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Bentley v. State

Florida Court of Appeals, Second District

December 18, 2019

TYBREEL LEVONTE BENTLEY II, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for DeSoto County; Don T. Hall, Judge.

          Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.

          VILLANTI, Judge.

         Tybreel Levonte Bentley II appeals his convictions and sentences for two counts of possession of a firearm by a person under age 24 who previously had been found to have committed a delinquent act, [1] raising two issues for review. We reject Bentley's argument concerning the admission of certain photographs without further comment. However, because the trial court erred by allowing the State to present law enforcement testimony identifying Bentley as the person in a surveillance video, we reverse Bentley's convictions and sentences and remand for a new trial.

         On January 12, 2017, a black male with dyed red hair entered the Arcadia Pawn Shop and asked about having repair work done on a firearm that he had with him. After briefly discussing the repairs, the man gave the firearm to one of the pawn shop employees, who made minor repairs to the magazine and then returned the firearm to the man. The man then left the shop with the firearm and without incident. None of the pawn shop employees recalled seeing the man before, and none of them could identify him.

         Shortly thereafter, law enforcement received a tip from an informant that Bentley was in possession of a firearm. Investigation led law enforcement officers to the Arcadia Pawn Shop, where Officer Joens watched a surveillance video of the transaction with the man with the dyed red hair. Based on the contents of the surveillance video and further investigation, officers ultimately arrested Bentley on a charge of possession of a firearm by a person under age 24 who had previously been found to have committed a delinquent act. In connection with that arrest, officers obtained Bentley's cell phone, which was found to contain photographs that appeared to show Bentley in possession of a firearm on several additional dates. Based on these photographs, the State filed additional charges against Bentley.[2]

         At trial, none of the pawn shop employees could identify Bentley as having been the person who brought the firearm into the shop for repair. Hence, the State introduced into evidence the surveillance video from the pawn shop that showed the man with the dyed red hair bringing the firearm into the shop. The State argued at trial that the man shown in the surveillance video was Bentley, and it contended that Bentley's possession of the gun was contrary to the law.

         Not satisfied, however, with simply introducing the surveillance video and allowing the jury to determine whether the man was Bentley, the State also introduced, over Bentley's objection, Officer Joens' testimony that Bentley was the man depicted in the video. Bentley contends in this appeal, as he did in the trial court, that the introduction of this testimony was error. And on the record before us, we are compelled to agree and reverse.

         In general, a witness may testify as to the identification of persons depicted in photographs or on video when the witness is in a better position than the jurors to make that identification. See, e.g., Day v. State, 105 So.3d 1284, 1286-87 (Fla. 2d DCA 2013) (noting that the State may introduce testimony identifying individuals depicted in a video when the video does not provide clear images or when necessary to support other identification evidence that might be subject to challenge); State v. Cordia, 564 So.2d 601, 601-02 (Fla. 2d DCA 1990) (holding that officers' identification of defendant's voice on a recording was admissible when the officers were familiar with the defendant's voice from working with him in the past); Johnson v. State, 93 So.3d 1066, 1069 (Fla. 4th DCA 2012) (holding that there was no error in admitting a detective's identification of the defendant as the individual in a surveillance video when there was evidence that the defendant had changed his appearance by bleaching his skin after the event recorded in the video and that the detective had a personal encounter with the defendant shortly after the event and before he changed his appearance).

         However, when the evidence is such that the witness is in no better position than the jurors to make an identification, the witness's opinion is inadmissible because it invades the province of the jury. See, e.g., Alvarez v. State, 147 So.3d 537, 542 (Fla. 4th DCA 2014) (reversing for a new trial when the State was permitted to ask a detective to identify skin color and race in a video but when there was no evidence that the detective was in any better position than jurors to do so); Proctor v. State, 97 So.3d 313, 315 (Fla. 5th DCA 2012) (finding court erred in allowing officer to identify defendant as the person in a surveillance video when the officer was in no better position than the jury to make that determination); Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989) (finding the court erred in allowing three officers to identify defendant as the man depicted in a videotape when the officers were not eyewitnesses to the crime, did not have familiarity with Ruffin, and were not qualified as experts in identification).

         Here, there is nothing in the record to show that Officer Joens was in a better position than the jurors to determine whether Bentley was the individual shown in the surveillance video. Bentley was in the courtroom, and the State introduced numerous photos of Bentley in various outfits and with various hair colors. The State also admitted Bentley's booking photo, which established how he looked at the time of his arrest shortly after the crime. Therefore, the jurors clearly knew what Bentley looked like, both in court and at the time he was arrested, and they were fully capable of comparing Bentley to the man in the surveillance video to determine whether they were, in fact, the same person.

         In this appeal, the State contends that Bentley's objection was properly overruled because Officer Joens had known Bentley for two years prior to this incident and had a special familiarity with him and so was, in fact, in a better position than the jurors to determine whether the man in the surveillance video was Bentley. However, nothing in the record indicates that there was any need for someone with a special familiarity with the man in the video to identify him. Nothing in the record establishes that the surveillance video was grainy or choppy or otherwise indecipherable. Nothing in the record establishes that there was anything sufficiently unique about Bentley or the man in the surveillance video that would require the State to assist the jury in making the comparison. Hence, the officer's ...


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