            THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

RICO JOHNSON,

              Appellant,

 v.                                                       Case No. 5D15-2721

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed April 7, 2017

Appeal from the Circuit Court for
Seminole County,
Debra S. Nelson, Judge.

James S. Purdy, Public Defender, and
Matthew Funderburk, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.

TORPY, J.

       Appellant, Rico Johnson, challenges his conviction for conspiracy to traffic in

cocaine. Among other claims, he argues that the trial court erred by permitting police

officers to give opinion testimony identifying his and a co-conspirator’s voices on

intercepted telephone calls. He argues that because the police officers lacked any “prior

special familiarity” with his voice, as witnesses to the crime or otherwise, admitting their

testimony invaded the province of the jury. Based on our conclusion that the trial court
did not abuse its discretion in admitting the voice identification testimony, and that the

other claims of error do not merit discussion, we affirm.

       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.

       Voice identification testimony has been utilized in this state in criminal prosecutions

since at least 1907. See Mack v. State, 44 So. 706 (Fla. 1907). The origins of this form

of identification date back to the year 1660. Id. at 708. In Mack, the victim was attacked

from behind in the dark of night. Before the victim lost consciousness from being choked

by her assailant, the assailant uttered twelve words. The victim positively identified the

defendant as her attacker after recognizing his voice in a post-crime show-up. The Florida

Supreme Court affirmed the conviction despite a challenge to the reliability of this form of

evidence. Id. at 709-10.

       Twenty-three years later, the Florida Supreme Court again considered the

admissibility of voice identification testimony. In Martin v. State, 129 So. 112 (Fla. 1930),




                                              3
the defendant was in the victims’ presence in a dimly lit room for about five minutes.

Characterizing the later voice identification of the defendant by the two victims as “direct

and positive proof” of identity, the supreme court emphasized that this form of evidence

is ordinarily admissible despite threshold challenges to its credibility, leaving for the jury

to decide its probative value. Martin, 129 So. at 115.

       Indeed, a cursory review of decisions in this and other jurisdictions reveals

hundreds of cases involving brief encounters between the victim of a crime and a

defendant under circumstances where the defendant can be identified only by voice

comparison. In the typical situation, the spoken words are few and the victim had no prior

familiarity with the defendant’s voice before making the identification. The courts have

uniformly approved the admission of this form of evidence, concluding that the jury should

determine its credibility.

       In a more recent case, Macias v. State, 673 So. 2d 176 (Fla. 4th DCA 1996), a

nighttime battery and strong-arm robbery took place over a span of between two and ten

minutes. The victim was unable to see the defendant’s face but identified him based on

his voice. The defendant uttered about thirty words during the crime. Thirty-two days

after the crime, police played for the victim a tape-recorded interview with the defendant.

The victim positively identified the defendant's voice as that of the assailant. The taped

interview used as the exemplar lasted only three minutes, during which time the police

did the majority of the talking. Although much of the recording was unintelligible, the

defendant could be heard uttering the words: “I’m not going to be railroaded again.”

Macias, 673 So. 2d at 179. Three months after the crime, the victim again made a voice

identification of the defendant after hearing him speak at a pretrial bond proceeding.




                                              4
draw same conclusion). In Ruffin, we concluded that the opinion testimony would not be

helpful because the jury could look at the surveillance tape and compare it to the

defendant as he appeared in the courtroom—the same comparison upon which the police

officers based their opinions. Because the comparison required no special expertise, the

use of this evidence, especially from witnesses in positions of authority, was unfairly

prejudicial.   Alvarez was similarly premised. In that case, the police witness simply

interpreted a surveillance video. The Fourth District emphasized that the officer was in

no better position than the jury to render the opinion.      Accordingly, it reversed the

conviction based on the erroneous admission of the opinion evidence. Alvarez, 147 So.

3d at 542-43. Central to an understanding of Alvarez was its discussion of Johnson v.

State, 93 So. 3d 1066, 1069 (Fla. 4th DCA 2012), which it distinguished because, in

Johnson, the defendant’s appearance had changed before trial, and the police

identification witness had observed the defendant after the crime occurred but before he

changed his appearance. Id. at 542.

