          Supreme Court of Florida
                                   ____________

                                   No. SC17-845
                                   ____________

                                 RICO JOHNSON,
                                    Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                 September 6, 2018

POLSTON, J.

      Rico Johnson seeks review of the decision of the Fifth District Court of

Appeal in Johnson v. State, 215 So. 3d 644 (Fla. 5th DCA 2017), on the ground

that it expressly and directly conflicts with the decision of this Court in Evans v.

State, 177 So. 3d 1219 (Fla. 2015).1 The issue before this Court is whether a

witness who identifies the defendant’s voice could establish a prior special

familiarity with the defendant’s voice during an ongoing investigation. As

explained below, we hold that the testifying witness’s requisite prior special




      1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
familiarity with the defendant’s voice can be acquired at any time prior to trial.

Therefore, we approve the decision of the Fifth District in Johnson and recede

from Evans.

                                 BACKGROUND

      Rico Johnson was charged with conspiracy to traffic in cocaine. The facts of

this case are well summarized by the Fifth District’s decision:

             In September 2014, the City/County Investigative Bureau in
      Seminole County (the “CCIB”) began investigating the sale and
      distribution of cocaine that allegedly involved Appellant, co-
      conspirator Edward Howard, Jr., and more than one hundred other
      suspects. A wiretap on Howard’s telephone allowed the CCIB to
      record calls and receive data about intercepted phone calls, including
      the date and time of the call, whether it was an incoming or outgoing
      call from the wiretapped phone, and the numbers dialed by the
      wiretapped phone. The investigating agents correlated the suspects’
      names with phone numbers and video surveillance of them and
      relayed that information to Agents Matt Scovel, the lead investigative
      agent, and Kevin Pederson, the administrator of the software system
      that intercepted the phone calls. During the investigation, Agents
      Scovel and Pederson listened to thousands of intercepted phone calls
      involving the suspects.
             Based on the intercepted phone calls, the CCIB executed a
      search warrant at Howard’s home on a day it suspected that Appellant
      would be delivering a supply of cocaine. Although cannabis and cash
      were found in the home, they found no cocaine. During the search,
      Agent Scovel spoke with Appellant for approximately five minutes
      but Agent Scovel “did most of the talking” because Appellant “felt
      uncomfortable talking to [him].” At the same time, Agent Pederson
      had a five-minute conversation with Howard, who spoke for
      approximately half of the time. This was the only time that either
      agent personally spoke with Appellant or Howard. Based on the
      intercepted phone calls, sixteen suspects, including Appellant and
      Howard, were eventually arrested and charged with conspiracy to
      traffic in cocaine.

                                         -2-
             At trial, the State called Agents Scovel and Pederson to identify
      Appellant’s and Howard’s voices, respectively, on the recorded phone
      calls. Agent Scovel testified that he recognized Appellant’s voice
      from the intercepted phone calls, their conversation at the time of the
      search, and a DVD recording of a hearing where Appellant testified
      for approximately twenty minutes. That recording was not entered
      into evidence at Appellant’s trial or played for the jury. Agent
      Pederson testified that he recognized Howard’s voice from the
      intercepted phone calls and their conversation at the time of the
      search. The State later played several phone calls for the jury in
      which Appellant, Howard, and other suspects allegedly discussed drug
      transactions in coded terms. According to Agent Scovel’s testimony,
      the coded calls involved discussions between Howard and Appellant,
      and between Howard and other co-conspirators, about buying and
      selling cocaine, the amounts of and prices for the cocaine, the
      availability of buyers, and plans to meet to exchange the cocaine for
      money.

215 So. 3d at 646. Johnson was convicted of conspiracy to traffic in cocaine and

sentenced to 15 years’ imprisonment.

