       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          ANDREW WILLIAMS,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D19-1504

                             [July 15, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502018CF005193A.

  Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    The defendant appeals his conviction and sentence for attempted first-
degree murder of a liquor store clerk. He argues the trial court erred in:
(1) admitting testimony regarding the shooter’s height as compared to the
defendant; (2) overruling an objection to the prosecutors’ use of
demonstrative aids; and (3) preventing the introduction of the victim’s
sworn statement. He also argues the information was fundamentally
defective. We agree with him on issues one and two and reverse for a new
trial.

   In 2018, law enforcement received a crime stoppers tip naming the
defendant as the shooter at a liquor store incident in 2016. The State
charged the defendant with attempted first-degree murder with a firearm
(premeditated).

   At trial, the victim testified he was working at the liquor store on the
day of the incident. The defendant came into the store and wanted to buy
a half pint of liquor. The victim asked the defendant for identification
because he looked young. The defendant began to argue with the victim
and said he knew the owner. The victim told him he still needed the
identification.

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

      [He] came back in, was still being rude           and disrespectful,
      cussing at me and stuff. And then while          I was checking his
      ID, it--it [sic] says his legal age and stuff.    It looked legit and
      everything. But he was still being rude.           And then he said
      remember my face, you p___y a__ bitch.

(omissions added). The victim refused the defendant service and told him
to “get the hell out of the store.” The defendant left between 4:00 and 6:00
p.m.

    Later that evening, the victim heard the bell attached to the front door,
indicating a customer was entering. A new clerk the victim was training
assisted the customer, and the customer left. The victim heard the bell go
off a second time. When he looked up, he saw an individual walk into the
store with his hands in his jacket and some “skully-type thing on [his]
head. And some glasses.” The lenses of the glasses were black.

   He estimated the individual’s height was between five-five and five-ten.
He explained that where he stood near the cash register was elevated from
the customer by about six inches. He described the individual as “light-
skinned African-American or black person” who had twists or dreadlocks
with a couple little gold clamps on some strands of hair. He could see only
the nose, mouth, lips, and chin of the individual due to the glasses and
hoodie.

      [Victim]: So I was still counting. And I looked up because I
      seen somebody in front of me. Whenever I looked up, that’s
      whenever I seen the gun. I yelled gun, bang, bang -- then I
      started back stepping in towards the office. . . . And I must
      have -- well, I basically back stepped left into the supply room
      area.

      [State]: Were you hit?

      [Victim]: Yeah, I was shot twice.



                                       2
      [State]: Okay. Did you recognize the person that you shot
      that shot you that evening?

      [Victim]: Yes.

      [State]: Was it the same person that you had an argument
      with earlier the day before?

      [Victim]: Yes.

The victim then identified the defendant as the shooter and the customer
who argued with him earlier.

   At the hospital, the victim gave a sworn statement to the police. He
remembered telling officers the shooter had a tattoo, but not where it was
located. He did not remember telling the officers he was only about fifty
percent sure the shooter was the same person he had argued with earlier.

   The defendant attempted to impeach the victim with his prior sworn
statement, but the court advised that if the victim did not recall, the
statement could only be used to refresh his recollection, not impeach him.
After listening to his prior sworn statement, the victim stated that he told
the officer he was above fifty percent sure the defendant was the shooter.
The defendant asked the victim again, but the State objected to the
question as improper impeachment. The trial court sustained the
objection.

   The defendant requested to play the last portion of the victim’s sworn
statement to the jury. Once again, the State objected, and the court
sustained the objection. The victim confirmed he was above fifty percent
sure.

   In May 2018, the police presented a photo lineup to the victim. He
identified photo #2, the defendant, as the shooter. Prior to viewing the
lineup, the victim had not seen the surveillance video in over a year. He
based his lineup identification on his own recollection.

   Another store employee working that night remembered preparing to
close when a man came in and shot the victim. The man wore glasses, a
hooded sweatshirt, and pants. He believed the man was about five-eleven.
The shooter did not say or ask for anything. He just came in and shot the
victim.