       The dissent seems to dispute that “helpfulness” is a predicate for the admission of

lay opinion testimony, claiming that this concept is erroneously derived from federal cases

construing federal rule 701 and from Alvarez, which it calls into doubt as a pre-Evans

case. Although the word “helpfulness” does not appear in the Florida code, that the

concept is implicit in the Florida code was confirmed in Alvarez, the holding of which is

well grounded in authoritative works. See Ehrhardt, supra, at § 701.1 n.2; Wigmore,

supra, at §§ 1917-18; see also Ehrhardt, supra, at § 102.1 (explaining that most

differences between Florida code and federal rules were intended to clarify and “not

intended to change the substance of the Federal Rule”). Alvarez preceded Evans, but it




                                            8
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. 3

       In Bush, the Tenth Circuit addressed both authentication and the “helpfulness”

predicate of lay opinion testimony in the context of a police officer’s voice identification

testimony. The Bush court’s discussion of the “helpfulness” predicate is particularly

instructive and illustrates the distinction we highlight here between helpful and unhelpful

lay opinion testimony:

              Mr. Bush relies on United States v. LaPierre, 998 F.2d 1460
              (9th Cir. 1993). LaPierre is distinguishable from the instant
              case, if not inapposite. In LaPierre, a police officer
              investigating bank robberies allegedly committed by the
              defendant identified him in bank surveillance photographs. Id.
              at 1465. The Ninth Circuit held that because the jury could
              view the photographs and identify the perpetrator, the officer's
              testimony “ran the risk of invading the province of the jury and
              unfairly prejudicing” the defendant. Id. Based in part on this
              reasoning, the court discouraged the use of lay opinion
              identification testimony. Id. We are not convinced that
              LaPierre applies here or furthers Mr. Bush's argument in any
              manner.

                     In LaPierre, the testifying officer, like the jury members,
              had never seen the defendant in person before the trial. Id. In
              essence then, the officer's identification of the defendant was
              no different from what the jury members themselves were
              required to do in comparing the surveillance photographs to
              the defendant in the courtroom. As a result, the court
              concluded the officer's overall level of familiarity with the
              defendant's appearance fell short of the standard of
              helpfulness required by Rule 701. Id. By contrast, Detective


       3The outcome might be different in a case where the defendant is successful in
objecting to the state’s attempts to offer the exemplar into evidence.


                                             10
authenticate voice; minimal familiarity sufficient); United States v. Axselle, 604 F.2d 1330,

1338 (10th Cir. 1979) (agent permitted to identify defendant’s voice in single phone call

after hearing his voice in court on one occasion); Vilsaint v. State, 127 So. 3d 647, 650

(Fla. 4th DCA 2013) (detective permitted to authenticate defendant’s voice on tape based

on ten-to-fifteen-minute discussion after his arrest; credibility of identification for jury to

determine). The threshold for authentication is low because the trier of fact makes the

ultimate determination of whether the evidence is genuine. C. Ehrhardt, Florida Evidence

§ 901.1 (2016 ed.).

       That Evans is not an authentication case is made clear by the court’s express

holding that the “lead 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.” Evans, 179

So. 3d at 1224. Evans also distinguished, but did not overrule, the main precedent upon

which the dissenting justices relied, Vilsaint v. State, 127 So. 3d 647 (Fla. 4th DCA 2013),

which it labeled as a “case [that] concerns a trial judge’s determination of whether the

recording can be authenticated and thus presented to the jury.” Evans, 177 So. 3d at

1230. In Vilsaint, a police detective authenticated the defendant’s voice on a tape

recording based upon a brief face-to-face interview during which the defendant spoke

only thirty-six words, most of which were “yes” or “no.” 127 So. 3d at 649.

       Rather than authenticity, the evidentiary error in Evans involved section 90.701,

Florida Statutes, which addresses the circumstances under which lay opinion testimony

is admissible. One central tenet of this statute is that the testimony must be helpful to the

jury in determining a fact at issue. See Ehrhardt, supra, at § 701.1 n.2; 7 Wigmore,

Evidence §§ 1917-18 (Chadbourn rev. 1978) (lay opinions are inadmissible when jury can




                                              7
draw same conclusion). In Ruffin, we concluded that the opinion testimony would not be

helpful because the jury could look at the surveillance tape and compare it to the

defendant as he appeared in the courtroom—the same comparison upon which the police

officers based their opinions. Because the comparison required no special expertise, the

use of this evidence, especially from witnesses in positions of authority, was unfairly

prejudicial.   Alvarez was similarly premised. In that case, the police witness simply

interpreted a surveillance video. The Fourth District emphasized that the officer was in

no better position than the jury to render the opinion.      Accordingly, it reversed the

conviction based on the erroneous admission of the opinion evidence. Alvarez, 147 So.

