       Third District Court of Appeal
                                State of Florida

                             Opinion filed April 1, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-1533
                          Lower Tribunal No. 06-30750
                              ________________


                                 Walter Bailey,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Assistant
Attorney General, for appellee.

       Milbank, Tweed, Hadley & McCloy, LLP, and Dorothy Heyl (New York);
Seth E. Miller and Melissa Montle (Tallahassee), for Innocence Project of Florida,
Inc., as amicus curiae.

Before WELLS, SALTER and LOGUE, JJ.
      SALTER, J.

      Walter Bailey appeals his convictions and sentences for murder, attempted

murder, robbery with a firearm, and burglary. His appeal addresses (a) an order

excluding a defense expert witness on eyewitness identification and (b) claims of

prosecutorial misconduct during the presentation of the State’s case and in closing

argument. We affirm on each of these issues.

      I.    Proceedings in the Circuit Court

      In September 2006, Geneva Nottage was shot and seriously injured in the

apartment of Royston Smith, her boyfriend. During that incident, Smith and his

roommate, Andre Potts, were shot and killed by two men who entered the

apartment. The evidence at trial established that Smith was a drug dealer and that

the men who entered the apartment were looking for drugs and money. Ms.

Nottage was the only surviving victim and eyewitness.

      Three days after the shootings, while Ms. Nottage was in the hospital for

treatment, she told hospital personnel that she did not know the person who shot

her. Later, however, police investigators showed her photographic arrays, six

photos per array, after reading and having her sign a printed form of admonition

specifying (among other things) that the arrays “may or may not contain a picture

of the person who committed the crime now being investigated.”           After not

recognizing any photographs in several arrays, Ms. Nottage identified a photo of



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Bailey in another array as the first person to enter the apartment on the day of the

shootings, and as a person who had visited Smith’s apartment on five or more

occasions before that to buy marijuana. On the photo, she wrote “The one that

took my heart” and put her initials under it.

        At trial, Ms. Nottage identified Bailey on the photo and as present in the

courtroom. She testified that she had looked into his face before she was ordered

to lay face down on the floor of the apartment by Bailey and the other person with

him, that Bailey had been to the apartment on different occasions before the

shootings when he visited Smith on drug transactions, and that she had also seen

Bailey at a gas station at some point before the shootings. She testified that she

also saw Bailey when he came back to the door of the apartment and fired the last

three shots. Ms. Nottage testified unequivocally that Bailey was the man who shot

her.

        Before trial, the defense listed an expert witness on the subject of eyewitness

identification. The witness is an associate professor in legal psychology at Florida

International University. The State moved to exclude the defense expert and

deposed her before the trial court heard evidence on the motion. The proposed

expert had testified in a Florida court on one prior occasion, at a time before the

current standard jury instruction on eyewitness identification became effective.1

1   Fla. Std. Jury Instr. (Crim.) 3.9(c) (2012).


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Following the evidentiary hearing, the trial court denied the motion and entered a

detailed six-page order setting forth the court’s findings and conclusions. The

defense renewed the request to call its expert witness on eyewitness testimony after

the State rested, but the renewed request was also denied.

        Bailey objected to: the State’s use of Ms. Nottage’s handwritten notation,

“The man that stole my heart,” on the back of Bailey’s photograph in the array; the

trial court’s refusal to exclude Bailey’s medical records while incarcerated, and a

prosecutor’s motion to move those records into evidence by identifying them as

“the records from the Department of Corrections as to Walter Bailey from 2006

until the present” (emphasis provided); the form of a prosecution question to a

detective regarding his basis for including Bailey’s photo in the arrays shown to

Ms. Nottage;2 prosecution questions eliciting testimony from the detectives that

Ms. Nottage “was very certain” regarding her identification of Bailey as a shooter

based on the photo array; the trial court’s refusal to grant a proposed defense jury

instruction addressing factors in eyewitness identification (beyond those in the

standard jury instruction); and allegedly improper vouching for the reliability of

the identification by the prosecution in closing arguments. Motions for mistrial

were made on some of these grounds, and on these grounds cumulatively, which

were denied.

2   Bailey’s name was provided through an anonymous tip.


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      The jury returned a verdict of guilty on each of the four charges, Bailey was

sentenced,3 and this appeal ensued.

