Bailey v. State , 162 So. 3d 344 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed April 1, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-1533
Lower Tribunal No. 06-30750
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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).
3
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.
4
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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