           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                  KEVIN OSORIO,
                                    Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D13-4407

                                  [March 2, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 11017015
CF10A.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

KLINGENSMITH, J.

   Kevin Osorio appeals his convictions for possession of cannabis under
twenty (20) grams, possession of drug paraphernalia, and trafficking in
gamma-butyrolactone (“GBL”).1 We write to address three of the issues
Osorio has raised on appeal.


1   The Legislature has defined the crime of trafficking in GBL as follows:

         Any person who knowingly sells, purchases, manufactures,
         delivers, or brings into this state, or who is knowingly in actual or
         constructive possession of, 1 kilogram or more of gamma-
         butyrolactone (GBL), as described in s. 893.03(1)(d), or any mixture
         containing gamma-butyrolactone (GBL), commits a felony of the
         first degree, which felony shall be known as “trafficking in gamma-
         butyrolactone (GBL)” . . . .

§ 893.135(1)(i)1., Fla. Stat. (2011).
    First, Osorio claims that the trial court erred by ruling that testimony
regarding conversations between Osorio and the State’s confidential
informant, and among detectives and the informant, was inadmissible
hearsay evidence. He argues that because the informant acted as an agent
of the State, the informant’s statements were admissible as statements of
a party-opponent under section 90.803(18)(d), Florida Statutes. Second,
he asserts that the trial court abused its discretion by preventing him from
mentioning during closing argument the State’s decision not to call the
informant as a witness. Third, he contends that the trial court erred when
it declared a testifying forensic chemist to be an expert in the presence of
the jury. We agree with Osorio on these points, and therefore reverse for
a new trial.

   Osorio found himself in possession of a large amount of the prescription
drug Xyrem, a liquid medication used for narcolepsy, after his former
roommate moved out and left the substance in the residence. Not knowing
what the drug was, Osorio contacted a former co-worker to obtain more
information. Osorio put a sample of the liquid into vials supplied by the
co-worker so the co-worker could test it for verification purposes. Osorio
later learned that the liquid was gamma-hydroxybutyric acid, otherwise
known as “GHB,” a chemical derivative of GBL.2

    A few months later, the co-worker agreed to become a confidential
informant after he was taken into custody for trafficking in cocaine. In
exchange for his cooperation, he was told that any assistance he gave to
law enforcement would be presented to the state attorney’s office as a
factor for consideration at the time of his sentencing. It was during the
course of his participation in this substantial assistance program that he
offered Osorio’s name and agreed to help detectives build a case against
him.

   Shortly thereafter, the police recorded a series of phone calls wherein
Osorio and the co-worker arranged a transaction to sell the GBL. When
Osorio arrived at the location designated for the sale, he was arrested and
found with two cell phones, marijuana, a scale, and several vials of GBL
in his vehicle. Before Osorio’s trial, the co-worker was sentenced to
probation due to his substantial assistance to law enforcement, despite
facing up to thirty years in prison and a minimum mandatory sentence for
his charges.



2  Like trafficking in GBL, trafficking in GHB is also a first degree felony.
§ 893.135(1)(h)1., Fla. Stat. (2011). Both GBL and GHB are classified as schedule
I controlled substances. § 893.03(1)(d), Fla. Stat. (2011).
                                       2
   During cross-examination, the trial court refused to allow one of the
detectives to testify as to whether the co-worker told him that he had
received a vial of liquid from Osorio in order to identify the substance.
When Osorio testified, the trial court prevented him from recounting
conversations with the co-worker, which included the co-worker’s
statements about what to do with the vials he gave to Osorio, and details
concerning the potential drug transaction.

    During closing argument, when Osorio’s counsel tried to make a point
about the State’s decision not to call the informant as a witness in the
trial, the trial judge held a sidebar conference sua sponte, and the
following exchange ensued:

         THE COURT: Let me go through a couple of issues. Counsel
         should not be commenting on the other side’s not bringing
         witnesses in who are available to both sides. Haliburton.[3]

         [DEFENSE COUNSEL]: In dealing with entrapment, I
         shouldn’t be interrupted in this fashion, particularly where
         there was no objection on behalf of the State. This is very
         prejudicial to my client.

         THE COURT: The Court has an obligation at any time during
         anyone’s closing, if it feels the defense could have called the
         CI also, and that’s why I called you sidebar. Okay? And that’s
         why I am noting for the record it is improper. Whether they
         called him or not, you could have called him. He was sitting
         out there.

         [DEFENSE COUNSEL]: He wasn’t a listed defense witness.

