 39 (Fla. 2018), cert. denied sub

nom., Lowe v. Florida, 139 S. Ct. 2717 (2019).

We have explained:

Demonstrative evidence is admissible only when it is relevant

to the issues in the case. . . . [I]t is essential, in every case

where demonstrative evidence is offered, that the object or

thing offered for the jury to see be first shown to be the object

in issue and that it is in substantially the same condition

as at the pertinent time, or that it is such a reasonably

exact reproduction or replica of the object involved that

when viewed by the jury it causes them to see

substantially the same object as the original.

Walker v. State, 82 So. 3d 115, 117 (Fla. 4th DCA 2011) (alteration in

original; emphasis added) (quoting Chamberlain v. State, 881 So. 2d 1087,

1102 (Fla. 2004)).

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The State argued in closing:

But [the victim] told you they were the same person. And he

was there. And so when we start looking at videos, and we

start taking clips and screen shots, and print them out on

paper, and pass them around to you as the jury, keep in mind

that that is not the same effect as being in person and face to

face with an individual like [the victim] was.

The prosecutor then briefly put on a pair of sunglasses and a hoodie

sweatshirt to give the jury an understanding, in person and up close, of

the victim’s view of the shooter.

The defendant claims the prosecutor failed to prove similarity between

the demonstrative sunglasses and hoodie sweatshirt and those used

during the crime. The record reveals the prosecutor admitted the hoodie

and sunglasses were not the same, nor similar. Prior to allowing the

prosecutor to continue with its closing, the trial court instructed the jury

the demonstrative aids were not evidence, and that they were not the same

as those used in the crime.

Here, the sunglasses and hoodie sweatshirt were admittedly dissimilar

to those worn by the shooter. They were also worn by a female prosecutor

when the shooter was a male, and there is nothing in the record to show

any similarity between body, facial, or hair similarities to know whether

the hoodie and glasses fit the prosecutor’s body frame to be substantially

similar as to how they may have appeared to the victim. They therefore

could not provide the jury with a relevant comparison and instead only

served to mislead the jury. They did not set the circumstances of the

shooting nor mimic what the victim experienced. This causes us the same

concern the trial court originally had.

The trial court correctly instructed the jury in an attempt to ameliorate

the harm. But it did not alleviate the prejudice created by the prosecutor’s

use of these dissimilar demonstrative aids. Identification was the key

issue in this case. By permitting the prosecutor to use dissimilar

demonstrative aids, it ran the risk of misleading the jury without providing

any probative value. For this reason, we reverse and remand the case for

a new trial.

• The Detective’s “Height” Testimony

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The defendant next argues the trial court erred in overruling his

objection to the detective’s testimony about the shooter’s estimated height.

He contends that the detective’s process of discerning the size of the

objects in the photograph and/or surveillance video is a science called

“photogrammetry,” 1 which requires expertise and precise methodology to

be reliable. He alternatively argues, to the extent this opinion did not

require expertise, the trial court erred in overruling his objection because

the testimony invaded the province of the jury.

The State responds the detective’s height testimony was fact-based and

derived from his investigation of the crime scene and surveillance video.

It was not expert testimony. It did not invade the province of the jury; and

in any event, it was harmless beyond a reasonable doubt.

We agree with the defendant that the detective’s testimony regarding

the comparison of height between the defendant and the assailant was

opinion testimony. We agree that the detective could not qualify as an

expert or give expert opinion on the height based upon the photographs.

It appears that the trial court admitted it as lay opinion testimony by a law

enforcement officer based on his experience. We agree that the detective’s

testimony could not qualify as admissible lay witness opinion and was

improper. We also agree that the admission of the opinion was not

harmless error.

The admissibility of evidence is reviewed under an abuse of discretion

standard; however, discretion is limited by the rules of evidence. Jones v.

State, 95 So. 3d 426, 429 (Fla. 4th DCA 2012).

At trial, the detective gave his opinion that the shooter was a certain

height and that the defendant and the shooter were the same height. It

appears the detective arrived at his opinion of the heights of the shooter

and the defendant were the same by going to the crime scene and

measuring the height of the black line on a sign posted on one of the doors,

watching both surveillance videos, getting still images of the shooter and

the defendant from the videos and applying red arrows to them, and

obtaining the height of the defendant from two sources.