                                     3
    The detective assigned to investigate the shooting arrived on scene and
conducted a walkthrough. He noted interior surveillance cameras inside
the store. He was able to obtain video surveillance footage from the store
for the time period the defendant was in the store earlier in the day, as
well as footage when the shooting occurred. Regarding the surveillance
footage showing the shooting, the State questioned the detective about
whether he could estimate the shooter’s height. The detective testified it
is usual for stores to have height markers near entrances. In this instance,
there was no height marker; however, there was a prominent black line on
signage attached to the large glass window adjoining the front door. The
detective used the black line as a height marker and had multiple still
shots from the surveillance videos enlarged. He further testified:

      [State]: Okay. Now, going back to the markers that you
      mentioned, were you able, once watching the video, to then go
      back to certain physical markers and compare that to—to be
      able to make an estimation of the suspect or the shooter’s
      potential height?

      [Detective]: Yes.

      [State]:   And explain how you did that.

      [Detective]: Well, when the subject entered the store, based
      on how the door -- based on how the door is fixated, just to --
      if you’re exiting the store -- say I’m exiting the store, just to
      the right of the glass door there was a -- there was a sign there.
      And the sign had like a black line that you can clearly see. So
      I used that to gauge the height by measuring from that line
      down. And by comparing that to the assailant when he’s
      walking in and out.

      [State]: Okay. And using that estimation, approximately
      what height were you able to determine for the perpetrator of
      this crime?

Defense counsel objected to this testimony based on a lack of foundation
for the detective to testify as an expert. He also objected on the ground
that the detective’s testimony invaded the province of the jury. The trial
court overruled the objections, stating:

      Well, I’m not sure he put a science behind it. What he’s
      testifying to, his investigative process with respect to, for his
      own purposes, obtaining an estimate of a height. He’s not

                                      4
      giving an expert opinion as to what the height was, he’s just
      saying pursuant to my investigation this is what I did to come
      up with a potential height of the perpetrator.

      ...

      I’m just saying, I don’t think he’s giving an expert opinion. I
      think what he’s doing is saying as part of my investigation I
      took these steps to get for my own investigative purposes an
      approximate height of the perpetrator. I think he can do that.

    The detective subsequently testified that he was able to come up with
the assailant’s approximate height by measuring the black line on the sign
the assailant passed coming into the store and noting from the enlarged
still photos from the surveillance video that the top of the assailant’s head
appeared to be the same height as the black line. Regarding the shooter’s
approximate height, the detective testified, “I measured it at roughly sixty-
nine and three-quarters to maybe seventy inches, seventy inches and a
quarter,” which he converted to “[f]ive-nine and three-quarters to about
five-ten and a quarter,” upon prompting by the State. He further testified
that both the defendant and the shooter appeared to be the same height,
using the same black line when comparing the two video footages. To
further document his investigation, the detective placed red arrows on the
photos to demonstrate the top of the head of the shooter and the defendant
at the same height as the black line. The photos were admitted into
evidence.

   When interviewed, the defendant admitted to the altercation with the
victim, but denied returning to the store or shooting the victim. When the
defendant signed his Miranda form, the detective saw that he used his
right hand. The shooter was right-handed. The detective also measured
defendant’s height as five foot eleven inches when interviewed.

    After the defendant became a suspect, the detective queried his name
in the Driver and Vehicle Information Database (“DAVID”). He found a
photo of the defendant the day after the shooting. The photo showed the
defendant’s hairstyle and features around the time of the shooting. It
listed the defendant’s height as five foot eleven.

   During the closing argument, the prosecutor argued that the victim
would be able to identify the shooter, even with a hoodie and glasses. She
then proceeded to put on a hoodie and a pair of sunglasses to demonstrate.
Defense counsel objected arguing the hoodie sweatshirt and glasses were
not the same as in the pictures and went beyond a demonstrative aid. This

                                     5
was more prejudicial than probative. The trial court overruled the
objection and allowed the prosecutor to use the hoodie sweatshirt and
glasses as a demonstrative aid, but gave the following instruction:

      All right. Ladies and gentlemen of the jury, the sweatshirt and
      glasses being utilized at this time by [the prosecutor] in her
      closing argument is not evidence. It’s just a demonstrative aid
      to assist in presenting her argument. But it is not evidence in
      the case.