         [PROSECUTOR]: Judge, the only thing I was going to point
         out, there was no evidence put on that he was sitting out in
         the hall and I would certainly object to that evidence --

         ....

         THE COURT: . . . As to him being out there, and being called,
         it’s improper and I’d like you to move on and I’ll note your
         objection for the record.




3   Haliburton v. State, 561 So. 2d 248 (Fla. 1990).
                                          3
   The trial court did not strike the comments regarding the State’s choice
not to call the co-worker as a witness, and did not give a curative
instruction to the jury regarding these comments. Osorio was ultimately
convicted of trafficking in GBL, possession of marijuana under twenty (20)
grams, and possession of drug paraphernalia. This appeal followed.

   1. Admissibility of Confidential Informant’s Statements

   In general, rulings on the admission or exclusion of evidence are
reviewed for an abuse of discretion, “limited by the rules of evidence.”
Lucas v. State, 67 So. 3d 332, 335 (Fla. 4th DCA 2011) (quoting
Tengbergen v. State, 9 So. 3d 729, 736 (Fla. 4th DCA 2009)). “[W]hether
evidence falls within the statutory definition of hearsay is a matter of law,
subject to de novo review.” Id. (alteration in original) (quoting Burkey v.
State, 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006).

   As Judge Learned Hand once wrote, “Courts have countenanced the
use of informers from time immemorial; in cases of conspiracy, or in other
cases when the crime consists of preparing for another crime, it is usually
necessary to rely upon them or upon accomplices because the criminals
will almost certainly proceed covertly.” United States v. Dennis, 183 F.2d
201, 224 (2d Cir. 1950). This case provides an opportunity to explain the
relationship that exists between the State and those informants acting
under substantial cooperation agreements.

   Under section 914.28(2):

         (a) “Confidential informant” means a person who
      cooperates with a law enforcement agency confidentially in
      order to protect the person or the agency’s intelligence
      gathering or investigative efforts and:
         1. Seeks to avoid arrest or prosecution for a crime, or
      mitigate punishment for a crime in which a sentence will be
      or has been imposed; and
         2. Is able, by reason of his or her familiarity or close
      association with suspected criminals, to:
         a. Make a controlled buy or controlled sale of contraband,
      controlled substances, or other items that are material to a
      criminal investigation;
         b. Supply regular or constant information about
      suspected or actual criminal activities to a law enforcement
      agency; or



                                     4
          c. Otherwise provide information important to ongoing
      criminal intelligence gathering or criminal investigative
      efforts.

§ 914.28(2)(a), Fla. Stat. (2011).

    Generally, an agent is one who consents to act on behalf of some
person, with that person’s acknowledgment, and is subject to that person’s
control. Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5 (Fla. 1990)
(“Essential to the existence of an actual agency relationship is
(1) acknowledgment by the principal that the agent will act for him, (2) the
agent’s acceptance of the undertaking, and (3) control by the principal over
the actions of the agent.”). When determining whether private citizen
confidential informants have acted in a manner that makes them agents
of the government, the court must apply a similar test when asking
“whether [the informant], in light of all the circumstances of the case, must
be regarded as having acted as an ‘instrument’ or agent of the state . . . .”
Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). This includes
examining the purpose of the conduct in which the actor engaged.

    Under certain situations, informants can be considered agents of the
State, especially when acting in accordance with agreements made with
authorities. See Davis v. State, 928 So. 2d 1089, 1125 (Fla. 2005) (holding
that defendant failed to establish jailhouse informant was acting as agent
of the State where informant did not testify at trial, and there was
conflicting testimony as to whether informant was negotiating a deal with
the State). In other words, “[t]he government must be involved either
directly as a participant or indirectly as an encourager of the private
citizen’s actions before we deem the citizen to be an instrument of the
state.” Treadway v. State, 534 So. 2d 825, 827 (Fla. 4th DCA 1988)
(quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981)). The
Second District has held:

          The test for determining whether private individuals are
      agents of the government is whether, in consideration of the
      circumstances, the individuals acted as instruments of the
      state. To determine whether a private individual acts as an
      instrument of the state, courts look to (1) whether the
      government was aware of and acquiesced in the conduct; and
      (2) whether the individual intended to assist the police or
      further his own ends.

State v. Iaccarino, 767 So. 2d 470, 475 (Fla. 2d DCA 2000) (citations
omitted); see also Dufour v. State, 495 So. 2d 154, 159 (Fla. 1986) (holding

                                     5
that inmate was not a State agent where the inmate “approached the
authorities on his own initiative,” and, after speaking with authorities, the
inmate “was neither encouraged nor discouraged from obtaining further
information”).