3d at 542-43. Central to an understanding of Alvarez was its discussion of Johnson v.

State, 93 So. 3d 1066, 1069 (Fla. 4th DCA 2012), which it distinguished because, in

Johnson, the defendant’s appearance had changed before trial, and the police

identification witness had observed the defendant after the crime occurred but before he

changed his appearance. Id. at 542.

       The dissent seems to dispute that “helpfulness” is a predicate for the admission of

lay opinion testimony, claiming that this concept is erroneously derived from federal cases

construing federal rule 701 and from Alvarez, which it calls into doubt as a pre-Evans

case. Although the word “helpfulness” does not appear in the Florida code, that the

concept is implicit in the Florida code was confirmed in Alvarez, the holding of which is

well grounded in authoritative works. See Ehrhardt, supra, at § 701.1 n.2; Wigmore,

supra, at §§ 1917-18; see also Ehrhardt, supra, at § 102.1 (explaining that most

differences between Florida code and federal rules were intended to clarify and “not

intended to change the substance of the Federal Rule”). Alvarez preceded Evans, but it




                                            8
is clearly not in tension with Evans. It reached the same conclusion as Evans and Ruffin

(upon which Evans principally relied), reversing the conviction based on inadmissible lay

opinion. Nevertheless, even if the dissent is correct that “helpfulness” is not a predicate

for the admission of lay testimony under the Florida code, the elimination of this implied

predicate would authorize a more liberal rule for the admission of lay testimony under

Florida law, not the contrary as the dissent implies.

       The dissent also makes a vague assertion that section 90.701 and federal rule 701

have been “interpreted differently.” Because Evans does not mention either section

90.701 or any federal precedents, we assume the dissent’s argument is that federal

precedents construing rule 701 were implicitly rejected in Evans. Besides the lack of

textual support for this argument, it contravenes a prior express directive from the

supreme court that the Florida Evidence Code “should be construe[d] . . . in accordance

with federal court decisions.” Moore v. State, 452 So. 2d 559, 561-62 (Fla. 1984).

       Evans is a logical application of Ruffin and Alvarez. 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 and

Alvarez. 2 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



       2  Arguably, a distinction can be made between visual identification cases and voice
identification cases. In the former, unless the defendant changes his appearance before
trial, the jury can see him in person in the courtroom and compare his appearance to the
image on a photograph or video tape. In a voice case, unless the defendant testifies, the
jury is left to compare the incriminating recording to a recorded exemplar.


                                             9
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. 3

       In Bush, the Tenth Circuit addressed both authentication and the “helpfulness”

predicate of lay opinion testimony in the context of a police officer’s voice identification

testimony. The Bush court’s discussion of the “helpfulness” predicate is particularly

instructive and illustrates the distinction we highlight here between helpful and unhelpful

lay opinion testimony:

              Mr. Bush relies on United States v. LaPierre, 998 F.2d 1460
              (9th Cir. 1993). LaPierre is distinguishable from the instant
              case, if not inapposite. In LaPierre, a police officer
              investigating bank robberies allegedly committed by the
              defendant identified him in bank surveillance photographs. Id.
              at 1465. The Ninth Circuit held that because the jury could
              view the photographs and identify the perpetrator, the officer's
              testimony “ran the risk of invading the province of the jury and
              unfairly prejudicing” the defendant. Id. Based in part on this
              reasoning, the court discouraged the use of lay opinion
              identification testimony. Id. We are not convinced that
              LaPierre applies here or furthers Mr. Bush's argument in any
              manner.

                     In LaPierre, the testifying officer, like the jury members,
              had never seen the defendant in person before the trial. Id. In
              essence then, the officer's identification of the defendant was
              no different from what the jury members themselves were
              required to do in comparing the surveillance photographs to
              the defendant in the courtroom. As a result, the court
              concluded the officer's overall level of familiarity with the
              defendant's appearance fell short of the standard of
              helpfulness required by Rule 701. Id. By contrast, Detective


       3The outcome might be different in a case where the defendant is successful in
objecting to the state’s attempts to offer the exemplar into evidence.