      II.    Analysis

             A.     Expert Testimony Regarding Eyewitness Identification

      Commentators,4 legislatures,5 and jurists6 have called for various reforms

regarding the procedures used to establish eyewitness identification, and some of

those recommendations have been adopted in Florida. The admissibility of expert

witness testimony regarding the reliability of eyewitness identifications, however,

is governed by the abuse of discretion standard of review. Peterson v. State, 154

So. 3d 275 (Fla. 2014); Simmons v. State, 934 So. 2d 1100 (Fla. 2006). In the

present case, we conclude that the trial court did not abuse its discretion in granting

the State’s motion to exclude the expert witness testimony on eyewitness

identification.

      The trial court’s six-page order, entered after an evidentiary hearing on the

motion and after consideration of the deposition of the proposed defense expert,

3 The jury returned an advisory sentence of life without parole, rather than death, as
to Bailey’s conviction for the murders of Smith and Potts.
4  Florida Innocence Commission, Final Report to the Supreme Court of Florida,
18        (June     25,     2012),     http://www.flcourts.org/publications-reports-
stats/publications/index.stml#innocence (“As eyewitness misidentification is the
leading cause of wrongful convictions, the Commission elected to study this issue
first.”); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions
Go Wrong (2011). Of 250 exonerations/wrongful convictions studied by Professor
Garrett, eyewitnesses had misidentified 76% of the exonerees. Id. at 48; cf.

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correctly applied the law and does not constitute an abuse of discretion. On this

record, Ms. Nottage’s prior observations of Bailey—even though she did not recall

his name—distinguish this case from those in which the testimony of a single

eyewitness who had never before seen or met the defendant was the linchpin of the

prosecution’s case.

        The trial court also found that the standard eyewitness identification jury

instruction approved by the Supreme Court of Florida in 2012 (an instruction

proposed by the Florida Innocence Commission) “will provide guidance to the

jurors and allow counsel to make argument surrounding the identification made in

this case.”

               B.     Prosecutorial Misconduct

        The prosecutors who tried the case below, and the detectives who testified at

trial, were experienced and were surely well aware of the limitations on vouching

for, or bolstering, Ms. Nottage’s testimony.         The lead prosecutor essentially

ignored the trial judge’s ruling, “sustained,” to several, repeated defense objections

during closing argument. The detectives testified that Ms. Nottage’s reaction to
Chelsea Moore, Is Perception Reality?: An Argument Against the Use of Rule 403
for the Exclusion of Eyewitness Identification Expert Testimony, 6 FIU L. Rev.
163 (2010).
5  See, e.g., North Carolina’s Eyewitness Identification Reform Act, N.C. Gen.
Stat. § 15A-211 (2009).
6   Peterson v. State, 154 So. 3d 275, 285 (Fla. 2014) (Pariente, J., concurring).


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Bailey’s photo in the array was an “astounding” identification, that “she was very

certain” about her identification, and that her reaction to Bailey’s photo in the array

was unforgettable. In closing, the lead prosecutor said that a detective “told you

[Ms. Nottage’s] reaction is unforgettable, that she literally screamed and hollered,

and she tried to crawl out of the bed in the hospital.”

      Some of the objections were not preserved, but others were, and several

were followed by motions for a mistrial. The trial court, after careful consideration

of the case law, ultimately denied each of those motions and a renewed motion for

mistrial based on cumulative misconduct. Reviewing the trial record, we conclude

that the trial court did not abuse its discretion in denying the motions.

      The detectives’ testimony regarding Ms. Nottage’s identification of the

photograph approached, but did not quite cross, the line for bolstering; in

particular, neither detective said that Ms. Nottage was “a credible witness” or

words to that effect. Lee v. State, 873 So. 2d 582, 583 (Fla. 3d DCA 2004).

Bailey’s reliance on Fleurimond v. State, 10 So. 3d 1140 (Fla. 3d DCA 2009),

regarding prosecutorial misconduct in closing arguments, is also misplaced. In

that case, the prosecutor referred to an incident never presented as evidence during

trial and improperly appealed to “the jury’s community sensibilities or civil

conscience.” Id. at 1149.




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      That said, the prosecutor’s apparent disregard for rulings and directives from

the trial judge are conspicuous, even in an otherwise-cold record.         The lead

prosecutor should read and reflect on the trial excerpts and analysis detailed in the

appellant’s briefs in this case.

      Affirmed.




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