   Here, the police encouraged the co-worker’s involvement in the
investigation, which involved setting up a controlled buy with Osorio as a
target offender.4 He agreed to arrange a drug purchase from Osorio in
hopes of securing a favorable report from detectives and obtaining
substantial assistance credit in his prosecution for cocaine trafficking. In
so doing, he was working under the supervision and direction of the
detectives working the case.

   The co-worker’s statements to both Osorio and the detectives were
made in furtherance of that objective. He engaged in these interactions
with Osorio at the behest of the detectives with the hope of obtaining a
possible future benefit. State v. Moninger, 957 So. 2d 2, 5 (Fla. 2d DCA
2007) (holding that victim was agent of the State where her actions were
brought about by officer’s suggestions and encouragement, law
enforcement had an interest in obtaining the evidence to support a
criminal prosecution, and nothing suggested that victim, of her own
volition, contemplated obtaining the evidence in order to corroborate the
crime, or for any private purpose).

    A confidential informant working under the supervision and direction
of an investigating law enforcement agency is an agent of the State;
therefore, we agree with Osorio that the co-worker acted on behalf of the
State and within the scope of his agency. As such, the hearsay exception
provided by section 90.803(18) applies to the co-worker’s out-of-court
statements, which under the evidence code are not inadmissible if they are
offered against a party and are: “[t]he party’s own statement[s] in either
an individual or a representative capacity,” or “statement[s] by the party’s
agent or servant concerning a matter within the scope of the agency or
employment thereof, made during the existence of the relationship.”
§ 90.803(18)(a), (d), Fla. Stat. (2011). The court’s evidentiary ruling denied
Osorio the ability to have these statements presented to the jury, thereby
unduly restricting him in the pursuit of his entrapment defense. This was
error. See Garland v. State, 834 So. 2d 265, 266-67 (Fla. 4th DCA 2002)
(recognizing that in a criminal case, the state was a party-opponent of the
defendant).


4 “‘Target offender’ means the person suspected by law enforcement personnel to
be implicated in criminal acts by the activities of a confidential informant.”
§ 914.28(2)(e), Fla. Stat. (2011).
                                      6
   2. Defense’s Comment on the State’s Failure to Call the Confidential
      Informant as a Witness

   The trial court also erred by prohibiting defense counsel from
commenting on the State’s failure to call the co-worker as a witness. The
witness’s identity and his role as an informant were known to both the
State and the defense before trial. While the trial court properly focused
on whether the co-worker was available to both parties in deciding whether
to allow the defense to comment on the State’s decision not to call him,
Haliburton, 561 So. 2d at 250 (stating that when “witnesses are equally
available to both parties, no inference should be drawn or comments made
on the failure of either party to call the witness.” (quoting State v. Michaels,
454 So. 2d 560, 562 (Fla. 1984))), under the circumstances in this case
the trial court improperly concluded that the informant was equally
available to both parties.

    We have previously stated that “it is permissible in argument to
comment on a party’s failure to call a witness where it is shown ‘that the
witness is peculiarly within the party’s power to produce and the testimony
of the witness would elucidate the transaction.’” Jean–Marie v. State, 993
So. 2d 1160, 1161 (Fla. 4th DCA 2008) (quoting Haliburton, 561 So. 2d at
250). A witness is “peculiarly within the party’s power to produce” when
“the witness was an informer associated with the government in developing
the case against the defendant and there was no indication at trial of any
break in the association.” Datilus v. State, 128 So. 3d 122, 125 (Fla. 4th
DCA 2013) (quoting Martinez v. State, 478 So. 2d 871, 872 (Fla. 3d DCA
1985)). By virtue of his status as an agent of the State, the State had the
ability to produce the co-worker as a witness for trial, thus making him
peculiarly within the State’s control and susceptible to comment by
defense counsel when not called to testify for the prosecution. See Terry
v. State, 668 So. 2d 954, 963-64 (Fla. 1996) (finding no indication from the
record that the informant “was not equally accessible to both parties,” and
noting that the defense called the informant to testify, thereby
undermining the argument that the informant was “‘peculiarly within the
[state’s] power to produce’ and that his testimony would have ‘elucidate[d]
the transaction’” (alteration in original)); see also Molina v. State, 71 So. 3d
234, 237 (Fla. 2d DCA 2011) (holding that where the confidential
informant was “peculiarly within the State’s power to produce” and their
testimony would have further “explain[ed] the transaction for which [the
defendant] was being charged,” the defense should not have been
prevented from commenting on “the State’s failure to call the [confidential
informant] as a witness”).