   The prosecutor then argued:

      Okay. Obviously, we never collected the actual evidence that
      was used. But I do this to show you that on a piece of paper
      with skin color, and background images, and pixilation, it
      doesn’t show the same effects as a pair of sunglasses and a
      hood over the hood [sic].

      That’s what [the defendant] put on and went back into the
      store with. That’s all that separated him from earlier in the
      day when he was face to face with that same man. He could
      see everything on the face. He said the nose, the chin, the
      lips, the cheekbones. He was distinct. And he told you that
      as sure as we’re all sitting in this room, he could see that that
      was the same man.

    The State also commented on the detective’s height theory. “The height,
we know that’s [the defendant], and we now know where his height was in
proportion to the door. And we know he is the same height in proportion
to the same spot as the shooter himself later in the day.”

   During deliberations, the jury submitted two questions to the trial
court:

      1. How sure arrow height parallel to ground and same height
      day and night?

      2. When did the victim say shooter had neck tattoo, hospital
      or at liquor?

The court explained that it could not respond because both questions were
factual. The court told the jury to rely on the evidence presented and their
recollection.


                                     6
    The jury convicted the defendant as charged finding that during the
offense the defendant: (1) possessed a firearm; (2) discharged a firearm;
(3) caused the victim great bodily harm in discharging the firearm; and (4)
carried, displayed, used, threatened to or attempted to use a weapon. The
defendant moved for a new trial, judgment of acquittal, and/or arrest of
judgment. Defense counsel argued the trial court erred in overruling his
objection to the prosecutor wearing a sweatshirt and sunglasses in closing.
The trial court denied the motion, but stated:

       Candidly, I had some concerns about the hat and glasses, but
       I based on the instruction I gave, I do not believe that’s
       reversible error, nor do I believe it would require a new trial.
       So I’m going to deny the motion for new trial at this time.

The trial court sentenced the defendant to a thirty-five year minimum
mandatory. The defendant now appeals.

   •   The State’s Demonstrative Evidence

   The defendant argues the trial court erred in overruling his objection to
the prosecutor wearing a dissimilar pair of sunglasses and sweatshirt
during closing to bolster the reliability of the victim’s identification. The
State responds there was no error in the prosecutor’s use of the
demonstrative aid. We agree with the defendant.

   We review the use of a demonstrative aid at trial for an abuse of
discretion. Lowe v. State, 259 So. 3d 23, 39 (Fla. 2018), cert. denied sub
nom., Lowe v. Florida, 139 S. Ct. 2717 (2019).

   We have explained:

       Demonstrative evidence is admissible only when it is relevant
       to the issues in the case. . . . [I]t is essential, in every case
       where demonstrative evidence is offered, that the object or
       thing offered for the jury to see be first shown to be the object
       in issue and that it is in substantially the same condition
       as at the pertinent time, or that it is such a reasonably
       exact reproduction or replica of the object involved that
       when viewed by the jury it causes them to see
       substantially the same object as the original.

Walker v. State, 82 So. 3d 115, 117 (Fla. 4th DCA 2011) (alteration in
original; emphasis added) (quoting Chamberlain v. State, 881 So. 2d 1087,
1102 (Fla. 2004)).

                                      7
   The State argued in closing:

       But [the victim] told you they were the same person. And he
       was there. And so when we start looking at videos, and we
       start taking clips and screen shots, and print them out on
       paper, and pass them around to you as the jury, keep in mind
       that that is not the same effect as being in person and face to
       face with an individual like [the victim] was.

The prosecutor then briefly put on a pair of sunglasses and a hoodie
sweatshirt to give the jury an understanding, in person and up close, of
the victim’s view of the shooter.