1Photogrammetry is defined as “the science of making reliable measurements by

the use of photographs and especially aerial photographs (as in surveying).”

Photogrammetry, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-

webster.com/dictionary/photogrammetry (last visited Apr. 29, 2020).

9

The defendant contends that the detective’s opinions fall in the realm

of the science of photogrammetry. Citing a legal periodical article, the

defendant explains in the initial brief that “proper photogrammetry

requires ‘some initial camera math information in order for the final output

to be reliable,’ along with calculations based on geometry, physics, and

‘photogrammetric triangulation.’” Lee DeChant, How Photogrammetry

Expert Can Help You Win Your Case, 14-MAY NEV. LAW. 19, 19 (2006). It

is clear from the testimony that the detective made no calculations.

Instead, he made one measurement using a tape measure and testified to

the defendant’s height based upon what appears to be an extrapolation

from that measurement. If the detective’s opinions were the result of a

calculation or extrapolation from data, we agree the detective’s opinions

would fall in the realm of expert testimony which he was unqualified to

give.

The trial court, however, did not view the testimony as expert opinion.

Because the trial court overruled the objection that the testimony invaded

the province of the jury, we address the issue of whether the detective’s

testimony supports his height opinions as admissible lay witness opinion.

“Generally, a lay witness may not testify in terms of an inference or

opinion, because it usurps the function of the jury.” Jones v. State, 95 So.

3d 426, 429 (Fla. 4th DCA 2012) (citing Floyd v. State, 569 So. 2d 1225,

1231–32 (Fla. 1990)). However, section 90.701, Florida Statutes (2019),

provides an exception to the general rule.

If a witness is not testifying as an expert, the witness’s

testimony about what he or she perceived may be in the form

of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and

adequacy, communicate what he or she has perceived to the

trier of fact without testifying in terms of inferences or

opinions and the witness’s use of inferences or opinions will

not mislead the trier of fact to the prejudice of the objecting

party; and

(2) The opinions and inferences do not require a special

knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (2019).

The first sentence of section 90.701 makes clear that “[o]pinion

testimony of a lay witness is only permitted if it is based on what the

10

witness has personally perceived.” Id.; Alvarez v. State, 147 So. 3d 537,

542 (Fla. 1st DCA 2014) (quoting Fino v. Nodine, 646 So. 2d 746, 748 (Fla.

4th DCA 1994)). Moreover, “the lay witness’s testimony must be grounded

in reliability and personal perception rather than speculation.” Lewek v.

State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997). The statute has been

interpreted to mean that “[l]ay witness opinion testimony is admissible if

it is within the ken of an intelligent person with a degree of experience.”

Floyd, 569 So. 2d at 1232 (citing Peacock v. State, 160 So. 2d 541, 542–

43 (Fla. 1st DCA 1964)).

Section 90.701 establishes two predicates for the admission of lay

witness opinion: (1) the opinion or inference is needed because the witness

cannot “with equal accuracy and adequacy, communicate what he or she

has perceived to the trier of fact,” provided that “the witness’s use of

inferences or opinions will not mislead the trier of fact to the prejudice of

the objecting party;” and (2) “[t]he opinions and inferences do not require

a special knowledge, skill, experience, or training.” § 90.701(1), (2), Fla.

Stat.

We have addressed the testimony of law enforcement witnesses offering

lay opinions based on their review of surveillance videos in two relatively

recent cases. In Alvarez, we addressed whether a law enforcement officer

may offer his opinion of the skin color and race of the perpetrators depicted

on a video admitted into evidence. 147 So. 3d at 542. There, we noted

that “[e]ven non-eyewitnesses may testify as to the identification of persons

depicted or heard on a recording so long as it is clear the witness is in a

better position than the jurors to make those determinations.” Id. Quoting

Ruffin v. State, 549 So. 2d 250 (Fla. 5th DCA 1989), and relying our opinion

in Charles v. State, 79 So. 3d 233 (Fla. 4th DCA 2012), we said: “However,

‘[w]hen factual determinations are within the realm of an ordinary juror’s

knowledge and experience, such determinations and the conclusions to be

drawn therefrom must be made by the jury.’” Id. (quoting Ruffin, 549 So.