                                       7
    Because the co-worker directly connected law enforcement to Osorio
and facilitated the drug buy, his testimony would have served to elucidate
the transaction. See Harris v. State, 636 So. 2d 137, 137 (Fla. 3d DCA
1994) (affirming trial court’s decision to prohibit comment on State’s
failure to call confidential informant where, despite the fact that informant
was within the State’s “power to produce,” their “testimony would not have
‘elucidate[d] the transaction’” because the informant “had only a minimal
relationship with the case at all and none whatsoever with the defendant
himself” (alteration in original)).

   3. Trial Court’s Declaration that Witness Qualified as an Expert

   Finally, we address the trial court’s declaration to the jury that the
State’s testifying forensic chemist was “an expert in the field, and [could]
give opinion testimony, and hypotheticals in the field of being a forensic
chemist.” In Tengbergen, we explained that the suggested procedure is for
a trial court to refrain from openly declaring that a witness is an expert:

          While Tengbergen contends that the court erred by not
      “qualifying” McNevin as an expert, the trial court determined
      that the requirements for the introduction of expert testimony
      were met when it overruled the defense objection that McNevin
      was not qualified as an expert. Although the court did not
      explicitly state to the jury that it found the witness qualified
      as an expert, the court reasonably followed the suggestion of
      this court that a court should refrain from telling the jury that
      the witness’s testimony is being admitted as “expert
      testimony,” because that may be tantamount to the court
      commenting on the credibility of a witness. See Alexander v.
      State, 931 So. 2d 946, 951 (Fla. 4th DCA 2006) (“the better
      procedure would have been to permit the witness to testify
      without reference to his or her status as an expert”). See also
      Chambliss v. White Motor Corp., 481 So. 2d 6, 8 (Fla. 1st DCA
      1985) (“[I]t is not necessary for the court to state that the
      witness is qualified as an expert. In fact, it is questionable
      whether it is proper procedure for a court to expressly declare
      a witness an ‘expert’ because the jury may infer from such
      declaration that the court is placing its approval on the
      opinions of the witness.”). The court appropriately ruled, and
      it committed no error.

9 So. 3d at 737 (emphasis added).



                                     8
    Many courts from other jurisdictions have similarly concluded that
such practices are disfavored. See, e.g., United States v. Johnson, 488 F.3d
690, 697-98 (6th Cir. 2007) (noting its disapproval of the tender/
acceptance process); United States v. Bartley, 855 F.2d 547, 552 (8th Cir.
1988) (stating that “[a]though it is for the court to determine whether a
witness is qualified to testify as an expert, there is no requirement that the
court specifically make that finding in open court upon proffer of the
offering party. Such an offer and finding by the Court might influence the
jury in its evaluation of the expert and the better procedure is to avoid an
acknowledgment of the witnesses’ expertise by the Court”); Luttrell v.
Commonwealth, 952 S.W.2d 216, 218 (Ky. 1997) (stating that “[g]reat care
should be exercised by a trial judge when the determination has been
made that a witness is an expert. If the jury is so informed such a
conclusion obviously enhances the credibility of that witness in the eyes
of the jury. All such rulings should be made outside the hearing of the
jury and there should be no declaration that the witness is an expert”);
State v. McKinney, 917 P.2d 1214, 1232-33 (Ariz. 1996) (remarking that
“[b]y submitting the witness as an expert in the presence of the jury,
counsel may make it appear that he or she is seeking the judge’s
endorsement that the witness is to be considered an expert. . . . In our
view, the trial judge should discourage procedures that may make it
appear that the court endorses the expert status of the witness. The
strategic value of the process is quite apparent but entirely improper.”).