      On appeal, Johnson argued that the trial court erred in allowing Agent

Scovel’s lay opinion testimony because Scovel lacked the prior special familiarity

to identify Johnson’s voice on the recordings under this Court’s decision in Evans,

usurping the function of the jury. Id. However, the Fifth District affirmed,

concluding that Johnson’s reliance on Evans was misplaced. The Fifth District

reasoned that Scovel’s identification testimony met the requirements under Evans

because he both possessed a prior special familiarity with Johnson’s voice and was

a witness who heard the crime. Id. at 651. The Fifth District concluded that




                                        -3-
Scovel’s testimony did not invade the province of the jury and held that the trial

court did not abuse its discretion in admitting the identification testimony.

                                    ANALYSIS

      Johnson contends that, under the standard for lay opinion testimony in

Evans, a prior special familiarity with the defendant’s voice could not be

established once the investigation was ongoing. Although Evans supports

Johnson’s argument, we conclude that we should recede from Evans.

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

because it usurps the function of the jury. The jury’s function is to determine the

credibility and weight of such testimony.” Floyd v. State, 569 So. 2d 1225, 1231-

32 (Fla. 1990) (citation omitted). However, Florida has long recognized the ability

of a testifying witness to offer an opinion as to identity. See Roberson v. State, 24

So. 474, 478 (Fla. 1898) (“The opinion of a witness as to the identity of a person

seen by him is admissible in all cases where the witness has a previous personal

acquaintance with or knowledge of such person, and bases his opinion upon such

acquaintance or knowledge.”). Lay opinion testimony is permissible as to what the

witness perceived 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


                                         -4-
      (2) The opinions and inferences do not require a special knowledge,
      skill, experience, or training.

§ 90.701, Fla. Stat. When a witness is previously familiar with a defendant, they

are permitted to identify the voice of the defendant as a lay witness. See State v.

Cordia, 564 So. 2d 601, 602 (Fla. 2d DCA 1990); Hardie v. State, 513 So. 2d 791,

792 (Fla. 4th DCA 1987).

      The admission of the identification testimony focuses on whether the

identification testimony usurps the fact-finding function of the jury. See Alvarez v.

State, 147 So. 3d 537, 543 (Fla. 4th DCA 2014) (“[N]o record evidence exists

which indicates that the detective was in a better position than the jurors to view

the highly inconclusive and indiscernible surveillance video and enlarged stills and

thereby determine the skin color and races of the perpetrators.”); Ruffin v. State,

549 So. 2d 250, 251 (Fla. 5th DCA 1989) (“When 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.”). When a mere comparison of identification evidence over the course of an

investigation is the basis for the prior special familiarity, the identification

testimony does not assist the jury in identifying the defendant. Alvarez, 147 So. 3d

at 543 (finding error when the detective was unable to make the identification until

extensively rewatching the video); Ruffin, 549 So. 2d at 251 (finding the trial court




                                          -5-
erred in allowing identification testimony from three officers who simply viewed

the videotape and testified it depicted the defendant).

      In Evans, this Court addressed whether the trial court erred in permitting a

law enforcement officer to offer his opinion that the voice on a 911 recording was

that of the defendant. 177 So. 3d at 1228. At trial, the lead detective testified that

he recognized the defendant’s voice on the 911 recording because he compared it

to recorded jail calls between the defendant and family members. Id. Because the

lead detective based his identification on two recordings of the defendant after the

crime was committed, the only basis under which lay identification testimony

could be admissible was if a prior special familiarity was established. Id. at 1230.

This Court determined that “[a] police officer investigating a particular suspect’s

voice after the investigation is ongoing, as in this case, does not constitute the

requisite prior familiarity with the suspect.” Id. at 1230 (emphasis added).

Accordingly, this Court concluded that the “detective usurped the role of the jury

by being permitted to opine that a voice heard on a 911 call-back recording

belonged to the defendant.” Id. at 1224.

