       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 27, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1533
                         Lower Tribunal No. 14-22398
                             ________________


                                 Steve Austin,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.


Before SHEPHERD, EMAS and SCALES, JJ.

      EMAS, J.
         Appellant, Steve Austin, appeals from the judgments and sentences for the

offenses of burglary and grand theft. He raises two claims on appeal: the State

during closing argument engaged in improper bolstering of a civilian witness; and

the trial court erred in failing to conduct a Richardson1 hearing and allowing, over

objection, expert testimony from a crime scene investigator whose name was

provided by the State in discovery, but who had not been designated as an expert

witness.

         As to the closing argument, we hold that the statements did not constitute

bolstering and the trial court did not err in overruling the defense objections. The

State was discussing the standard jury instructions which list the factors the jury

should consider in weighing the evidence and determining what evidence is

reliable. See Fla. Std. J. Inst. (Crim.) 3.9 (“Weighing the Evidence”).2 The
1   Richardson v. State, 246 So. 2d 771 (Fla. 1971).
2   The jury instruction, as read to the jury in this case, provided in pertinent part:

         It is up to you to decide what evidence is reliable. You should use
         your common sense in deciding which is the best evidence and which
         evidence should not be relied upon in considering your verdict. You
         may find some of the evidence not reliable, or less reliable than other
         evidence.

         You should consider how the witnesses acted, as well as what they
         said. Some things you should consider are:
         1.     Did the witness seem to have an opportunity to see and know
                the things about which the witness testified?
         2.     Did the witness seem to have an accurate memory?
         3.     Was the witness honest and straightforward in answering the
                attorneys’ questions?

                                              2
prosecutor thereafter argued what the evidence had shown (or failed to show) as to

these factors, when applied to the witness’ testimony. Read in proper context, the

prosecutor did not personally “vouch” for the witness,3 place the government’s

credibility or prestige behind a witness, or argue or imply the prosecutor was aware

of information, not presented to the jury, bearing on the witness’ credibility,

reliability or motive for testifying.4 Instead, the prosecutor’s argument addressed

why, based upon the jury instructions and the evidence, the jury should conclude

that the witness was neither biased nor mistaken in the testimony he gave at trial.

This is permissible argument. Johnson v. State, 858 So. 2d 1274 (Fla. 3d DCA

2003).

      As to the opinions offered by Crime Scene Investigator Formosa, the trial

court properly determined this was permissible lay testimony and not expert

testimony, and that the State was therefore not required to designate Formosa as an

expert witness. 5 This portion of Formosa’s testimony centered on pry marks left


      4.     Did the witness have some interest in how the case should be
             decided?
      5.     Does the witness’s testimony agree with the other testimony
             and other evidence in the case?
3 See, e.g., Jorlett v. State, 766 So. 2d 1226 (Fla. 5th DCA 2000).
4 See, e.g., Valentine v. State, 98 So. 3d 44 (Fla. 2012); Gorby v. State, 630 So. 2d
544 (Fla. 1993).
5 Moreover, Austin did not contend below, or on appeal, that the witness was not

qualified to render an expert opinion on this issue. (Indeed, the witness gave a
pretrial deposition at which the defense questioned him regarding the pry marks
and the tool by which they were likely made.) Rather, the discrete claim is that

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on a drawer which was forced open and from which several items were taken in

the course of the burglary. Investigator Formosa testified that he processed the

scene and inspected the drawer. He observed the pry marks right next to the

locking mechanism of the drawer and testified that they were made with some type

of tool.6   When asked, Formosa testified: “I don’t know what [type of tool] was

used” to pry open the drawer. He also testified, in answer to further questions, that

the marks “were consistent with,” and “could have been” made by a screwdriver.7

This type of testimony, based upon the personal observation and general

experience of such a witness, has long been recognized as permissible lay

testimony. In Peacock v. State, 160 So. 2d 541 (Fla. 1st DCA 1964), the First

District held that the trial court properly permitted a deputy to testify as a lay



the State committed a Richardson violation by failing to designate the witness as
an expert, as provided by Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i),
resulting in procedural prejudice to Austin in preparation for trial. The trial court
did not conduct a Richardson hearing, concluding that no violation had occurred
because the witness did not offer an expert opinion. Based upon our analysis, we
agree. However, even if the trial court’s ruling was erroneous, we find the failure
to conduct a Richardson hearing was harmless beyond a reasonable doubt. See
Schopp v. State, 653 So. 2d 1016 (Fla. 1995).
6 During the processing of the scene, the witness took photographs of the drawer

and the pry marks. Those photographs were admitted into evidence for the jury to
consider.
7 The purported significance is that, when Austin was arrested at a hotel room

several weeks later, police found a screwdriver on his bed. However, the
screwdriver was never tested nor were any comparisons made between the seized
screwdriver and the pry marks on the drawer. No testimony, lay or expert, was
ever elicited that the pry marks were made by the screwdriver later found in
Austin’s possession.

                                         4
witness regarding his visual comparison of a defendant’s automobile tires with

casts of tire prints found near the scene of the crime. In affirming, the court noted:

      One does not have to be specially trained in order to make a visual
      comparison of this character. The subject is one upon which an
      intelligent person with some degree of experience—qualifications
      possessed by the witness—may and should be permitted to testify,
      leaving to the jury, as is its exclusive province, the determination of
      the credence and weight to be given thereto.

Id. at 543. See also Reynolds v. State, 99 So. 3d 459 (Fla. 2012) (citing Peacock

with approval); Floyd v. State, 569 So. 2d 1225 (Fla. 1990) (citing Peacock with

approval); Jones v. State, 440 So. 2d 570 (Fla. 1983) (citing Peacock with approval

and holding trial court properly admitted lay testimony by experienced police

officer that the mark on the “stash house” window sill was made by the recoil of a

high-powered rifle); L.L. v. State, 189 So. 3d 252 (Fla. 3d DCA 2016). We find

no error in the trial court’s admission of this testimony, which was “within the

permissible range of lay observation and ordinary police experience.” Floyd, 569

So. 2d at 1232.

      Affirmed.




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