2d at 251). Because there was no record evidence to indicate that the

detective was in a better position than the jurors to view the surveillance

video and enlarged stills to determine the skin color and races of the

perpetrators, we concluded the admission of the officer’s opinion was error

and reversed for a new trial. Id. at 543, 544.

In Charles, we reversed after concluding the trial court erred in

admitting a detective’s opinion that the person shown in a surveillance

video at the time of the crime was the defendant. 79 So. 3d at 234.

Because the detective was not an eyewitness to the crime, had no special

familiarity with the defendant, and was not otherwise qualified as an

expert in video identification, we concluded that the detective’s opinion

11

invaded the province of the jury to draw its own conclusion about whether

the defendant was the person depicted in the video. Id. at 235.

Our supreme court has stated that to the extent the Florida Evidence

Code is patterned after the Federal Evidence Code, “we should construe

the former in accordance with federal court decisions interpreting the

latter.” Moore v. State, 452 So. 2d 559, 562 (Fla. 1984); see, e.g., Hightower

v. Bigoney, 156 So. 2d 501 (Fla. 1963); Bank of N.Y. v. Calloway, 157 So.

3d 1064, 1071 n.3 (Fla. 4th DCA 2015) (“Where, as here, a Florida

evidentiary rule is patterned after its federal counterpart, ‘federal cases

interpreting comparable provisions are persuasive and routinely looked to

for interpretive guidance.’”). In Johnson v. State, 254 So. 3d 617 (Fla. 1st

DCA 2018), the First District recently relied on federal precedent as

persuasive authority on the admission of lay opinion related to law

enforcement experience. There, the issue was an officer’s opinion about

the capability of a law enforcement canine. Id. at 619. The First District

relied in part on the case of United States v. Spencer, 873 F.3d 1, 14-15

(1st Cir. 2017), where the First Circuit wrote:

We have explained further that the touchstone for the

admissibility under Rule 701 of such lay-opinion testimony is

whether the testimony has the “potential to help the jury.”

United States v. Albertelli, 687 F.3d 439, 447 (1st Cir. 2012).

Under this standard, we have deemed testimony inadmissible

“when the jury can readily draw the necessary inferences and

conclusions without the aid of the opinion.” United States v.

Etienne, 772 F.3d 907, 919 (1st Cir. 2014) (emphasis in

original) (citations omitted). We have also explained that

helpful testimony is typically “based on the lay expertise a

witness personally acquires through experience, often on

the job.” United States v. Vega, 813 F.3d 386, 394 (1st Cir.

2016) (quoting United States v. Maher, 454 F.3d 13, 24 (1st

Cir. 2006) ); see also United States v. Ayala–Pizarro, 407 F.3d

25, 28–29 (1st Cir. 2005). And, we have noted that “a police

officer noticing patterns of behavior across criminal

operations uses straightforward logic to conclude a

defendant’s behavior fits within that pattern and thus,

does not need to be qualified as an expert.” Vega, 813 F.3d

at 394.

254 So. 3d at 622. (emphases added).

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In the instant case, the detective properly testified that he observed the

two video footages and noticed that the defendant and the shooter passed

by the same black line on the window near the entrance door. He properly

testified that he measured the height of the black line from the floor, but

he never directly testified what the measurement was. He also properly

testified about his reasons for blowing up still images from the video

footages as part of his investigation. However, his opinions of his

perceptions that the shooter was five feet ten inches tall and that the

photos show that the defendant and the shooter were the same height were

not based on being an eyewitness, having prior knowledge of the

defendant, or using some knowledge or skill developed from on the job

training. Without being an eyewitness, having prior knowledge of the

defendant, or having some practical on the job experience that a juror may

not be familiar with, the detective was in no better position to estimate or

compare heights from the photographs than the jury. Putting the arrows

on the still photos did not cloak the opinions with admissibility as lay

opinions and was misleading because there was no evidence as to the

distances between the defendant, the shooter, and the black line at the

time the images were captured. In other words, there were factors needed

to extrapolate from the blown-up images to correctly estimate height

measurements. The detective did not have the training or experience to

testify about those factors. It is significant that the arrows were not helpful

because the jury asked the question during deliberations: “How sure arrow

height parallel to ground and same height day and night?” Thus, we

conclude the detective’s opinions invaded the province of the jury and were

misleading. The trial court erred in admitting the detective’s lay opinions

regarding height.