   The defendant claims the prosecutor failed to prove similarity between
the demonstrative sunglasses and hoodie sweatshirt and those used
during the crime. The record reveals the prosecutor admitted the hoodie
and sunglasses were not the same, nor similar. Prior to allowing the
prosecutor to continue with its closing, the trial court instructed the jury
the demonstrative aids were not evidence, and that they were not the same
as those used in the crime.

    Here, the sunglasses and hoodie sweatshirt were admittedly dissimilar
to those worn by the shooter. They were also worn by a female prosecutor
when the shooter was a male, and there is nothing in the record to show
any similarity between body, facial, or hair similarities to know whether
the hoodie and glasses fit the prosecutor’s body frame to be substantially
similar as to how they may have appeared to the victim. They therefore
could not provide the jury with a relevant comparison and instead only
served to mislead the jury. They did not set the circumstances of the
shooting nor mimic what the victim experienced. This causes us the same
concern the trial court originally had.

   The trial court correctly instructed the jury in an attempt to ameliorate
the harm. But it did not alleviate the prejudice created by the prosecutor’s
use of these dissimilar demonstrative aids. Identification was the key
issue in this case. By permitting the prosecutor to use dissimilar
demonstrative aids, it ran the risk of misleading the jury without providing
any probative value. For this reason, we reverse and remand the case for
a new trial.

   •   The Detective’s “Height” Testimony



                                     8
   The defendant next argues the trial court erred in overruling his
objection to the detective’s testimony about the shooter’s estimated height.
He contends that the detective’s process of discerning the size of the
objects in the photograph and/or surveillance video is a science called
“photogrammetry,” 1 which requires expertise and precise methodology to
be reliable. He alternatively argues, to the extent this opinion did not
require expertise, the trial court erred in overruling his objection because
the testimony invaded the province of the jury.

    The State responds the detective’s height testimony was fact-based and
derived from his investigation of the crime scene and surveillance video.
It was not expert testimony. It did not invade the province of the jury; and
in any event, it was harmless beyond a reasonable doubt.

    We agree with the defendant that the detective’s testimony regarding
the comparison of height between the defendant and the assailant was
opinion testimony. We agree that the detective could not qualify as an
expert or give expert opinion on the height based upon the photographs.
It appears that the trial court admitted it as lay opinion testimony by a law
enforcement officer based on his experience. We agree that the detective’s
testimony could not qualify as admissible lay witness opinion and was
improper. We also agree that the admission of the opinion was not
harmless error.

   The admissibility of evidence is reviewed under an abuse of discretion
standard; however, discretion is limited by the rules of evidence. Jones v.
State, 95 So. 3d 426, 429 (Fla. 4th DCA 2012).

   At trial, the detective gave his opinion that the shooter was a certain
height and that the defendant and the shooter were the same height. It
appears the detective arrived at his opinion of the heights of the shooter
and the defendant were the same by going to the crime scene and
measuring the height of the black line on a sign posted on one of the doors,
watching both surveillance videos, getting still images of the shooter and
the defendant from the videos and applying red arrows to them, and
obtaining the height of the defendant from two sources.




1Photogrammetry is defined as “the science of making reliable measurements by
the use of photographs and especially aerial photographs (as in surveying).”
Photogrammetry,    MERRIAM-WEBSTER       DICTIONARY,    https://www.merriam-
webster.com/dictionary/photogrammetry (last visited Apr. 29, 2020).


                                     9
   The defendant contends that the detective’s opinions fall in the realm
of the science of photogrammetry. Citing a legal periodical article, the
defendant explains in the initial brief that “proper photogrammetry
requires ‘some initial camera math information in order for the final output
to be reliable,’ along with calculations based on geometry, physics, and
‘photogrammetric triangulation.’” Lee DeChant, How Photogrammetry
Expert Can Help You Win Your Case, 14-MAY NEV. LAW. 19, 19 (2006). It
is clear from the testimony that the detective made no calculations.
Instead, he made one measurement using a tape measure and testified to
the defendant’s height based upon what appears to be an extrapolation
from that measurement. If the detective’s opinions were the result of a
calculation or extrapolation from data, we agree the detective’s opinions
would fall in the realm of expert testimony which he was unqualified to
give.