                                             10
              Bench conducted face-to-face conversations with Mr. Bush on
              at least three occasions and engaged in several phone
              conversations with J.R. The jury was denied an opportunity to
              engage in any comparison of Mr. Bush's voice to that of J.R.
              because Mr. Bush exercised his right not to testify at trial and
              only limited recordings were available from the phone
              conversations. Detective Bench's testimony was therefore
              helpful because it assisted the jury in determining a fact issue
              that was otherwise hampered by Mr. Bush's constitutionally
              protected silence at trial. The district court's ruling regarding
              the admissibility of Detective Bench's lay opinion testimony
              was not an abuse of discretion.

Bush, 405 F.3d at 917–18 (footnote omitted).

       The holding in Evans embraces the same distinction drawn by the Bush court by

limiting the use of lay identification testimony to circumstances where the identification

witness was an eyewitness to the crime or demonstrates a “prior special familiarity” with

the defendant’s voice. Evans, 177 So. 3d at 1229. In both of these scenarios, the

identification witness has an advantage over the jury. An “eyewitness” to a crime has

direct contact with the criminal, giving rise to a unique opportunity for sensory perception.

Accordingly, even when a surveillance tape of the defendant during the commission of

the crime is played for a jury, the “eyewitness” may still give an identification opinion

because the personal contact during the event gives the witness a distinct perspective.

“Prior special familiarity” also 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.

       In this case, the identification testimony satisfies both criteria. Agents Scovel and

Pederson were “witnesses” to the crime. We do not interpret the term “eyewitness,” as

used in Evans, to exclude witnesses who hear, rather than see, the crime. Indeed, voice

identification usually involves witnesses who did not see the criminal. And, there is



                                             11
seldom an “eyewitness” to a conspiracy, which, by definition, merely involves an

agreement to commit a crime. Unlike Evans, where the officers became involved in the

investigation after the crime was completed, here, the agents were witnesses to the

conspiracy as it unfolded. Unlike the typical property crime or crime of violence, a

conspiracy is an ongoing crime that might span days, weeks, months, or years. Here, the

conspiracy did not end until the conspirators were apprehended. During the course of

the conspiracy, the agents listened to thousands of conversations, culminating in the

discovery of a probable place and time for the exchange of drugs and money. 4 That place

was later identified as belonging to Howard. After studying the voices of the conspirators

over an extensive period of time, the agents had the opportunity to confront the

conspirators and hear their voices in person. As witnesses, under Evans, it was not

inappropriate for the jury to receive their lay opinions.

       Even if the officers here were not “eyewitnesses,” as contemplated by Evans, we

view this as a “prior special familiarity” case. What this means in the context of section

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

defendant that assists the witness in identifying him as the perpetrator and which the jury

cannot itself acquire. Johnson is an example of a case where the police identification

witness had “prior special familiarity.” Although the jury had the ability to compare the




       4  The dissent emphasizes that Agent Scovel did not actually listen to the intercepts
until after they were recorded. Whether the agents heard the mechanically intercepted
voices during or after the conversation seems to us a formalistic distinction having no
effect on the reliability of the voice comparison. The point we emphasize is that, under
the Evans construct, the agents were clearly investigating the crime while it was in
progress. The investigation culminated in the search and arrests, in which Agent Scovel
personally participated. This was not a case like Evans, where the police participation
came after the crime was completed.


                                              12
surveillance video with the defendant's in-court appearance, his appearance had

changed since the taking of the video and the police identification witness had observed

him before he changed his appearance but after the crime. The fact that the “prior”

knowledge came after the crime was committed, but before the trial, was inconsequential

to the holding in that case. Bush and Vilsaint are examples of “prior special familiarity” in

the context of voice identification. In Bush, the personal contact between the police officer

and the defendant was not capable of replication for the jury because the defendant did

not testify. Vilsaint is similar to Bush. There, the police identification witness had personal

contact with the defendant during the booking process. Here, like in Bush and Vilsaint,

the agents’ personal contact with the co-conspirators was the type of identification

testimony that could help the jury in identifying the voices on the tapes. This is clearly not

a case like Evans, Ruffin or Alvarez, where police simply performed an after-the-fact

comparison between two recordings, offering nothing additional to aid the jury.

