Summary
In State v. Benton, 567 So.2d 1067 (Fla. App. 2 Dist. 1990), the Court concluded that a lay witness may offer his opinion about the identification of another person, and that it is not necessary that the identification witness be an eyewitness to the crime itself.
Summary of this case from State v. PriceOpinion
No. 90-00868.
October 12, 1990.
Petition for review from the Circuit Court, Polk County, Charles A. Davis, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for petitioner.
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Asst. Public Defender, Bartow, for respondent.
The state petitions this court for a writ of certiorari to review an order of the circuit court which would exclude certain identification testimony in the pending felony prosecution of respondent Harry Benton. We grant the petition.
Benton is charged in three separate cases with robbing convenience stores. Photos of the robbery in progress were taken by hidden camera. None of the victims was able to make an independent identification. However, the police apparently received information that Benton had been involved in the robberies. A detective showed the surveillance photos to three persons who had known Benton for a number of years, and all expressed their opinion that the individual in the photos was Benton. The trial court's order bars the state from using the testimony of these three witnesses, but not the photos themselves.
Our recent opinion in State v. Cordia, 564 So.2d 601 (Fla. 2d DCA 1990), is dispositive. A lay witness may offer his opinion about the identification of another person, including identification of a voice, as in Cordia, or from a photo "if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." United States v. Robinson, 804 F.2d 280, 282 (4th Cir. 1986). See also, Hardie v. State, 513 So.2d 791 (Fla. 4th DCA 1987), rev. denied, 520 So.2d 586 (Fla. 1988). It is not necessary that the identification witness be an eyewitness to the crime itself.
Accordingly, we grant the petition for certiorari, quash the circuit court's order granting Benton's motion in limine, and remand this case to the circuit court for further proceedings consistent with this opinion.
Certiorari granted.
SCHOONOVER, C.J., and RYDER and PATTERSON, JJ., concur.