      In this case, Agent Scovel’s familiarity with Johnson’s voice arose as the

lead investigative agent who investigated the conspiracy over 100 days, listened to

thousands of recorded phone calls, and confirmed Johnson’s identity and voice

during his in-person interview. Further, the record reflects that Agent Scovel


                                           -6-
listened to the phone calls both in real time and after the fact. The jury in this case

did not share Agent Scovel’s familiarity with Johnson and was not in the same

position to assess the identity of the voices on the recorded calls. Additionally, the

jury was unable to simply compare the voice on the recorded calls to the DVD of

the hearing where Johnson testified because the DVD was not admitted into

evidence due to Johnson’s objection. Because Agent Scovel had the opportunity to

become familiar with Johnson’s voice over the course of the conspiracy

investigation, Scovel was in a better position to make the identification and his

testimony did not invade the province of the jury. Accordingly, the record

demonstrates that Agent Scovel possessed a special familiarity with Johnson’s

voice. However, based on our precedent in Evans, Agent Scovel’s familiarity

established after the investigation was ongoing would prevent him from obtaining

the requisite prior special familiarity with a suspect’s voice.

      However, as Justice Lewis outlined in his dissent in Evans, “Florida courts

have consistently allowed law enforcement officers to identify the voice of a

defendant where the officer has gained familiarity with the voice.” 177 So. 3d at

1243 (Lewis, J., dissenting). We agree with the Fifth District’s conclusion that in

the context of section 90.701, Florida Statutes, a prior special familiarity means

that “prior to trial, the identification witness must have gained familiarity with the

defendant that assists the witness in identifying him.” Johnson, 215 So. 3d at 652.


                                         -7-
A “prior special familiarity,” as explained by the Fifth District in Johnson,

“involves a witness with some advantage over the jury, gained by personal contact

with the defendant, apart from that which the jury could experience in the

courtroom.” Id. at 651. Because allowing voice identification testimony that was

acquired during an ongoing investigation is consistent with aiding the jury instead

of invading the province of the jury, we now recede from Evans.2 We conclude

that a familiarity with a defendant’s voice acquired during an ongoing investigation

may constitute the requisite prior special familiarity for voice identification

testimony. Therefore, the trial court properly allowed Agent Scovel to identify

Johnson’s voice on the recorded calls and we approve the decision of the Fifth

District.

                                  CONCLUSION

       In summary, because the identification witness may acquire a special

familiarity with the defendant’s identity at any time prior to trial, we recede from

Evans and approve the Fifth District’s decision in Johnson.

       It is so ordered.

CANADY, C.J., and LEWIS, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result in part and dissents in part with an opinion, in
which QUINCE, J., concurs.



       2. We conclude that the three-prong test of when we recede from precedent
is met. See Brown v. Nagelhout, 84 So. 3d 304, 309 (Fla. 2012).


                                         -8-
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

PARIENTE, J., concurring in result in part and dissenting in part.

      While the rule announced in Evans v. State, 177 So. 3d 1219 (Fla. 2015),

may have been unnecessarily broad, as applied to other cases like this one, I write

to emphasize the significant differences between this case and Evans. I further

write to urge the trial courts to exercise extreme caution before allowing an

investigating police officer to testify to voice identification based on “prior special

familiarity,” especially where the familiarity comes only after arrest.

      While I concur in the result in this case because of the significant factual

differences between this case and Evans, I dissent from the majority’s

unnecessarily broad holding that “the testifying witness’s requisite prior special

familiarity with the defendant’s voice can be acquired at any time prior to trial.”

Majority op. at 1-2. Such a holding opens the door to police officers gaining the

requisite “special familiarity” to testify to voice identification based simply on

listening to audio recordings created after the defendant has been arrested, which

are equally available to the jury.

      The differences between this case and Evans clearly illustrate this concern.

In the case before us, after obtaining a wiretap to investigate a conspiracy to sell

and distribute cocaine, Agent Scovel, along with other agents, “listened to

thousands of intercepted calls involving the suspects” over 100 days. Johnson v.

                                         -9-
State, 215 So. 3d 644, 646 (Fla. 5th DCA 2017); majority op. at 6. The phone calls

were correlated with suspect names, phone numbers, and video surveillance.

Johnson, 215 So. 3d at 646. In fact, the Fifth District Court of Appeal determined

that Agent Scovel was so involved with the crime that he “witnesse[d] . . . the

conspiracy as it unfolded.” Id. at 651.