   The trial court, however, did not view the testimony as expert opinion.
Because the trial court overruled the objection that the testimony invaded
the province of the jury, we address the issue of whether the detective’s
testimony supports his height opinions as admissible lay witness opinion.

   “Generally, a lay witness may not testify in terms of an inference or
opinion, because it usurps the function of the jury.” Jones v. State, 95 So.
3d 426, 429 (Fla. 4th DCA 2012) (citing Floyd v. State, 569 So. 2d 1225,
1231–32 (Fla. 1990)). However, section 90.701, Florida Statutes (2019),
provides an exception to the general rule.

      If a witness is not testifying as an expert, the witness’s
      testimony about what he or she perceived may be in the form
      of inference and opinion when:

      (1) The witness cannot readily, and with equal accuracy and
      adequacy, communicate what he or she has perceived to the
      trier of fact without testifying in terms of inferences or
      opinions and the witness’s use of inferences or opinions will
      not mislead the trier of fact to the prejudice of the objecting
      party; and

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

§ 90.701, Fla. Stat. (2019).

   The first sentence of section 90.701 makes clear that “[o]pinion
testimony of a lay witness is only permitted if it is based on what the

                                    10
witness has personally perceived.” Id.; Alvarez v. State, 147 So. 3d 537,
542 (Fla. 1st DCA 2014) (quoting Fino v. Nodine, 646 So. 2d 746, 748 (Fla.
4th DCA 1994)). Moreover, “the lay witness’s testimony must be grounded
in reliability and personal perception rather than speculation.” Lewek v.
State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997). The statute has been
interpreted to mean that “[l]ay witness opinion testimony is admissible if
it is within the ken of an intelligent person with a degree of experience.”
Floyd, 569 So. 2d at 1232 (citing Peacock v. State, 160 So. 2d 541, 542–
43 (Fla. 1st DCA 1964)).

   Section 90.701 establishes two predicates for the admission of lay
witness opinion: (1) the opinion or inference is needed because the witness
cannot “with equal accuracy and adequacy, communicate what he or she
has perceived to the trier of fact,” provided that “the witness’s use of
inferences or opinions will not mislead the trier of fact to the prejudice of
the objecting party;” and (2) “[t]he opinions and inferences do not require
a special knowledge, skill, experience, or training.” § 90.701(1), (2), Fla.
Stat.

    We have addressed the testimony of law enforcement witnesses offering
lay opinions based on their review of surveillance videos in two relatively
recent cases. In Alvarez, we addressed whether a law enforcement officer
may offer his opinion of the skin color and race of the perpetrators depicted
on a video admitted into evidence. 147 So. 3d at 542. There, we noted
that “[e]ven non-eyewitnesses may testify as to the identification of persons
depicted or heard on a recording so long as it is clear the witness is in a
better position than the jurors to make those determinations.” Id. Quoting
Ruffin v. State, 549 So. 2d 250 (Fla. 5th DCA 1989), and relying our opinion
in Charles v. State, 79 So. 3d 233 (Fla. 4th DCA 2012), we said: “However,
‘[w]hen factual determinations are within the realm of an ordinary juror’s
knowledge and experience, such determinations and the conclusions to be
drawn therefrom must be made by the jury.’” Id. (quoting Ruffin, 549 So.
2d at 251). Because there was no record evidence to indicate that the
detective was in a better position than the jurors to view the surveillance
video and enlarged stills to determine the skin color and races of the
perpetrators, we concluded the admission of the officer’s opinion was error
and reversed for a new trial. Id. at 543, 544.