       The dissent’s central argument—that Evans sets a “heightened” standard for the

admission of voice identification testimony to foster greater reliability—is a straw man

argument that confuses the holding of the case. Evans did not compel the exclusion of

the tangible recordings or condemn this method of identification. The upshot of Evans is

that the jury must compare the recordings, unpersuaded (or unassisted) by duplicative

lay opinions. At best, the danger of misidentification is unaffected by the exclusion of the

lay opinion evidence.

       The dissent’s characterization of Evans as a reliability heightening case also

conflates the distinct evidentiary concepts at issue in voice identification cases, each of

which is rooted in a distinct policy. The prohibition against suggestive show-up methods—




                                              13
not at issue here—protects against tainted identifications and promotes reliability.

Authenticity too establishes a minimal threshold for reliability but is also not at issue here.

By contrast, the “helpfulness” predicate for lay opinion testimony has nothing to do with

the accuracy of the opinion. It is grounded in a policy against invading the jury’s province.

See Wigmore, supra, at §§ 1917-18. As the Evans court emphasized, especially when

the inadmissible lay opinions are offered by persons in positions of authority like police

officers, the admission of these unhelpful lay opinions creates the enhanced risk that the

jury might give undue deference to the lay opinions. Adherence to the “helpfulness”

predicate, while not logically bearing on the reliability of the identification, fosters the

distinct goal of jury independence. See Evans, 177 So. 3d at 1230.

       Even if we indulge the dissent in a debate over reliability of the identification

evidence, we conclude that the identity evidence presented here was no less reliable than

in the vast majority of cases where identification is an issue. The fact that the duration of

the post-arrest, personal contact was brief is not a distinguishing feature of this case that

affects the admissibility of the evidence. Many, if not most, identification cases, voice or

otherwise, involve brief encounters during the crime and/or during the post-crime

identification process. In Macias, for example, the assailant uttered about thirty words

during the encounter with the victim. Thirty-two days later the victim identified him from

a three-minute recording, during which, like the face-to-face interview here, the defendant

spoke very few words. Vilsaint too involved brief personal contact with the defendant by

police during the booking process, after his arrest.

       Buttressing the opinion testimony here was the additional circumstantial evidence

gleaned from the content of the conversations themselves. From these conversations,




                                              14
the universe of suspects was considerably narrowed. Police became aware of a probable

exchange at a particular place and time. When the police converged on the place, later

confirmed to be Howard’s house, Appellant and Howard were present. This circumstantial

evidence of identity supported the opinion testimony offered at trial. It was for the jury to

decide whether the totality of the identity evidence satisfied the high burden of proof for a

criminal conviction. See Manson, 432 U.S. at 116 (“Juries are not so susceptible that they

cannot measure intelligently the weight of identification testimony that has some

questionable feature.”).

       AFFIRMED.


COHEN, C.J., concurs.
ORFINGER, J., concurs in part, and dissents in part, with opinion.




                                             15
ORFINGER, J., concurring in part, and dissenting in part.                  Case No. 5D15-2721

       The holding of Evans v. State, 177 So. 3d 1219, 1229 (Fla. 2015), is clear: the

“testimony that a witness recognizes the voice of the accused is inadmissible . . . unless

the testifying witness (1) was an eyewitness to the crime, (2) has some prior special

familiarity with the voice of the defendant, or (3) is qualified as an expert in identification.” 5

Because I conclude the majority misapplies this holding, I respectfully dissent. 6

       The legal system relies heavily on witness identifications for investigating and

prosecuting crimes.       However, identification errors are the leading cause of false

convictions. Cindy E. Laub, Lindsey E. Wylie & Brian H. Bornstein, Can the Courts Tell

an Ear from an Eye? Legal Approaches to Voice Identification Evidence, 37 Law &

Psychol. Rev. 119, 119 (2013). Because reliability is the linchpin in determining the

admissibility of identification testimony, Manson v. Brathwaite, 432 U.S. 98, 114 (1977),

and the role of witness identification is so important, especially when there is no physical

evidence, the Florida Supreme Court limited the witnesses able to give opinion testimony

about the identity of a recorded voice in Evans. See C. Ehrhardt, Fla. Evidence § 901.6

(2016 ed.).

