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Johnson v. State

Florida Court of Appeals, Fifth District

April 7, 2017

RICO JOHNSON, Appellant,


         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.

         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), 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. Emphasizing the thirty-two-day span of time between the crime and the first identification, our sister court concluded that the method used by police to present the voice exemplar to the victim was unduly suggestive. It nevertheless affirmed the conviction because there did not exist a "substantial likelihood of irreparable misidentification." Id. at 181.

         Here, no argument was advanced below or on appeal that the method of identification was unduly suggestive.[1] Rather than suggestiveness, Appellant argues two points, both of which require an analysis of the same section of the evidence code. First, he contends that, because the voice identification was made by police, the after-the-crime verification was unauthorized. Second, he urges that, because the jury could have listened to the DVD recording of the hearing and itself compared the voices, the introduction of the non-expert, opinion testimony of the agents usurped the function of the jury. Appellant places his primary reliance for both arguments on Evans v. State, 177 So.3d 1219, 1229 (Fla. 2015). After careful review of Evans, we conclude that Appellant's reliance on this precedent is misplaced.

         In Evans, a 911 operator received and recorded a brief conversation between two victims and an unidentified assailant during a heated confrontation immediately preceding the murders. To prove that the unidentified assailant was the defendant, the state presented the testimony of a police detective who had compared what she heard on the 911 recording to a later-obtained sample of the defendant's voice retrieved from recorded jail phone calls made by the defendant after his arrest. On appeal, the supreme court concluded that the "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, 177 So.3d at 1224. In its discussion on this point, the Evans court relied heavily on our opinion in Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989). In Ruffin, three police officers who had not witnessed a drug transaction in person, testified that, in their opinions, the man depicted in the video recording of the transaction was indeed the defendant. We held that the lay opinion testimony erroneously "invad[ed] . . . the province of the jury." Ruffin, 549 So.2d at 251; see also Alvarez v. State, 147 So.3d 537, 542-43 (Fla. 4th DCA 2014) (where detective was in no better position to view and interpret poor-quality video, admission of opinion testimony invaded province of jury).

         We begin our analysis of Evans by emphasizing that it is not premised on section 90.901, Florida Statutes, which addresses the requirement of authentication that an item offered into evidence is what its proponent claims. Nor would an authentication argument be successful here. Authentication of a voice by a lay witness requires only a minimal amount of exposure to the unknown by the witness, together with a comparison of a known sample of the voice. See, e.g., United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005) (to be authenticated and thus admissible, voice identification only need rise to level of minimal familiarity); United States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987) (agent who listened to recordings and spoke to defendant several times thereafter could 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 ...

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