   In Charles, we reversed after concluding the trial court erred in
admitting a detective’s opinion that the person shown in a surveillance
video at the time of the crime was the defendant. 79 So. 3d at 234.
Because the detective was not an eyewitness to the crime, had no special
familiarity with the defendant, and was not otherwise qualified as an
expert in video identification, we concluded that the detective’s opinion

                                     11
invaded the province of the jury to draw its own conclusion about whether
the defendant was the person depicted in the video. Id. at 235.

    Our supreme court has stated that to the extent the Florida Evidence
Code is patterned after the Federal Evidence Code, “we should construe
the former in accordance with federal court decisions interpreting the
latter.” Moore v. State, 452 So. 2d 559, 562 (Fla. 1984); see, e.g., Hightower
v. Bigoney, 156 So. 2d 501 (Fla. 1963); Bank of N.Y. v. Calloway, 157 So.
3d 1064, 1071 n.3 (Fla. 4th DCA 2015) (“Where, as here, a Florida
evidentiary rule is patterned after its federal counterpart, ‘federal cases
interpreting comparable provisions are persuasive and routinely looked to
for interpretive guidance.’”). In Johnson v. State, 254 So. 3d 617 (Fla. 1st
DCA 2018), the First District recently relied on federal precedent as
persuasive authority on the admission of lay opinion related to law
enforcement experience. There, the issue was an officer’s opinion about
the capability of a law enforcement canine. Id. at 619. The First District
relied in part on the case of United States v. Spencer, 873 F.3d 1, 14-15
(1st Cir. 2017), where the First Circuit wrote:

      We have explained further that the touchstone for the
      admissibility under Rule 701 of such lay-opinion testimony is
      whether the testimony has the “potential to help the jury.”
      United States v. Albertelli, 687 F.3d 439, 447 (1st Cir. 2012).

      Under this standard, we have deemed testimony inadmissible
      “when the jury can readily draw the necessary inferences and
      conclusions without the aid of the opinion.” United States v.
      Etienne, 772 F.3d 907, 919 (1st Cir. 2014) (emphasis in
      original) (citations omitted). We have also explained that
      helpful testimony is typically “based on the lay expertise a
      witness personally acquires through experience, often on
      the job.” United States v. Vega, 813 F.3d 386, 394 (1st Cir.
      2016) (quoting United States v. Maher, 454 F.3d 13, 24 (1st
      Cir. 2006) ); see also United States v. Ayala–Pizarro, 407 F.3d
      25, 28–29 (1st Cir. 2005). And, we have noted that “a police
      officer noticing patterns of behavior across criminal
      operations uses straightforward logic to conclude a
      defendant’s behavior fits within that pattern and thus,
      does not need to be qualified as an expert.” Vega, 813 F.3d
      at 394.

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



                                     12
   In the instant case, the detective properly testified that he observed the
two video footages and noticed that the defendant and the shooter passed
by the same black line on the window near the entrance door. He properly
testified that he measured the height of the black line from the floor, but
he never directly testified what the measurement was. He also properly
testified about his reasons for blowing up still images from the video
footages as part of his investigation. However, his opinions of his
perceptions that the shooter was five feet ten inches tall and that the
photos show that the defendant and the shooter were the same height were
not based on being an eyewitness, having prior knowledge of the
defendant, or using some knowledge or skill developed from on the job
training. Without being an eyewitness, having prior knowledge of the
defendant, or having some practical on the job experience that a juror may
not be familiar with, the detective was in no better position to estimate or
compare heights from the photographs than the jury. Putting the arrows
on the still photos did not cloak the opinions with admissibility as lay
opinions and was misleading because there was no evidence as to the
distances between the defendant, the shooter, and the black line at the
time the images were captured. In other words, there were factors needed
to extrapolate from the blown-up images to correctly estimate height
measurements. The detective did not have the training or experience to
testify about those factors. It is significant that the arrows were not helpful
because the jury asked the question during deliberations: “How sure arrow
height parallel to ground and same height day and night?” Thus, we
conclude the detective’s opinions invaded the province of the jury and were
misleading. The trial court erred in admitting the detective’s lay opinions
regarding height.