    When a court declares that a witness is an “expert” in his or her field,
it confers an imprimatur of authority and credibility, thereby inordinately
augmenting the witness’s stature while simultaneously detracting from the
court’s position of neutrality. See § 90.106, Fla. Stat. (2011) (“A judge may
not sum up the evidence or comment to the jury upon the weight of the
evidence, the credibility of the witnesses, or the guilt of the accused.”
(emphasis added)); see also Tengbergen, 9 So. 3d at 737 (noting that a trial
court should not characterize witness testimony as expert testimony
because it effects the witness’ credibility in the eyes of the jury); Jacques
v. State, 883 So. 2d 902, 905 (Fla. 4th DCA 2004) (stating that “[w]hile a
judge may take some initiative to clear up uncertainties in the issues in a
case, it is error for the judge to make any remark in front of the jury that
might be interpreted as conveying the judge’s view of the case or an opinion
on the weight, character, or credibility of the evidence”); Whitaker v. State,
742 So. 2d 530, 530 (Fla. 1st DCA 1999) (holding that “the trial court’s
sua sponte declaration that [the witness] qualified as an expert witness
constituted an improper comment on the credibility of the witness”);
Fogelman v. State, 648 So. 2d 214, 219 (Fla. 4th DCA 1994) (“While a trial
court has great latitude in controlling the proceedings and witnesses in
the courtroom, the trial court must exercise great care in not intimating to

                                      9
the jury the court’s own opinion as to the weight, character or credibility
of a witness.”).

   The problem associated with this “tender and accept” process has been
specifically identified in the advisory committee notes to Federal Rule of
Evidence 702, which establishes when a qualified expert may testify as
such in the federal courts. The committee stated:

      The use of the term “expert” in the Rule does not, however,
      mean that a jury should actually be informed that a qualified
      witness is testifying as an “expert.” Indeed, there is much to
      be said for a practice that prohibits the use of the term
      “expert” by both the parties and the court at trial. Such a
      practice “ensures that trial courts do not inadvertently put their
      stamp of authority” on a witness’s opinion, and protects
      against the jury’s being “overwhelmed by the so-called
      ‘experts.’” Hon. Charles Richey, Proposals to Eliminate the
      Prejudicial Effect of the Use of the Word “Expert” Under the
      Federal Rules of Evidence in Criminal and Civil Jury Trials, 154
      F.R.D. 537, 559 (1994) (setting forth limiting instructions and
      a standing order employed to prohibit the use of the term
      “expert” in jury trials).

Fed. R. Evid. 702 advisory committee’s note to 2000 amendment
(emphasis added).

   The American Bar Association has also frowned upon the “tender and
accept” process before the jury, opining that “[t]he court should not, in the
presence of the jury, declare that a witness is qualified as an expert or to
render an expert opinion, and counsel should not ask the court to do so.”
Trial Evidence in the Federal Courts: Problems and Solutions, SN063 ALI-
ABA 839, 878 (Feb. 28-29, 2008). The commentary accompanying this
provision on expert testimony states:

          It is not uncommon for a proponent of expert testimony to
      tender an expert witness to the court, following a recitation of
      the witness’s credentials and before eliciting an opinion, in an
      effort to secure a ruling that the witness is “qualified” as an
      expert in a particular field. The tactical purpose, from the
      proponent’s perspective, is to obtain a seeming judicial
      endorsement of the testimony to follow. It is inappropriate for
      counsel to place the court in that position.



                                     10
Id. (emphasis added).5

    While this court and others have repeated the recommendation that
trial courts ought to refrain from directly declaring the expert status of a
witness in front of the jury, we recognize this has been interpreted by some
as merely a suggestion of judicial practice, and not a hard-and-fast rule.
Tengbergen, 9 So. 3d at 737; see also Alexander, 931 So. 2d at 951. Today
we clarify that such practice is impermissible. Judges must not use their
position of authority to establish or bolster the credibility of certain trial
witnesses.

   The State has not shown that the errors discussed above were harmless
because, as the beneficiary of the errors, it cannot “prove beyond a
reasonable doubt that the error[s] complained of did not contribute to the
verdict or, alternatively stated, that there is no reasonable possibility that
the error contributed to the conviction.” Farrell v. State, No. 4D13-2589,
2015 WL 2214148, at *4 (Fla. 4th DCA May 13, 2015) (quoting State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)).

    Accordingly, we reverse this case for new trial.

    Reversed and Remanded for New Trial.

GROSS and GERBER, JJ., concur.

                             *         *         *

    Not final until disposition of timely filed motion for rehearing.




5 Trial Evidence in the Federal Courts: Problems and Solutions was prepared by
the American Law Institute and later adopted and reprinted by the ABA. SN063
ALI-ABA, at 842. Although it includes the disclaimer that “[t]he accompanying
commentary has not been adopted by the ABA House of Delegates and, as such,
should not be construed as representing the policy of the Association,” id., the
comments are nonetheless helpful and guide the reader’s understanding and
interpretation of the provisions.
                                      11