       To ensure the reliability of opinions presented to the jury, Evans raised the

standard for a voice identification by requiring the witness offering an opinion on the

identity of a speaker to be either an eyewitness or a witness with prior special familiarity




       5   The Florida Supreme Court decided Evans after Johnson’s trial.
       6   I concur with the majority that Johnson’s other claims of error lack merit.




                                                16
with the voice. 7 As a result, Evans demands more than did the earlier cases relied on by

the majority. In an effort to satisfy the Evans construct, the majority contends that Agent

Scovel either was an eyewitness to the crime (a position not advanced by the State) or

had sufficient prior special familiarity with Johnson’s voice to be able to reliably identify it

on the recordings. I disagree with both contentions.

       First, with respect to the majority’s position that Agent Scovel was an eyewitness,

an eyewitness is someone who personally sees an event and can describe it later.

Eyewitness, Black’s Law Dictionary (10th ed. 2014); see also Earwitness, Black’s Law

Dictionary (10th ed. 2014) (defining earwitness as witness who testifies about something

he or she heard, but did not see). I do not dispute that Agent Scovel listened to the tapes

of the recorded telephone calls or that the tapes were properly authenticated. But the

question here is not one of authentication; it is whether Agent Scovel is able to reliably

opine—either as an eyewitness or as a witness with prior special familiarity with

Johnson’s voice—that he recognized Johnson’s voice on the tape. 8 Agent Scovel was

not present when the calls were recorded, and did not observe Johnson speaking on the

phone while simultaneously listening to the calls. Had that occurred, arguably, he could

be considered an eyewitness. But, with the exception of one brief personal conversation

with Johnson, Agent Scovel was in no better position to identify the voice on the

recordings than anyone else who listened to the tapes and the recording of Johnson’s

pretrial testimony.



       7   Expert testimony is also permitted by Evans, but is not an issue in this case.
       8 Because this case concerns lay opinion testimony, I need not distinguish Vilsaint
v. State, 127 So. 3d 647 (Fla. 4th DCA 2013), which the majority concedes is a case
regarding authentication. See slip opinion at 7.


                                              17
       The majority’s reliance on Mack v. State, 44 So. 706 (Fla. 1907), Martin v. State,

129 So. 112 (Fla. 1930), and Macias v. State, 673 So. 2d 176 (Fla. 4th DCA 1996), is

misplaced. Each of those cases involved the victim of the crime testifying as to what the

perpetrator said while the crime was being committed. The victims in those cases were

prototypical eyewitnesses to the crimes and as such, satisfied the Evans requirements.

Just as the officers in Ruffin v. State, 549 So. 2d 250 (Fla. 5th DCA 1989), and Alvarez v.

State, 147 So. 3d 537 (Fla. 4th DCA 2014), were not eyewitnesses to a crime merely

because they later watched a recorded video of the crime, Agent Scovel is not an

eyewitness to the conspiracy merely because he later listened to the recorded phone

conversations discussing it.

       Perhaps the strongest support for the majority opinion can be found in Alvarez,

which held 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.” 147 So. 3d at 542. Because Agent Scovel

had a brief, in-person conversation with Johnson, he was in a slightly better position than

the jurors to determine if Johnson’s voice was on the recorded telephone calls. However,

this “better position than the jurors” language—which the majority refers to as the

“helpfulness” standard—cannot be found in Evans, which postdates Alvarez. 9 It was

apparently adopted from Federal Rule of Evidence 901 and numerous federal cases cited




       9  The State could have allowed the jury to determine for itself if Johnson’s voice
was heard on the incriminating recordings by playing the recording of the pretrial hearing
at which Johnson testified, or by compelling him to give a voice exemplar, either before
or at trial, in order to evaluate the physical properties of his voice. See Fla. R. Crim. P.
3.220(c)(1)(B); United States v. Dionisio, 410 U.S. 1 (1973).


                                            18
by the majority, but it is premised on what appears to be a lower standard for the

admissibility of opinion testimony in federal courts.