    Similar to Alvarez and Charles, we conclude the error was not
harmless. As we said in Charles, “‘error in admitting improper testimony
may be exacerbated where the testimony comes from a police officer.’
There is the danger that jurors will defer to what they perceive to be an
officer’s special training and access to background information not
presented during trial.” 79 So. 3d 235. The State relied on the detective’s
opinions in closing argument, and again, a question by the jury
demonstrates it considered the detective’s lay opinions.

   Having concluded that the trial court erred in allowing the prosecutor
to use dissimilar demonstrative aids during closing argument and
admitting improper lay opinions by the lead detective, we reverse and
remand the case for a new trial.

   Reversed and remanded for a new trial.


                                      13
WARNER and CONNER, JJ., concur.
MAY, J., concurs in part and dissents in part with opinion.

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

    I agree with the majority’s decision to reverse and remand for a new
trial based on the prosecutor’s improper use of dissimilar demonstrative
aids. I disagree however that the detective’s testimony did not qualify as
permissible lay opinion evidence and that it invaded the province of the
jury. I would affirm on this issue.

   Here, the detective personally reviewed the surveillance videos and
observed the defendant and shooter enter the crime scene through the
same door. In doing so, they both passed by a sign near the door that
contained a distinct black line at the top. The detective then went to the
crime scene and measured the height of the black line from the floor. He
compared the height of this black line to still shots of the defendant and
the shooter. He opined their height was the same. He also verified the
defendant’s height from the DAVID printout.

   The detective’s testimony fell within the permissible bounds of section
90.701, Florida Statutes (2019). Indeed, the majority agrees the detective
could testify about: his observation of the two videos; that the defendant
and shooter passed by the same black line near the entrance door; the
exact measurement of the distance between the black line and the floor;
and why he blew up the still images. But the majority stops short of
permitting the detective’s height testimony and holds the detective could
not estimate the shooter and defendant’s height were the same and were
approximately five feet ten inches.

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

      (1) The witness cannot readily, and with equal accuracy and
      adequacy, communicate what he or she has perceived to the
      trier of fact without testifying in terms of inferences or
      opinions and the witness’s use of inferences or opinions will
      not mislead the trier of fact to the prejudice of the objecting
      party; and

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

§ 90.701, Fla. Stat. (2019).


                                    14
    While the jurors may have been able to view the same video footage and
still photos, they couldn’t tell the defendant’s height without the detective’s
testimony concerning his measurement, and his confirmation of the
defendant’s height from the DAVID printout. 2 The detective’s testimony
simply drew an inference or opinion based on his review of the video, the
stills, and the measurement he took at the crime scene. And as the
majority points out, it took no “special knowledge, skill, experience, or
training” for him to do so. In my view, the detective’s testimony qualified
as permissible lay witness opinion testimony under section 90.701.

   Even if this testimony was considered error, any error was harmless.
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The evidence linked
the defendant to the crime. The victim identified the defendant as the
shooter even though not 100% sure when the detective interviewed him at
the hospital. He chose the defendant’s photo in a lineup. The victim
testified he could see the shooter’s skin color, nose, chin, lips, and
cheekbones and they matched the defendant.

    The surveillance video of the defendant entering the crime scene earlier
in the day and later that night wearing a hoodie sweatshirt and sunglasses
were played for the jury. The side by side still view photos of both
surveillance videos showed the defendant and the shooter were about the
same height. The victim and the other store employee testified that the
shooter was about the defendant’s height, which was five-eleven. And, the
detective confirmed the defendant’s height on the DAVID printout. This
evidence removed any reasonable possibility that the defendant’s
conviction resulted from the challenged testimony. On this issue, I would
affirm.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




2 The defendant also argues that “there are a number of problems with the arrows
drawn by” the detective. But, the defense did not object to the admission of the
exhibits and failed to object to the arrows on the images. The issue is therefore
unpreserved. Orton v. State, 212 So. 3d 377, 378–79 (Fla. 4th DCA 2017)
(“Appellate review is . . . limited to the specific grounds for objection raised at
trial.”).

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