Similar to Alvarez and Charles, we conclude the error was not

harmless. As we said in Charles, “‘error in admitting improper testimony

may be exacerbated where the testimony comes from a police officer.’

There is the danger that jurors will defer to what they perceive to be an

officer’s special training and access to background information not

presented during trial.” 79 So. 3d 235. The State relied on the detective’s

opinions in closing argument, and again, a question by the jury

demonstrates it considered the detective’s lay opinions.

Having concluded that the trial court erred in allowing the prosecutor

to use dissimilar demonstrative aids during closing argument and

admitting improper lay opinions by the lead detective, we reverse and

remand the case for a new trial.

Reversed and remanded for a new trial.

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WARNER and CONNER, JJ., concur.

MAY, J., concurs in part and dissents in part with opinion.

MAY, J., concurring in part and dissenting in part.

I agree with the majority’s decision to reverse and remand for a new

trial based on the prosecutor’s improper use of dissimilar demonstrative

aids. I disagree however that the detective’s testimony did not qualify as

permissible lay opinion evidence and that it invaded the province of the

jury. I would affirm on this issue.

Here, the detective personally reviewed the surveillance videos and

observed the defendant and shooter enter the crime scene through the

same door. In doing so, they both passed by a sign near the door that

contained a distinct black line at the top. The detective then went to the

crime scene and measured the height of the black line from the floor. He

compared the height of this black line to still shots of the defendant and

the shooter. He opined their height was the same. He also verified the

defendant’s height from the DAVID printout.

The detective’s testimony fell within the permissible bounds of section

90.701, Florida Statutes (2019). Indeed, the majority agrees the detective

could testify about: his observation of the two videos; that the defendant

and shooter passed by the same black line near the entrance door; the

exact measurement of the distance between the black line and the floor;

and why he blew up the still images. But the majority stops short of

permitting the detective’s height testimony and holds the detective could

not estimate the shooter and defendant’s height were the same and were

approximately five feet ten inches.

Under section 90.701, a witness may testify by giving an opinion if:

(1) The witness cannot readily, and with equal accuracy and

adequacy, communicate what he or she has perceived to the

trier of fact without testifying in terms of inferences or

opinions and the witness’s use of inferences or opinions will

not mislead the trier of fact to the prejudice of the objecting

party; and

(2) The opinions and inferences do not require a special

knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (2019).

14

While the jurors may have been able to view the same video footage and

still photos, they couldn’t tell the defendant’s height without the detective’s

testimony concerning his measurement, and his confirmation of the

defendant’s height from the DAVID printout. 2 The detective’s testimony

simply drew an inference or opinion based on his review of the video, the

stills, and the measurement he took at the crime scene. And as the

majority points out, it took no “special knowledge, skill, experience, or

training” for him to do so. In my view, the detective’s testimony qualified

as permissible lay witness opinion testimony under section 90.701.

Even if this testimony was considered error, any error was harmless.

State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The evidence linked

the defendant to the crime. The victim identified the defendant as the

shooter even though not 100% sure when the detective interviewed him at

the hospital. He chose the defendant’s photo in a lineup. The victim

testified he could see the shooter’s skin color, nose, chin, lips, and

cheekbones and they matched the defendant.

The surveillance video of the defendant entering the crime scene earlier

in the day and later that night wearing a hoodie sweatshirt and sunglasses

were played for the jury. The side by side still view photos of both

surveillance videos showed the defendant and the shooter were about the

same height. The victim and the other store employee testified that the

shooter was about the defendant’s height, which was five-eleven. And, the

detective confirmed the defendant’s height on the DAVID printout. This

evidence removed any reasonable possibility that the defendant’s

conviction resulted from the challenged testimony. On this issue, I would

affirm.

* * *

Not final until disposition of timely filed motion for rehearing.

2 The defendant also argues that “there are a number of problems with the arrows

drawn by” the detective. But, the defense did not object to the admission of the

exhibits and failed to object to the arrows on the images. The issue is therefore

unpreserved. Orton v. State, 212 So. 3d 377, 378–79 (Fla. 4th DCA 2017)

(“Appellate review is . . . limited to the specific grounds for objection raised at

trial.”).

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