      This extensive investigation formed the basis for Johnson’s ultimate arrest,

and many of the phone recordings were entered into evidence at trial. It was that

extensive investigation of listening to thousands of hours of intercepted phone calls

that distinguishes this case from Evans. As the Fifth District explained, properly

distinguishing Evans:

      In Evans, the state made the decision not to offer the exemplar
      telephone recordings into evidence. Had the recordings been
      admitted, Evans would have been directly, factually analogous to
      Ruffin [v. State, 549 So. 2d 250 (Fla. 5th DCA 1989),] and Alvarez [v.
      State, 147 So. 3d 537 (Fla. 4th DCA 2014)]. The jury would have
      been able to make the same comparison that was made by the police
      because the police enjoyed no expertise or special familiarity with the
      voice. Because the state made the decision not to give the exemplar to
      the jury, the Evans court treated it as an invasion-of-the-province-of-
      the-jury case. In other words, it would circumvent the intent of the
      evidence code to allow the state to disadvantage the jury by
      withholding tangible evidence in its possession so as to justify the use
      of otherwise inadmissible lay testimony. Simply put, Evans is a case
      where the police merely compared one recording to another, an
      exercise that was well within the province of the jury, had it been
      given the opportunity to do so.

Id. at 650 (footnote omitted) (emphasis added). Where Detective Judy in Evans

was in no better position than the jury to identify Evans’ voice, Agent Scovel’s


                                          - 10 -
testimony in this case was not only reliable, but also helpful to the jury by

providing information based on familiarity with the crime that the jury could not

obtain. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); majority op. at 7.

      In receding from Evans, the majority announces a new per se rule—that the

necessary “prior special familiarity with the defendant’s voice can be acquired at

any time prior to trial”—that could cause additional issues. Majority op. at 1-2

(emphasis added). The majority’s new rule subjects criminal defendants to undue

prejudice. Under this new rule, theoretically, an officer could listen to recordings

outside the courthouse just before trial and then proceed to testify as a voice

identification witness based on “prior special familiarity.”

      Further, the danger of unfair prejudice is a critical issue in any case where a

police officer testifies as a lay identification witness based on “prior special

familiarity.” See § 90.403, Fla. Stat. (2017). Not only are there significant

“constraints on cross-examination,” but the danger of unfair prejudice is

exacerbated when police officers testify as lay witnesses identifying the defendant.

Hardie v. State, 513 So. 2d 791, 793 (Fla. 4th DCA 1987). As this Court explained

in Evans:

      “[E]rror in admitting improper testimony may be exacerbated where
      the testimony comes from a police officer.” Martinez v. State, 761 So.
      2d 1074, 1080 (Fla. 2000). “When a police officer, who is generally
      regarded by the jury as disinterested and objective and therefore
      highly credible, is the corroborating witness, the danger of improperly
      influencing the jury becomes particularly grave.” Id. (quoting

                                         - 11 -
      Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992)). “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.” Charles [v. State, 79 So. 3d [233,] 235 [(Fla. 4th DCA
      2012)].
             In fact, permitting questions that elicit a witness’s position as a
      police officer when that witness is identifying a defendant’s voice or
      image has been held to be reversible error even when the
      identification itself was permissible.

177 So. 3d at 1230. Thus, regardless of when the officer forms the prior special

familiarity, trial courts must carefully consider the prejudice to which the

defendant is subjected by allowing such testimony and limit the testimony

accordingly. See id. at 1231.

                                  CONCLUSION

      For the reasons explained above, I agree with the majority that, based on the

facts of this case, the trial court properly allowed Agent Scovel to identify

Johnson’s voice based on his “prior special familiarity.” However, I dissent from

the majority’s broad holding that prior special familiarity necessary to admit

identification testimony may be acquired any time before trial.

QUINCE, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Fifth District - Case No. 5D15-2721

      (Seminole County)




                                        - 12 -
James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
Chief, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach,
Florida,

      for Respondent




                                     - 13 -