       Although I agree with the majority that the provisions of the Florida and federal

evidence codes regarding lay opinion testimony are similar, one need only compare

Evans with United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005), to see that they

have been interpreted differently by Florida and federal courts. Had this case been

prosecuted in federal court, Agent Scovel’s opinion testimony would certainly have been

allowed. See, e.g., Bush, 405 F.3d at 919 (holding voice identification need only rise to

level of minimal familiarity); United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979)

(holding single telephone call, combined with hearing voice in court, is sufficient for voice

identification testimony to go to jury). However, I am compelled to follow the interpretation

of the Florida evidence code by the Florida Supreme Court, not the interpretation of the

federal evidence code by federal courts. Under Florida law, because Evans raised the

bar for the admissibility of an opinion on voice identification, I conclude Agent Scovel was

not an eyewitness competent to render an opinion on whose voice was heard on the

recordings.

       Turning to the majority’s position that Agent Scovel had adequate prior special

familiarity with Johnson’s voice that qualified him to testify, it seems a matter of common

sense that the ability to identify a speaker from his or her voice depends on the number

of exposures to the voice in question, the quality of these exposures, and the nature of

the identification process. See Lawrence Solan & Peter M. Tiersma, Hearing Voices:

Speaker Identification in Court, 54 Hastings L.J. 373, 375 (2003). The Evans court

incorporated this common sense approach by creating a standard permitting a witness to




                                             19
identify the voice of the defendant when the witness was previously familiar with the

defendant. Evans, 177 So. 3d at 1229; see State v. Cordia, 564 So. 2d 601, 601-02 (Fla.

2d DCA 1990) (permitting witness to testify who had known defendant “for a significant

period of time” and had spoken to defendant in person and over telephone); Hardie v.

State, 513 So. 2d 791, 792 (Fla. 4th DCA 1987) (holding that police officers who had prior

knowledge and contact with defendant could properly testify and identify him).

       Here, however, Agent Scovel lacked the requisite prior special familiarity with

Johnson. Before initiating the investigation, Agent Scovel had no contact with Johnson.

During the course of the investigation, Agent Scovel spoke to Johnson only once, during

the search of Howard’s house, and Johnson said little during that conversation. Other

than this brief conversation, the only familiarity Agent Scovel had with the voice that he

believed to be Johnson’s was through listening to recordings of intercepted phone

conversations and a subsequent recording of Johnson’s pretrial hearing. This limited

interaction with Johnson is not sufficient to constitute prior special familiarity. Indeed,

Evans specifically held that “a police officer investigating a particular suspect’s voice after

the investigation is ongoing . . . does not constitute the requisite prior familiarity with the

suspect.” 177 So. 3d at 1230 (emphasis added); see Proctor v. State, 97 So. 3d 313, 315

(Fla. 5th DCA 2012); cf. Cordia, 564 So. 2d at 601-02; Hardie, 513 So. 2d at 792. While

the majority contends that the timing of an officer’s interaction with a voice is

inconsequential, the Florida Supreme Court held otherwise. It is clear from Evans that

an investigating officer does not obtain prior special familiarity with a suspect’s voice if his

or her first encounter with the voice occurs after a criminal investigation into the suspect’s

behavior has begun, regardless of whether at that time the crime has been completed.




                                              20
Evans, 177 So. 3d at 1230. Additionally, a trial court’s error in permitting an improper

identification “may be exacerbated where the testimony comes from a police officer” and

the jury is aware of that position because officers are often regarded as highly credible.

Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000); see also Evans, 177 So. 3d at 1230

(finding use of questions that elicit witness’s position as police officer when witness is

identifying defendant’s voice or image may be reversible error even when identification

itself is permissible).

       In the end, the majority distinguishes this case from Evans by claiming that Agent

Scovel was an eyewitness because he listened to the recordings and spoke briefly in-

person with Johnson, whereas the detective in Evans had no personal interaction with

the defendant. Although this is accurate, it is insufficient under the heightened Evans

standard to make Agent Scovel an eyewitness or to give him the requisite prior special

familiarity with Johnson’s voice to reliably identify it in the recordings. 10 I would reverse

for a new trial.




       10 Likewise, I do not believe Agent Pederson was an eyewitness or had prior
special familiarity with Howard’s voice to reliably identify it in the recordings.


                                             21
